130 Neb. 913 | Neb. | 1936
The district court decreed the partition' of certain real estate in a suit in which the five children and the surviving spouse of Barbara Ladman were parties. The real estate was formerly owned by Barbara Ladman. Two daughters and one son opposed the partition of the property decreed by the trial court and prosecute this appeal.
The petition of the plaintiff, a son, alleges that Barbara Ladman died intestate, and that the five children and the surviving husband are the heirs at law, and as such the owners of the property. The defendants opposed to the partition on this basis are two daughters and one son. They allege that Barbara Ladman executed a will. This question has been heretofore settled adversely to the appellants by this court. Barbara Ladman died intestate. In re Estate of Ladman, 128 Neb. 483, 259 N. W. 50.
The appellants also allege that by virtue of a separation agreement John Ladman, the surviving spouse, and the son Joseph, who is plaintiff here, had been barred and estopped from claiming any right, title and interest in the real estate. The separation agreement relied upon was between John Ladman and Barbara Ladman, his wife, and is alleged to have been made in 1895. An examination of the evidence reveals that it does not establish that the agreement was made. No such agreement was ever executed, and, if
The amended answer of the appellants here alleged that on December 1,1932, Barbara Ladman executed a warranty deed conveying the real estate to her five children. The plaintiff denies the execution and delivery of such a deed. It is necessary to determine the validity and effect of this deed. The appellants ground their argument upon a statement in the opinion filed in In re Estate of Ladman, 128 Neb. 483, 259 N. W. 50. The issue in that case was the revocation of a will. It was said by way of argument that Barbara Ladman’s intention to revoke her will was evidenced by the fact that she had made another disposition of her property. As already indicated in Ladman v. Farmers & Merchants Bank, ante, p. 460, 265 N. W. 252, it would have been more accurate to state that her intention was shown by an attempt to make another disposition of her property. Persistence of counsel seems .to require that we again take note of this language, although it was neither vital to the decision in which it was used, nor binding as an adjudication of any issue here. The argument of appellants that it adjudicates the question of fact relative to the conveyance by deed of the real estate here involved is unsound and untenable.
The original pleadings of two of the three appellants alleged that Barbara Ladman died seised of this property.
The rule has been stated in different terms as follows:
This deed was delivered to Smrha, a third party, for delivery to the grantees when John Ladman executed and delivered to Smrha a deed for the land. John Ladman refused to execute such a deed. There is a deed in the record executed by John Ladman, but it relates to an attempted settlement of the Ladman estate and has no connection with the deed of Barbara Ladman.
Finally, the appellants complain of the action of the trial court in denying their motion to continue the trial until the cases heretofore mentioned were disposed of, and until the final claim day in the estate. The rule,, venerable with age, is stated in Alexander v. Alexander, 26 Neb. 68, 41 N. W, 1065, as follows: “An heir or devisee of an estate cannot maintain an action for distribution or partition until the debts, allowances, and expenses against said estate have been paid or provided for, unless he give a bond with approved sureties to pay the same.”
The record reveals that at the time of trial there was more than $8,000 in the possession of the administrator, and that the deceased had no substantial debts. The plaintiff offered to furnish a bond, but the trial court held that a bond was unnecessary. This case is similar to Schick v. Whitcomb, 68 Neb. 784, 94 N. W. 1023, in which the court construed section 30-1304, Comp. St. 1929. In the Schick case there was $11,000 in the hands of the executor, and in this the administrator has $8,000. In that case, there was one claim of $70 allowed and unpaid. In this case, the claims including expense of administration are only a small part of the amount of cash reserved. The only distinction is that the time for filing claims had passed in the Schick case, and here it had not.
The appellants who complain are estopped, since they
Affirmed.