88 Neb. 379 | Neb. | 1911
Our opinion reversing the first judgment rendered in this action is reported in 85 Neb. 217. The plaintiff has
The plaintiff contends that her legacy is specific and should be preferred to the bequests made to her brothers and to her sisters other than Cerilla, and that since her brother Harrison, the executor, accepted the farm upon which that legacy is charged, he is personally liable therefor. It was determined upon the former appeal that the land was charged with the lien. In his will the testator first bequeathed to his wife her specific exemptions, the life use of two rooms to be selected by her in a dwelling house, and the interest on $3,000, which is charged upon the farm. Thereafter he bequeathed legacies aggregating $2,376 to six of his children, and finally he bequeathed to the plaintiff $1,817, and to her sister Cerilla $373. If the testator should survive the plaintiff’s husband, her legacy is payable immediately upon her father’s death, but, if her husband survives her father, she is to receive 7 per cent, annual interest upon her legacy during her husband’s natural life, and the principal sum in the event of his death.
The evidence tends to prove that the executor in treating all legacies as of equal rank acted upon the'advice of the county judge, and possibly in conformity with an unrecorded order made by that official, but the proof does not show that notice was given of-the executor’s intention to apply therefor. The plaintiff’s letter of date February 8, 1889, sent by her to the executor, bears strong internal evidence that she was acquainted at that early day with the contents of her father’s will.
The defendant in 1893, after paying the testator’s debts and the costs of administration, assumed to prorate the residue of the estate among all of the legatees. The plaintiff must have known from her correspondence and from the amount of the interest remitted annually by her brother that he, as executor, had paid her brothers and
The decree of the district court is therefore modified so as to increase the plaintiff’s lien to $602.23, and, as modified, the judgment is affirmed; defendant to pay all costs of the action.
Affirmed as modified.