295 N.W. 270 | Neb. | 1940
Allan McLean died testate in Lancaster county, Nebraska, on May 27, 1933. He left surviving him his widow and four children. His will was offered for probate and three of the four children filed objections to the probate of the same. These objections were overruled by the county court and, on July 7, 1933, the will was admitted to probate. On the same day, an appeal undertaking was executed by the contestants, with proper surety, which undertaking was approved on the same day by the county judge, and on the 8th day of July, 1933, the transcript of the proceedings had in the county court was filed in the office of the clerk of the district court for Lancaster county, Nebraska. Issues were made up in the district court and thereafter, on November 23, 1933, proponent filed a motion to dismiss the appeal on
The appeal bond given by contestants in the county court on July 7, 1933, was conditioned to pay the costs which might be assessed against the contestants, whereas the statute provides that such a bond shall be conditioned to “pay all debts, damages and costs.” (Italics ours.) Comp. St. 1929, sec. 30-1603. It is the contention of appellant that this defect rendered the bond void, that the district court acquired no jurisdiction on appeal and that consequently its judgment and decree of February 5, 1934, is null and void and the original order of the county court admitting the will to probate is still in full force and effect.
It is unnecessary to review all of the decisions of this court touching the question thus raised, as that has already been very ably done by Good, J., in the case of In re Estate of Kothe, 131 Neb. 780, 270 N. W. 117, where it was held that “This jurisdiction is committed to the rule that, where a defective appeal bond in a probate proceeding is filed within the time prescribed by statute, the proper procedure for the appellee is to move to require a proper bond to be given within a time designated by the district court, and, upon failure to comply with the order, that the appeal may be dismissed.”
There, as in the instant case, the appeal bond was defective, but it was held that the bond was sufficient to give the district court jurisdiction.
As we view it, the bond in the instant case was a cost bond only and did not supersede the judgment of the county court, but it was sufficient to give the district court jurisdiction on appeal and, had a proper motion been filed, leave would have been granted to file a proper bond or the appeal would have been dismissed. A proper bond was filed as soon as attention was called to the defect in the appeal undertaking.
Counsel for appellant has cited numerous cases arising from appeals in misdemeanor actions wherein it was held
The bond in this- case was filed and approved and the appeal docketed within the statutory time, and, while the bond was defective, it was not void, and we therefore hold that the district court acquired jurisdiction of the subject-matter of the action.
It is next contended by the appellant that there was fraud practiced upon the court which resulted in the decree of February 5, 1934. The application to set aside the judgment charged fraud in the following particulars: That it was represented to the court that a proper supersedeas bond had been filed, when in fact there had not been, and that it was represented to the court that all of the children and heirs of the deceased, Allan McLean, were before the court, when as a matter of fact the trustee named in the said last will and testament was not represented, and that one of the children who was a contestant had filed a dismissal of his appeal, which fact was not called to the court’s attention, and that there were competent witnesses living who could have testified to facts entitling the will to probate, but that they were not called. If these facts constituted fraud, the applicant was aware of that fact on February 5, 1934, the date the decree was entered, having himself participated in all of the transactions mentioned. The application to have the decree declared void was not filed for more than five years after the decree was entered, which was long after any rights which the applicant might have had were barred by the statute of limitations. Comp. St. 1929, sec. 20-2008. See Hoeppner v. Bruckman, 129 Neb. 390, 261 N. W. 572.
This leaves but one contention made by appellant, and that is that the will of Allan McLean provided for a valid unexecuted testamentary trust which could not be modified or destroyed by agreement among all the beneficiaries, or
While there is some authority to the contrary, the great weight of authority is to the effect that, where there is a contest in good faith of the probate of a will, such a contest may be settled by an agreement in the nature of a family settlement to have the will denied probate. See 68 C. J. 908. In the application in this case there is no claim made that the family settlement was obtained by fraud or misrepresentation, and we hold that the family settlement was valid and binding.
Finding no error in the record, the judgment of the trial court is
Affirmed.