77 N.W.2d 572 | Neb. | 1956
Lenore S. Benson, a resident of Jefferson County, died May 24, 1955. An instrument purporting to be the will of the deceased and a petition seeking its probate were filed in the county court of that county. An order for hearing was entered, notice was given as required by law, the matter was heard by the county court at the time designated in the order, and the instrument purporting to be the will was admitted to probate as the will of the deceased. Doris P. Clutter, a niece and heir at
Appellant claims that she was a party to this proceeding in the county court; that she, as heir of the deceased, was a person against whom an order and decree was made by the county court when it admitted the instrument involved in this matter to probate as the will of the deceased; that she was affected thereby; and that by virtue thereof she was legally qualified to appeal from the order and decree of the county court to the district court. The appellees assert that appellant was not competent to appeal from the order and decree of probate of the instrument rendered by the county court
The relevant provisions of section 30-217, R. R. S. 1943, are: “When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, together with a petition for its probate, such court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by publication under an order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively, and no will shall be proved until notice shall be given as herein provided * * *.” The only pleading specified by statute concerning the procedure for the probate of a will in a county court is “a petition for its probate” mentioned in the above quotation. Prior to the amendment of 1921 the statute did not contain the words now therein “together with a petition for its probate” and there was no requirement for any pleading in the procedure for the probate of a will in the county court. Laws 1921, c. 151, § 1, p. 632; § 1303, R. S. 1913.
In re Estate of Sweeney, 94 Neb. 834, 144 N. W. 902, concerned the probate of the will of Bridget Sweeney which was proposed by petition of the person named therein as executor. The State of Nebraska objected to its probate because the deceased, as it alleged, died without heirs; and that at the time the will was executed the testator was not of sound mind and was incapable of making any testamentary disposition of property. There was no other objector in the county court. The instrument offered as the will of the deceased was denied probate. The proponent prosecuted an appeal to the. district court. Two heirs of the deceased who had not made an appearance in the proceedings in the county court by objection to the probate of the instrument or otherwise filed a petition of intervention in the district
In In re Estate of Nilson, 126 Neb. 541, 253 N. W. 675, the propriety of a creditor of the estate filing a pleading in the district court in a proceeding pending therein on appeal from a decision of the county court in a matter which was a part of the administration of the estate was contested. A motion to strike the pleading was denied. This court discussed the matter in this manner: “The county court has original and exclusive jurisdiction in the settlement of estates by which distribution is made of the assets, and its final orders are binding upon all persons. The proceeding is in rem. All persons interested in the assets are considered parties
The appellant, as heir of the deceased, was interested in her estate and appellant was of necessity a party to the proceedings in the county court for the probate of the instrument claimed to be the will of the deceased whether or not she was named or actually appeared therein and offered contest to the probate of the instrument as the will of the deceased. A proceeding in a county court to probate a will is in rem and every person interested is a party thereto and may appear and participate therein in the proceeding in that court or on appeal to the district court. In re Estate of Sweeney, supra; In re Estate of Creighton, supra; In re Estate of Nilson, supra; In re Estate of Sautter, supra; Johnson v. Marsh, supra; Rohn v. Kelley, 156 Neb. 463, 56 N. W. 2d 711.
The order and decree of the county court admitting the instrument involved to probate as the will of the deceased was a final order within the meaning of the statute authorizing appeals in probate matters. Appellant, a party to the proceeding, was a person against whom the order and decree was made and she was
Appellant was qualified to prosecute an appeal from an adjudication of the county court that the instrument proposed for probate was the will of the deceased. She timely and duly exercised that right. She was entitled to appear by pleading and otherwise and contest the validity of that instrument as the will of the deceased in the district court.
The judgment should be and it is reversed and the cause is remanded with directions to the district court of Jefferson County to overrule the motion of appellees to strike the answer of appellant and for further proceedings in accordance with law.
Reversed and remanded with directions.