120 Neb. 226 | Neb. | 1930
This is a proceeding by creditors for the allowance of a claim against the estate of a deceased person after expiration of the time limited by order of the county court for the presenting of claims and for the barring of unfiled claims.
Thomas V. Golden died intestate January 22, 1928. Martina G. Dishner was appointed administratrix of his estate by the county court of Holt county February 23, 1928. Creditors were required by a formal order to present their claims within three months from March 22, 1928, after which time, said the county court, “all claims are barred.” Notice of the order was. published according to law in The Frontier, a newspaper printed at O’Neill, the county seat. Later in the same proceeding the following order was made' by the county court:
“Now on this 26th day of June, A. D. 1928, this cause came on for hearing, and it appearing to the court that the time limited for filing claims against said estate has expired and that due notice to creditors to present their claims has been given, it is, therefore, hereby ordered that all claims against the estate of Thomas V. Golden, deceased, which were not filed within the time provided by the order of this court, be, and they hereby are, forever barred.”
September 12, 1928, after expiration of the time-limit for presenting claims, Spittler Brothers, merchants of Ewing, Holt county, applied to the county court for an order granting them permission to file a claim for $3,113.68 against the estate of decedent. The application was ac
An assignment of error is directed to an order of the district court overruling an objection to a trial de novo of the issue raised by the application for permission to file the claim after expiration of the time-limit and the objections thereto. Claimants argue that this assignment of error should be sustained, because the county court exercised a judicial discretion in granting leave to file the claim; because the evidence upon which the county court acted in allowing the claim to be filed did not appear on the face of the record before the district court on appeal, since the evidence was not preserved by a bill of exceptions nor presented by proceedings in error; because the district court
The right of appeal from the county or probate court to the district court is granted in specific terms by the Constitution, which provides that in all civil cases appeals from the county court to the district court are allowed on application of either party. Const, art. V, sec. 17. This applies to an appeal from a final order in the administration of the estate of a deceased person. The statute also provides:
“In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment,'or decree of the county court to the district court by any person against whom any such order, judgment or decree may be made or who may be affected thereby.” Comp. St. 1922, sec. 1471.
Neither the Constitution nor the statute quoted contains an exception requiring a review by proceedings in error as distinguished from appeal. Permission to file the claim out of time is an essential step in the proceeding to allow it as a charge against the estate. If the county court was without authority to permit the filing of the claim because it was barred by a former order, the administratrix had a right to have the permission reviewed. The granting of permission to file the claim of Spittler Brothers after the expiration of the time-limit was not an appealable order. While a peremptory denial of such permission is a final order and appealable, permission to file a belated claim is an
Upon appeal from a final order of the county court the controversy is triable de novo in the district court and this rule applies to final offiers in the administration of the estates of deceased persons. In re Estate of Normand, 88 Neb. 767. In harmony with this principle it has been held:
“Upon appeal from the allowance by the county court of a claim against the estate of a deceased person, the district court tries the case de novo, and must determine whether the claim was filed in time in the county court.” In re Estate of Gamble, 91 Neb. 199.
In following these rulings in the present case the district court did not err.
Did the county judge err in permitting the claim to be filed ? On the showing made did he have any discretion in the matter ? Did the district court on appeal err in finding that the claim was outlawed by the order barring unfiled claims pursuant to the statute of nonclaim? After letters of administration were issued it was the duty of the county or probate court to receive, examine, adjust and allow all lawful claims against the estate of decedent and to give notice of the date for the hearing of claims and of the time for presenting them. Comp. St. 1922, sec. 1336. The statutory time which the county court is required to allow for the filing of claims must not exceed 18 months nor be less than three months. Comp. St. 1922, sec. 1338. In the respects outlined there was a strict compliance with the statutes. Claims not filed within the time limited by the county court, after due notice, are forever barred. Comp. St. 1922, sec. 1344; Burling v. Allvord, 77 Neb. 861; In re Estate of Hoferer, 116 Neb. 254. Time and notice given by the county court were in strict compliance with the statutes. The statute of nonclaim as a bar is more rigorously applied than the general statute of limitations. 2 Woerner, Administration (2d ed.) sec. 402; Winter v. Winter, 101 Wis. 494. In Nebraska an administrator cannot waive the defense of nonclaim to the prejudice of the estate. Estate of Fitzgerald v. First Nat. Bank of Chariton, 64 Neb. 260.
Affirmed.