62 Neb. 420 | Neb. | 1901
This action began with a petition in the county court of Pawnee county, by Charles T. Morton, defendant in error, for distribution to him of a one-seventh part of the proceeds of personalty of the estate of Joseph B. Mo'rton, deceased. This resulted in a finding that petitioner was not an heir of Joseph B. Morton and not entitled to share in the estate. From this finding, Charles T. Morton appealed to the district court of Pawnee county, where the finding of the county court was reversed, and a decree of the district court entered that upon the final settlement and distribution of the estate of Joseph B. Morton, Charles T. Morton have a one-seventh part of the estate. The petition in the county court seems to have been resisted on the ground that Charles T. Morton was not a child nor a devisee of Joseph B. Morton, nor an heir of any portion of the estate. Such was the finding of the county court, and his action was dismissed. He gave bond for appeal, and in the- district court ■ filed a petition setting out the death of Joseph B. Morton August 26, 1889; the probate of his will and provision in it that after the lapse of five years the estate should be divided equally among the testator’s children; that the children were seven in all, including the petitioner; that the executor, Gabriel Morton] had $205.90, which should be distributed, and asking for its distribution. The executor moved to dismiss the appeal,
As to the first point, the question is simply whether Charles T. Morton, claiming to be an heir, could apply for a distribution of the personalty in the hands of the executor, or whether he was bound to wait until such time as the executor had disposed of the real estate. It would seem that the question of his heirship, and his right to participate in the proceeds of the estate and bring an action with reference to it, might be raised at any point in the proceedings, where interference on his part would be appropriate; and the fact that when he appeared before the county court to ask for a portion of the personalty in the hands of the executor, he was met by the objection that he had no interest in the estate, brought that question at once to the consideration of the court, and its finding, when once made, if not appealed from, would have been conclusive on both the court and the parties. If such was the case, then, clearly this order of the county court dismissing his petition for that reason was appealable, and the motion to dismiss the appeal was rightly overruled. In re Jessup’s Estate, 81 Cal., 408.
The question of the sufficiency of the evidence in this case to uphold the district court’s finding that the petitioner was a child of the deceased, and included in the terms of the will, seems to depend upon the construction of section 31, chapter 23, Compiled Statutes. The con
We therefore recommend that the decision of the district court be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.
Harper’s edition, vol. IV, pp. 352, 353. — Reporter.