121 Neb. 291 | Neb. | 1931
This is an action in equity commenced in the district court for Butler county on April 16, 1926. On that date summons was issued which was served on all defendants three days later. Then demurrers were filed challenging the jurisdiction of the court and the sufficiency of the petition to state a cause of action. Thereupon, after an adverse ruling on all demurrers so presented, defendants filed an answer which embraced, in addition to a general denial, certain allegations’ of new matter. To this pleading the plaintiffs filed a reply which was in substance a general denial of new matter pleaded.
Thereafter on April 28, 1930, the trial on the merits was commenced, and, plaintiffs having called a witness, defendants interposed a demurrer ore tenus, based on the contention that the petition did not set forth facts sufficient
These objections were sustained by the trial court, and the plaintiffs electing to stand upon their petition, and refusing to further plead, the petition of plaintiffs and the action were by the trial court dismissed. Plaintiffs appeal.
It may be said, in view of the procedure theretofore had, that the effect of the interposition of the demurrer ore terms was in all respects identical with that of a formal demurrer; that by it the defendants, for the purpose thereof, admitted all the allegations of fact in the pleading to which it was addressed, which were issuable, relevant and material, and well pleaded. Bresee v. Preston, 91 Neb. 174; City of Crawford v. Darrow, 87 Neb. 494; Hallstead v. Perrigo, 87 Neb. 128; Spalding v. Douglas County, 85 Neb. 265; Moriarty v. Cochran, 75 Neb. 835; State v. Porter, 69 Neb. 203. It did not admit the conclusions of the pleader except as they were supported by, and necessarily resulted from, the ultimate facts stated in the pleadings. Nor did it, subject to this qualification, admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor the theory of the pleader as to the effect of facts, nor his construction of a written instrument, nor his conclusions of law in relation thereto. It is also true that “A demurrer to a petition only lies to the statement of facts constituting the supposed cause of action, not to the prayer for relief, which may be much in excess of what those facts warrant the court to grant.” Missouri Valley Land Co. v. Bushnell, 11 Neb. 192; Stephens v. Harding, 48 Neb. 659. This is in accord with the general
No good purpose would be served by an exhaustive analysis of the language of the pleading under consideration. Conceding that many of the allegations and statements thereof under the rules determining the scope of admissions by general demurrer would deserve little or no consideration, still by the terms of the pleading presented for review it clearly appears, as admitted ultimate facts: (1) That George W. Mattingly died testate on April 17, 1924, and at the time of his death was a resident of Butler county; (2) his will was admitted to probate on August 7, 1924, and remains in full force and effect; (3) the residuary clause of this will provided in part: “(6) The rest, residue and remainder of my estate, real and personal, wheresoever situated, I give, devise and bequeath to C. W. Bennison and I. T. McCaskey, as trustees, upon the following trusts; (a) that my said trustees shall pay to Joseph Mattingly, a son of a half-brother of my father, the sum of $10,000 on condition that in the event that the said Mattingly is living at my death and appears and makes due proof of his identity to my said trustees within one year after my death; and if the said Joseph Mattingly
In connection with the admitted facts above recited, it is to be noted that the two year period provided for in the will in which the child or children of Joseph Mattingly may appear and make due proof to the trustees is in no manner dependent on the actual receipt or taking over of the trust estate by the trustees. Its commencement is expressly fixed by the terms of the will as starting on the death of the testator, and it terminates two years after the death of testator. It is wholly unaffected by the fact that the administration of said estate may be completed or still in progress, or by the fact that the trustees may or may not have received and taken over the property passing by virtue of the residuary clause. When the evidence and proof were tendered within the two year period, it was the plain duty of the trustees to hear the same and proceed as contemplated by the testator. It is also quite apparent that, as the trustees named, under the terms of the will, should as individuals succeed to the bequest provided for Joseph Mattingly or his children in the event the latter failed to comply with the expressed condition within two years, their personal interests as individuals are inevitably in conflict with, and antagonistic to, their duties as trustees. In a sense, in view of the situation, these trustees are of necessity required to sit in judgment on their own case.
