87 Neb. 700 | Neb. | 1910
This is an appeal from the decree of the district court for Saline county on an appeal from the county court of that county in the matter of the final settlement of the accounts of Curtis W. Ribble, as administrator of the estate of James M. Bullion, deceased. The decree being-unsatisfactory to both sides, the administrator appeals, and the heirs at law of James M. Bullion, deceased, prosecute a cross-appeal.
The contentions of the respective parties are set fortli in their briefs, and the record fairly supports the statements made by counsel. Briefly stated the facts are: That James M. Boullion died intestate in Saline county, Nebraska, January 9, 1901, leaving a widow, two sisters and a half brother, but no issue, him surviving. He owned 80 acres of land in fee simple and held school contracts for 240 acres more. He also owned considerable personal property,
January 21, 1901, his widow applied for appointment, as administratrix of his estate. January 28, 1901, she was appointed special administratrix thereof. February 18, 1901, a sister and an aunt of the deceased, who were also his creditors, objected to the widow’s appointment as
August 24, 1901, an order was made barring all claims against the estate not then on file in the county court, and hearing on those filed was continued till August 29, 1901. Upon tlie last named date the court allowed against the estate claims aggregating $6,881.88, not including interest, but the interest then accrued averaged less than six months’ time on the claims. Of the claims thus audited, $2,553 bore 10 per cent, annual interest, $800 bore 8 per cent., and $3,525.88 bore 7 per cent.; $3,490.61 was a preferred claim for money in Bullion’s hands as guardian for a Avard residing in New York.
September 26, 1901, the administratrix filed a rejiort showing the expenditure by her of $1,045.30, including 35 months’ support, $750, and reported a balance of $2,579.04 in her hands. September 25, 1901, Mesdames Furmin and Ames, sisters of the deceased, and a Mrs. TTopkinson, an aunt, petitioned for leave to file claims against the estate, based on promissory notes signed by Mr. Bullion,
December 29, 1901, Mrs. Bullion died, and December 30, 1901, Curtis W. Ribble, a DeWitt banker, was appointed administrator de bonis non of the James M. Bullion estate, and duly qualified. Hearing on the application of Eurmin el al. was continued along from time to time till February 17, 1902, on which date the petitions were dismissed and supersedeas bond in the sum of $50 fixed for an appeal in each case. A joint bond of $150 was finally accepted, and the claimants appealed to the district court, where judgment was rendered in favor of the claimants to the extent of reversing the order of the county court and remanding the cases. Ribble appealed to this court, and on February 4, 1904, the district court was upheld, except that its order was modified so that the entire controversy should be settled in the district court.
February 5, 1902, Mr. Ribble filed, in the name of Mrs. Bullion, a final report of her acts as administratrix, showing that she had paid $2,000 on the preferred claim, which, added to other expenditures made and credits claimed by her, left in her hands a balance of $239.90. It is possible that $700 rent money is not properly accounted for, but there is not sufficient evidence to warrant us in disturbing the judgment of the district court upon that point. In the meantime Ribble liad sold the school land contracts and the 80 acres of deeded land for the sum of $9,100.
August 4, 1902, the court on the ex parte applications
October 14, 1904, Furmin, Ames and Bullion, sole heirs, asked for an order settling the administrator’s accounts and for a distribution of the residue of the estate. December 10, 1904, this petition was dismissed. November 9, 1904, Nibble petitioned the county court for an order directing him to pay all unpaid claims, and November 10 the order was made. November-10, 1904, on Nibble’s ex parte application, the county court directed him to pay Colby and Sands the further sum of $1,050 for legal services rendered in resisting the claims of Furmin et al. November 30, 1904, Nibble filed a report showing a balance of $4,364.38 in his hands.
