12 N.W.2d 829 | Neb. | 1944
This litigation originated in the county court of Nuckolls county j Nebraska. For clarity it seems necessary to- review certain preliminary proceedings. The county court appointed William Statz executor of the estate of Augustus Statz, deceased. William Statz, the executor, died, and Hazel J. Statz, his wife, was appointed administratrix of his estate. Certain legatees under the will made application for the appointment of an administrator de bonis non, c. t. a., of the Augustus Statz estate and F. M. Harris was so appointed. Thereafter two legatees made request in writing to the county court that Hazel J. Statz, administratrix of the estate of the executor deceased, and his sureties, be required to render a final account of the executor’s administration of the estate of Augustus Statz, deceased.. The administratrix thereafter filed an extensive showing which included an itemized statement and account of all money and assets received and expended by the deceased executor between April 11, 1938, the date of his last report to the county court, and the date of his death on July 26, 1938, including balances then remaining in her hands. Among other things she alleged that she had accounted to the administrator de bonis non for all of the assets coming into her hands. Upon this
Special appearance of the administratrix, and demurrers
The case was appealed to the district court where the parties stipulated, among other things, that the case be tried on the pleadings filed in the county court; that the matter be heard- first on the special appearance, next on demurrer, and, if overruled, then on its merits on the pleadings. Special appearance was overruled by the district court, but demurrer was sustained, and upon request of Lillie M. Filer in open court, leave was granted to file an amended petition within twenty days, with which she complied. Motion was then filed to strike the amended petition as in violation of the stipulation, which motion the trial court overruled. Incidentally appellee complains of this ruling, but the general rule is that such stipulations are not absolute, even though in writing, and are not to be treated as contracts to be enforced under all circumstances. They may be set aside by the court in the exercise of a sound discretion in the promotion of justice. Keens v. Robertson, 46 Neb. 837, 65 N. W. 897; State Ins. Co. v. Farmers Mutual Ins. Co., 65 Neb. 34, 90 N. W. 997; 60 C. J. 94.
Motion was then filed to strike the amended petition because of variance, contending- that it set up- a new and different cause of action. This motion was sustained, and, upon the petitioner’s election not to plead further, the action was dismissed at costs of the petitioner, who appeals to this court, assigning as error that the trial court erred in sustaining the demurrer of appellee to the original petition, and in striking the amended petition and dismissing the action.
For the purposes of this opinion, the county court had jurisdiction of the subject matter, and authority to grant such equitable relief as would do exact justice between all the parties in interest. At the outset we conclude that the denial of the summary application requesting that Hazel J. Statz, administratrix, be required to file a final account after her showing was made and filed, is not res judicata, as contended by appellee, since the matter affected by the application was only interlocutory and incidental or collateral to the determination of this controversy on its merits which were not in any manner previously adjudicated. 34 C. J. 763.
A demurrer to a petition admits only facts well pleaded "therein and the court will not consider extrinsic facts admitted or alleged by the parties or their counsel. As a general rule only the demurrer and the pleading demurred to may be considered in passing thereon. Griffin v. Gass, 133 Neb. 56, 274 N. W. 193. “A demurrer to a petition only lies to the statement of facts constituting the supposed cause of action, not to the prayer for relief, which may be much in excess of what those facts warrant the court to grant.” Burnham v. Bennison, 121 Neb. 291, 236 N. W. 745. We have recently held that a prayer for equitable relief is as broad as the pleadings and the equitable powers of the court. Gibson v. Koutsky-Brennan-Vana Co., 143 Neb. 326, 9 N. W. 2d 298; 21 C. J. 679; 30 C. J. S. 1000, sec. 607. When a petition is filed alleging an original cause of action directed against administration proceedings to obtain relief by the application of equitable principles, on demurrer
The county court is: a court of record. Const. art. V, sec. 16. “Jurisdiction of the subject matter is to be tested by the authorized extent of the powers of the court in respect to the cause of action before it.” Dame, Probate and Administration (3d ed.) 16, sec. 16. “In a court of record, it is not essential that every jurisdictional fact appear upon the face of the record, and if a petition sets out facts sufficient to show a cause of action within the general jurisdiction of the court, and no facts appear upon the face of the record establishing that no jurisdiction exists, all presump-, tions are resolved in favor of the power of the court to act.” Brandeen v. Lau, 113 Neb. 34, 201 N. W. 665.
