Alexander v. Alexander

• Decision Date: 27 March 1889
• Citation: 26 Neb. 68,41 N.W. 1065
• Parties: ALEXANDER ET AL. v. ALEXANDER.
• Court: Nebraska Supreme Court

26 Neb. 68

41 N.W. 1065

ALEXANDER ET AL.

v.ALEXANDER.

Supreme Court of Nebraska.

March 27, 1889.

Syllabus by the Court.

1. An heir or devisee of an estate cannot maintain an action for distribution or partition until the debts, allowances, and expenses against said estate have been paid or provided for, unless he give a bond, with approved sureties, to pay the same.

2. Where a widow has a life-estate in all the lands of which her husband died seised, the heirs cannot maintain an action of partition against her, and disturb her possession.

3. One A., being a resident of D. county, and possessed of an estate therein, died in the year 1885. Shortly after his decease an instrument purporting to be his last will and testament was duly filed in the office of the county judge of said county, together with a petition, stating the necessary facts, and praying that said will might be probated. The county judge thereupon caused a notice to be published in a newspaper printed in that county, setting forth that a hearing would be had on said purported instrument at his office on the 28th day of November, 1885, at 10 o'clock A. M. This notice was published on the 12th, 19th, and 26th days of November preceding the hearing. Held, that a publication once a week for three weeks was sufficient to give the court jurisdiction, and that its ruling was not subject to collateral attack.

Appeal from district court, Dixon county; POWERS, Judge.Wigton & Whitham, for appellants.

Barnes Bros., for appellee.

MAXWELL, J.

The plaintiffs brought an action in partition against the defendant in the district court of Dixon county, and on the trial the court found for the defendant, and dismissed the action. The plaintiffs allege in their petition “that on the 22d day of October, 1885, one James Alexander died intestate, seised in fee of the following described real estate, situate in Dixon county, Neb., to-wit: The south-west quarter of the north-east quarter, and the south-east quarter of the south-west quarter, and the west half of the south-east quarter, of section twenty-six, township thirty-one, range five east; and the east half of the south-east quarter of section thirty-four, township thirty-one, range five east; and the north half of the north-west quarter, and the south-west quarter of the north-west quarter, and the south-west quarter of the south-west quarter, of section thirty-five, township thirty-one, range five east; and the north-west quarter of the north-west quarter of section two, township thirty, range five east. (2) Said James Alexander left, as his only heirs at law, the following persons, to-wit: John Alexander, brother of said deceased, aged 62 years, residing in Dixon county, Neb.; Ellen J. Smith, sister of said deceased, residing in New Zealand; James E. Alexander, aged 16 years, and Maggie Bell, aged 20 years, both residing in Dixon county, heirs of one Thomas Alexander, deceased,--said Thomas Alexander being a brother of James Alexander, deceased; and Robert Alexander, since deceased. (3) The defendant, Anna Bell Alexander, is the widow of said James Alexander, deceased, and as such widow has a right of dower in said real estate which has not been admeasured. (4) Plaintiff John Alexander and Ellen J. Smith, as heirs of James Alexander, deceased, have each an undivided one-third interest in said lands, and said plaintiffs James E. Alexander and Maggie Bell, as heirs of Thomas Alexander, brother of said James Alexander, deceased, have each an undivided one-sixth interest in said lands. Wherefore plaintiffs pray judgment confirming the shares of the parties as above set forth, and for a partition of said real estate according to the respective rights of the parties interested herein, or, if the same cannot equitably be divided, that said premises may be sold, and the proceeds thereof be divided between the parties according to their respective rights, and for such other relief as may be just and equitable.”

The defendant in her answer “denies that the said James Alexander died intestate, and avers the fact to be that said James Alexander made and left his certain last will and testament, and thereby and therein left all of the personal and real estate of which he died seised, to-wit, that set forth in said petition, to this defendant, his widow. And defendant avers that said plaintiffs ought not to be further permitted to prosecute this their said action against this defendant, because she says that on the 28th day of November, 1885, by the judgment and consideration of the county court within and for said county of Dixon, the said will of said James Alexander was duly established, proved, and allowed, and the same was duly admitted to probate; that said judgment of said court now remains in full force and effect, and is in nowise reversed, modified, or set aside; that said plaintiffs had due notice of all of said proceedings, and made their defense to the said action to probate and establish the said will; that the defendant is the owner of and is in possession of the said lands under said will and decree, and plaintiffs have no interest therein.”

1. It will be observed that the petition fails to allege that the debts due against the estate have been paid, or that distribution has been made as provided in the statute. Neither is there any allegation in regard to issue of the marriage of the defendant and the deceased, James Alexander. If there were no children, then the statute declares that the estate of the deceased “shall descend to his widow during her natural life.” Comp. St. c. 23, § 30. Section 288, c. 23, Comp. St., provides that, “before any partition or division of any estate among the heirs, devisees, or legatees, as provided in this subdivision, the probate court shall make an allowance for the necessary expenses of the support of any children of the deceased under seven years of age; and it shall be the duty of the executor or administrator to retain in his hands sufficient estate for that purpose, except when some provision is made by will for their support. Sec. 289. After the payment of the...