85 Neb. 89 | Neb. | 1909
In 1894 Eliza M. Kimberly, a childless widow, married Absolom Vandeveer, and continued in said wedlock until February 6, 1895, upon which day she died testate and childless, a resident of Nemaha county, Nebraska, the owner of real estate, a part whereof is in Nebraska and a fraction thereof in South Dakota. Mrs. Vandeveer acquired her real estate and made her will before said marriage. On the petition of the executor the will was admitted to probate in the county court of Nemaha county in March, 1895. July 15, 1895, Absolom Vandeveer, who survived the testatrix, filed a petition in said court,
In the district court, upon the identical issues presented ■in the county court, a motion by defendant for judgment on the pleadings was sustained, and Vandeveer’s petition dismissed. On appeal, December 6, 1899, we reversed the judgment of the district court. Vandeveer v. Higgins, 59 Neb. 333. The estate of Mrs. Yandeveer has not been settled, but is still under the control of the administrators. All of said devisees and legatees are nonresidents of Nebraska. Subsequently, the exact date not being shown by the evidence, but evidently in January, 1900, the representatives of the estate acquiesced in the claim of the surviving husband, paid him the accumulated, rents for the Nebraska real estate, and surrendered possession thereof to him. Vandeveer retained such possession and enjoyed the rents and profits until his death, which preceded the commencement of this action. The mandate of this court was filed with the clerk of the district court in October, 1902. During the December, 1902, term of said court, and on the 8th day of that month, a judgment was entered in the journals vacating the judgment appealed from, and decreeing generally that Yandeveer was entitled to the estates of curtesy and homestead in the lands of his de
This action was commenced October 16, 1907,'by the administrators with the will annexed of the estate of the testatrix and her devisees, against the said Cornell and the heirs of Absolom Vandeveer, deceased. It is alleged that the decree rendered January 3, 1903, was procured fraudulently and is void, being controlled by the judgment rendered in December, 1902; that the county court did not have jurisdiction over the subject matter involved in the proceedings before it upon Vandeveer’s application, and that all orders made therein, and the subsequent judg
1. Plaintiffs argue that the county court is without jurisdiction to assign an estate by the curtesy, that the judgment, in so far as it revoked the will and the probate thereof, did not respond to any allegation in Vandeveer’s petition, and that the several judgments and orders are Aroid so far as the Dakota land is concerned. The tenant by curtesy consummate has the right of possession during his natural life, and may maintain ejectment therefor. Moore v. Ivers, 83 Mo. 29. Counsel for defendant argue that an estate by the curtesy is analogous to dower, and, as the county court lias jurisdiction where there is no issue of fact to determine to set off and assign the last
The Nebraska land was in the possession of the administrators as officers of the county court. Yandeveer's claim required a construction of the will in the light of the facts alleged and admitted, and a decision as to Avhether the life estate asserted by the surviving husband in the Nebraska land devolved by virtue of the statutes or was cast by the will; and, for the purpose of advising the executors of their duty in the premises if they preferred to submit the question of possession to that forum, the county court had ample jurisdiction. Andersen v. Andersen, 69 Neb. 565; Dundas's Estate, 73 Pa. St. 474; Otterson v. Gallagher, 88 Pa. St. 355. Whether there was jurisdiction of the subject matter so far as the devisees and legatees are concerned is immaterial. The estate has not been closed at this late day. The possession of the vland and the disposition of the rents and profits therefrom were proper subjects for the court’s consideration in view of + he fact that the administrators had that possession and (ollected the rents by virtue of their office. The devisees
The litigants have introduced in evidence sections of the South Dakota statute which provide that a will executed by an unmarried woman is revoked by her subsequent marriage; that the estates of dower and curtesy are abolished; that, if a deceased wife leaves no issue, one-half of her real estate descends to her surviving husband; and that foreign wills may be probated in that state, and recognizing a foreign probate thereof. Just what application the courts of South Dakota will make of the law of that state, statutory or otherwise, to the facts relating to the estate and will of the late Mrs. Yandeveer, we do not know, but we feel certain that complete justice will be done in the premises, and, if it were otherwise, the judgments of the courts of this state would not mend matters. So much of the judgment as purports to revoke in part
It is not necessary to consider the lack of jurisdiction of the county court to assign Absolom Yandeveer an estate by the curtesy in the Nebraska lands, over the opposition of the devisees named in Mrs. Vandeveer’s will, because their right of possession of the real estate has never been invaded by virtue of the order complained of, and they have joined with the administrators in a joint petition against the representatives of Absolom Yandeveer for relief which cannot be given to the extent of the demand made by the administrators. In short, all that was settled by the strenuous litigation between Absolom Yandeveer on the one part, and the administrators of the estate, and the devisees under the will of Mrs. Yandeveer, on the other, is that as between those administrators and Absolom he was entitled during his natural life to the possession and rents and profits of the land in Nebraska of which she died seized.
2. The cross-petitions of the representatives of Absolom Yandeveer must be denied. Their complaint is not ger
The judgment of the district court is therefore reversed, with instructions to enter a decree in harmony with' this opinion.
Reversed.