64 Neb. 615 | Neb. | 1902
This is a suit brought in the district court for Kearney county by George N. Youngson, administrator with the will annexed of the estate of Warren Bond, deceased, against the widow and other heirs of Bond, for the purpose of reforming the will of said Bond and quieting title to certain property described in the petition fthed by the ad
The first contention of appellants is that, under the constitution and laws of this state, the district court has no
The question of the right of the administrator to bring an action such as the one at bar, whthe it has not been discussed to any extent in briefs on fthe, yet is, in our opinion, decisive of the case. The suit is brought by George N. Youngson, administrator with the will annexed of the estate of Warren Bond, deceased, and he asks to have the will reformed, and the title quieted in him, as against Alonzo Springer and wife. That portion of the will necessary to a proper understanding of the question presented reads as follows:
“Sixth: I hereby give and bequeath unto, my daughter Vesta M. Springer, for and during her natural life, the use and occupancy of the east half of the northwest quarter of section 31, township 7, range 15, in Kearney county, Nebraska.
“Seventh: I hereby give and bequeath unto my daughter Olive 1. Springer, for and during her natural life, the use and occupancy of the west half of the northwest quarter of section 31, township 7, range 15, in Kearney county, Nebraska, provided, however, that my said daughter Olive*619 I. Springer, shall pay to my grandson, George E. Bond, the snm of $200 upon his arrival at the age of twenty-one years, and I hereby declare such sum of $200 to be a lien upon the real estate in this seventh ' clause of my will described.”
The land described in the paragraphs quoted is not mentioned in any other portion of the will. Olive I. Springer • is the wife of Alonzo Springer, and with him resides upon, and claims an interest in, the northeast quarter of section 31. If this will should be construed to describe the northeast quarter instead of the northwest quarter of the section, the effect would be to take from the Springers eighty acres of the quarter section upon which they reside, and give it to Vesta M. Springer, a sister of Olive I. Springer, and give to Olive I. Springer a life estate only in the other eighty acres which she and her husband claim in fee. If sufficient remain in the will to support the bequest, stinking out or disregarding the word “northwest” or the word “west,” claimed to be erroneous, the will might be so construed by the district court, in a proper action, as to bequeath the lands claimed to have been intended by the testator. Zirkle v. Leonard, 60 Pac., Rep. [Kan.], 318; Stewart v. Stewart, 65 N. W. Rep. [Ia.], 976; Rook v. Wilson, 41 N. E. Rep. [Ind.], 311; Priest v. Lackey, 39 N. E. Rep. [Ind.], 54.
The right of the administrator to maintain this suit as one to quiet title to the premises must be sustained, if at all, under the provisions of section 57, chapter 73, Compthed Statutes, 1899, which reads as follows: “That an action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.” Under the decedents’ law of this state, the right of an administrator to the lands of his decedent is posses
In the argument of this case it was contended by appellee that, even if it should be determined that the district court had no jurisdiction of the subject-matter set out in the petition, appellants, Alonzo Springer and Olive I. Springer, avIio are in possession of the northeast quarter of section 31,—the land sought to be brought under the provisions of the will,—having come into court, and by way of cross-bill set up their adverse possession of the
It is contended in the briefs that, in the event Alonzo Springer and wife are not entitled to relief upon the matters set up in their cross-bill, that having pleaded the conveyance to Bond in his lifetime of the land, by an instrument in effect a mortgage, and more than ten years having elapsed since the execution of the same, they are barred of all right of redemption, and that the conveyance has become absolute. We are unable to find merit in this contention. In the case of Pinkham v. Pinkham, 61 Nebr., 336, this court, speaking by the present chief justice, said: “The right to commence and prosecute an action may be lost by delay, but the right to defend a suit for the possession of property is never outlawed. The limitation law may, in a possessory action, deprive a suitor of his sword, but of his shield never.” From this it is clear that Alonzo Springer and his wife can not be barred from defending their right, whatever it may be, to the land in question by the statute of limitations. It therefore clearly appears that of the suit, treated as a suit to quiet title, the district court had no jurisdiction, as the administrator, not being the real party in interest, could not maintain the action. As to a determination of the question presented by the cross-bill of Alonzo Springer and wife, the court had no jurisdiction of the parties defendant necessary to a valid adjudication of the controversy.
For the reasons stated, the judgment of the trial court should be reversed and the cause dismissed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the action dismissed.
Reversed and dismissed.