33 Neb. 509 | Neb. | 1891
The defendant in error, Josephus Moore, in January. 1888, filed his petition in the county court of Dawson county, praying that letters of administration be granted upon the estate of his deceased father, Hamilton Moore. Subsequently, upon the hearing had for that purpose, letters of administration were granted upon said estate to one John B. Sheldon, who qualified as such officer and entered upon the discharge of the duties of his office. Afterwards, on the 12th day of July, 1888, the defendant in error presented to said county court the following claims against the estate, to-wit:
In account with Josephus Moore.
To labor from March 1, 1873, to Dr. Cr. November 1,1885, with the exception of eleven months........ $3,525 00
1873-1874. To moneys laid out and expended ..................... 315 00
February, 1887. To moneys laid out and expended.................. 75 00
June, 1884. To moneys laid out and expended....................... 575 00
July, 1885. To moneys laid out and expended...................... 200 00
October, 1885. To moneys laid out and expended.................. 400 00
October, 1885. For breaking done for Hamilton Moore.............. 30 00
By moneys had at various times from March 1,1873, to October 1884................................. $300 00
By balance............................. 4,820 00
$5,120 00 $5,120 00
On the 16th day of August, 1888, Sylvanus Moore, one of the heirs of said estate, filed with said court written objections to the allowance of said claim on the following grounds:
“First — The court had no jurisdiction to appoint an administrator, and the pretended administration of said estate is unauthorized and void.
“Second — That the said estate is not indebted to Josephus Moore, the claimant, in any sum whatever.”
On the hearing the county court allowed the sum of $2,500 on said claim. The contestant took an appeal to the district court, where the cause was tried to a jury, and a verdict was returned for the'claimant for $2,705. Syl
It is contended that the order of the county court appointing the administrator, and all subsequent proceedings thereunder, are without jurisdiction, and this for the reason that Hamilton Moore was not an inhabitant of this state at the time of his death, and left no estate in Dawson county, nor in this state, to be administered upon.
Section 177, chapter 23, Compiled Statutes, bearing upon the question presented for our consideration, reads as follows :
“Sec. 177. When any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant or resident at the time of his death. If such deceased person, at thn time of death, resided in any other territory, state, or country, leaving estate to be administered in this state, administration thereof shall be granted by any probate court of any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the probate court of every other county.”
By these provisions the legislature has conferred jurisdiction upon county courts to grant letter’s of administration in two classes of cases: First, where the deceased person was an inhabitant of the state at the time of his death; and second, where the deceased person was a nonresident of this state when he died, but left an estate to be administered in this state. Where the deceased was a resident of the state, the county court of the county where he resided has exclusive authority to grant letters testimentary or of administration, but in case the deceased person’s last place of residence was in another state, territory, or country, the application for letters of administration may be made to the county court of any county of this state in
The right of the plaintiff in error to question the authority of the county court to grant letters of administration on the hearing of his objection to the allowance of the claim filed against the estate, depends upon whether the record of the county court on its face shows the lack of jurisdiction to make the appointment. It cannot be doubted that where a sufficient petition for administration is presented to the proper county court, and the statutory notice is given, its action in appointing an administrator is valid and binding unless revoked, or set aside on appeal. It will be presumed to have acted upon sufficient evidence. (Hobson v. Ewan, 62 Ill., 146; Johnson v. Johnson’s Estate, 66 Mich., 525; Lees v. Wetmore, 58 Ia., 170.)
It appears from the averments in the application made to the county court for administration, that Hamilton Moore, at the time of his death, was not a resident of Dawson county; that he had no personal property, but was “equitably seized and possessed of real estate consisting of the southeast quarter of section 12, town 9, range 19 in said county and state.” Upon the trial in the district court the
Section 67, chapter 23, Compiled Statutes, provides that “ When the personal estate of any deceased person, in the hands of his executors or administrators, shall be insufficient .to pay all his debts, with charges of administering his estate, such executors or administrators may sell his ¡real estate for that, purpose, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided.”
Section 76 provides that “The proceeds of any real estate sold for the payment of debts and charges of administration, as provided in this subdivision, shall be deemed assets in the hands of the executor or administrator, in like •manner as if the same had been originally a part of the goods and chattels of the deceased,” etc.
By these provisions the legislature has made lands assets for the payment of the debts of a decedent, in the event of a failure of personalty, and it is perfectly clear that administration may be granted upon the basis of real estate alone, where it is made to appear that an administrator is necessary.
Reversed and dismissed.
