No. 17,939 | Neb. | Jan 2, 1915
In January, 1894, Theodore Naiman died, being the owner in fee of a quarter section of land in Thayer county,, which he .occupied as a homestead, with his wife and four minor children. His widow, Mathilde, was appointed administratrix of his estate, and afterwards intermarried with one Henry Koch, who was substituted as administrator of the estate of Theodore Naiman. ' As such administrator, Mr. Koch applied to the district court for Thayer county for license to sell the real estate in question. License was granted, and the land was sold by the administrator to his wife, then Mathilde Koch. Afterwards Mathilde Koch, together with Henry Koch, her husband, sold and conveyed the land to Henry Bohlmeyer. AfterwardsHenry Bohlmeyer died, and this action was brought by the four children of Mr. Naiman against the widow and children of Henry Bohlmeyer, who were then occupying the premises. The object of this action, as stated in the petition, was to cancel the deed from Henry Koch as administrator to his wife, Mathilde Koch, and also the deed from Mathilde Koch and her husband to Henry Bohlmeyer. The trial court found the issues in favor of the plaintiffs and canceled the deeds accordingly, and the defendants have appealed.
- The appellants contend' that Mathilde Koch, the widow of Theodore Naiman, having abandoned the land as. her home and having taken her children with her, -the-homestead character of the land ceased;-.-.- In this, of course, .-the appellants are' mistaken. Under our statute, when the holder of the legal title of the homestead dies, the law creates new estates, a life estate in his widow and an estate-in remainder in his children and heirs. It is immaterial whether the widow: and children continue to occupy the premises. Their estates do not depend upon the occupancy thereof after the death of the holder of the legal title, but vest in them absolutely on his death. The deed of the ad
It is alleged that the land at the time it. was deeded -to Mr. Bohlmeyer was incumbered by a mortgage, and that Mr. Bohlmeyer has paid the mortgage in part and renewed it in part, and has also made valuable improvements upon the land. Mr. Bohlmeyer and his heirs are entitled to the use and benefit of this land during the life of Mathilde Koch, and were not required to pay the principal of the mortgage, but it was their duty to pay the taxes and interest on the incumbrance. The rights and liabilities of these respective parties, the one as the owner of the life estate, and the others as the owners of the remainder, are of course, not' determined in this action.
The judgment of the district court is therefore modified so as to decree the deed from Mathilde Koch and her husband to Henry Bohlmeyer sufficient to convey the life estate of Mathilde Koch, and to cancel the same so far as it attempts to convey the particular estate of these plaintiffs. In all other respects the decree is affirmed. The costs of this appeal should be paid by the parties incurring the same.
Modified and affirmed.