By the Constitution, article V, sec. 16, and section 27-503, Comp. St. 1929, the county court has exclusive original jurisdiction of all matters relating to the settlement of the estates of deceased persons. In re Estate of Jurgensmeier, 142 Neb. 188, 5 N. W. 2d 233. Section 27-504, Comp. St. 1929, provides, in part: “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 have come into their possession as such.” This court recently held in In re Estate of Jurgensmeier, supra, “In carrying out this statutory au
The present action is. not one to recover a money judgment as excepted in section 30-801, Comp. St. 1929, but to require a true and just accounting as required by law, and recover possession of a trust fund, personal property of the estate, by surcharging the executor’s account therefor and to require his administratrix to account for such assets of the estate coming into her possession after his death and such assets of the estate coming into her possession wrongfully, with knowledge, during administration thereof before his death and still retained thereafter. By statute, section 30-1401, Comp. St. 1929, “Every executor and administrator shall be chargeable in his account with the whole of the goods, chattels, rights and credits of the deceased which may come to his possession; * * * and with all the interest, profit and income that shall in any way come to his hands from the estate of the deceased.” Other appropriate sections in the same chapter of our statutes provide the time, manner, duty, and necessity of making a true and just accounting of the property of the estate to the county court.
The only conclusion that can be drawn from the allegations of the petition and demurrer is that the administratrix, Hazel J. Statz, appellee, still possesses and owns the real estate which was purchased with the alleged unlawful loan obtained from her husband, the executor, and the mortgage. thereon inadequately securing its payment is still owing, unpaid and unsatisfied by her in the amount of $8,450 and interest which belongs to and is a part of the assets of the estate. Under such circumstances, this action may be maintained in the county court for the purpose of an accounting of the trust property, which is still traceable and technically and legally in the possession of the county court, and appellant is not limited to the filing of a claim against the executor’s estate or an action in the district court to enforce the trust against the administratrix of his estate. 2 Woerner, American Law of Administration (3d ed.) 1333, sec. 402.
Contention by appellee that this action cannot be main
With reference to the statute of limitations, of which appellee claims the benefit, the rule is that the trust of an executor or administrator is a continuing one, and he cannot set up the statute of limitations as against the rights of the next of kin or persons entitled to the distribution of the assets of the estate unless he repudiates the trust or sets up claims in his own right, or until the trust is terminated. A plea of the statute of limitations is not open to an executor or administrator, or the personal representative of a deceased executor or administrator, in an action for an accounting of the assets of the estate. 37 C. J. 921; 21 Am. Jur. 658, sec. 495; 34 C. J. S. 756, sec. 733; 34 Am. Jur. 290, sec. 374, and 291, sec. 376; Dame, Probate and Administration (3d ed.) 574, sec. 565; 2 Woerner, American Law of Administration (3d ed.) 1333, sec. 402.
The original petition filed herein states a cause of action. In this connection, the law is that an executor or administrator should preserve the property of the estate entrusted to him,. separate and apart from his own, to give it an earmark so that it will always be technically in the custody of the county court and readily known and traceable. The violation of this duty is a breach of trust which may entail the consequences of pecuniary liability upon him for profit to himself or loss to the cestui que trusts, although acting in good faith. An executor or administrator cannot contract with himself. 1 Woerner, American Law of Administration (3d ed.) 602, sec. 177. An executor or administrator should not employ the assets of the estate in his own business or in speculation on his own account since he is not permitted to reap any gain, profit, or advantage from use of the trust fund. 33 C. J. S. 1243, sec. 239; 2 Woerner, American Law of Administration (3d ed.) 1107, sec. 336. In making investments of the funds of the estate the execfitor
On the question of variance, we do not deem it necessary to set out the allegations of the amended petition. It is the general rule that the same issues must be tried on appeal as in the original proceedings in the county court. However, in view of propositions of law heretofore stated, the case at bar clearly comes within the rule that, “While on appeal to the district court the plaintiff must prosecute the same cause of action as in the court of original jurisdiction, yet, in drafting his petition, he is not confined to the allegations contained in his pleading in the court below, so long as the identity of the original cause of action is preserved.” Levi v. Fred, 38 Neb. 564, 57 N. W. 386. See, also, Sells v. Haggard & Co., 21 Neb. 357, 32 N. W. 66; Ball v. Beaumont, 59 Neb. 631, 81 N. W. 858; McPherson v. Commercial Nat. Bank, 61 Neb. 695, 85 N. W. 895; Brockway v. Reynolds, 77
We conclude that the trial court erred both in sustaining the demurrer to appellant’s original petition, and in striking the amended petition and dismissing the action. Therefore, the judgment is reversed and the cause remanded with directions to hear the appeal on its merits.
Reversed, with directions.