38 Neb. 78 | Neb. | 1893
The final report of the administrators of the estate of Carl Sesseman, deceased, was filed in the probate court of Douglas county, Nebraska, on the 21st day of November, 1889, from which it appears that the assets of the estate just equaled the liabilities; that is, each was $10,745.78. The deceased, Carl Sesseman, left a will whereby he bequeathed to Matilda Huebner, appellee, $1,000, which will was duly probated and allowed in the said county court. The administrators appointed under said will (the executor named therein having failed to qualify) were William G. Bohn and Emma Sesseman, wife of the deceased, who gave bond as required bylaw, and entered upon the administration of the estate. To the above mentioned final report of the administrators of 'said estate there were filed exceptions by Matilda Huebner, and certain of said exceptions were sustained by the county judge, and a decree was entered in accordance with the finding by him made. Thereafter an appeal was taken to the district court of Douglas county from said decree. On the 22d day of May, 1891, said cause came on for hearing and a decree was entered therein, refusing the allowance of the sum of $5,544.43 claimed by the administrators aforesaid. To this finding exception was duly taken, and the case is now before this court for a settlement of the account of the administrators in the execution of their trust.
The main contention in this case resulted in the following finding: “4th. That said administrators have paid out of the assets of said estate, and claim credit ■ therefor in said
“The plaintiff offers the order limiting the time within which the creditors should present their claims, which was fixed at six months, and the order limiting the time in which the estate should be settled, which was fixed at a year, which order was made on the 24th day of February, 1888, which is admitted as correct by both parties. It is admitted by both parties that due notice of the time and place of presenting claims of creditors under this order was given.”
This was agreed to by counsel for the administrators, except as to the time in which the creditors were finally to file their claims, the said counsel claiming there was a subsequent order. It was conceded by the opposite counsel that if there ever was any such subsequent order it might be considered in proof.' This devolved upon the administrators the burden of showing the order extending the time for filing claims, and as no proof was made of any such extension, it may fairly be presumed that none was made.
■ Upon the trial of the case, "W. G. Bohn, one of the administrators, was called and sworn on the part of the
“ The defendants now offer to prove by the witness on the stand that each of the claims against the estate of Carl Sesseman, as shown by the vouchers filed in the probate court of Douglas county, Nebraska, are valid, legal, and lawful claims or accounts against Carl Sesseman’s estate, and they were such valid, legal, and lawful claims at the-time of his death and at the time they were paid by the administrators of his estate, as shown by the vouchers on file-in said court, and that no part or portion of the debt or-debts as shown by the several vouchers had been paid, and all were due and payable. The vouchers referred to are for all the claims credited to the administrators in their final report, except those claims allowed by the county court under date April 24, August 23, and November 23, 1888;. said claims being rejected by the county court upon the hearing of the final account of the administrators.
“ By the court: If you propose to show by the proofs-that any of these claims which you now offer have been, any of them, presented and allowed by the county judge, or by the commissioners, you may do so.
“By Mr. Burbank: With reference to none of those-which I now make the offer do I so contend.
“To each and every one of the vouchers offered, with the-exception of such as may possibly be for legitimate expenses of the estate, such as funeral expenses or expenses properly-paid to attorneys, or anything connected with the last sickness of the deceased, there is no objection, and to every and each of said vouchers which represent claims filed against the estate as due from Carl Sesseman in his lifetime, which, said claims were not presented and allowed by the county judge, the plaintiff objects, as irrelevant and incompetent.
“ By the court: The objection is sustained to those claims-as against the estate, and which were not presented and allowed by the county judge.
“ To which the defendants except.”
Section 214, chapter 23, Compiled Statutes, is in the following language: “When letters testamentary or of administration shall be granted by any probate court, it shall be the duty of the probate judge to receive, examine, adjust, and allow all claims and demands of all persons against the deceased, giving the same notice as is required to be given by commissioners in this subdivision.”
Section 217 provides that “The probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissioners for examination and allowance, which time shall not in the first instance exceed eighteen months nor be less than six months, and the time allowed shall be stated in the commission.”
It is provided by section 226 of the same chapter, that “ Every person having a claim against a deceased person proper to be allowed by the judge or commissioners, who shall not, after the giving of notice as required in the 214th section of this chapter, exhibit his claim to the judge or commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”
The appellants contend that notwithstanding the provisions of section 226, just quoted, the probate court in the first instance, and the district court on appeal, should have permitted the testimony offered to establish, as credits in
In support of this contention there is cited the case of Sims v. Sims, 30 Miss., 333. As the reference to this case seems to be with considerable confidence, it will be considered carefully, with the view to ascertaining whether or not it sustains the position contended for. The following language is quoted from the opinion itself: “ The first question arose upon the rejection by the court below of certain claims against the estate which the executor had paid, and which had not been probated and allowed in due and usual form, and which were not proved to be valid claims, upon exceptions taken to them. It is clear that the court acted properly in refusing to allow these claims in the executor’s final statement. The rule to be adduced from the provisions of the statutes in relation to the establishment of claims against the estate of deceased persons is plainly this: If the executor or administrator, having sufficient funds in his hands, pay a claim which is duly probated and allowed, prima facie he is entitled to an allowance for the same in his final account; but, if he pay a claim not probated and allowed, prima facie he acts in his own wrong, and he will not be entitled to an allowance for it, unless he adduces competent evidence' before the court that the claim was just and valid, and that it remains unpaid at the time it was paid by him. Under this rule the claims numbers 20, 22, and 28, in the bill of exceptions, were properly rejected.”
