117 Neb. 657 | Neb. | 1928
This is an action to recover $450, the amount of a claim for two monthly instalments of unpaid rent, each for $225. The property for which rents are claimed is the Apollo Theatre at 2824 Leavenworth street, Omaha. It was formerly owned by Fritz Muller, now deceased. He left surviving him his widow and their two minor sons, Walter Frederick Muller and Paul Ernest Muller. Charles B. Schleicher, administrator of decedent’s estate, entered into a lease demising the Apollo Theatre to Ernest A. Harms and Mathilda A. F. Harms for a term of five years for $18,500 payable in instalments of $225 on the first day of each month beginning January 1, 1926. The lease was in writing and was formally executed by lessor and lessees. The latter paid the monthly rents from January 1, 1926, until October 1, 1926, but in the meantime, September 24, 1926,
To the petition a general demurrer was interposed by defendants and sustained by the court. Plaintiff refused to plead further and her action was dismissed. From that judgment she has appealed.
Plaintiff contends as pleaded that defendants are bound by the lease and that they are indebted to her for two months’ rent. Defendants take the position that the administrator had no power to make the lease and that it was void, because it provided for a long tenancy after the settlement of decedent’s estate. A determination of the controversy requires consideration of additional facts stated in the petition. When Fritz Muller was owner of the Apollo Theatre he leased it to defendant Ernest A. Harms December 1, 1922, for a term of three years beginning January 1, 1923. The consideration named was $6,300 payable in monthly instalments of $175 each. A chronology of events fully pleaded by plaintiff in her petition follows:
November 4, 1923, Fritz Muller died, leaving a will devising the Apollo Theatre to his two minor sons, Walter Frederick Muller and Paul Ernest Muller — a will subsequently probated; January 22, 1924, Charles B. Schleicher granted letters of administration with the will annexed; April 8, 1925, and prior thereto, defendants solicited the administrator and also Lucy Muller, mother and natural guardian of the two minors, for a new lease extending the tenancy beyond the terms of the old and offering increased rents; April 8, 1925, administrator, with the consent and approval of plaintiff, under authority of the county court, accepted the offer of defendants and with them entered into a lease demising the Apollo Theatre to them for a term
By means of copies the will, the two leases and notice of lessees’ purpose to terminate the tenancy were included in the petition. Plaintiff alleged also that defendants paid to her the rent under the first lease from July 1, 1925, to and including December, 1925, and under the new lease from and including January, 1926, to and including October, 1926; that the rent for November and December, 1926, is due and unpaid.
In argument by defendants on the proposition that the period of tenancy extended beyond the tenure of the administrator as such and that consequently his lease was void, reference was made to the following provisions of statute:
“The executor or administrator shall have a right to the possession of all the real as well as the personal estate of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall have been settled, or until delivered over, by order of the county court, to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings, and fences thereon which are' under his control.” Comp. St. 1922, sec. 1320.
This statute does not declare that agreements made by an administrator in excess of the powers granted are void. An authoritative opinion of this court so holding has not been cited or observed. Attention, however, was called to
The demurrer was erroneously sustained. As a result of the error the judgment of the district court dismissing the action is reversed and the cause- remanded for further proceedings.
Reversed.