In Re Crane's Estate

89 N.W.2d 44, 166 Neb. 268, 1958 Neb. LEXIS 112

• Court: Nebraska Supreme Court
• Decided: March 28, 1958
• Docket: 34275
• Status: Published

Opinions

Messmore, J.

This is an appeal from a judgment of the district court for Morrill County dismissing a claim allowed by the county court on the ground that the district court did not have jurisdiction over the subject matter of the action. On December 29, 1955, the claimant, Faye Lutcavish, filed a claim in the county court of Morrill County against the estate of Maude C. Crane who died July 25, 1955, intestate. Paul H. Eaton was appointed administrator of the estate of Maude C. Crane, deceased. The claimant, Faye Lutcavish, is the same person named and designated as Faye Crane in the last will and testament of Fred A. Crane, deceased. Fred A. Crane died February 11, 1950. His last will and testament was admitted to probate in the county court of Morrill County March 21, 1950. The estate was settled and distribution made in accordance with his will. Faye Lutcavish was Fred A. Crane’s daughter by his first wife. Maude C. Crane was the second wife of Fred A. Crane.

The will of Fred A. Crane, deceased, provides in part as follows: “SECOND, After the payment of such funeral expenses and debts, I give, devise, and bequeath to my laving wife Maude Crane, all of my real and personal property, of whatever it may consist, and wherever it may be found, and it is my will that she sell or dispose of any of said property as she may see fit. It is my will that should there be any property, real or personal, remaining, at the time of the death of my said wife, Maude Crane, then said property which has come to the said Maude Crane as a result of this bequeath (bequest) shall be given to my daughter Faye Crane.”

In addition to stating some of the facts above set out, the claimant set forth in her claim the following in substance: That upon the distribution of the personal estate of Fred A. Crane, deceased, Maude C. Crane received all the personal estate of Fred A. Crane, deceased, consisting of two shares of capital stock of the Farmers Equity Cooperative Creamery Association of the value of $29.37, and the sum of $2,174.91 in cash, and the same was delivered into the possession and control of Maude C. Crane for her use and benefit during her natural life; that under and by virtue of the terms and provisions of the last will and testament of Fred A. Crane, deceased, this claimant, Faye Luteavish, became the owner of all the property, both real and personal, owned by Fred A. Crane at the time of his decease, subject only to the provisions of his last will and testament directing the payment of his funeral expenses and debts, and subject only to the life estate of Maude C. Crane in said property of Fred A. Crane, deceased; and ■that Maude C. Crane, now deceased, wrongfully converted the above-described stock of the Farmers Equity Cooperative Creamery Association and cash funds in the amount of $2,174.91, to her own use and commingled the same with her own funds. The claimant prayed for allowance of her claim in the amount of $2,204.28 against the estate of Maude C. Crane, deceased, or for such other amount that the court determined just and proper to adequately reimburse her for her share of the property and estate of Fred A. Crane, deceased, to which this claimant was entitled-under the terms of his last will and testament.

