This appeal concerns two separate orders made by the county court of Otoe County, Nebraska. Both orders were entered on September 11, 1963, but they were made in separate proceedings. One was entered in “In the Matter of the Estate of Henry Schutte, Deceased.” It was an order directing Walter Eden, administrator with the will annexed of the estate of Henry Schutte, to forthwith turn over any and all assets belonging to Wilhelmine Schutte to Cecil Asa, conservator of her estate, and take his receipt therefor. From this order Walter Eden appealed to the district court for Otoe County, Nebraska, where it was designated as case No. 155.04.
The district court in case No. 15504 with respect to the order in the matter of the estate of Henry Schutte, Walter Eden, individually and as agent and administrator, and Wilhelmine Schutte joined as plaintiffs in a petition. It set out the appointment of Cecil Asa as conservator; alleged his dismissal and the termination of his appointment by Wilhelmine Schutte of which he had notice; and that he was possessed of some of the property of Mrs. Schutte for which he failed to account to the county court, to Mrs. Schutte, or to her agent, Walter Eden. Its prayer was that the order of the county court be vacated; that the court determine Asa is not conservator; that all of the property of Mrs. Schutte in his possession be accounted for and delivered to Eden, her agent; and for other just relief.
In district court in case No. 15505 concerning the order made in the conservatorship, Wilhelmine Schutte, Walter Eden as agent, and Harvey A. Neumeister joined in a petition as plaintiffs with substantially the same allegations with respect to the appointment and alleged removal by Mrs. Schutte of Asa as conservator. It further alleged that the order of the county court directing Neumeister and Eden to surrender the property belonging to Mrs. Schutte was made without a hearing or notice to them. The prayer asked the same relief as against Asa and such other relief as the petitioners were entitled to.
The two cases were consolidated for trial in the district court for Otoe County. At the conclusion thereof the district court found that the orders in both proceedings in the county court were proper orders and approved and affirmed them in each case. Separate motions for new trial being overruled, those joining as plaintiffs in the district court have appealed to this court where again the cases have been consolidated.
There is little dispute as to the facts that are essential to our determination of the case.
In the estate of Henry Schutte, deceased, which pended in the county court of Otoe County, Walter Eden was appointed administrator with the will annexed, letters being issued to him on December 17, 1957. He filed an inventory in the county court showing personal assets in the sum of $17,220 and no real estate. The decree on inheritance tax, however, shows there was jointly held real estate valued at $59,855. This real estate came to Mrs. Schutte as surviving joint tenant. On December 27, 1962, the county court entered a final decree finding that the claims and taxes were paid; that all the property of the estate passed under the decedent’s will to Wilhelmine Schutte to whom distribution was ordered; and that upon filing proper receipts, the administrator be discharged. On January 3, 1963, the administrator filed an application reciting that the widow and legatee was now of old age and under an inability to handle property and necessary affairs and that depositions of the doctors were to the effect that she was incompetent.
In the proceedings involving the conservatorship of Wilhelmine Schutte, an application was filed by Mrs. Schutte dated January 8, 1963, which stated that because of old age and general infirmities she was unable and unfit to manage her estate, nominating and requesting Walter Eden to be appointed conservator of her estate. On January 16, 1963, Mrs. Schutte filed a statement which nominated Cecil M. Asa as such conservator. On January 16, 1963, Asa was appointed conservator. He subsequently filed his oath and bond, and later an inventory of assets collected by him in which it was alleged that he believed Harvey A. Neumeister, as agent, and Walter Eden, as administrator of the estate of Henry Schutte, had property belonging to Mrs. Schutte which was not accounted for in the inventory. On July 8,1963, a document dated June 29, 1963, and signed by Mrs. Schutte was filed in which she stated that she dismissed and discharged Cecil Asa as her conservator and requested he account for all her property in his possession to Walter Eden whom she appointed as her agent to act with respect to all her property. On July 26, 1963, another document was filed, likewise signed and acknowledged by Mrs. Schutte, requesting the court to disregard the dismissal of Asa as conservator. It confirmed his appointment and revoked the appointment of Eden as
It was stipulated that Cecil Asa had never been discharged as conservator by the court. Asa had received notification of the purported discharge by Mrs. Schutte in each instance after she had executed them and demands had been made upon him to turn the assets over to Eden as agent. In turn Asa had notified Neumeister and Eden to deliver the assets, to him as conservator. It was further stipulated that Mrs. Schutte had made no request to the county judge to direct Asa to make an accounting or report and the court had made no such request to Asa. It is shown that Mrs. Schutte, by letters signed by herself and Neumeister, had directed bills for certain current expenses be sent to. Eden as her agent, and that directions were sent by her and Neumeister as her attorney to certain elevators and the A.S.C. office to pay any and all checks derived from crops on her farms to Eden.
Those appealing from the orders of the county court filed petitions in district court, designating themselves as plaintiffs. Cecil Asa, as conservator, answered as a defendant. The parties will be referred to hereafter in the same manner.
The errors asigned to the trial court that are required to be considered will be stated as. they are discussed.