By reference to the several claims numbers 20, 22, and 28, it will be found that the first in order was for the payment of a note due one Underwood, and that the note was not paid by the executor at all. The testator was a member of the firm of Sims & Redus. After his death, Redus became a partner of the firm of Gates & Redus, to whom the business of the old firm was transferred. This house paid to the executer such portions of the effects of the old
The only other citation made by appellants is that of Hill v. Buford, 9 Mo., 869. The syllabus fully states all that was decided in that case, and is, therefore, quoted at length. It is as follows: “A, being bound as indorser for B on a note in bank, B executed an obligation with C as security, binding themselves to ‘secure and keep safe the said A from all loss or damage which he might sustain’ on account of such indorsement. A died, and the note becoming due, E and E, his executors, renewed the note in their name, and had to pay the last note. E had the amount paid by him allowed against A’s estate. It was not shown that F had had his claim allowed. Held, That E and F, as executors of A, might recover for the whole amount paid by them, and the jury might infer that the payment by F was made for the estaté of A.” While there is some language in the opinion that, isolated and alone, seems to favor the contention of the appellants, yet, taken in connection with the facts, it is clear that they afford but little countenance to the administrators in this case as to the allowance of their claims.
We think that the authorities to which we will now refer correctly state the law applicable to the facts of the case at bar.
In Nichols v. Shearon, 4 S. W. Rep. [Ark.], page 169, the following language occurs: “It is true the administrator’s
In Bunnell v. Post, 25 Minn., on page 380, is reported the following language of Berry, J., delivering the opinion of the court: “The appellant Bunnell is an executrix of the last will of Russell Post. Commissioners were duly appointed to receive, examine, and adjust all claims against the testator’s estate. Proceeding duly and regularly in all respects they completed and filed a report. The appellant, while executrix, paid out of funds not belonging to the estate claims against the same to the amount of $5,000. These claims were valid against the estate and would have been properly allowable by the commissioners had they been presented. They never were presented and, of course, were never allowed. The appellant asks that her payments of the claims mentioned may be allowed to her in the settlement of her account as executrix. The general rule prescribed by statute is, that all claims against the estate of a deceased person must be presented to commissioners; otherwise they are barred. (Gen. Stats., ch. 53, sec. 14; Commercial Bank of Kentucky v. Slater, 21 Minn., 174.) To thÍ3 rule some exceptions are made by statute, but none of the exceptions apply to this case. If an executor pays
The language of our statute, sec. 226, ch. 23, Comp. Stats., imperatively provides that if there is a failure to exhibit a claim within the time limited by the court for that purpose, it shall be forever barred, either as a demand or as being used as a set-off in any action whatever. There is no matter of construction left by this statute enabling any one having a claim to establish it against an estate after the time fixed for that purpose. It is necessary to .the speedy settlement of estates that claims should be filed within a reasonable time, and there exists in the probate court the right to fix that time. In the case at bar the time was fixed, and had long passed before any attempt was made to present the claims now in controversy. When such an attempt was made, it was by the administrators acting under a will of the decedent, of whom the law required a speedy and strict compliance with its provisions. In favor of such claimants there exists no equity which will not more strongly operate in favor of others who are charged with
There was another contention as to the refusal of the court to allow an item of attorney’s fees and for the attorney’s expenses, amounting in the aggregate to $316. As to these items, the court found that they “ are charges made for services rendered in various cases and matters which the court finds from the testimony that this estate was not a party to nor interested in; that said charges were riot therefore proper to be made against this estate; and that the payments so made by said administrators were unauthorized and should not be allowed in their account.” An examination of the evidence discloses that some of the items involved in this attorney’s bill were services rendered before the death of the decedent; others were apparently rendered afterwards. In respect'to the first class, of course^ the observations already made would apply. In respect to all the items in this bill, it may be observed that the testimony leaves it in doubt whether the services were rendered for the decedent and his estate, or for the Bohn Manufacturing Company. They were in respect of certain claims which had existed in favor of the decedent, and which he had assigned to the Bohn Manufacturing Company as collateral security for items of a running account with said company. It was testified to by the attorney who filed the bill, that it was understood that the decedent was to pay all these expenses, and hold the Bohn Manufacturing Company harmless in respect thereof, and, in fact, that the decedent had so informed the attorney. As has already been
These observations dispose of the only contentions which arose upon the trial of this case, and as we fully concur with the views entertained by the district court, its judgment is
Affirmed.