106 Neb. 689 | Neb. | 1921
On September 21, 1918, the plaintiff Mae H. Maxwell, filed her petition in the district court for Dodge county, Nebraska, against her husband, Jacob A. Maxwell, and Henry E. Maxwell, as executor of the last will of Samuel Maxwell, deceased, and trustee of the estate. The object of her suit was to obtain a divorce and the custody of their two minor children, and to have awarded to her the undivided one-ninth interest of her husband in the estate of his deceased father, Samuel Maxwell, which was alleged to be in the possession and under the control of the defendant Henry E. Maxwell as executor and trustee.
The points argued in appellant’s brief and relied upon by him for a reversal may be conveniently stated as follows: (a) That the lower court erred in overruling his special appearance and motion to quash the service of summons made upon him,in Douglas county, (b) That as the will of Samuel Maxwell gave his widow, Elizabeth A. Maxwell, a life estate in all his property, and directed that upon her death all the property should be sold and converted into money, an equitable conversion thereof, took place upon the testator’s death, and that it is now all personalty, and that as final distribution of the estate has not been made by the county court of Dodge county, where the administration is pending final distribution, the property sought to be awarded to the plaintiff in this-suit is in custodia legis, and hence cannot be reached by this or any other procéss; that, on account of a possible conflict between the judgment rendered in this case and the judgment of the county court of Dodge county to be rendered on final distribution, he may be required to pay the money twice, (d) That there is no legal way by which the interest of the defendant husband in his father’s estate can be reached by or awarded to plaintiff, (e) That the defendant Jacob A. Maxwell having been absent and unheard of for more than seven years, the legal presumption of his death obtains and defeats the suit.
Consideration of these questions requires a somewhat extended statement of the petition. On September 21, 1918, the plaintiff filed her positively verified petition against defendants, setting forth the following facts, which are sustained by the evidence, to wit: That she
Upon the filing of this petition a temporary restraining order was granted by the court enjoining the defendant Jacob A. Maxwell from collecting, receiving, or assigning any pax*t of his undivided interest, and also ordering that a copy of the order, together with a . copy, of the petition in the cause, be served upon the defendant Henry E. Maxwell, which was done on February 26, 1919. On February 18, 1919, another ordei' was entered enjoining the appellant from delivering or surx-endering to Jacob A. Maxwell or to any one else any part of the undivided one-ninth interest. On March 24, 1919, Henry E. Maxwell, the appellant, filed a motion to quash the service of the summons made upon him by the sheriff of Douglas qounty, and objecting to the jurisdiction of the court oyer his person. The grounds of this motion were that the summons was issued and served, without authority of law, and is null and void, and that the appellant thexx was, aixd for mox*e than 30 years theretofore, had been a resident of Douglas county, and at no time a resident of Dodge county. Then follows the fourth ground of the motion, which is as follows: “That the allegations of the plaintiff’s petition herein show on their face that the will of said Samuel Maxwell, deceased, worked unrequitable conversion of his real estate into personalty:at his death, and that the legal title to the whole of said .estate is vested in this impleaded defendant as executor of said will, subject to the life estate of Elizabeth- A. Maxwell, until the final settlement of said estate and distribution thereof, pursuant to the terms of said will.”
On May 10, 1919, his motion was overruled, and on May 15, 1919, plaintiff filed a motion and affidavit for service by publication oxi the defendant Jacob A. Maxwell and an order for such sendee was made on the same day. On Jxxne 6, 1919, proof of publication of the notice was filed. It will be borne in mind that the summons was sema] upon the defendant Henxw E. Maxwell in
We have set out the allegations of the petition at some length as they are for the most part not seriously denied and are established by the evidence. The fourth ground of the motion to quash, which we have heretofore set out, in our judgment, amounted to a general demurrer to the petition. Eeferring to the allegations of the petition it invoked the legal proposition that the will, by directing the sale of the real estate, worked an equitable conversion of all the real estate into personalty at the time of
The will of Samuel Maxwell contained the following: “On the death of my beloved wife all my estate of every name and kind shall be sold and the proceeds thereof divided equally among my children” — and appellant contends that this provision worked an equitable conversion
Appellant next contends that the property is in custodia legis, and, hence, “cannot be reached by attachment, garnishment, or other legal process,” citing, among others, the cases of Sturtevant v. Bohn Sash & Door Co., 59 Neb. 82; Veith v. Ress, 60 Neb. 52, and Anheuser-Busch Brewing Ass’n v. Hier, 52 Neb. 424, in support of his contention. In the Sturtevant case money was about to be paid to the clerk of the district court to be distributed under its decree, and this court held that it was in custodia legis, and, lienee, not subject to garnishment process issued by the county court, citing the Hier case, which we shall presently notice in support of its conclusion. In the Veith case this-court held that partnership property in the hands of a receiver was in the custody of the law and could not be reached by garnishment. The reason for the rule is well stated in the opinion in the Hier case in the following language: “The rule that personal property in custodia legis is not subject to attachment or garnishment was adopted for the protection of the officer, and to avoid collision of authority.” It must, we think, be conceded that, if the judgment of the district court in this case will conflict with any lawful judgment of the county court of Dodge county hereafter to be rendered on final distribution, this property is in custodia legis and beyond the reach of process in this case. But we do not think such a conflict of judicial authority legally possible. The disposition of the estate is definitely fixed by the terms of the will alone, and does not depend upon any possible Order or judgment of the county court. The will is unambiguous, and has been duly admitted to probate without objection, and' all parties have acquiesced in its provision.- There are no rival claimants and no creditors.
