296 N.W. 883 | Neb. | 1941
This action was begun in the district court for Douglas county to secure relief in the nature of the specific performance of an alleged oral contract to bequeath property by will at the time of death. To the plaintiff’s amended petition a demurrer was filed by each defendant separately. These demurrers were sustained by the trial court, and, upon the plaintiff refusing- to further plead, the petition of the plaintiff was dismissed. The plaintiff appeals.
The sole plaintiff is Mary A. Cox. The two defendants are Katherine Getsey Johnston, as an individual and as executrix of the estate of James B. Kelkenney, deceased, and Arthur A. Kelkenney. In the plaintiff’s amended petition the facts hereinafter stated are alleged. James B. Kelkenney died while a resident of Omaha, Nebraska, on May 3, 1938. A petition seeking the probate of a document dated March 28, 1938, as' the last will of said James B. Kelkenney, who is hereinafter called the testator, was filed on May 13, 1938, in the county court of Douglas county. Such document, of date March 28, 1938, is hereinafter referred to as the second will. On June 15, 1938, St. James Orphanage and Father Flanagan’s Boys’ Home filed objec
It will be noted from the dates set forth above, and from the alleged provisions of the two wills, that, when the time
One contention of the defendants is to the effect that the county court is, by the Constitution of Nebraska, given exclusive jurisdiction in all matters relating to the probate and settlement of estates of deceased persons, and, in such matters, has general equity jurisdiction. We do not challenge such contention. However, with such contention as a premise, the defendants draw the conclusion that the district court has no jurisdiction of an action originally brought in such court to secure relief in the nature of the specific performance of a contract to bequeath only a specified sum of money by will. With this conclusion we cannot ag'ree. This contention overlooks the fact that the plaintiff’s request is not to recover a debt, or to recover damages for the breach of a contract, or to recover for the reasonable value of services rendered, or to recover through a claim the balance due upon a contract. Whatever may have been the rights of the plaintiff to have maintained a claim against the estate for any one of such forms of relief, or what would have been the measure of her recovery upon any such claim, are matters not here involved, except as such matters might enter into the question in this case of whether or not the plaintiff had such an adequate remedy at law as to bar her maintenance of this action. This question of an adequate remedy at law will be mentioned later in this opinion. Section 9, art. V of the Constitution of this state, grants to district courts both chancery and common-law jurisdiction. While section 16, art. V of such Constitution, grants to county courts original jurisdiction in all matters of probate, settlements of estates of deceased persons, etc., and prohibits jurisdiction in county courts in civil actions in which title to real estate is sought or drawn
A second contention of the defendants, which is closely allied to the contention above discussed, is to the effect that an action for the specific performance of a contract for the payment of money only may not be maintained, and that actions for the specific performance of a contract to leave property by will are originally brought and. maintained in the district court only in cases in which the title to real estate is involved, and then only because the county court is without jurisdiction to compel the transfer of real estate. It is, no doubt, true that an action in equity for the specific performance of a contract to convey personal property ordinarily will not lie. Perhaps such an action to enforce the payment of money only could never be maintained. With this contention as a whole, however, we do- not agree. Strictly speaking-, there cannot be a decree for the specific performance of a contract to make a will, since such an instrument is, by its nature, revocable by the promisor during his life, and cannot be made by him after his death. It has long been recognized that courts of equity may grant relief in a form that is usually equivalent to a decree of specific performance of a contract to leave property by will, after the death of the defaulting promisor, by fastening a trust upon his estate in the hands of those taking it with notice of such contract or by devise or descent. Jurisdiction in the equity court in such cases does not rest upon any distinction between real estate and personal property, but rather upon the ground of the inadequacy of an action at
A third contention of the defendants is to the effect that an action against an executrix of an estate for the recovery of money only may not be maintained. Section 30-801, Comp. St. 1929, provides in part as follows:
“No action shall be commenced against the executor or administrator except actions to recover the possession of real or personal property, and actions for relief other than for the recovery of money only, and such actions as are permitted in this chapter.”
This action is not one of those expressly permitted by the chapter in which the above mentioned section occurs. Neither is it an action for the recovery of money only, within the meaning of said section. As above shown, this is an action to impress a trust or to create a lien upon the property of an estate in the hands of those who have taken it without consideration. Actions to foreclose a lien voluntarily created by the deceased before his death, such as a mortgage, or to foreclose a lien upon the property of the deceased coming into existence without his consent but before his death, such as a mechanic’s lien, have as their primary purpose the recovery of money only, yet no one would contend that such actions are not maintainable against an executor of the estate of a deceased person. This action is primarily against the defendants as individuals, the executrix being joined as a defendant merely because she still has possession of a part or all of the property of the estate. Brownell v. Anderson, 117 Neb. 652, 222 N. W. 55; Parker v. Luehrmann, 126 Neb. 1, 252 N. W. 402; 24 C. J. 746. It has been held that the personal representative merely holds the property of the deceased in trust as against a contract such as the one alleged in this case, and that, if such personal representative has parted with possession of the property affected, the personal representative is not even a necessary party to such an action as this. See annotation, 69 A. L. R. 104, division II, subhead j.
For reasons above given, the decree of the trial court is reversed and the cause remanded for further proceedings in conformity hereto.
Reversed.