Plaintiffs contend the trial court erred in affirming the orders of the county court since the orders were entered against them without notice to them and without a hearing. It is argued by the plaintiffs that the county court had no jurisdiction over the persons of the plain
Concerning the order made in the matter of the estate of Henry Schutte, the plaintiffs therein seem to contend that the court had no power or authority to enter an order directing the administrator to transfer the assets to the conservator although they also again assert the lack of notice or order to show cause. It appears from the record that a final decree was entered in said estate on December 27, 1962, which recites the giving of all proper notices. It found Wilhelmine Schutte to be the sole beneficiary under the decedent’s will and that upon filing proper receipts the administrator was to be discharged. Without having filed receipts, the administrator on the 3rd of January 1963, executed and thereafter filed an application for direction as to the disposition of the assets because of Mrs. Schutte’s possible incompetence there alleged. Meanwhile, a conservator of her estate had been appointed by the county court. The conservator requested the administrator to deliver the assets of the estate to him. Eden, as administrator, thereafter without having received any direction which he had requested from the county court, filed receipts for the assets of the estate on September 6, 1963.
The plaintiffs in the appeal from the order in the conservatorship assert the district court erred in affirming the order and judgment of the county court. Their objection as to the jurisdiction over the persons of the plaintiffs was again asserted and has hitherto been considered and decided adversely to their contentions. They do not expressly raise the question of the jurisdiction of the county court over the subject matter but the question may be inferred from the briefs of the parties. Inasmuch as this court itself examines the record to justify its jurisdiction, we will consider this question in the light of the record and the order made. In county court Wilhelmine Schutte filed documents purporting to discharge the conservator and directing him to account for and deliver her property to her agent, Walter Eden, appointed therein. The county court was directly con
“Under this constitutional provision we are committed to the view: 'Under the Constitution (art. Y, sec. 16) and statutes of Nebraska (Comp-. St. 1929, sec. 27-503) the county court has exclusive original jurisdiction of all matters relating to the settlement of the estates of deceased persons.’ Starr v. Fidelity & Deposit Co.,
“By statute it is further provided: ‘The county court shall have power: * * * Fifth. To require executors, administrators and guardians to exhibit and settle their accounts, and account for the estates and property that
“In carrying out this statutory authorization, it is to be remembered that county courts are without general equity jurisdiction, but, in exercising exclusive original jurisdiction over estates, may apply equitable principles to matters within probate jurisdiction. In re Estate of Frerichs,
In the trial in district court in which Wilhelmine Schutte, Walter Eden as agent, and Harvey A. Neumeister joined as plaintiffs asking affirmative relief, the evidence shows clearly that Eden and Neumeister had denied that Asa was a conservator. They had both urged tenants on the land of Mrs. Schutte not to enter into leases with Asa. Neumeister had joined in letters with Mrs. Schutte instructing elevators and the A.S.C. to pay the rentals and other income from her farms to Eden as agent. Neumeister and Eden each had assets of Mrs. Schutte in his possession as her agent. Neumeister had bank accounts, in his name as agent of Mrs. Schutte which were transferred by him to Walter Eden as agent after the order of the county court. Eden continues to hold Mrs. Schutte’s property as agent. Under this evi
The plaintiffs further assign error to the district court stating its judgment was contrary to the law and the evidence. The principal basis of this contention plainly appears to be that Mrs. Schutte had the power and authority to discharge Asa as conservator at any time and require him to account either to the court or to Eden. It may here be mentioned that she at no time asked for an accounting through the court. The plaintiffs premise their arguments on their interpretation of sections 38-901 to 38-903, R. R. S. 1943. They call attention to the fact that the statute provides that a conservator is appointed on application of the person whose estate is to be conserved. They point out the applicant cannot be an idiot or lunatic and need not be mentally incompetent as is required for the appointment of a guardian under section 38-201, R. R. S. 1943, and that the applicant is not disfranchised. They argue that the authority to appoint implies the power to discharge.
A study of the statutes cited shows plainly that the necessary allegations of the applicant are that he is unfit by reason of the infirmities of age or physical disability to manage his estate with prudence and understanding. Because of this he may apply for a conservator of his estate. Section 38-903, R. R. S. 1943, provides as follows: “Every conservator shall give bond as provided in section 38-110, and all provisions of law for the managing of estates as provided in articles 5, 6 and 7, Chapter 38, shall apply to such conservator.” The articles of the statute in the section mentioned are the same as those which govern other guardians. They provide for the general management of the ward’s estate and the payment of his just debts. They provide in certain cases for the sale or mortgaging of real estate. It is obvious these duties involving procedures of some
The only case of this court construing sections 38-901 to 38-903, R. R. S. 1943, is Cass v. Pense,
“Appeals to this court in such matters are heard and determined de novo.
“A proceeding for the apointment of a guardian is in this state a probate matter. * * *
“Chapter 38, article 9, R. S. Supp., 1951, providing for the appointment of a conservator is for the benefit of any adult who is not a spendthrift, mentally ill, or mentally incompetent, but who considers himself unfit by reason of infirmities of age or physical disability to manage his estate.” In that case the county court had appointed a guardian but on appeal to the district court a conservator was appointed at the instance of the applicant. The differences in the requirements as to the appointment of a guardian and conservator dependent upon the mental and physical condition of the ward are discussed. There is nothing in the decision, however, that indicates the powers of a conservator after his appointment are different from that of a guardian. We conclude that where one has voluntarily consented to the appointment of a conservator under statutes providing for such appointment and the court has acted upon the matter and made the appointment, the ward by merely withdrawing his consent cannot either terminate
After carefully reviewing the evidence and the proceedings generally, we have determined the judgment of the district court was right and should be and is affirmed.
Affirmed.