76 Neb. 28 | Neb. | 1906
Calista E. Scott died intestate in Lancaster county April 30, 1904. Her heirs were Sarah M. Brown, Matilda E. Harmon and Lucinda Kemble, daughters, A. L. Scott, a son, and W. L. Scott, a grandson. A. L. Scott was a resident of Thayer county. Sarah M.. Brown, Lucinda Kemble and A. L. Scott joined in a petition to the county court of Lancaster county, requesting the appointment of A. L. Scott as. administrator of the estate of their parent. Matilda E. Harmon filed a counter petition, objecting to the appointment of Scott for the sole reason that he was a nonresident of Lancaster county, and re
• In the district court Matilda E. Harmon moved that the case be placed on the docket for the trial of cases without a jury. This motion was sustained. The record discloses that the order of the court was that the case be transferred to the equity docket. - Plaintiffs in error demanded a jury trial, which was denied.
Two questions are presented by the petition in error: First, the absolute right of Scott upon the record to be appointed administrator of his mother’s estate; and, second, the denial of a jury trial in the district court. There is considerable force in the contention of plaintiffs in error that the county court should have appointed Scott administrator of his mother’s estate. The application was timely, and his qualifications were not put in question. The county judge seems to have acted entirely upon the assumption that it would best conserve the interests of the estate to appoint a resident of Lancaster county. That condition alone ought not to deprive the next of kin of the right to administer the estate of their ancestor. There is, however, a degree of discretion vested in the county court in the appointment of administrators, and we find no such abuse of discretion as would justify a reversal in the case at bar.
Coming to the question of a right to a jury trial, our view is that the trial court adopted the proper procedure. The case of Sheedy v. Sheedy, 36 Neb. 373, which it is urged supports the demand of the plaintiffs in error for a jury, iu our judgment is not in point. On principle the questions involved in the appointment of an administrator are easily distinguished from those arising out of an allowance to the widow. ' It is true that this proceeding is
We find no reversible error in tbe record, and recommend that tbe judgment of tbe district court be affirmed.
By tbe Court: For tbe reasons stated in the foregoing opinion, tbe judgment of tbe district court is
Affirmed.
Tbe following opinion on motion for rebearing was filed June 8, 1906. Motion overruled:
In the brief upon tbe motion for rehearing it is insisted that tbe statement in tbe opinion that there is “a degree of discretion vested in tbe county court in tbe appointment of administrators” is not applicable to this case. It is undoubtedly true, as stated by tbe supreme court of Wisconsin in Welsh v. Manwaring, 120 Wis. 377, that tbe right of administration is not inherent, but statutory. Tbe statute is mandatory, and must be followed by tbe probate court. Our statute provides that: “Administration of tbe estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to tbe same in tbe following order: First, tbe widow, or next of kin, or both,
The motion for rehearing is
Overruled.