97 Neb. 780 | Neb. | 1915
William W. Wilson died in 1901, and George E. Hibner was appointed administrator of. bis estate by tbe county
After the mandate of this court affirming that judgment had been filed in the district court, the heirs of Wilson filed in the county court a petition, alleging that in the former report of Mr. Hibner as administrator he had obtained a credit of $4,500, to which he was not entitled, as money paid out by him to one Evans in the settlement of Evans’ claim that he was heir to the estate. It was alleged that in fact he had not paid out this amount, but still had it in his hands. It was also alleged that the administrator had a false credit of $23.25 in his report for expenses in relation to that matter. The heirs appear to have treated this as an equitable proceeding to modify the former order of the court upon the administrator’s report, and they asked leave to file separate petitions. This leave was granted, and separate petitions were filed by each of the heirs, asking the county court to allow each of them such part of the $4,500 as it was claimed he was entitled to. Upon hearing in the county court, that court found that the allegations of the heirs were true; that' the $4,500 ought to be distributed
The parties in the briefs discuss questions of jurisdiction and innumerable other questions which it will be impossible to review here separately.
It will be observed that the controversy relates entirely to the accounts of the administrator and is between the administrator and the estate. We have observed no final order of the court discharging the administrator, and while he was s825erving as administrator orders of the court upon his accounts as such administrator were interlocutory only, and not final orders. Bachelor v. Schmela, 49 Neb. 37. The county court, therefore, had complete jurisdiction over the accounts of the administrator until his final discharge.
Upon an appeal to the district court that court would ¡have jurisdiction of the matter tried in the county court from which the appeal was taken. In the proceedings begun by the heirs in the county court to modify the report of the Administrator of 1906, the .application of the heirs was specific and related to only two items of the report,
It was determined upon the first appeal to this court from the allowance made to the administrator that the matter should have been tried by the court itself, and not by a jury. 83 Neb. 252. Such matters are, in the first instance, determined in the county court without a jury, and if appealed to the district court are to be determined in the same -manner. The county court has exclusive original jurisdiction of the estates of deceased persons. In exercising that jurisdiction it may incidentally determine equitable questions, but the county court has no general equitable jurisdiction. An appeal, therefore, from the county court to the district court gives that court no general equitable jurisdiction. This was a proceeding in probate to correct the account of the administrator. The petitions filed and styled petitions in equity should therefore be treated as objections to the account of the administrator.
The administrator had not paid out the $4,500 for which he had been credited. The money was still in his hands, and there was no claim pending against the estate therefor. The district court, therefore, did right in charging his account with that amount. The district court also charged him with interest thereon from the time that he improperly obtained credit in the county court therefor, and this interest was also a proper charge. The court
Objection is made to the allowance of various items in the supplemental report filed in the county court in February, 1911. There were items in that report for expenses of continuing his bond as administrator which were paid by the administrator to a bonding company. All of these-items were subsequent to the act of 1905, and were proper charges under that act. Rev. St. 1913, sec. 1500. Prior items of a similar nature were adjusted in the order of 1906, and were not included in the objections made to that adjustment. The district court, therefore, had no jurisdiction to review those items.
In the supplemental report of 1911, which was duly appealed from, the court allowed the administrator fees-for attorneys employed by him in the contest between himself and the estate as to the settlement of his account and in the various appeals therefrom to the district- and this-court. Under the former holding of this court in the appeal referred to, these items were improperly allowed. The-fees appear to be reasonable and just, but they were incurred by the administrator, not for the benefit of the estate, but in the contest against the estate, and such fees are chargeable to the administrator himself. These fees- and costs paid by his attorneys as allowed by the county court amounted to $932.25. There is one item for services1
The district court also allowed the administrator three items of court costs and expenses in the district court and this court in that litigation, which are objected to by the heirs, as follows: Printing brief $14.50'; taking Evans’ deposition $16.36; attorney’s fees in Evans case $20; and the following items of costs improperly allowed to the attorney of the administrator: Commencement fee district court $5; filing fee 75 cents; transcript for appeal to district court $23.25; filing fee district court second appeal $3.25. The right to these costs was of course adjudicated in those actions themselves, and he should be allowed credit only for those costs that were taxed in his favor. Objection is also made to the allowance of compensation to the administrator for his services during the time covered by the ¡supplemental report, but it was determined upon the appeal referred to that the administrator is entitled to such •compensation. The trial court found that there was no ¡such wilful malfeasance on the part of the administrator as would forfeit his rights as administrator, and, so far .as we have observed, this finding is supported by the evidence.
It is objected that the district court should have determined all of the rights of the various heirs and the .amount to which each is entitled, but we think that in this the trial court did right. The county court in the original order made a finding as to the heirs and the proportion of
The judgment of the district court is therefore modified, so as to add to the charges against .the administrator the amount of attorneys’ fees improperly allowed,' $511.72, and so as to direct the county court to adjust the court costs specified in this opinion in accordance with the final judgments rendered in the litigation in which those costs were incurred, allowing to the administrator credit for those items only that were taxed in his favor. Interest also will be charged against the administrator’s account on the $1,500 to the date of the final order hereon in the county court, and on the whole balance due the estate from the administrator from the entry of such final order until the same is paid to the present administrator. As so modified, the judgment of the district court is affirmed. Each party will be taxed with his own costs in this court.
Modified and affirmed.