18 Neb. 295 | Neb. | 1885
In February, 1885, the defendant in error filed a petition in the district court of Lancaster county, wherein he alleges that on the 6th day of September, 1884, he was duly appointed administrator of the estate of Warren B. Dunlap, deceased, in Lancaster county, in this state, and that he is now duly and legally qualified as such administrator; that on the 8th day of April, 1883, Warren B. Dunlap died intestate in Lancaster county, in this state, “leaving surviving him as • heirs of his estate, Mary E. Dunlap, his widow, and three children, as follows: Mabel Dunlap, aged 5
“ First. That the administrator has not given the bond to the judge of this court required to be given by section 75, chapter 23, entitled ‘Decedents/ etc.
“ Second. That no guardian ad litem has been appointed*297 in this case for the minor heirs of Walter B. Dunlap, deceased,” etc.
The objections were overruled, and the sale confirmed-
Sec. 75 of the statute relating to decedents is as follows:
When the executor or administrator is authorized to sell more than is necessary for the payment of debts, he shall, before the sale, give bond to the judge of the district court, with sufficient sureties, to account for-all the proceeds of the sale that shall remain after the payment of the debts and -charges, and to dispose of the same according to law; and in all cases where license is granted for the sale of real estate the judge of the district court may require a further bond from the executor or administrator, when he shall deem it necessary.” Comp. Stat., Ch. 23.
Sec. 119 provides that, “In case of any action relating to any estate sold by an executor, administrator, or guardian, in which an heir, or person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear —First. That the executor, administrator, or guardian was licensed to make the sale by the district court having jurisdiction ; Second. That he gave a bond, which was approved by the judge of the district court, in case a bond was required upon granting license; Third. That he took the oath prescribed in this subdivision; Fourth. That he gave the notice of the time and place of the sale, as in this subdivision prescribed; and Fifth. That the premises were sold accordingly, and the sale confirmed by the court, and that they were held by one who purchased them in good faith.”
The testimony tends to show that the widow and minor heirs are residents of Illinois; that an administrator was appointed in that state; that the sum of $800 of the personal property was awarded to the widow, presumably under the statute of Illinois, but that fact is not made to appear. It is proved, however, that $800 was set apart for
Second. The failure to appoint a guardian ad litem, for the minor heirs of said estate is not available as an objection. A proceeding under the statute to sell real estate of the deceased for the payment of debts against the estate is not, strictly speaking, an action. It is purely a proceeding in rem, where the principal questions involved are, the amount of debts outstanding against the estate, the amount of personal property available for the payment of the debts, and the necessity to sell the land for which license is sought for the payment of the same. The proceeding is not adversary in its character in the sense in which the term is used in an action, as only so much of the estate descends to the heirs as exists after the payment of the debts. The notice is to be given to the heirs and all persons interested in the estate. If the reasons assigned by the petitioner to obtain a license are unfounded, or insufficient, or untrue, it is presumed that some one interested in the estate will make these facts appear, or that the judge will refuse to grant the necessary authority. No guardian ad litem, however, is necessary.
Judgment accordingly.