Pope v. McEndree

106 N.W. 659, 75 Neb. 550, 1906 Neb. LEXIS 410

• Court: Nebraska Supreme Court
• Decided: January 18, 1906
• Docket: No. 14,100
• Status: Published

Opinion

Ames, C.

The plaintiff in error is the widow of James H. Pope, deceased, who died leaving a will in which she is named as sole residuary legatee and nominated as sole executrix. Pending the probate of the will, which ivas contested, and the issuance of letters testamentary thereon, she was appointed special administratrix of the estate pursuant to section 180, chapter 23, Compiled Statutes 1903 (Ann. St. 5045), and duly qualified as such. Afterwards the court removed her for alleged negligence or misconduct in office and appointed another'to serve as special administrator in her place and stead. From the order of removal she appealed to the district court, where an appeal'from an order admitting the will to probate was also pending, The former appeal was dismissed on motion, on the ground that the order of removal was not appealable. From the judgment of dismissal she prosecutes error.

The order of removal is evidently final as to Mrs. Pope, who is directly and perhaps seriously affected thereby, and is clearly appealable under section 42, chapter 20, Compiled Statutes 1903 (Ann. St. 4823), which 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.”

It is therefore recommended that the judgment of the district court be reversed and the cause remanded, with instructions to proceed upon the appeal as provided by law.

Letton and Oldham, CC., concur.

By the Court: For .the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with instructions to proceed upon the appeal as provided by law.

' Reversed.