The administrator of the estate of Maude C. Crane, deceased, filed objections to the claim, in which he admitted that the last will and testament of Fred A. Crane was admitted to probate and contained the provisions as heretofore set out; and admitted that upon the entry of the final decree in the probate proceedings of the estate of Fred A. Crane, deceased, there was distributed to Maude Crane, who was one and the same person as Maude C. Crane named therein, stock in the Farmers Equity Cooperative Creamery Association appraised at the value of $20, but having a book value of $29.37 at the time of distribution, and also the sum of $2,174.91 and no other property, but that listed in the inventory of the estate of Maude C. Crane, deceased, were items consisting of a watch and pocket knife believed to have belonged to Fred A. Crane, deceased. The administrator alleged that he had made an investigation and found that Maude C. Crane cashed or sold back to the Farmers Equity Cooperative Creamery Association said stock of the book value of $29.37; that the proceeds therefrom were applied or used by her for her support, comfort, and enjoyment; that the residue received by Maude C. Crane from the estate of Fred A. Crane, deceased, on September 26, 1950, was in the sum of $2,174.91; that she deposited the sum of $1,930 in her postal savings account; that the remaining $244.91 was commingled with her own money and funds and may have become a part of the purchase price paid in the sum of $375 for a United States savings bond of $500 denomination purchased by her on October 5, 1950, or she may have used the $244.91 of the residue for her support and maintenance; that Maude C. Crane had money of her own on deposit in her postal savings account when she deposited the $1,930 of the residue of the estate of Fred A. Crane, deceased, in said account; that thereafter she made further additions to said account out of her own money; that on April 28, 1953, she closed out the postal savings account and received a government check for $2,518.20, which sum would include her own money, the earnings on the entire deposit, and the sum of $1,930 from the residue of the estate of Fred A. Crane, deceased; that on or about the same day she deposited the government check to her account in the Lisco State Bank, and later purchased government savings bonds, three of such bonds for the amount of $750 each, and two for $75 each; that she cashed two of the bonds purchased for $75 each and one of the bonds purchased for $750, using the proceeds for living and medical expenses, leaving two savings bonds purchased for the sum of $750 each in the hands of the administrator of her estate; and that it was for the court to determine whether the two United States savings bonds remaining should be construed as being personal property of the estate of Fred A. Crane, deceased, purchased from the residue of his estate and subject to distribution to the claimant, or whether they were to be distributed to the heirs of Maude C. Crane, deceased, as a part of her separate estate. The administrator denied that Maude C. Crane had received any other property from the estate of Fred A. Crane, and denied the right of the claimant to recover or have any interest, income, or benefits from the residue of the estate of Fred A. Crane, deceased, or the right to an accounting for moneys used by Maude C. Crane for her support, maintenance, use, and comfort. The administrator alleged that the only accounting required of the Maude C. Crane estate was the residue unused by the deceased during her lifetime, and prayed that the claim be disallowed, save and except for any portion of the residue from the estate of Fred A. Crane, deceased, that the" court might find and determine to remain at the time of the death of Maude C. Crane, deceased.

Objections to the claim were also filed by Fred A. Buerstetta and Lucy E. Jones, brother and sister of Maude C. Crane, deceased, as two legal heirs of Maude C. Crane, deceased. The allegations of this pleading were quite similar to the objections filed by the administrator of the estate of Maude C. Crane, deceased, and need not be summarized.

The claim was heard in the county court on January 22, 1957. The objectors, Lucy E. Jones and Fred A. Buerstetta, did not appear except as heirs of Maude C. Crane, deceased, being represented in that capacity by the administrator and attorney for the estate of Maude C. Crane, deceased. The claim was allowed by the county court in the amount of $2,204.28, and the administrator of the estate of Maude C. Crane, deceased, was ordered to surrender the watch and pocket knife to the claimant.

The administrator of the estate of Maude C. Crane, deceased, appealed to the district court from the order of the county court allowing the claim. The claimant filed a petition in the district court in substantially the same form as the claim filed in the county court. The administrator filed an answer and objections to the petition, setting forth in substance the same facts as appeared in his objections in the county court. An answer and reply denying generally the allegations of the administrator’s answer and objections was filed by the claimant. No filing or appearance was made in the district court by Lucy E. Jones or Fred A. Buerstetta as heirs of Maude C. Crane, deceased.

The matter came on for hearing in the district court on May 13, 1957. Trial to a jury was waived. The facts were stipulated and the stipulation was filed. The claimant offered the stipulated facts in evidence. The administrator objected to the introduction of any evidence for the reason that the district court and the county court had no jurisdiction to consider this matter, and that the district court on appeal had no jurisdiction to hear and consider this matter. The objection to the introduction of evidence was sustained. The administrator then moved to dismiss the claim for lack of jurisdiction, and this motion was sustained. The court then entered its order dismissing the claim for lack of jurisdiction. The claimant filed a motion for new trial, and later filed an amended motion for new trial. On the overruling of the amended motion for new trial, the claimant appealed to this court.

