18 Neb. 144 | Neb. | 1885
This is an action of ejectment brought by the defendants in error against the plaintiff, in the district court of Cass county, to recover the possession of the west half of the south-west quarter of section 27, T. 10 N., R. 12 E., in Cass county.
The defendant below (plaintiff in error), in his answer, alleges that one William H. Taylor died in June, 1865, seized of said premises; that after the death of said Taylor, “to-wit, on or about the 12th day of August, 1865, one Isaac N. Shambaugh was duly and legally appointed and qualified as administrator of the estate of the said William H. Taylor, deceased, by the probate court of Otoe county, territory of Nebraska, and gave bond in the sum of $2,000,
It is also alleged that the sale was confirmed by the district court in 1870. The conveyance of the land in question to Mary E. Taylor, in 1866, is then alleged, and the conveyance by her to one McMahon is then averred, together with an allegation of various conveyances to several parties till they reach the defendant below. The plaintiffs below, in their reply, deny that “ Shambaugh was ever discharged as administrator or that he surrendered the administration of said estate, or was in any manner legally relieved from the duties of administration originally imposed upon him.” * * * “ Deny that there was any sale of
On the trial of the cause the court excluded evidence of the appointment of Seymour as administrator and all subsequent proceedings relating to the sale of the land, and found the issues in favor of the defendants in error. The testimony of the plaintiffs below was taken by deposition and read in their behalf on the trial, from which it appears that the plaintiffs are the children of William H. Taylor, deceased; that Mary O. Williams was born in 1850; that Rufus A. Taylor was born in 1854, and Lillie B. Wheeler in 1859; that their father, William II. Taylor, came to Nebraska City to reside about the year 1857 or 1858, and continued to reside there until the spring of 1865, when, being in very poor health, he attempted to remove to Harrodsburg, Kentucky, but died at Louisville, on his way thither; that Mary E. Taylor was the widow of William H. Taylor, and the mother of the plaintiffs.
The defendant below also offered in evidence the petition for the appointment of Shambaugh, the notice of the application, the order of appointment, the bond, letters of administration, order fixing the time for creditors of the estate to file their claims, inventory of real and personal property, petition to sell real estate, the order to sell the same, and 'the return of Shambaugh of not sold for want of bidders. Shambaugh thereupon resigned, and Seymour, upon petition., after due notice, was appointed in his stead. The reason for Mr. Shambaugh’s resignation is stated in Mrs. Taylor’s testimony. She testifies that, “ when my husband left Nebraska, he left his business in the hands of Mr. I. N. Shambaugh as his attorney, and some time after my
The first question presented is the authority of the probate court to accept the resignation of Shambaugh and appoint Seymour.
Section 187 of the law in relation to decedents (Comp. Stat., Ch. 28) provides that, “if any administrator shall reside out of this state, or shall neglect, after due notice by the judge of probate, to render his account and to settle-the estate according to law, or to perform any decree of such court, or shall abscond or become insane, or otherwise unsuitable to discharge the trust, the probate court may, by an order therefor, remove such administrator.”
Section 189 provides that, “when an administrator shall be removed, or his authority shall he extinguished, the remaining administrator may execute the trust; if there be-no other the court of probate may commit administration of the estate not already administered to some suitable-person, as in case of the death of a sole administrator.”
These sections certainly confer authority on the probate court to accept the resignation of an administrator. Here the administrator was about to become a non-resident of the state, consequently the process and judgment of the court would be ineffectual to reach him and compel an accounting. . In other words, the administrator who was about to go beyond the jurisdiction of the court surrendered his trust to the court with a statement of his administration to that date. The court thereupon accepted his-resignation, in effect removed him for what appeared to be sufficient cause, and afterwards appointed another administrator; this it had authority to do. Marsh v. People, 15 Ill., 284. 1 Am. Probate R., 27.
It is clear .from the evidence introduced and offered that the probate court of Otoe county had acquired jurisdiction
2. That no petition was ever presented by Seymour for license to sell real estate. The testimony shows that a petition had been filed by Shambaugh for the sale of the real estate in question, and a license had been issued thereon, ■under which the land in question had been offered for sale, but not sold for want of bidders.
Section 190 of the decedent’s act provides that, “an administrator appointed in the place of any former executor or administrator, for the purpose of administering the estate not already administered, shall have the-same powers and shall proceed in settling the estate in the same manner as the former executor or administrator should have had or •done, and may prosecute or defend any action commenced by or against the former executor or administrator, and may have execution on any judgment recovered in the name of such former executor or administrator.”
