86 Neb. 490 | Neb. | 1910
William Robertson died testate in 1904. His will devised a certain lot in Lincoln to his wife. Before her
The case was tried in the district court upon documentary evidence and a stipulation of facts. The stipulation of facts is too lengthy to set forth in full; but, in substance, it states that when the widow was adjudged insane she and her husband occupied the premises as a homestead with their children, eight in number, all of whom are now of age; that she is now 64 years of age; that after she was adjudged insane the deceased lived on the premises with one Florence Conway, and by her had three children, Benjamin, Florence, and Ruth, who are the minors adjudged to be entitled to a share of the rents from the homestead, and who were born there; that after Robertson’s death these children were placed in the home for the friendless at Toledo, Ohio, where they now are; that the widow’s absence from the property was occasioned by her insanity and her being placed in the hospital, for the insane at Lincoln; and that the three minor children never lived with her. A copy of the will is in the record, which shows that three-fourths of the real estate of the
A number of objections were raised at the hearing to the jurisdiction of the county court and the district court, and to some matters of practice. We believe it unnecessary to consider these points, since the prior decisions of this court have practically settled the matter in controversy. In Guthman v. Guthman, 18 Neb. 98, it was held that the county court has jurisdiction to set aside a homestead to a widow by virtue of its general jurisdiction in matters of probate and the settlement of estates. In Cooley v. Jansen, 54 Neb. 33, it is hold that “the right of an administrator to possession of the real estate of which his decedent died seized arises from its being subject to payment of debts of the decedent and is not of force relative to a homestead.” In that case the facts were that the Avidow and children executed a lease of the homestead and their lessee had again sublet it. The administrator took possession, leased the land, and instituted injunction proceedings to restrain the sublessee of the widow and heirs from interfering with the possession and occupancy of his tenant. In the opinion it is said: “The land in suit descended to the wife and heirs shorn of any liability for the debts of the deceased, and the administrator had no right of possession or other right thereto or therein, and could not make an effective lease of it; hence could not maintain this suit.”
In the case at bar, upon Robertson’s death the homestead, not exceeding two lots in extent or $2,000 in value, vested at once “in the survivor for life, and afterAvards in his or her heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will.” Ann. St. 1907, sec. 6291; Schuyler v. Hanna, 31 Neb. 307; Finders v. Bodle, 58 Neb. 57; Hobson v. Huxtable, 79 Neb. 340. He could not take this right away from her by will without her consent. Na
The judgment, of the district court is therefore affirmed in all respects, save as to awarding the possession of the property to the guardian ad litem, and the cause is remanded, with directions to modify the judgment in accordance with this opinion. Costs taxed to appellant.
Judgment accordingly.