299 N.W. 175 | Neb. | 1941
The defendant, as administrator of his wife’s estate, sold all the assets of the estate to himself for sufficient to pay the debts. The sale was made on his application and by order of the county court. The administrator reported the sale and disposition of the money in his final account. The final account was approved and his discharge ordered upon filing vouchers.
The assets of the estate consisted of a school land lease on 640 acres in Keith county, Nebraska, valued with improvements, according to testimony, at approximately $13,-000. For administration purposes its appraised value was $5,000. No debts were formally filed against the estate, but the' administrator reported a total of $1,235.20, including cost of administration, and it was for this amount that the land lease was sold. The heirs received nothing.
The heirs, aside from the husband, are brothers, sisters, and one nephew of the deceased, and for the most part nonresidents of the state. Service of the three statutory notices —hearing on petition for appointment of administrator, notice to creditors, and hearing on petition for final settlement — was by publication. No personal service was had, nor did any of these heirs appear at a hearing.
An administrator is forbidden by statute to be the buyer at his own sale. Comp. St. 1929, sec. 30-1118. However, if he becomes the purchaser, the sale is voidable. Veeder v. McKinley-Lanning Loan & Trust Co., 61 Neb. 892, 86 N. W. 982; Johnson v. Erickson, 110 Neb. 511, 194 N. W. 670; Annotations, 1 A. L. R. 747, 111 A. L. R. 1362. The result is the same, even though he pays full value. Restatement, Restitution, sec. 192; Johnson v. Erickson, supra.
The present suit was brought in the district court by the heirs against the husband administrator. Plaintiffs’ petition claims the defendant acted as trustee for the heirs, alleges
Defendant, conceding the voidability of the sale, contends that the plaintiffs’ failure to object and to appeal from the order approving the administrator’s final account is a ratification of the sale. 24 C. J. 638; Shelby v. Creighton, 65 Neb. 485, 91 N. W. 369. Ratification with knowledge is a complete defense. But the failure to appear is merely evidence of ratification. Long continued acquiescence in the order approving the final account may evidence conclusive ratification. Shelby v. Creighton, supra, upon which defendant places sole reliance, demonstrates the effect of both knowledge and delay. Facts in that case distinguish it from the instant one. Estate property in Wyoming was sold there at public auction to John A. Creighton who was the Nebraska administrator. The property belonged to a partnership in Wyoming of which deceased was a member. The sale was conducted, under Wyoming law, by a surviving partner and approved by the Wyoming court. Hearing in Nebraska on the final account in the parent estate- was six years later. Plaintiff, derivatively, had personal service of notice of such hearing. Ten years later and sixteen years after the sale she made a final written settlement, receiving
The instant case was brought within seven months of the sale and within three weeks of the entry of a supplementary decree. The heirs have received nothing. It is significant that in the Creighton case the court did not find that the purchaser “stood in relation of trustee to the property in question.” That postulate, the court said, was “a, point we do not decide.”
Recognizing the proceedings in the county court as now binding on them, but denying any ratification by inaction, the plaintiffs assert the right to implant a trust upon the defendant’s purchase of the property. 11 R. C. L. 369, sec. 440. In this we believe them to be right. Speedily asserting their claim, they are not guilty of laches. Lacking consent of the cestui que trust, courts have often held as a continued trust purchases of trust property by a trustee made at his own sale.
Restatement, Restitution, sec. 192; Restatement, Trusts, secs. 170, 205, 206, Comment b; 11 R. C. L. 361, sec. 427; L. R. A. 1918B, 35; Kazebeer v. Nunemaker, 82 Neb. 732, 118 N. W. 646; 24 C. J. 674.
Again, an heir may be said reasonably to expect customary events to follow in a probate proceeding. Service by publication advises heirs of the beginning and close of the administration of an estate, and of the ordinary events which proceed in between these notices in the routine of probate an heir may thus constructively be expected to be apprised. But extraordinary events, such as the sale of
The fact that the deceased was the defendant’s second wife who came to him without dowry, that the property was his gift to her, that she bore him no children, and that the heirs are all her kin, not his, may to him rationalize the justice of his acts, but affords no protection against a method of proceeding that must be condemned. The precaution of a will by the wife would have avoided any difficulty.
Affirmed.