20 N.W.2d 921 | Neb. | 1945
The issues in this appeal arose out of a suit to partition certain real property devised by the will of Colonel J. Hiatt, deceased. As suggested by counsel, appellants, Grace Marie Thompson, Mary Elizabeth Cully, and Carolyn Clausen, will hereinafter be called plaintiffs and the appellee, Joseph Miller Hiatt, defendant. The will was executed March 27, 1928-Testator’s death occurred May 1, 1930. His will was admitted to probate on June 3, 1930. On May 1, 1931, all claims against the estate having been fully paid or legally-barred, the county court entered its decree of final settlement construing the will and devising the property as directed therein but providing: “ * * * however, the share of Joseph Miller Hiatt is subject to a charge of $800.00 with, interest thereon at five per cent, per annum from March 20„ 1926 as a part of said estate.” That decree also provided that the executors should be discharged from their trust, upon the payment of costs, expenses, and certain amounts, therein directed to be paid, or the filing of vouchers showing such payments, together with the receipt of the trustees for the residue.
Thereafter two of the testator’s sons assumed their duties as trustees of the property, devised during the lifetime of' testator’s widow, as provided in the will, and served as such until March 25, 1942, when they resigned. On April 7,, 1942, another was appointed successor trustee who served until the trust terminated. The testator’s widow died February 3, 1944.
To that petition defendant filed an amended answer admitting that he owned a one-ninth interest in fee simple in the real property involved by virtue of the devise in the will of testator, a copy of which is attached to and made a part of his pleading. He then alleged substantially that the will contained no language making the debt a charge upon his share of the real property devised, therefore, the debt was extinguished and could not be a charge upon his share of the proceeds of the realty and that the provision in the decree of final distribution purporting to subject his share of the devise to a charge for the debt was void for want of jurisdiction. '
Plaintiff devisees, all others disclaiming, then filed a reply admitting the provisions of the will and its probate but denying generally all other allegations of defendant’s answer. They then alleged substantially that on March 20, 1926, defendant executed and delivered to Colonel J. Hiatt a promissory note for $800 at five percent, due in five years, no part of which was ever paid and that defendant had knowledge of the provision in the decree of final settlement but took no appeal therefrom and by his conduct is estopped to claim his share of the proceeds without paying the debt. They also alleged that on September 14, 1935, defendant executed a promissory note for $160, payable on demand, at five percent, to the order of the estate of Colonel J. Hiatt, no part of which had ever been paid and that it also should be retained out of defendant’s share of the proceeds. They admit that no action at law was ever brought to collect either of the notes and that the statute of limitations has b.arred actions thereon but contend that under the circum
Defendant traversed plaintiffs’ reply and the issues were by agreement so presented to the trial court where a decree was entered finding generally for defendant and against plaintiffs. Their motion for a new trial was overruled and plaintiffs appealed to this court assigning as error in substance that the decree is not sustained by the evidence and is contrary to law. We find that these contentions cannot be sustained.
It is conceded that the property involve'd and the proceeds from the sale thereof by the referee was real estate as distinguished from personalty at all times. With reference to the rent collected, we have only recently held under comparable circumstances that rents, either share or cash, vest as real estate in the devisee or heir by reason of the passing of the title. Hahn v. Verret, 143 Neb. 820, 11 N. W. 2d 551. See, also, In re Estate of Andersen, 83 Neb. 8, 118 N. W. 1108; In re Estate of Pope, 83 Neb. 723, 120 N. W. 191.
The primary question for decision then is whether the debt of defendant to the testator may be retained from or charged on defendant’s devise of real estate under the will. In Stanton v. Stanton, 134 Neb. 660, 279 N. W. 336, it was held that: “Where the intention of the testator can be ascertained from the will, it is the duty of the court to give it effect.” It was further held: “A will is presumed to contain the final manifestation of testator’s bounty, and all advancements and charges against a devisee, not saved by the will, are extinguished.” It was also held: “The debt of a devisee to the testator cannot be retained from or charged on the lands devised to him in the absence of language in the will making such debt a charge.”
In the opinion it was' said: “An heir’s distributive share of the personal estate, under all the authorities, may be applied by the administrator or executor in payment of a debt due the estate by such heir. The reason is that the personal estate passes to the administrator or executor, and, while it is in the possession of the administrator or executor, he
The testator’s will, after providing for payment of his debts and the appointment of executors to serve as such during the administration of his estate, devised all of his property to two sons in trust for the period of the natural life of his wife, to manage the same and provide her with suitable maintenance from the income and accumulate the excess, if any, for the benefit of the estate. He gave the trustees the power to sell or mortgage the property only if it became necessary for the purpose of providing his wife with suitable and comfortable support during- her lifetime and the income was insufficient for that purpose. Upon the death of his wife the testator devised all the residue of the estate to his nine children of whom defendant was one, share and share alike, that is one-ninth of such residue to each of them.
We are of the opinion that upon the death of testator the title to' all of his property, together with the power to sell or mortgage it only if necessary to perform the trust imposed, vested at once in the trustees in trust for the life of the beneficiary and, subject to the trust provisions, the remainder vested at once in the nine children, one-ninth to each, share and share alike. However, immediately upon the death of the wife the trust automatically terminated and the fee-simple title to all the property remaining, a part of which was the realty here involved, was complete and vested absolutely in the nine children as if the trust provisions had never existed. We find no language in the will making any debt of defendant to the testator a charge on the devise, therefore, the opinion in Stanton v. Stanton, supra, controls the decision.
The county court so construed the will in its decree of final settlement but it erroneously subjected defendant’s
We find no evidence in the record upon which plaintiffs could predicate estoppel and it is conclusive that defendant’s right in this action to make the defense presented by him could not be precluded by his failure to appeal from the decree of final settlement. Therefore, we conclude that the $800 note made, executed, and delivered to the testator more than two years before his will was executed could not be retained from or charged upon the interest of defendant in the real estate devised. It is nothing more than evidence of an indebtedness due the estate and, as such, passed to the executors upon the testator’s death or to the trustees as provided in the will. Under such circumstances the only remedy of the executors or the trustees was to have invoked the ordinary legal remedies to enforce payment which they evidently did not do until admittedly the statute of limitations barred the debt.
From what has been heretofore said it will be observed also that the $160 demand note executed long after the
At most, the latter note was simply evidence of a debt from defendant to the trustees of the estate which is not available to the other devisees as a set-off against defendant’s share of the proceeds involved in this action because admittedly the statute of limitations has long since barred the debt.
We conclude for the reasons heretofore stated that the judgment of the trial court was correct and it is hereby affirmed.
Affirmed.