"Appellant next contends that there ax-e no legal ixxeans whatever by which this undivided interest of Jacob A. Maxwell caxx be reached and appropriated to the support of his wife and children, and suggests that the only way by which this judgnxexxt may be sustained is by judicial legislation, but we think his contention is without merit. Section 1584, Bev. St. 1913, is as follows: “Upon every divorce from the bonds of matrimony for any cause excepting that of adultery committed-by the wife, and also upon every divorce from bed and board, from any cause,
It will be noted that the foregoing section expressly' empowers the court, upon granting a divorce where the wife is innocent of adultery, to award her “personal estate of the husband.” We think the undivided one-ninth interest of the husband is personal estate within the meaning of the section quoted, and that, under it, the court had jurisdiction to award it to the plaintiff. The term “personal estate” is one of wide signification and includes everything, not real estate, which has an exchangeable value or goes to make up one's wealth or estate. 32 Cyc. 648; Low v. Rees Printing Co., 41 Neb. 127. And, even if the defendant husband’s interest were regarded as real estate, the objection would still be unavailing, since section 1587, Rev. St. 1913, by clear, reasonable inference, authorized the court to aAvard real estate of the husband to an innocent Avife upon a divorce being granted, where the decree awards it to her in express terms. Cizek v. Cizek, 76 Neb. 797, cited by appellant, relates solely to real estate, and, also, Avas decided before the enactment of section 1587, and, hence, has no bearing upon this case.
In Gaster v. Estate of Gaster, 92 Neb. 6, 11, this court said AArith reference to section 1587, Rev. St. 1913: “The amended section leaves it to the discretion of the court to aAvard to the innocent party a shave or interest in the real estate of the guilty party.” In Rhoades v. Rhoades, 78 Neb. 495, this court held that an innocent Avife could maintain an action for alimony, where she sought merely the appropriation of real estate of her husband, upon sendee by publication, and further held as follows:
*700 “Service by publication is authorized by section 77 of the Code in an action by a wife for alimony and support of her child against the husband, who deserted his family and became a nonresident of the state, where, the only ° relief sought is the appropriation of the real estate of the husband, situated in the county where the action .is brought, to the payment of the amount • that should be allowed for such alimony and support. Such an action is substantially one in rem, and the court has jurisdiction upon the completion of the .service by publication to decree the relief sought.
“In such an action, residence of the wife in the county where the property of the husband is situated is not required.”
In re Estate of Strahan, 93 Neb. 828, this court held: “Under the present law the interest of the wife in the personal property of her husband is similar to that of a silent partner.”
In Hays v. Hays. 75 Neb. 728, this court said: “Where a court has jurisdiction of the parties, its authority to grant a divorce carries with it authority to. adjust the property rights of the parties with respect to personal property within its jurisdiction.”
It is too firmly established in the jurisprudence of this state to be questioned that in a divorce suit, where the court has jurisdiction of the parties, it has power to adjust all their respective property interests.
The case of Catton v. Catton, 69 Wash. 130, is much like the instant case in this respect. In the Catton case the wife brought an action for divorce in King county, seeking to appropriate certain real estate in Grant county and other real estate and personal property in Pierce county. Defendant transferred his Pierce county property to a third person and some of his'property was taken under execution. By supplemental bill plaintiff brought in the transferees and the sheriff who held the execution to restrain them from disposing of the property. The decree granted the wife a divorce, found the transfers fraudulent
In Wesner v. O’Brien, 56 Kan. 724, the court sustained a judgment rendered on constructive service which appropriated iand in that state of a nonresident defendant for his wife’s alimony, though the land was not- situated in the county where the action was brought and no step was taken to bring the property within the control of the court other than the commencement of the suit and publication of the notice. The court said: “A seizure of land in such a case is little more than a form. The essential matter is that the defendant shall have legal notice of the proposed appropriation,- and this is afforded by the publication notice which warns the defendant that one of the purposes of the proceeding is the sequestration of the land. It refers interested parties to the petition, in which the Iand is definitely described, and wherein it is asked that the land be set apart as alimony. A formal seizure is no more essential to the jurisdiction of the court -in a proceeding of this kind than in an action to quiet title to land based alone on constructive service.”
We think this reasoning conclusive. In the instant case, both the petition and the published notice set forth
At the time of the trial in the lower court the defendant husband had been absent and unheard of for about eight years, and from this fact appellant argues that the presumption of death must be indulged, which, of course, would bar the suit. In considering this proposition, it is. necessary to refer to the evidence. The evidence shows that, when this husband left his wife and children on April 9, 1911, there were local pressing bills against him for the necessaries of life; that plaintiff had told him that, if he could not make a living for the family, she could, but would not make a living for him also; that she was on the point of writing appellant about the situation; that he had been working for Marshall Brothers, of Arlington, in the nursery business, and told plaintiff that he had $500 coming to him from them, when, in fact, he was indebted to them to the extent of $131, which appellant afterward paid and charged against his distributive share of the estate; that he had been careless in liis personal habits; that he left stealthily, leaving his team at Niobrara. After he left plaintiff secured a clerkship in a store and, ever since, has continuously worked for wages, and from her earnings, not only paid up the local bills, but supported herself and children and educated them, tinder these circumstances we think that
While there is no one here to challenge the sufficiency of the evidence to sustain the decree of divorce, we have nevertheless examined it and find that it is amply sufficient.
There is no error in the record, and the judgment of the district court is right, and we recommend that it be affirmed.
Per Curiam. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and this opinion is adopted by and made the opinion of the court.
Affirmed.