122 Neb. 153 | Neb. | 1931
This is a suit in equity to foreclose a mortgage and distribute the proceeds of the sale. From a decree of foreclosure and a distribution of the proceeds, as sought by the plaintiffs, the defendants appeal.
The mortgage involved in this case was executed November 1, 1918, to John J. Darling, father of the principal parties hereto, and secured a note for $13,500. John J. Darling died August 23, 1921, a resident of Nance county, where his last will was probated in November, 1921, with the final decree being entered September, 1923, assigning the property of the estate in accordance with the will. The only property of the estate of interest to us is the $13,500 note and mortgage.
During the administration of the estate, all the children of John J. Darling, except Herbert Darling, signed a note for $3,600, payable to John H. Kemp, the proceeds of which were used to pay debts and a bequest to Herbert of $100 as provided by the will, and the $13,500 mortgage was assigned by them as collateral security for the loan. This loan has been almost paid and does not complicate this case, since all parties admit that his claim is superior to all others.
The plaintiffs, John M. Darling, Carrie M. Gress, Anna Pearl Gress and Hattie E. Cooper, allege in their petition that they entered into a written agreement between themselves and with Frank S. Darling, defendant, comprising all the heirs, devisees and legatees of John J. Darling, deceased, except Herbert, on the 10th day of November, 1921, to allow the will to be probated and thereafter to
There was a written agreement entered into relative to the division of the property among the heirs. The preponderance of the evidence establishes the existence and terms of such an agreement. The agreement involved the interest of the five children, who are parties to this suit. Three of them, who were left small bequests by the will, testified as to the agreement. Hattie E. Cooper, a daughter, who with the son Frank S. Darling, was to share most of the estate, testified to the agreement. Her testimony was against her own personal interest. The attorney for ■the estate testified that he prepared the agreement; that the terms of the agreement were as alleged by plaintiffs; that it was signed by all the parties; that it was delivered to him and put away in his office; that he does not know where it is; that he has searched for it and he would say that it was lost. The defendant Frank S. Darling testified that there was an agreement, but it was not signed and the terms were not as claimed by the plaintiffs. However, his testimony is much weakened by the sworn property statement to the First National Bank of Fullerton, which was introduced in evidence. This was made February 3, 1930, and he stated therein that he had a “one-fifth interest in J. J. Darling, Est.,” which is exactly his interest under the. terms of the contract alleged by the plaintiffs. There is other testimony which is cumulative and corroborative which it is unnecessary to discuss in detail. It suffices to state that no other finding of fact would be possible except that the agreement was entered into as claimed by plaintiffs.
There was ample consideration for the agreement. Immediately upon the death of the father, John J. Darling,
Two other contentions of the appellants have not been overlooked. First, it is urged that the action is prematurely brought for the “plaintiffs have no right, title, interest, claim, or demand in, to, or against the mortgage or the proceeds to be derived therefrom, until after they have paid to Hattie E. Cooper and to Frank Darling each the sum of $500.” Hattie E. Cooper is not complaining and appellant Frank S. Darling is not prejudiced thereby because the decree of the trial court awards him $500, as it also does Hattie E. Cooper, to be first paid from the proceeds. Secondly, as to the right of the plaintiffs to prose
As a résumé, we find that there was an agreement as to the division of the assets of the estate between the parties; that the contract was executed for the purpose of avoiding objections to the probate of the will, which constituted valid consideration therefor; that the suit was brought by the proper parties, and that equity and justice prevail in the judgment of the trial court, which should be and is
Affirmed.