71 Neb. 418 | Neb. | 1904
On the 6th day of February, 1893, George W. Jackson died intestate, seized in fee of 200 acres of land situated in Gage county, Nebraska. He left surviving him his vile, Minnie Jackson, now Minnie Jackson O’Rorke, and three minor children, Gertrude M., Edna L. and Leonard D. Jackson. His widoiv ivas appointed and duly qualified as administratrix of the estate, and also as guardian of each of the minor heirs. In 1894 the widow, as ad-ministratrix, made final settlement and distribution of the personal effects of the intestate, but was not formally discharged by the county court as administratrix. It appears that from the time of the death of the intestate, the widow, as guardian and administratrix, had leased the real estate from year to year until the year 1900, at
The court found, as conclusions of law from these facts, that the lease was null and void as to the interest of the plaintiff, Gertrude M. Jackson, and that it was terminated, so far as the interest of Edna L. Jackson was concerned, at the date of the bringing of this suit, but that the lease was still in full force and of binding effect so far as it concerned tin; undivided interest of defendant Leonard I). Jackson and the dower interest of defendant Minnie O’Rorke. The decree dosed with an equitable distribution of costs which we think should not be disturbed.
From this decree an appeal was taken by defendants Harer and Ilarer, and the case is now here for trial da nooo on the issues involved in their answer and cross-petition.
Now, it appears from the facts in the case at bar that all the debts of the estate had been paid, and distribution of the personal assets had been made by the administratrix nearly 6 years before the lease in dispute had been executed. We think, then, that under the doctrine set forth in Lewon v. Heath, supra, the right of the heirs to maintain an action for the possession of the real estate accrued on the payment of the debts and the final settlement of the administratrix, and that thereafter the administratrix, as such, was invested with no authority to further lease the real estate of her intestate. While it is true that an heir can not maintain an action against the administrator while rightfully in possession of the property of his intestate, or against one holding under him while in such rightful possession, yet, when the authority of the ad
The next question arising is, what, if any, right Minnie Jackson O’Rorke had to lease the lands of her intestate as guardian of the minor heirs. With reference to this right, it is well established that a guardian may lease the ward’s lands during the term of his guardianship, but that any excess in such a lease beyond such term will be void at the election of the ward on coming of age. 2 Kent, Commentaries, 228; Emerson v. Spicer, 46 N. Y. 594; Richardson v. Richardson, 49 Mo. 29. Now, applying this doctrine to the facts at issue, it follows that Mrs. O’Rorke was without any authority whatever to execute the lease as guardian of the interest of Gertrude’M. Jackson,'and that, by the institution of this suit, Edna L. Jackson elected, as she had a right to do, to determine the lease so far as her interest in the property was concerned.
Then the question remains as to the effect of the lease on the interest of Leonard D. Jackson, who was a minor and will remain so during the term of the lease. For the purpose of executing this lease, Mrs. O’Rorke in her representative capacity stood in the position of one tenant in common attempting to lease the entire estate, without the consent of the other cotenants. While such a lease as this may be upheld under certain conditions in a contest between the lessor and the lessee, yet, it is universally held that such a lease may be avoided by any of the tenants in common who did not execute it or subsequently ratify its execution. And, where a lease is executed by one tenant in common of the entire estate for a term of years, and such lease is repudiated by the cotenants, the lessee in the lease is held to be not a trespasser but a fenant by sufferance of the estate occupied under such lease. Rising v. Stannard, 17 Mass. 282; Tainter v. Cole, 120 Mass. 162; Gear, Landlord and Tenant, sec. 49. In other
We therefore conclude that, if the guardian was authorized to lease these premises so far as the interest of her ward is concerned, she could only do so in such a manner as would work no injury to the other cotenants. And as the report of the commissioners in the case at bar shows that the property is not susceptible of division in kind, and as a sale of the premises will be necessary to sub-serve the. best interests of the partitioners, we think the land should be sold, entirely unincumbered by her lease; as guardian of Leonard D. Jackson.
The only other question to be considered is, what, if any, right Mrs. CPKorke had to convey by lease her unassigned dower interest in the premises. The rule seems to be that the right of a dower unassigned is not the subject of a lease containing covenants which cun with the land. It is true that a doweress, whose right has not been admeasured, may contract with one in possession of the land to forbear an assertion of her interest in the rents and profits of the land for a period of years, and such contract will be upheld as a personal obligation between the parties; but even though it be drawn in the form of a lease, it is not a contract that runs with the land. Croade v. Ingraham, 13 Pick. (Mass.) 83; Gear, Landlord and Tenant, sec. 3.
We therefore recommend that the judgment of the district court, so far as it decrees the lease of the defendants Harer to be in full force and effect for its full term as to the undivided interest of Leonard I). Jackson, and the unassigned dower interest of the defendant Minnie Jackson O’Eorke, be reversed, and that the cause be remanded, with directions to the district court to enter a judgment
By the Court: For the reasons stated in the foregoing-opinion, it‘ is ordered that the judgment of the district court, so fai* as it decrees the lease of the defendants llarer to be in full force and effect for its full term as to the undivided interest of Leonard D. Jackson, and the unassigned dower interest of the defendant Minnie Jackson O’Rorke, be reversed, and that the cause be remanded, with directions to the district court to enter a. judgment directing a sale of the premises unincumbered by such lease, and decreeing the surrender and possession of the premises in question to the purchaser at such sale, when such sale shall have been duly confirmed by the said district court.
Judgment accordingly.