The appellant assigns as error the district court’s dismissal of her claim for lack of jurisdiction as being contrary to law.

Courts are bound to take notice of the limits of their authority, and accordingly a court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings. Stewart v. Herten, 125 Neb. 210, 249 N. W. 552.

Want of jurisdiction of the subject matter of the action is a defect which it is the duty of the court to notice, of its own motion, by dismissal of the action or other suitable action, at any stage of the proceedings. Lippincott v. Wolski, 147 Neb. 930, 25 N. W. 2d 747, 169 A. L. R. 1236. See, also, Stewart v. Herten, supra.

On appeal to the district court from the county court where the county court had no jurisdiction of the subject matter such appeal confers no jurisdiction upon the district court. In re Trust Estate of Myers, 151 Neb. 255, 37 N. W. 2d 228.

The appellant, Faye Lutcavish, asserts that the basic question for determination by this court is whether or not the county court had jurisdiction over the subject matter of the action, that is, to have and determine her claim against the estate of Maude C. Crane, deceased. The appellant assumes that it is the contention of the appellee, administrator of the estate of Maude C. Crane, deceased, that to determine the claim of the appellant required a construction of the will of Fred A. Crane, deceased.

The appellant contends: (1) That the determination of her claim filed in the county court against the estate of Maude C. Crane, deceased, does not require and does not involve a construction of the will of Fred A. Crane, deceased; (2) that if a construction of the will of Fred A. Crane, deceased, was necessary, the county court was not thereby excluded from jurisdiction over the claim; (3) that the appellee, administrator of the estate of Maude C. Crane, deceased, did not, in the county court, raise the issue of the construction of the will of Fred A. Crane, deceased, in his pleadings, but in fact therein admitted that the claimant was entitled to the residue of the estate of Fred A. Crane, deceased, remaining after the death of Maude C. Crane; and (4) that not only did the county court pleadings preclude construction of the will of Fred A. Crane, deceased, as an issue, but that issue had been previously foreclosed at the time of the final settlement of the Fred A. Crane estate, for the reason that in the final decree entered in the Fred A. Crane estate the court construed the will for the benefit of Maude C. Crane, executrix, in carrying out the terms of the will and assigned the residue to Maude C. Crane “as by said Will provided and that if there should be any of said property or residue remaining at the time of the death of said Maude Crane, the said Faye Lutcavish shall be entitled thereto.”

In Hahn v. Verret, 143 Neb. 820, 11 N. W. 2d 551, we said: “The construction of a will, in the probate court, for the information and benefit of the executor only in order to advise him what course to pursue adjudicates nothing beyond his rights and liabilities in the execution of his office. Controversies between adverse claimants under a devise or bequest or between the executor and persons claiming adversely to the estate will not be affected thereby.”

As stated in Annable v. Ricedorff, 140 Neb. 93, 299 N. W. 373: “This jurisdiction was long ago committed to the doctrine: ‘The construction of the will in such a case (in probate court) is for the information and benefit of such executor or administrator only, in order to advise him what course to pursue. It adjudicates nothing beyond his rights and liabilities in the execution of his office; controversies between adverse claimants under the devise or between the executor or administrator and persons claiming adversely to the estate, will not be affected thereby.’ ” See, also, Youngson v. Bond, 69 Neb. 356, 95 N. W. 700; Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004; Klug v. Seegabarth, 98 Neb. 272, 152 N. W. 385.

