11 N.W.2d 551 | Neb. | 1943
This action was commenced in the district court for Adams county by Karl E. Hahn, as plaintiff, against Mary Marguerite Verret, George L. Verret, and the Omaha National Bank, as executor of the estate of Mary Hahn, deceased, as defendants, for the purpose of quieting title in
By stipulation of the parties the separate appeals were consolidated and are considered and disposed of by this opinion. For the purpose of this record, Karl E. Hahn, the appellee, will be referred to as Hahn; Mary Marguerite Verret, appellant, will be referred to as Mrs. Verret; and the Omaha National Bank, as executor of the estate of Mary Hahn, deceased, appellant, will be referred to as the executor.
The record discloses that Mary Hahn and Leopold Hahn. were the parents of Karl E. Hahn and Edith ,Hahn and lived in Omaha, Nebraska. That Leopold Hahn died in about 1915 and Mary Hahn died on December 22, 1940. Karl E. Hahn is now a resident of Chicago, Illinois, and has been for a number of years and at the time of the trial he was 58 years of age. He left home at the age of 18 years, but had always remained on friendly terms with his parents and had visited his mother about once a year up until the time of her death. After the death of his father he generally looked after the property of his mother, including the farm in Adams county,.and collected the income and rents therefrom and remitted the same to her. The
On May 13, 1933, Mary Hahn made a last will and testament which was allowed and admitted to probate in the county court of Douglas county on May 19, 1941, the principal part of which, for the purposes of this appeal, are paragraphs one, two, and four, which are as follows:
“I. I give, devise and bequeath unto my son, Karl E. Hahn, now of Chicago, Illinois, in fee all of my real estate wheresoever situate; it being my intention that he shall have the real estate as his own and to do with it as he pleases.
“II. I give, devise and bequeath unto my granddaughter, Mary Marguerite Verret, Five Thousand ($5,000.00) Dollars in cash or in securities of a value equal to Five Thousand ($5,000.00) Dollars; it being my desire in making this specific bequest to my said granddaughter that this money be used by my said granddaughter for the purchase of a home, but that this bequest of Five Thousand ($5,000.-00) Dollars I give to my said granddaughter absolutely and without any restrictions. * * *
This will named Karl E. Hahn and the Omaha National Bank as coexecutors but Karl E. Hahn resigned and failed to qualify and the bank was appointed executor and qualified as such. The county court fixed a time for filing claims and notice thereof was published and on September 13, 1941, order was entered barring the further filing of claims. Thereafter the executor filed its final report and petition for the settlement of the estate on November 21, 1941, notice of which was published and hearing was set for December 22, 1941, but was postponed and no order has been entered approving said final account or ordering the final disposition of the estate. However, on May 27, 1942, pursuant to application of the executor for directions regarding its administration of the assets of the estate, the county court entered an order construing the will to provide that the $5,000 legacy of Mrs. Verret should be paid in any event and directing postponement of the final settlement of the estate and directing the executor to collect the rents from the land herein involved from and after the date of the death of Mary Hahn. From this order Hahn filed a petition in error in the district court for Douglas county on August 24, 1942, which, upon application of Hahn for continuance, was on October 3, 1942, dismissed by the district
During her lifetime Mary Hahn entered into a three-year lease on the Adams county property being from March 1, 1939, to March 1, 1942. This lease, provided for cash rent payable annually as evidenced by notes executed by the lessee at the time of the lease. The lease provided rent for the last year, being from March 1, 1941, to March 1, 1942, in the sum of $1,100 as evidenced by two notes, each in the sum of $550 due March 1, 1941, and October 1, 1941, and which notes were possessed by Mary Hahn at the time of her death and subsequently collected by Hahn.
At the time of her death Mary Hahn was the owner of 16 shares of American Telephone and Telegraph stock of a market value of about $2,000 and had joint bank accounts with her granddaughter totaling over a thousand dollars. That at the' time of making the will the land was worth about $6,000 to $7,500 and at the time of her death from $16,000 to $18,000.
The first question presented by this appeal is, did the district court for Adams county have jurisdiction to entertain this action while the estate of Mary Hahn was being administered by the county court of Douglas county? Under section 16, article V of the Constitution, the county court has exclusive jurisdiction of the probate of wills and the administration of estates. Zimmer v. Gudmundsen, 142 Neb. 260, 5 N. W. (2d) 707. Likewise, the district court for Adams county, being the county in which the real estate here involved is located, has jurisdiction -of an action to quiet title thereto. Comp. St. 1929, sec. 20-401. On May
We are also committed to the view that in actions to quiet title, St. James Orphan Asylum v. Shelby, 75 Neb. 591, 106 N. W. 604; partition, Mohr v. Harder, 103 Neb. 545, 172 N. W. 753, and Annable v. Ricedorff, supra; and to enforce legacies, Klug v. Seegabarth, 98 Neb. 272, 152 N. W. 385, the district court has jurisdiction to construe a will in determining the rights of the parties to the land or legacy under the will.
At the time this action was brought the estate of Mary Hahn was being administered by the county court of Douglas county and an order barring claims had been entered. In his petition Hahn alleged and at the time of trial presented evidence and established, as the lower court found, that the personal property in the possession of the executor was ample to pay all debts, costs, and expenses of ad
The time for filing claims having expired, an order having been entered barring the further filing thereof and the personal assets of the estate being sufficient to pay the debts, costs, and expenses of administration, Hahn was entitled to bring this action to quiet title. Under the holdings of this court the order of the county court of Douglas county, made on application of the executor, directing the executor with reference to its actions in the administration of the assets of the deceased under the provisions of the will was entirely proper in safeguarding the executor in the administration of the estate but such order was not binding upon the devisee or legatee as between themselves nor ' between themselves and the executor. It was not a final order that was appealable and the entry thereof by the county court and the dismissal of the petition in error by the district court for Douglas county for the reason that it was not a final order that was appealable, and from which the parties took no appeal, in no way prevented Hahn from maintaining this action to quiet title.
