Prusa v. Everett

Nebraska Supreme Court

Prusa v. Everett

110 N.W. 568, 78 Neb. 250, 1907 Neb. LEXIS 88

Nebraska Supreme Court·Decided January 17, 1907·No. No. 14,630·Published·Cited by 15 cases

Opinions

Epperson, C.

The plaintiffs, as heirs at law and devisees of Anton" Prusa, by their guardian, brought this action in the district court for Colfax county against the defendants, attorneys representing the estate of said Anton Prusa, for an accounting and for a certain sum of money alleged to be held by defendants for said estate and for plaintiffs as beneficiaries under the will of the deceased. All debts of the estate have been paid, but the administrator de bonis [251] non lias not rendered Ms final account in the county court. The administrator de bonis non refused to bring an action against defendants for the sum herein sued for by the plaintiffs.

1. Administrator De Bonis Hon. The term “administrator de tonis non," used in reference to the administration of estates by the courts of this state, means an administrator Who has been appointed in the place of a former administrator or executor who has ceased to be such after partial administration of the estate.

[251] The district court sustained a demurrer to the petition, and the sole question for determination on this appeal is Avhether heirs or devisees can maintain an equitable action to recover assets, Avhich Avould increase the value of the estate, Avhile the estate is in process of administration in the county court. We consider this question ansAvered in the negative by this court in Cox v. Yeazel, 49 Neb. 343, Avhere it was held that an action cannot be maintained by the heirs at laAV to recover a debt payable to an intestate unless there be no demands against the deceased ancestor and tiiere has been no administration, or the administration has been closed. We are cited to no authority, and Ave have been unable to find one, holding a different rule in actions in equity. We find no occasion to depart from the rule of Cox v. Teazel, supra, in actions in equity to recover money held in trust for the estate. The petition seems to state a cause of action in favor of the estate, and the administrator de bonis non will no doubt protect the interests he represents.

We think the judgment of the district court should be affirmed, and so recommend.

Ames and Oldham, 00., concur.

By the Court: For the reasons stated in the foregoing ■ opinion, the judgment of the district court is

Affirmed.

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Epperson, C.

The plaintiffs, as heirs at law and devisees of Anton" Prusa, by their guardian, brought this action in the district court for Colfax county against the defendants, attorneys representing the estate of said Anton Prusa, for an accounting and for a certain sum of money alleged to be held by defendants for said estate and for plaintiffs as beneficiaries under the will of the deceased. All debts of the estate have been paid, but the administrator de bonis [251] non lias not rendered Ms final account in the county court. The administrator de bonis non refused to bring an action against defendants for the sum herein sued for by the plaintiffs.

1. Administrator De Bonis Hon. The term “administrator de tonis non," used in reference to the administration of estates by the courts of this state, means an administrator Who has been appointed in the place of a former administrator or executor who has ceased to be such after partial administration of the estate.

[251] The district court sustained a demurrer to the petition, and the sole question for determination on this appeal is Avhether heirs or devisees can maintain an equitable action to recover assets, Avhich Avould increase the value of the estate, Avhile the estate is in process of administration in the county court. We consider this question ansAvered in the negative by this court in Cox v. Yeazel, 49 Neb. 343, Avhere it was held that an action cannot be maintained by the heirs at laAV to recover a debt payable to an intestate unless there be no demands against the deceased ancestor and tiiere has been no administration, or the administration has been closed. We are cited to no authority, and Ave have been unable to find one, holding a different rule in actions in equity. We find no occasion to depart from the rule of Cox v. Teazel, supra, in actions in equity to recover money held in trust for the estate. The petition seems to state a cause of action in favor of the estate, and the administrator de bonis non will no doubt protect the interests he represents.

We think the judgment of the district court should be affirmed, and so recommend.

Ames and Oldham, 00., concur.

By the Court: For the reasons stated in the foregoing ■ opinion, the judgment of the district court is

Affirmed.

Prusa v. Everett, 110 N.W. 568, 78 Neb. 250, 1907 Neb. LEXIS 88 (Neb. 1907).

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