*1 586 A. Clyde, Clyde, also known as Elsworth Ellsworth Lloyd appellants, Buchfinck, al.,
et
v.
Administrator
the Estate
of Elizabeth
with
the Will Annexed
K.
appellees.
al.,
deceased,
et
Lloyd
appellant,
Avery,
Buchfinck,
v.
Alvina
with
Annexed
Administrator
Will
K.
Estate
of Elizabeth
appellees.
deceased,
al.,
et
Mingus «fe Leininger, appellants. Beltzer & appellees. Moravek, Reddish, «fe Curtiss J., Spencer, before Heard White, Boslaugh, C. JJ. White, Clinton, Brodkey, McCown, J. Brodkey, appeals from District Court determina- are These separate cases, been consoli- which have tions two plaintiffs sought appeal. dated on both cases rights personal mixed un- establish demurrers der a will. The District Court sustained preju- petitions, and dismissed them without *2 contending appealed, have it dice. Plaintiffs error to sustain the demurrers and dismiss was petitions; procedural irregularities oc- and that disposition of demurrers. curred proceedings. We reverse and remand further purpose simplification clarification, For the of and appeal two involved in this will be referred the to as raise similar issues on cases “Clyde” “Avery.” Although both cases and
appeal, differences there are them, will, therefore, and we set out the between separately. facts each case appellants Clyde
Plaintiffs in the case are five and grandchildren Evans, of who seek to establish Alven rights personal property mixed and under certain pro- Evans, of which was admitted to will Alven death, 10, Al- bate on June 1940. At the time of his by wife, K., ven Evans was survived his Elizabeth Dykes, children, Evans, and five Darwin Alta Zena Clyde, Tyndell Evans, Emmerson and Evans. Two Dykes Clyde, children, died of these Alta and Zena respectively, predeceasing in 1946 and 1965 their plaintiffs ap- mother, Elizabeth K. Evans. The and pellants in this case are the five children of Zena Clyde. leaving 1972, K. a will
Elizabeth Evans died which left her her. who survived her children Subsequently, Tyndell Evans and Emmerson heirs, Evans died in 1973. Both children left these Lloyd Buehfinck, who are defendants in this case. special of the estate of current administrator Leroy Evans, Evans, ini- Elizabeth K. tially and was who estate, are also the administrator of that defendants, Evans, named as also Darwin only living child of Alven and K. Elizabeth Higgins, daughter Dykes. and Nedra of Alta Subsequent K. Evans in Elizabeth death of to the District Court 1972, filed a alleging August County 1974, three for Grant identity sets forth of action. causes alleges parties, relationship that Al- of will, admitted to was ven Evans executed probate copy is attached A of this will in 1940. part petition, thereof. made a allege by of In the first cause Evans, Elizabeth K. Alven virtue of the will “possessed life estate with the of a became Evans enjoy- personal disposition power for her use adequate consideration, ment, valuable for full and including remaining ac- of said disposed full, therefrom, of for ade- cumulations quate the said Elizabeth consideration valuable prop- time of her death became K. at the erty Evans. It is fur- of the five children” Alven personal prop- alleged and mixed that all the ther *3 erty possession of Elizabeth K. Evans at the belonged to Alven Evans at of her death had time the time of his therefrom. death, accumulations, or constituted property is attached as an A list of this Finally, petition. in the first cause of to the exhibit action, Lloyd alleges petition Buchfinck, that ad- of Elizabeth K. has ministrator of the estate plaintiffs recognize under the claim of the refused to disposed wrongfully Evans; of of has the will of Alven wrongful payment property some of request taxes; instruction a to has refused fraudulently duties; and has to his plain- deny rights conspired of with others tiffs. plaintiffs causes of In the and third second allegations cause, repeat the first most of the prior allege both Elizabeth K. further that subsequent of Alven of the will to the execution fully to take Evans, charge she was informed that was run property Evans of Alven upon property ranch; his and that her death all that and accumulations therefrom were to be divided among the five children of Alven and Elizabeth K. among Evans, or the heirs of those children. It is alleged accepted further that Elizabeth K. Evans this trust. pray impose
Plaintiffs the District Court property trust favor of the described
plaintiffs prop- and other owners of the erty; the administrator of the estate of Eliza- beth K. Evans be ordered to account for all coming judgment hands; into his and that be ren- against wrongfully dered him for all he had disposed of. September 9, 1974,
On certain of the defendants ground filed a demurrer on the that it Hearing did not state a cause of action. was on had January ruling 23, 1975, the demurrer thereon was made until December but no
