273 N.W. 489 | Neb. | 1937
This is an appeal from the district court for Greeley county. The following are material facts disclosed by the record:
John Burton died in Livingston county, Illinois, on January 14, 1921, leaving a last will and testament which was duly probated in the county court there and Ross Defenbaugh was appointed executor thereof. At the time of his death testator was the owner of real estate in Greeley county, Nebraska, which was occupied and farmed by his son, John Loren Burton. Ancillary proceedings were had in the county court of Greeley county, Nebraska, and on April 7, 1921, a duly authenticated copy of the last will
The last will and testament of John Burton, deceased, provided in the first paragraph for the payment of debts and funeral expenses. In the second was given to his wife a life estate in all his property. She, however, died before the testator. The third and fourth paragraphs of the will are as follows:
“Third. After the death of my said wife, Elizabeth Burton, I give, devise and bequeath to Ross Defenbaugh as executor of this my last Will and Testament, all the rest, residue and remainder of my estate, real, personal or mixed, of every kind, character, and description and where-ever situated, which above mentioned real estate includes 240 acres of land more or less in Greeley county, Nebraska; 160 acres of land more or less in Box Butte county, Nebraska; 6 acres of land more or less in Livingston county, Illinois, and 50 acres of land more or less in La Salle county, Illinois; in trust, nevertheless, for the following uses and purposes: I direct that my said executor shall after one year from the date of the death of my said wife, Elizabeth Burton, convert into money, all of my real estate so devised to my said executor by this clause of my will; and I hereby authorize, empower and direct said executor to sell and convey all of said real estate in his own name as executor and without any order of court, at either public or private sale, at such time or times and on such terms and for such price or prices as he may deem for the best interest of my estate. And I further direct that the proceeds of such sale or sales of said real estate and all my personal estate shall be equally divided among my six children or their heirs as follows: John Loren Burton, Matilda Melody, Mary Pope, Susan Defenbaugh, the -children of my deceased daughter, Dora Evans, and the children of my deceased daughter,
“Fourth. I hereby give and bequeath to my said son John Loren Burton any and all improvements he may have made on my land in Greeley county, Nebraska, where he resides, or the value of such improvements, in addition to his lawful share under this will.”
The remaining two paragraphs provide for the appointment of an executor.
During the course of probate proceedings in the county court of Greeley county, a stipulation was entered into between John Loren Burton and Ross Defenbaugh in their several capacities which provided that it was not practicable or for the best interest of the estate to remove such improvements from the Greeley county land and fixing the
The property stood in this situation, the Greeley county land being occupied and farmed by John Loren Burton until he died in October, 1930. , Thereafter the appellee herein, John T. Burton, as administrator of the estate of said John Loren Burton, on May 4, 1934, commenced this action in the district court for Greeley county for the purpose of determining the rights of the parties and securing definite action in reference to the payment of said $2,500 which he claimed as a lien against the premises, and such proceedings were had therein that in May, 1936, that court entered a decree determining that the proceedings had in county court constituted an ascertainment and determination of the value of said improvements which was fixed at $2,500, to the benefit of which under said proceedings and the provisions of the will said John Loren Burton was entitled, and constituted a valid lien upon the proceeds of the sale of the trust property devised to Ross Defenbaugh, executor, etc., in trust, and that the same should be paid out of the proceeds of the sale of the trust property prior to any division or distribution of any of said proceeds under paragraph three of the will. The court further found said Ross Defenbaugh guilty of negligence and a breach of his trust in neglecting and refusing to carry into effect the terms and conditions of his trust as provided in the will, that an unreasonable length of time had elapsed within which he should have done so, and directed that he perform
The contention in this court of the defendants who appeal may be summarized thus: First, that the will did not by its terms constitute, or permit the making of, the claim for the value of the improvements a lien upon the real estate, and that such purpose was not accomplished by the stipulation'and proceedings had in the county court; second, that any right of action by the plaintiff to that end was barred by the statute of limitations.
Frequent reference is made to the case of King v. Seegabarth, 98 Neb. 272, 152 N. W. 385, and to In re Estate of Strolberg, 106 Neb. 173, 183 N. W. 97. The argument is to the effect that, because the provision respecting improvements follows the one in which general disposition is made of the property, it cannot be construed as having any effect toward making a sum representing the value of the improvements a lien upon the property. Unless the composition of the will itself indicates that importance should be given to the particular location of a clause in the will, we do not see that such location is entitled to any particular consideration. The thing that is important is the intention and purpose of the testator, and it has been frequently held by this court that it will, so far as possible, endeavor to place itself in the situation of the testator in construing a will and endeavor to carry out, so far as lawful and possible, his intent; that, as has often been said, so far as such intention can be ascertained “within the four corners of the will” the court will endeavor to effectuate it. Aside from the fact that it is mentioned in the reports of the cases above cited that the provisions of the wills there under consideration were “followed by” certain other provisions, we do not see that they controvert the position of the appellee in this case; and we are not ready to hold
The will provides that the proceeds of all the property, real and personal, not necessary for the payment of debts and expenses shall be equally divided among the six children of the testator or their successors in interest, and just as definitely provides that John Loren Burton, one of the six, shall have the improvements, or the value thereof, in addition to his share as above specified. There are no provisions as to how the value of the improvements shall be ascertained and no objection is here made that the manner of ascertainment was unjust or unfair or that the amount so ascertained is unreasonable. The objectors simply object to the ascertainment at all; and urge the ground that two of the appellants who are beneficiaries under the will did not consent thereto. It may be remarked that the matter had stood in the same situation for a number of years after the ascertainment in county
It is insisted that the amount in payment for these improvements must be paid from personal property and cannot be charged against the real estate. There is some confusion in the record in reference to the personal property, appellants insisting that according to the terms of the final decree in the county court it showed there was on hand an amount in excess of the $2,500 agreed upon, and the appellee explaining that this resulted from a matter of bookkeeping only, because the administrator in making his report showed the item of $2,500 as a receipt and on the other side showed it as a claim of John Loren Burton not paid, and it thus balances, leaving but $284 in excess of expenses already incurred. The inventory in the record discloses, aside from the improvements under consideration, only the sum of $401.75 in the estate. There is no showing or claim by anybody that there was any other personal property, and to the parties concerned it could make no
Upon the matter of the statute of limitations, it is a trust that is here involved and the trustee, who has by the district court been found guilty of neglect of duty in performing his trust, is not in any position to urge the statute of limitations. Also, there is no limit fixed in the will within which the disposition of the property should be effected, and it is not shown that the defendant trustee repudiated his trust or declined to recognize this obligation under it, until approximately the time of the commencement of this action.
The decree of the district court was right and it is
Affirmed.