The jurisdiction of the district court for Adams county is further challenged by the contention that under the provisions of sections 30-231, 30-232, 30-233, 30-234, 30-235, Comp. St.. 1929, the county court of Douglas county has certain functions to perform in the administration of the es
The next question for consideration is whether or not the executor is entitled to the possession and rents from the lands involved in this action under the provisions of section 30-406, Comp. St. 1929, which reads as follows: “The executor or administrator shall have a right to the possession of all the real as well as the personal estate of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall have been settled, or until delivered over, by order of the county court, to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings, and fences thereon which are under his control.” It appears from the evidence that Hahn has had possession of the premises and collected the rents therefrom since the date of the death of the testatrix, December 22, 1940, including the cash rent for the year March 1, 1941, to March 1, 1942, in the sum of $1,100 evidenced by two notes due March 1, 1941, and October 1, 1941, as provided by the three-year lease of the premises entered into by the testatrix on July 11, 1938, and which notes were owned by the testatrix, as lessor, on the date of her death. That the title to real estate under a devise in a will is vested in the devisee at the instant of the testator’s death is without question, Stanton v. Stanton, 134 Neb. 660, 279 N. W. 336, and conveys all of the interest of the deceased, section 30-202, Comp. St. 1929: “Every devise of land in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will, that the devisor intended to convey a less estate.” In National Bank of Commerce v. Lefferdink, 110 Neb. 275, 193 N. W. 916, we approved the following from Eiseley v. Spooner, 23 Neb. 470, 36 N. W. 659: “Rent reserved by lease of real estate, and not accrued at the time of a conveyance of the reversion, passes with such conveyance to the grantee. Every con
Construing the foregoing authorities, the rents, either share or cash, accruing after the death of the owner, vest in the devisee or heir by reason of the passing of the title. While the same may be defeated by the executor or administrator taking possession thereof under the statute, such possession is for the purpose of paying the debts, costs, and expenses of the estate and if not needed for that purpose because the personal property is sufficient, then the heir or devisee is entitled thereto. Where the executor of the estate permits the devisee to remain in possession and collect the rents and the time for filing claims has passed and the personal property of the estate is sufficient to pay all debts, costs, and expenses, then the purpose for which the right of possession is given has passed and the right of the executor to possession for that purpose no longer exists and the devisee is entitled to have his title quieted as to the executor.
Did the provisions of the will make the payment of the legacy a charge on the real estate? A careful reading of the provisions of the will do not disclose any such charge to be made by the language thereof. The appellants cite the case of Burton v. Defenbaugh, 132 Neb. 851, 273 N. W. 489, in which the third paragraph of the syllabus reads: “A legacy will ordinarily be regarded as payable primarily from personal property; but where that is insufficient, and in the absence of language in the will indicating a deliberate intent to exclude the real estate from such liability, the legacy will be chargeable against the real estate.” A careful reading of the will in that case discloses no ne
It is further contended that the provisions of paragraph IV of the will create a conversion of the realty into personalty. After giving to Karl E. Hahn all of her real estate in
By the terms of paragraph I of the will she had already given the real estate to her son and by none of the provisions of the will was it subject to any conditions except as might be imposed upon it by law. As stated in 21 Am. Jur. 774, sec. 700: “The effect of a testamentary power of sale depends primarily upon the intention of the testator as evidenced by the wording thereof. Such power may work an immediate equitable conversion of the realty as between the executor and the heir or legatee. In order, however, to work such a conversion there must be a positive direction to sell or an absolute necessity to sell involved in the due execution of the will, or such a blending of real and personal estate by the will as to show clearly that the testator intended to create a fund out of both real and personal estate and to bequeath such fund as personalty.” And in Chick v. Ives, 2 Neb. (Unof.) 879, 90 N. W. 751: “Where the provisions of a will are of such a character as to amount to a positive direction to convert the real estate into money or personalty, or where by a fair construction of the will such intention of the testator is clearly shown by implication, a court of equity will decree that an equitable conversion of the real estate of the testator into money, or personalty, took place at the time of his death. 2 Jarman, Wills, 183; Wurts’ Executors v. Page, 4 C. E. Greene (N. J. Eq.) 365; Stagg v. Jackson, 1 N. Y. 206; Martin v. Sherman, 2 Sandf. Ch. (N. Y.) 342; Van Vechten v. Van Veghten, 8 Paige Ch.
As has been stated, the will contained no positive direction to convert the real property into personalty nor does it contain a bequest of such a character as to plainly indicate a testamentary intent that the power of sale shall be executed to provide the means to satisfy it. Let us then examine the facts to see whether or not the conditions at the time of the drafting of the will were such that the testatrix must have contemplated that such conversion would take place to the end that the bequest to Mrs. Verret would be paid if the personal property were not sufficient. Under our statute and decisions of this court, it is the rule that in the construction of a will we must give effect to the true intent of the testator so far as it can be collected from the whole instrument, if such intent is consistent with rules of law, and as stated in Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004: “In- arriving at an understanding of the intention of the testator and the meaning of the language used in his will, it is the duty of the court to take into consideration all the facts and circumstances surrounding the testator at the time of the making of the will.” See, also, In
For the reasons herein given we find the decree of the lower court correct except that the title is quieted in Karl E. Hahn, subject to the liabilities, if any, in the estate of Mary Hahn, deceased, as the same may be finally determined.
Affirmed as modified.