72 Neb. 643 | Neb. | 1904
Lead Opinion
This is a rehearing from a former decision published unofficially in 5 Neb. (Unof.) 345. The case, as it is now regarded, presents some aspects not adverted to on the former argument, and the statement of facts already made needs to be somewhat supplemented. The will, which, together with the deed by the testator to his wife, constitutes the common source of title of the parties to this action, appears to have been drawn by the testator’s own hand. It is apparent from a moment’s inspection of it that he was not only not familiar with legal forms or phraseology, but that, being of foreign nativity, he was unable to express himself accurately in the English language, upon ordinary subjects of conversation. The following is, as far as possible, a literal copy of the instrument.
“This is my Last Will Testament of Jacob W. Anthes of the county of Olay stat of Neb
“Mindfoll of the uncertainties of human life do make buplish and declare this Mjr last will and testoment in the manner following first after the paiment of my just depts and funeral expenses I give devise and bequeath to My two sons Henery Anthes and W. O. Anthes each $500, five Hundred Dollars To My doughters Helen Schwingel Elisbet Schwab and Katarin Briedenbah shall have Equally withe to the rememder of all my Estates both Real and personal whict the two sons Henery Anthes and W. O. Anthes schare and schare alike
“The said Helen Schwingel received the sum of $250 will I was living whearth shall be deducked from widoud interest (2) Second id is My will tat My wife Elisabeth Anthes schal have all the real and personel estates fore her own jues wile schea is living after her dead id schall be and becom as discriebt in this will abouvf
“I hereby nominad and appoint my wife Ealisabet Anthes the executor of this my last will and testament and herepy authorise empower her the said Elisabet Anthes to compound compromise and settle any claim or demand which may be against or in favor of my said estate in witness whereof I have hereunto set my hand and seal this 6 day of Sep 1886
“Signed pupblished and declared by the said Jacob W. Anthes to be his last will and testament is presence of us who have signed our names ad his request as witnesses is his presence an in the presence of eacd other.
“Jacob W. Anthes.”
For the right disposition of this suit much depends, in my opinion, upon the true construction of the will, a subject which seems to have been, hitherto, somewhat neglected.
For an interpretation of this instrument it is unnecessary to repeat the settled rule of this court that the object to be kept principally and constantly in view is to ascer
If the foregoing reasoning is sound, the Avord “devise” was not used in the will in its technical or legal sense, but as synonymous with “give” and “bequeath.” As illustrating my idea, if the demise of the life tenant had immediately succeeded that of the testator, the reversioners would
When in 1895, after the sale to Peterson, it was desired, both by the purchaser and by the widow and heirs, to obtain new loans, and objections to the title were made by the loan agent, it is clear that the new deeds then made were executed, not upon any new consideration, or for the purpose of conveying any title or interest which the grantors did not suppose they had parted with when they executed the former instruments. In other words, the deeds of October, 1895, were not intended to be deeds of conveyance, but of confirmation, and the trust character of the legal title in the mother was not thereby affected. That John H. Anthes so understood the situation is evident, both from the circumstances attending the transaction, and from his subsequent conversations in which he consulted with his brother and sisters relative to the sale of the residue of the land to the Challbergs, and in which he talked about their respective “shares” and the desire of his mother that something should be abated from each to ■make up a purse for her support during the remainder of her life. The relations betwen the parties were in the highest degree confidential, calling for the exercise of the uttermost good faith, and none of them was ignorant of any material fact or circumstance. That John H. knew that the mother had no beneficial interest in the land ex
The parties are all agreed that the title of the Challbergs, as Avell as that of Peterson, shall remain undisturbed by the final decree, and that the title of both shall be affirmed upon payment by the former of the price stipulated in the contract of purchase, and that a final accounting between the parties and a distribution of the fund shall be adjudged. This agreement should, of course, be respected. If either of the life tenants has during incumbency satisfied, out of means not derived from the body of the estate, debts of the testator charged as liens thereon, he or she will be entitled, upon the accounting, to reimbursement, in accordance with the rule announced by this court in Tindall v. Peterson, 71 Neb. 166.
For the reasons stated in the foregoing opinion, it is ordered that the former decision of this court be vacated and set aside, and that the judgment of the district court be reversed and the cause remanded for further proceedings in accordance with this opinion.
Reversed.
Rehearing
The following opinion on motion for rehearing was filed March 8, 1905. Motion denied:
The very earnest and quite able brief of the appellees on their motion for rehearing discusses the proposition as though the will were a devise of lands to the parties named. The opinion of the commissioner upon the second hearing construes the will to direct a sale of the land and a distribution of the proceeds. If this is the proper construction of the will the statute of frauds has no application. It is considered that all parties acquiesced in the long delay because of the unfavorable conditions for selling real estate which obtained for a large portion of the time at least, and that the final sale to Peterson and the Challbergs was a consummation of the provisions of the will acquiesced in by all parties. It is insisted in the brief upon the motion that the labor and good management of Henry Anthes had much to do with creating the values realized upon the sale of the land, and that the disposition of the case will deprive him of fair compensation for his services; and also that the widow will be deprived of her life interest, but there seems to be no ground for this apprehension, as in stating account the trial court
It is also insisted that the condition of the pleadings is such that this disposition of the case is not justifiable. The pleadings are not entirely satisfactory. Upon another hearing they can be amended, if found necessary. We think the facts pleaded show that the plaintiffs are entitled to the relief indicated in the opinion.
The motion for rehearing is
Overruled.