49 Neb. 8 | Neb. | 1896
Prom the record and the briefs of the respective counsel the undisputed facts in this case seem to be as follows: Charles H. Spencei*, a resident and citizen of the state of Iowa, died intestate in the state of Colorado on the 16th •of August, 1892. He left a widoAV, Mary A. Spencer, and a son, H. O. Spencer, residents of the state of Iowa. He left another son, L. E. Spencer, a resident of Cage county, Nebraska, and he also left a daughter, Mary E. Dudley, a resident of the state of Colorado. None of his heirs were minors. At the time he died Charles H. Spencer was indebted to the German National Bank of Beatrice, Nebraska. William A. Wolfe was cashier of this bank and, in March, 1893, he petitioned the county court of Gage county to appoint him administrator of the estate of the intestate. This appointment was resisted by the widow and heirs of Spencer, deceased, and while the application was pending L. E. Spencer also petitioned the county court to appoint him administrator of his deceased father. The county court, however, refused to appoint L. E. Spencer and appointed Wolfe, who accepted the trust and qualified therefor. Prom this action of the county court the widoAV and heirs of Spencer, deceased, appealed to the district court, and the case was submitted to that tribunal upon the transcript of the proceedings had in the county court and a judgment rendered
1. The first argument relied on here for a reversal of the judgment of the district court is that the county court had no jurisdiction to appoint Wolfe administrator of Spencer’s estate. It is not disputed but that the county court is by the constitution and laws of the state invested with exclusive original jurisdiction in the matter of settling up the estates of deceased persons and the appointment of administrators, but it is said that the petition filed by Wolfe to be appointed administrator conferred no jurisdiction upon the county court to act, because the petition did not allege that Spencer at the time of his death was a - resident of the state of Nebraska. There is no merit in this contention. Section 177, chapter 23, of the Compiled Statutes of 1895 provides: “When any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant or resident at the time of his death. If such deceased person, at the time of death, resided in any other territory, state, or country, leaving estate to be administered in this state, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this state, and shall exclude .the jurisdiction of the probate court of every other county.” This section provides for the appointment of administrators in two classes of cases: (1) When a person shall die intestate, being an inhabitant of this state, then letters of administration must be granted by the county court of the county of which he was an inhabitant or resident at the time of his death; and (2) if an intestate, at the time of his death, resided outside of this state and left an estate here to be administered, then the county
2. Section 195, chapter 23, of the Compiled Statutes, 1895, provides: “When application shall be made to the judge of probate for the appointment of an administrator of an intestate’s estate * * * he shall cause notice of the same, and of the time and place of the hearing thereof, to be given by personal service on all persons interested, or by publication under an order of such court in such newspaper printed in this state as he may direct.” The county court of Gage county ordered a notice, addressed to the heirs and next of kin of Charles H. Spencer, deceased, to be published for three weeks in a newspaper printed and published in Gage county, which recited that Wolfe had filed his petition in the county court asking to have himself appointed administrator of the estate of Charles H. Spencer, deceased, and that the hearing of the matter was set for March 4, 1893. It is now insisted that the judgment under consideration must be reversed, because the county court made its order appointing Wolfe administrator, without the notice to the heirs and next of kin of Spencer, deceased, having been published as required by the court’s order. The answer to this objection is that all the heirs, being of full age, next of kin, and widow of Spencer; deceased, entered their appearance in the county court in the proceeding in which the county court made the order complained of. These heirs and next of kin having voluntarily appeared in the county court in the proceeding in which Wolfe was appointed administrator, and having resisted that appointment, it is wholly immaterial • whether the notice ordered by the county court was published a proper length of time or published at all or not. Persons not under guardianship and not minors, nor under other legal disability, cannot be heard to complain of a judgment rendered in a proceeding to which they were parties, be
3. As already stated, while the application of Wolfe was pending to be appointed administrator of Charles H. Spencer, deceased, L. E. Spencer, his son, a resident of Gage county, made application to the county court to be-appointed administrator of his deceased father. His. mother and his brother and sister all united in his petition. The next argument here is that the county court erred in not appointing L. E. Spencer the administrator instead of Wolfe. Section 178, chapter 23, Compiled Statutes of 1895, provides: “Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to the same in the following order: First — The widow, or next of kin, or both, as. the judge of probate may think proper, or such person as the widow or next of kin niay request to have appointed,, if suitable and competent to discharge the trust. Second — If the widow, or next of kin, or the person selected by them, shall be unsuitable or incompetent, or if the-widow or next of kin shall neglect for thirty days after' the death of the'intestate to apply for administration or-to request that administration be granted to some other-person, the same may be granted to one or more of the-principal creditors, if any such are competent and willing-to take it. Third — If there be no such creditor competent and willing to take administration, the same may be-committed to such other person or persons as the judge of probate may think proper.” It is now argued that by the provisions of this statute L. E. Spencer, being an heir of Charles H. Spencer, deceased, his mother and brother- and sister uniting in the request, was entitled as a matter of right and law to be appointed administrator of his. father’s estate; but we do not think that a county court is by this statute absolutely required to appoint a widow or next of kin of a deceased, or some person selected by
Affirmed.