124 Neb. 591 | Neb. | 1933
Defendant has appealed from a judgment removing him from the position of executor of the will of his father, Cash D. Fuller. The only ground in the application for removal, and on which the county court acted, was failure of defendant to pay the claims against the decedent’s
It appears that letters testamentary were issued to defendant October 30, 1929, and the same day the county court entered an order limiting the time for filing claims to March 3, 1930, and for the payment of claims to November 1, 1930. April 25, 1931, plaintiff, a creditor of the estate, filed petition for the removal of defendant on the ground above stated. Citation was issued to defendant, to which he made a return, and a hearing was had May 9, 1931. The order of removal was not entered until November 3, 1931, and the same day the county court appointed one Bodie as administrator de bonis non with the will annexed. Defendant appealed to the district court, where the judgment of the county court was affirmed, and from that judgment appeal was perfected to this court.
The judgments of the county court and of the district court, alike, are erroneous and cannot be sustained for two good and sufficient reasons: First, defendant could not have paid the claim'of plaintiff at the time its petition was filed, or at the time of the hearing thereon, because such claim had not been adjudicated and allowed by the county court; secondly, there were no funds in the hands of the executor with which to pay the claim, had it been allowed.
It appears that the only assets of the decedent’s estate which'might have been available for the payment of claims of creditors wafe a 1600-acre ranch located in Chase county, Nebraska, and which was incumbered with a mortgage and taxes to an amount in excess of $8,000. This ranch at one time, a few years previously, had a value of more than $40,000. At the time the inventory of the estate was filed, it was listed as having a value of a little more than $17,000, from which would have to be deducted the incumbrance thereon. It also appears that the claims filed against decedent’s estate amount to approximately $9,-500. The record shows more than ordinary diligence on
It is significant that practically all creditors of the estate, save the plaintiff, and representing more than 75 per cent, of the amount of claims, are objecting to the removal of the executor and objecting to the sale of the land at that time because, under present depressed financial conditions, its sale would not realize enough to pay any substantial portion of the claims against the estate.
The petition did not state a cause of action, in that it did not show that plaintiff had an adjudicated claim that could have been paid by the defendant; and, secondly, the petition failed to state that defendant had funds in his hands, available for the payment of claims, or any facts showing that he had been remiss in his duty to reduce the assets of the estate to cash.
Section 30-309, Comp. St. 1929, provides the grounds for the removal of an executor, and one of the grounds therein provided is that, if the executor shall .neglect “to perform any decree of the court,” the county court may remove such executor. In order that such neglect shall be ground for removal, it must appear that the executor has wilfully and without just cause neglected or refused to comply with the order and decree of the court. Moreover, in the instant case, there was no order that he pay
It follows that the judgment removing defendant from his position as executor is erroneous; and likewise the order, appointing Bodie as administrator de bonis non with the will annexed, is erroneous.
The judgment of the district court is reversed, and the cause remanded to that court, with directions to enter judgment in accordance with this opinion, and to certify such judgment to the county court for its action, in compliance with such judgment.
Reversed.