December 2, 1904, Furmin, Ames and Clark Bullion, sole heirs of the deceased, filed a petition in equity in the circuit court of the United States for the district of Nebraska against Curtis W. Nibble as administrator of the estate of James M. Bullion, deceased, - wherein many allegations of alleged fraud and misdoings on the part of the said administrator in the administration of the estate are set forth in the florid language so dear to the old-time equity draughtsman. Among other things, the pleader charges that no claims have ever been allowed against the estate, and the money paid by the administrator was without authority, etc. The prayer is for an accounting and a judgment for the amount due the respective plaintiffs. The federal judge overruled a demurrer to the petition and to the jurisdiction of his court, and thereafter an an
It may be proper to state that after this court sustained the district court, as above stated, the claimants were met in the district court by all manner of motions which delayed a hearing. Mr. Colby, of counsel for Mr. Ribble, testified that he and his co-counsel, Mr. Sands, “did all kinds of ingenious things” in the cases, which deferred a final hearing. Upon the happening of the death of Airs. Bullion, two of these claimants and their half brother, Clark Bullion, were the only persons interested in the residue of the estate, so they, with Airs. Hopkinson, agreed to settle their claims out of court. Thereupon their attorney dismissed the claims to prevent further cost and delay, and then commenced the action in the federal court, above referred to.
November 12, 1904, the county judge made an order vacating the order theretofore made by him commanding the administrator to pay out the money in his hands. On the 13th of November, 1905, the last above order was annulled and a further order made to pay Mr. Rusli $500 attorney’s fees and all necessary costs in defending the suit in the United States court. The administrator has paid out the entire assets of the estate to the various claimants, other than the heirs, in liquidation of claims allowed and the interest which accrued thereon for about four years.
The district court found that the administrator should not have appealed to the supreme court from the order of the district court September 30, 1902, directing the county court to hear the claims of Eurmin et al.; and all costs incurred in connection with that appeal, including attorney’s- fees and the administrator’s personal expense, are deducted from the items of credit claimed by Air. Ribble. An item of $175 is also deducted from said amount. The court further found that immediately after September 30, 1902, Ribble should have paid all claims against the
The appellees have filed a cross-appeal wherein they insist the administrator should be held for failure to collect from Mrs. Bullion’s bond an alleged balance in her hands of the money of the estate and not accounted for by her. Especially is exception taken to the report made by Ribble for the administratrix. Some of the challenged items relate to expense incurred in the widow’s last illness and for her funeral expenses. We think it was within the discretion of the county court to consider those items and the excess of the widow’s allowance in the light of support for the widow, and that these collateral heirs have no standing to question such credits. The objection to rent for homestead should also be overruled.
We think the court was right in refusing to give credit for attorney’s fees and expenses incurred in the supreme court in resisting the claims of Ames, Furmin and Hopkinson. At the time Ribble, on the advice of counsel, resisted those claims, there was an abundance of money in his hands to pay all. claims with interest, including the contested claims. Two of those claims were held by heirs of the deceased. None of the heirs requested the administrator to interpose objections to the payment of the notes, nor did any meritorious defense thereto exist. The authorities amply demonstrate that an administrator cannot shield himself from responsibility by stating that he followed the advice of his counsel. Clement's Appeal.
This brings us to the question of interest. It is a difficult one to solve. Mr. Ribble testified positively that he did not profit directly or indirectly from the possession all those years of something like $6,000 of the funds of the estate. However, with the exception of one year during which he received 3 per cent, interest on $6,000, he had the money deposited principally to the credit of himself individually and in his own bank. It is immaterial whether he unlawfully converted the money. It is sufficient that he mingled it with his private funds and made it subject to his personal check, instead of using it as administrator for the benefit of the estate, and this, too, in the face of the fact that many of the claims allowed against the estate were drawing 10 per cent, interest per annum. In such a case we think an administrator should be charged with the statutory rate of interest for all of the time the funds are so held and appropriated.
The attorney’s fees and expenses in the federal court should have been allowed. There was no excuse for that action. The district court had never shown any disinclination to award appellees their full rights, and, regardless of the question of the jurisdiction of the federal court, which to our minds is none too clear, appellees should, in all fairness, have avoided the expense of resorting to that court, and have submitted any errors of commission or omission of the county court to the district court. To the extent that the plaintiffs therein claimed to be creditors of the estate such claims were then barred by the statute of limitations, and they could only be heard as heirs to demand their distributive share of the estate. The amount due them could only be determined, and was finally determined, in their favor by the state courts. Some of the allegations of the bill are untrue. For instance, there is no proof to sustain the allegation that no claims had ever been allowed against the Bullion estate. On the contrary, the proof shows that over $6,000 in
The judgment of the district court is therefore affirmed except as to the item of $670 attorneys’ fees and expenses in the federal court, and the case is remanded to the district court, with directions to modify its judgment accordingly. The costs in this court to be taxed against appellees.
Affirmed as modified.