18, 1975, on which date the District Court sustained the demurrer. moving Plaintiffs then filed a motion for new sustaining to vacate the decision the demurrer. In motion, sustaining their contended that grant summary of the demurrer inwas effect a judgment, improper; which was that the court erred failing specific grounds upon to set out the based; the demurrer was that the court erred in fail- ing pleadings; to allow to amend their the decision to sustain the demurrer was con- trary evidence, to the law and the and constituted an part abuse of discretion on the of the trial court. plaintiffs requested motion, their that the trial court specific sustaining out reasons set for the of the given right demurrer, and that be to amend petition. not, however, their Plaintiffs did tender a *4 proposed petition. amended plaintiff’s pending, motion for
While new trial was petition. to defendants moved dismiss the The trial court overruled motion for new trial prejudice. petition Plain- without dismissed and tiffs moving trial, for new motion filed a second this but of the dismissal to vacate Plain- trial court. ruled on was never motion appealed to court. this tiffs then Avery plaintiff is Alvina in case The sole Avery, grandchild of a child of Alven Lloyd Clyde. Buchfinck The defendants are Zena Leroy Evans, adminis- as and former current and trators individuals. K. and as of
of the estate Elizabeth plaintiff petition, amended, as In the alleges of had no Elizabeth K. Evans prop- death, all of and that time her her own at the acquired erty possession in was trust her allegations in Alven Evans. under regard will of case are to of Alven Evans the will alleges Clyde to Plaintiff those case. similar wrongfully and torti- have two defendants prop- ously personal mixed and taken and detained erty possession K. at the of Elizabeth Evans prop- disposed death, of of that time her have erty alleged 1973. November It is further that the charge defendants have taken real estate certain earnings which operation, constituted Ranch Evan’s plaintiff and that have denied rightful possession other owners of that real estate. damages prays money against Plaintiff the de- fendants. In December filed defendants a demurrer (1) following grounds:
the amended There was another action on the
pending the same between (2) parties parties cause; for the same there was a defect (3) defendant; and did the amended not state facts tion. The sufficient to constitute a cause ac-
proceedings thereafter similar Clyde those in the tained December 1975. Plaintiff filed a motion for sus- case. The demurrer was moving new to vacate the to sustain decision demurrer, and defendants moved to dismiss the
591 petition. The trial court to sustained the motion dis- miss and overruled the motion for Plain- ruling new trial. tiff filed a second motion for new no büt was made thereon. petitions
At the time the trial court dismissed the following cases, in both it made the statements: upon “The demurrers were sustained several grounds, among which it Court’s were was the opinion practical that amendment was not a or a vi- alternative; able and for that reason the trial docket sheet entered the Court dismissed the action. * * * Therefore, amendment, with or the lack multiple amendment, of an lack of tender and the sustaining demurrer, reasons for I feel now that dismissed, the case be are therefore prejudice.” At no dismissed without time did the specify sustaining trial court for its reasons the de- murrer in either case. assignments by appellants
The error both appellants cases are the same. contend first sustaining that the of the dismiss- demurrers petitions contrary to al of the were and there- law Secondly, appellants fore erroneous. contend procedure sustaining followed in the demurrers (1) contrary stating arguments law, was to pertaining analogous to the demurrers were to ones judgment, summary and were not to directed the the (2) allegations themselves; of the demurrers failing plaintiffs District Court erred in to inform the grounds upon of the which the demurrers sus- (3) allowing tained; the District Court erred in not (4) petitions; to amend their error it was petitions granting to dismiss the without (5) opportunity petitions; to amend their ruling District Court erred in on mo- subsequent tions for trial new filed to dismissal petitions. of the
The rules in to demurrers are settled well 25-806, sets this state. Section R. R. S. forth ground including grounds demurrers, not state facts sufficient does that “the A demurrer of action.” cause constitute regarded general demurrer, ground which as a is parties legal rights of the the substantive “tests including proper reasonable admitted facts may be drawn from and fact inferences law pleaded. A is sufficient facts which are the if from of facts forth therein the the statement set plaintiff Lee v. Brod entitles recover.” law *6 (1976). See, 393, beck, W. 2d 331 al 196 Neb. 243 N. 680, so, State, 2d v. 191 Neb. State, 217 N. W. 180 Kuester (1974); 64, 181 147 N. W. 2d v. Neb. Martindale (1966). only A reaches defects which 6 demurrer appear petition, all al on the of the admits face legations material, relevant, of fact are pleaded, pleader’s well but does admit con 712, Parks, law. v. 189 Neb. 204 clusions of Johnsen (1973); Morgan, 2d 804 First National Bank v. N. W. (1961). 849, 112 172Neb. W. 2d 26 N.
