95 Neb. 488 | Neb. | 1914
Plaintiff filed his petition in the district court for Douglas county alleging, in substance, that George M. Bayer died intestate on the 5th day of May, 1910, leaving an estate of personal property of the value of $10,000; that he left surviving him Allie M. Bayer, his widow; that the estate of George M. Bayer ivas being administered upon, the administration thereof not having been closed; that Allie M. Bayer died on the 2d day of July, 1911; and that on the 5th day of July, 1911, plaintiff was appointed administrator of her estate. It will thus be seen that George M. Bayer died more than a year prior, to the decease of Allie M. Bayer. There is no averment that Allie M. Bayer ever claimed or demanded any part of the estate of George M. Bayer, nor that there were any children born to them. It is alleged that after her death and the appointment of plaintiff as the administrator of her estate, he filed a petition in the county court asking for an order directing the administrator of the estate of George M. Bayer to turn over to plaintiff, as the administrator of the estate of Allie M. Bayer, the sum of $500' as exempt to tiie said Allie M. Bayer, and also personal property not exceeding in value the sum of $200, making a total of $700, as due to her estate under the provisions of sections 1267, Rev. St. 1913; that the county court refused to make the order as demanded; but just how the case got into the district court, whether by appeal or original action, does not appear. If by an original action, it is clear that the district court was without jurisdiction to make the order prayed for, and tÜe order of the county court would be final; that court having exclusive original jurisdiction in the matter of the administration of estates.
It is alleged that, “as shown by the inventory of the administrator of the estate of the said George M. Bayer on file herein, the said George M. Bayer, at the time of his decease, had no wearing apparel, ornaments or household furniture of any kind or nature;” that he “did not own any lands, lots or real estate, or any interest in real es
It is said in defendant’s brief that the decedent Allie M. Bayer claimed to be the common-law wife of George M. Bayer, but, as the demurrer admitted the averments of the petition, no notice can be taken of matters aside from what is there alleged, and we must assume that Allie M. Bayer Avas the legal wife of George M. Bayer. Questions of fact not shown in the petition must be raised by answer, if at all. As Ave have seen, there is nothing in the petition or record before us showing that this is other than a suit instituted originally in the district court. We are furnished no record, except the petition, the demurrer, and ruling of the court. While it is recited in the petition that plaintiffs’ claim was rejected by the county court, there is no suggestion of any appeal therefrom. It is provided in section 1206, Rev, St. 1913: “The county court shall have exclusive jurisdiction of the probate of wills, the administration of estates of deceased persons,” etc. It necessarily folloAVS that the only jurisdiction which the district court could acquire would be by appellate proceedings. Rev. St. 1918, sec. 1526. Upon this ground alone the demurrer was properly sustained.
But, passing this, it is claimed that plaintiff is entitled to the sum demanded under the px-o visions of section 1267, Rev. St. 1913, which declares that the surviving husband or wife shall be entitled to the “Avearing apparel and ornaments and household furniture of the deceased, and all
It follows that, viewing the case from any angle, the district court did not err in sustaining the demurrer. The judgment is therefore
Affirmed.