83 Neb. 723 | Neb. | 1909
James H. Pope died leaving a will, by the terms of which he devised to the plaintiff: 320 acres of land, upon which there was at the date of his death a growing crop of corn. The remainder of his estate was devised to the defendant, his widow. The allowance of the will having been contested by the plaintiff, the defendant was appointed special administratrix and continued so to act until, the will being established, she was appointed executrix. She then gave a bond under section 165, ch. 23, Comp. St.. 1903, conditioned to pay all the debts and legacies of the testator, and qualified as such executrix. While acting as special administratrix, she took possession and removed from the premises devised to the plaintiff the above mentioned crop of corn, which after her qualification as executrix she on the 26th day of June, 1905, .sold for $884.02. The plaintiff filed a claim against the estate of the deceased in the county court for various items, including the value of this corn, which was there contested by the executrix. The cause, being removed to the district court by appeal, was referred to the Honorable A. M. Post to hear and determine. Before the referee it was stipulated that, “as to the liability of said Lydia E. Pope in the corn mat
1. The question whether growing crops on land devised by will pass to the devisee under the will or to an executor has recently been considered by this court in the case of Andersen v. Borgaard, ante, p. 8. The conclusion there reached was that, unless reserved, crops standing upon the ground, matured or not, pass to the devisee. This we regard as decisive of the principal question in the instant case.
2. The defendant, however, contends that the land devised was leased, and that the estate therein had passed for the time being to the lessee, leaving in the deceased a right to recover rent, but no present estate in the land. It is a general rule that the conveyance of a reversion carries with it the rent accruing and becoming due after the date of such conveyance (Eiseley v. Spooner, 23 Neb.
3. The defendant argues that under section 202, ch. 23, Oomp. St. 1903, which provides that the executor or administrator shall have the right to the possession of the real and personal estate of the deceased until the estate shall have been settled, or until delivered over by order of the probate court to the heirs or devisees, the plaintiff did not have the right of possession of this corn until the estate was settled. It may be conceded that under this section the executor or administrator may ordinarily retain possession of the real and personal property of the deceased until it is judicially ascertained whether all or some portion of such property is necessary to discharge the debts of the deceased. In this case, however, the defendant gave a bond undertaking to pay all debts and legacies, and thereby secured exemption from the provisions of the statute under which an executor is required to return an inventory of the estate. While such a bond does not destroy the lien of the creditor nor operate as a final settlement of the estate (Thompson v. Pope, 77 Neb. 338), it estops the obligor from saying that it is necessary to retain property of a devisee or legatee for the purpose of securing or paying creditors. Whatever the creditors of the estate might be entitled to do or to have performed for them, it is clear that an executor and residuary legatee, after having availed herself of the benefits secured by the execution of such a bond, cannot justify her retention of property devised to an
4. It is contended that the county court had no jurisdiction of the subject of this controversy. It is said that its power must be derived from section 214, ch. 23, Comp. St. 1903, which confers authority to examine, adjust and allow claims against the deceased or against the estate of the deceased, but no power to render a personal judgment against an administrator or an executor either in his personal or official capacity. On the part of the plaintiff it is contended that the stipulation made before the referee, already referred to, eliminates this question from the case. At the time this stipulation was made the referee was entering upon the consideration of the plaintiffs claims against the estate of the deceased. The other items of his claim were clearly against the deceased, and it seems to have been in the minds of the stipulating parties thai> the claim for the corn did not belong to that class, and that it was uncertain whether it was an official liability of the defendant as executrix or whether it was merely a claim against her personally as an individual. The obvious purpose of the stipulation was to waive formalities, and investigate this question upon its merits with the other questions then before the referee, and to avoid the necessity for bringing other and further actions. It was in this view that the learned referee reached his third conclusion of law that the court might, in order to avoid circuity of action, direct the allowance of said claim in this proceeding, and with that conclusion we are constrained to agree. We reach this result more readily because it involves no substantial right, and a reversal of the judgment would only lead to another suit between the parties, the result of which would be determined by the conclusions at which we have already arrived in this opinion.
The appellant having declined to raise the question whether the stipulation was void as an attempt to confer jurisdiction, that point is not decided.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