A an filed with demurrer reaches instrument part thereof, and made a does not admit but any any pleaded placed construction instrument Depart- petition. See, in and set forth ment of Motor Prucha v. Vehicles, 415, 172 110 W. 2d Neb. N. 75 (1961); Powers, 71, 157 Valentine Oil Co. v. Neb. 59 (1953); Pleading, 2d, 276, §§ 2d 150 Am. N. W. 61 Jur. pp. Pleading, pp. 280, 685, 690; 257, 261, S., §§ 71 C. J. determining Therefore, in a 530. whether de- may sustained, murrer be trial court con- part petition. strue an instrument made a of the See Co., 254, 40 N. Koehn v. Union Fire Ins. 2d 874 152 Neb. W. (1950). petitions present An examination of the in the plaintiffs’ cases indicates to an that claims interest property question grounded upon in the terpretation in are an in-
of the will Alven Evans. their appeal, parties briefs on forth extended set ar- guments in to the construction of the will of urge to con- in effect Alven presented in these On the record that will. strue will, cases, however, decline to construe we proceedings fol- the case for further remand lowing reasons. Clyde case, do not contend that
In the defendants pe- in their not set out sufficient facts have imposition permit construction of a will and tition to generally, p. See, S., Wills, 1090, § 96 C. J. of a trust. Instead, defendants contend that 770. of the will of Alven Evans shows that examination have question, particularly no interest personal property accumulations Elizabeth K. Evans from her received husband objection his death. Defendants’ Clyde, essentially therefore, is inter- pretation of the will is erroneous. The same conten- Avery case, tion is set forth in the and in addition de- argue for conversion fendants or cause of action against wrongful detention of cannot lie Elizabeth K. the administrators of the estate of Evans. difficulty is this court faces these cases
the record does not show the trial court’s reasons sustaining There is no indication demurrers. *7 that the trial in fact the of Alven court construed will Evans and determined that have no inter- question in the in that will. At est under petitions the time the trial the in court dismissed cases, both it stated that the demurrers were sus- grounds,” “multiple on rea- “several and for tained apparently the de- sons.” The trial court considered time, in both cases at and did not murrers the same specific sustaining each de- state its reasons Avery in each case. in the murrer The demurrer grounds, case was made on but which several by ground the the trial court relied on is not shown Although only ground record. for demurrer Clyde case was that to state failed than one more advanced defendants cause why theory legal a cause of ac- it to state as to failed tion. not in- circumstances, this court
In such
yet
has not
dulge
which
of a will
in the construction
clearly
As stated
the trial court.
been construed
Estate,
Therefore, it we find ad- the record judgments remand the visable to reverse the inappropri- to the District Court. It would be causes indulge in of a ate for this court to the construction clearly show that the will where the record does Although defendants in trial court has construed it. Avery grounds, attack the on several why the was sus- record does not show demurrer *8 parties remand, and the trial On tained. a clear record establish and should
can including cases, a construc- the issues raised court, will, if it should become so that tion of necessary, specula- may without the issues review any reached. the basis for decision as to tion and remanded. Reversed dissenting. J., Boslaugh, why be re- these cases should to me It is not clear proceed- Court for further to the District manded pre- ings. of law that rule I am not aware upon deciding these cases vents this court by parties. presented of the issues basis controlling appears construction to be a The issue general In deceased. of the will of Alven gave question Eliza- is whether the will terms the disposi- power a a life interest with beth K. Evans question simple. This is a interest in fee tion or an of law which is parties. argued in the briefs of both upon by Ordinarily, for decision relied the reason of the case not affect the decision the trial court does many, by most, if not of the cases de- this court. In the rea- the record does not show cided this court relied. A the trial court son for decision judgment if trial court reversed will not be though right reason for even reached the result decision was erroneous. nothing opinion decides these cases delay expense
subjects
parties
to further
my opinion
unnecessary.
the cases
which is
presented.
upon the issues
have been decided
Jerry
appellant,
Cagle,
Inc.,
corporation,
v.
L.
doing
Jerry
Sammons,
business as
Sammons
appellees.
Drywall,
al.,
et