In DeWitt v. Sampson, 158 Neb. 653, 64 N. W. 2d 352, an action was started in the district court to have the will of Theodore C. Sampson construed. Certain residuary legatees of the estate of Laura Sampson, deceased, and spouses of some of the legatees were plaintiffs. The executor of the last will and testament of Laura Sampson, deceased, was also a plaintiff. The action was brought against certain residuary legatees of the will of Theodore C. Sampson, deceased, defendants. The cause of action pleaded by the plaintiffs was to have the will of Theodore C. Sampson construed and, on the basis of the construction, to have title to what they contended to be the assets of the estate of Laura Sampson, deceased, quieted in them as legatees of the estate of Laura Sampson. Theodore C. Sampson died on October 15, 1937, and his estate was duly probated. At the time of the death of Theodore C. Sampson his estate consisted of lands and personal property. The lands were sold in accord with the powers granted by the provisions in the will. On October 17, 1952, Laura Sampson died testate and her will was probated in the county court. On her death, according to the petition, certain defendants named therein as residuary legatees of Theodore C. Sampson, made claim apparently in the county court against her estate for $31,950.66 which they asserted was due them as the residue under the provisions of the will of Theodore C. Sampson. The prayer of the petition was to have the will of Theodore C. Sampson construed. To the petition, a plea in abatement and a demurrer were filed, which were sustained. The court said: “The purport and effect of the plea in abatement and the demurrer is to say that the subject matter of appellants’ pleaded cause of action is a claim by appellees against the estate of Laura Sampson, deceased, a matter over which the county court has exclusive jurisdiction. The appellants on the other hand have proceeded on the theory that since the rights, if any, which appellees had flowed from the will of Theodore C. Sampson the rights of all parties should be determined in an action in the district court. It was this contention which was determined adversely to appellants by the dismissals based on the plea in abatement and the demurrer. * * * More than a mere claim is involved here. The basic question involved is that of the rights of the parties to this action under the terms of the will of Theodore C. Sampson, deceased. The determination of this question cannot be made except by a construction of that will. The only proper forum for that determination is the district court. * * * It must be said that the district court had jurisdiction of the cause of action pleaded, that the petition was not vulnerable to demurrer, and that therefore the action was erroneously dismissed.”

The above-cited case is in point with the instant case on the jurisdictional question raised.

As we view the pleadings, the appellant asserts that Maude C. Crane had a life interest only in the estate of Fred A. Crane, deceased; that she was not privileged to convert any of the property of such estate to her own use or commingle the same with funds of her own and by doing so she wrongfully violated the rights of the appellant under the will of Fred A. Crane, deceased; and that the appellant is the owner of all of the residue after completion of the administration, subject only to the life use of Maude C. Crane. On the other hand, the appellee, by pleadings, asserts that the interest of Maude C. Crane was a life estate coupled with the power to sell and dispose of any of the property left under the will of Fred A. Crane for the purposes as stated therein; that she had a right to commingle the same with her own funds as long as the identity of the corpus of the residue was not lost; that she could use all or any part of the property for her wants, needs, and reasonable desires; and that upon the death of Maude C. Crane, the appellant would become the owner of such residue, if any, not consumed during the lifetime of Maude C. Crane for her support, maintenance, and comfort.

It appears from the pleadings of the respective parties that their contentions regarding the will of Fred A. Crane, deceased, and what it means, are adverse to each other to such an extent that the contentions of the parties can be resolved only by a construction of the will of Fred A; Crane, deceased.

Whatever interest the appellant Faye Lutcavish has. she must establish under and by virtue of the will of Fred A. Crane, deceased. This estate has been probated, distribution made as provided by the will, and the estate settled. The estate in which Faye Lutcavish filed a claim is the intestate estate of the second wife of her father. Under the circumstances presented, we conclude that this is not a proper claim against the estate of Maude C. Crane, deceased. In the event the district court construes the will of Fred A. Crane, deceased, and finds that the appellant is entitled to certain property of that estate she then has a proper remedy at law to obtain it.

While it may appear that some language in the earlier decisions of this court might be in conflict with the later decisions of this court cited herein on this point of jurisdiction, suffice it is to say that for some considerable period of time this court has been committed to the rules announced heretofore in this opinion regarding the question of jurisdiction of the county court and the district court pertaining to wills.

For the reasons given herein, the judgment of the district court is affirmed.

Affirmed.