Aside from, and unless excused by, the necessary effects of technical errors of procedure committed by plaintiffs in the presentation of their cause or resulting from untoward events or accidents for which neither judge nor parties are responsible, the obligatory direction to courts of all jurisdictions, as expressed by the provisions of section 13, art. I of our Constitution, is controlling, paramount and mandatory, viz.: “All courts shall be open, and every person, for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law, and justice administered without denial or delay.” In this connection, it is to be remembered that, “when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for. the exercise of the one or the performance of the other.” I Cooley, Constitutional Limitations (8th ed.) 138. This constitutional provision is also self-executing. 12 C. J. 729. Therefore, when it stands here admitted for the purpose of this determination (1) that plaintiffs are the parties designated by the Mattingly will who are entitled, upon conclusion of the administration proceedings, to receive the $10,000 bequest provided therein, and (2) that they, after a lapse of more than six and one-half years since the death of the testator, and of more than four and one-half years since the commencement of this proceeding, have not yet been permitted or accorded the opportunity to make due proof of the identity of their forbear, and of their relation to him, which due proof , has. heretofore been seasonably tendered by them in compliance with the terms and conditions of that instrument (the will), can it be said that these plaintiffs have been accorded in full measure their constitutional remedy, and that they have not been denied, their constitutional right
Did the district court for Butler county possess the essential power to administer substantial relief in the instant case, and was the exercise of such power, if possessed, properly invoked?
It may be said that, by the terms of the Constitution, district courts in Nebraska are vested with “chancery jurisdiction.” Const. art. V, sec. 9. This we have construed as vesting district courts with equity jurisdiction which they may exercise without legislative enactment. Matteson v. Creighton University, 105 Neb. 219. Indeed, this court is committed to the view that, not only is equity jurisdiction conferred by the terms of the Constitution, but as thus conferred it is beyond the power of the legislature to limit or control. That, while the legislature may grant such other jurisdiction as it may deem proper, it cannot limit or take from such courts their broad and general jurisdiction which the Constitution has conferred upon them. Lacey v. Zeigler, 98 Neb. 380. One of the well-recognized grounds of equity jurisdiction thus conferred on, and available in, courts of this state, by virtue of this constitutional provision, is the supervision of the administration of trusts. Matteson v. Creighton University, 105 Neb. 219; Gotchall v. Gotchall, 98 Neb. 730.
Indeed, the inherent power of a court of equity to supervise and control trustees in the execution of their trust is well recognized. In the proper exercise of this power, courts may review and revise the exercise of the discretion of a trustee, and if they find there has been an abuse of discretion, or if the trustee has acted in bad faith, or has failed to follow the directions and requirements imposed by the terms of the trust, or the requirements of the law, such trustee’s conduct will be subject to judicial control, and the court will make such orders as may be necessary to fully effect the purpose of the trust and to secure to the beneficiaries therein their just rights as lawfully intended and expressed by the creator thereof. 25
In’ principle it appears well established that “A court of equity * * * has power and authority to remove a trustee from his office, when any personal disability exists in the trustee, when he fails to perform the duties of his position, when he has misconducted himself in office or mismanaged the trust property, when hostile relations exist between the trustee and his * * * beneficiaries, such as to interfere with the execution of the trust, or under any other conditions which render his removal necessary for the best interests of the trust estate.” 25 Standard Ency. of Procedure, 118. See May v. May, 167 U. S. 310.
In view of the facts admitted by the demurrer, disclosed by the record before us, viz., that for a period of more than six and one-half years the trustees have not accorded
“An administrator is a quasi trustee, and should be a person who is not interested adversely to the estate in property which is the subject of administration, and‘who will, while carefully guarding the -interests of the estate, stand at least indifferent between it and claimants of the property.” •
- “Where an executor’s personal interests conflict with or are antagonistic to his duties as executor, he is not a propér person to act as such and on proper application should be removed.”
It follows that, in view of the nature and extent of the ultimate facts admitted by the demurrer, and the nature and extent of the jurisdiction- vested in district courts, the plaintiffs must be deemed to be entitled to substantial relief against’ the defendant trustees. Indeed, on the restricted basis' evidencéd by the pleadings before us, they
The district court, therefore, erred' in sustaining the demurrer ore tenus interposed on behalf of''-the defendant trustees at the trial of the action..in the court below. We do not prejudge the merits of this case. These will be finally determined by due consideration of - competent evidence adduced at the trial, hereinafter ordered, and may therefore differ in important, possibly controlling, particulars from the case here presented. • . . , ,
The judgment of the district court is reversed and the cause remanded for further proceedings in hahmony with, this opinion, with directions to overrule the demurrer ore tenus interposed on behalf of the defendant trustees, but to permit the parties to file amended 'and supplemental pleadings within a time to be fixed by the" court, if they so request, to the end that all matters in issue may be determined and justice administered without' unnecessary' delay.
Reversed.