This section makes the two administrators the same as one, and the second may complete any business commenced by the first. By the second appointment a new trustee is appointed, who took up the trust at precisely the same point the powers of the former trustee ceased. In other words, the new administrator was clothed by the statute with the same powers as the former, and began the business at the point where the former ceased to act. Administration was
The former license to sell had been of no avail by reason of the want of bidders. The necessity for a sale, however, still existed to pay debts due from the estate; and this-fact was made to appear to the probate court of Otoecounty by the petition for the sale of such real estate then on its files, and the report of Mr. Shambaugh. of his inability to make the sale. There was no necessity, therefore, for a second petition, and that filed by Mr. Shambaugh was sufficient to authorize the probate court to-issue license to sell to Mr. Seymour. The second objection, therefore, is unfounded.
3. It is claimed that the' petition for license “ is defective, and not in accordance with the statute, giving the court no jurisdiction to grant license to sell, and is therefore-void.” The first defect alleged is, that the petition is “ not sworn to.” In answer to this objection it is sufficient to-say that the defect, if such it is, docs not affect the jurisdiction of the court; and cannot be attacked in a collateral proceeding. Johnson v. Jones, 2 Neb., 126.
In the case cited it is said (page 138): “ The affidavit to-the petition was not an element of jurisdiction without which the court could not act. It was at most merely a formal p^irt of the petition, a preliminary form in com- „ mencing suit; and its omission amounts to one of those irregularities which cannot be collaterally called in question,, even if the proceedings had taken place before an inferior tribunal. See Wright v. Marsh, Lee & Delevan, 2 Greene (Ia.), 108. Cropsey v. Wiggenhorn, 3 Neb., 116. Wilson v. Macklin, 7 Id., 52. Hull v. Miller, 4 Id., 503. Dorrington v. Meyer, 8 Id., 214.
Upon the filing of the petition for the sale of the real' estate in question by Shambaugh, the probate court made-an order fixing the 12th day of February, 1866, as the time for a hearing on the petition, and ordered a notice of
“E. S. Eeed,
“ Probate Judge.”
Then follows the license giving a description of the real estate to be sold. The petition, in our view, states sufficient to authorize the court to issue the license; but even if it did not, and the court would so hold in a direct proceeding to set it aside, yet, where it has been acted upon as sufficient by the court having exclusive original jurisdiction of the subject matter, it will be sustained in this court when collaterally attacked where there was no collusion and fraud. The authority to grant a license to sell real estate carries with it the implied power to determine the necessity for such sale, and the sufficiency of the pleadings presented to the court for that purpose, and where it has jurisdiction its orders and judgments are valid until set aside. There is nothing, therefore, in this objection.
4. The attorney for the defendant below offered to prove by Seymour that, as administrator of Taylor’s estate, and under the license offered in evidence, he advertised and sold the land in controversy in the manner provided by law; that he reported the sale to the probate court of Otoe county, and that said court, about the month of October, 1866, confirmed said sale, and the administrator was ordered to make a deed for said premises to the purchaser. This testimony was excluded, and the rejection of the same is now assigned for error.
This statute applies in all cases where the records in the probate courts or any part thereof are lost or destroyed. As it was made to appear that there was no record of the confirmation of the sale in the probate court, etc., the statute authorizes proof of such facts by secondary evidence. The court, therefore, erred in excluding the evidence offered. The court also erred in excluding the deeds from Seymour to Mary E. Taylor for the land in question. One of these was made soon after the sale in 1866, and the other after a confirmation of the sale by the district court of Otoe county, August 25th, 1873. The first of these deeds, in connection with the proof of confirmation of sale offered, was admissible in evidence; while the second con
5. The land in question was sold soon after the close •of the war, when there was but little immigration'to this then territory, and consequently the value of real estate was depressed. The land seems to have sold for its full val ue at that time, and the fact that it had been once offered and remained unsold for want of bidders shows that competition for it was not active. A creditor of the «estate, however, was entitled to be paid, and to have the property sold for that purpose. Carrying out this purpose the court granted a license for the sale of the land, •and the sale was made to the mother of the plaintiffs. The •consideration, so far as appears, was applied to the payment of the debts of the estate, while the plaintiffs’ mother was enabled a few years afterwards to sell’ the land at a considerable advance. This money, no doubt, in whole or in part was used in the nurture and education of the plaintiffs. But, however this may be, the original purchase price whs used in paying their father’s debts, and the purchaser should be protected. If this was not so it would be impossible for an executor or administrator to sell real property belonging to the estate of the decedent for the payment of debts due from the estate for any sum near its true value. No one but a speculator in disputed titles would care to invest in property the title of which might be overturned many years afterwards, and the effect would be to prevent competition, depress the value of the property, and in many cases deprive creditors of their just ■dues. But such is not the law. Titles acquired under the proceedings of.courts having jurisdiction must be deemed inviolable in collateral proceedings. And there are no judicial sales around which greater sanctity should be placed than those made of the estates of deceased persons by order of a court upon which the statute has conferred exclusive jurisdiction of the subject. Seward v. Di
Reversed and remanded.