OPINION
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:
"1.
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, Nebraska, to wit: the
southwest quarter of the northeast quarter, and the southeast
quarter of the southwest quarter, and the west half of the
southeast quarter, of section twenty-six, township
thirty-one, range five east; and the east half of the
southeast
quarter of section thirty-four, township thirty-one, range
five east; and the north half of the northwest quarter, and
the southwest quarter of the southwest quarter, of section
thirty-five, township thirty-one, range five east; and the
northwest quarter of the northwest 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 sixty-two years, residing in Dixon county,
Neb.; Ellen J. Smith, sister of said deceased, residing in
New Zealand; James E. Alexander, aged sixteen years, and
Maggie Beller, aged twenty 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.
Plaintiffs 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 Beller, 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."
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. Stat., chap. 23, sec. 30.)
Section
288, Chapter 23, Compiled Statutes, 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 debts, funeral charges, and the
expenses of administration, and after the allowances made for
the expense of the maintenance of the family of the deceased,
and for the support of the children under seven years of age,
and after the assignment to the widow of her dower, and of
her share in the personal estate, or when sufficient assets
shall be reserved in the hands of the executor or
administrator for the above purposes, the county court shall,
by a decree for that purpose, assign the residue of the
estate, if any, to such other persons as are by law entitled
to the same.
"Sec.
290. In such decree, the court shall name the persons, and
the proportions or parts to which each shall be entitled, and
such persons shall have the right to demand and recover their
respective shares from the executor or administrator, or any
person having the same.
"Sec.
291. Such decree may be made on the application of the
executor or administrator, or of any person interested; but
no heir, devisee, or legatee, shall be entitled to a decree
for his share until payment of the debts and allowances and
expenses mentioned in the preceding section shall have been
made or provided for, unless he shall give a bond to the
county judge, with such surety or sureties as he may direct,
to secure the payment of the just proportion of such heir,
devisee, or legatee, of such debts and expenses, or such part
thereof as shall remain unprovided for, and to indemnify the
executor or administrator against the same.
"Sec.
292. When such estate shall consist in part of real estate,
and shall descend to two or more heirs, devisees, or legatees, and the respective shares shall not be separate
and distinguished, partition thereof may be made as provided
by law."
1.
There is no claim that the debts, allowances, and expenses
against the estate, have been paid or provided for, or that
the plaintiffs had given bonds to secure the payment of the
same. They, therefore, cannot maintain an action of partition
or for distribution.
2. If
the widow has a life estate in the lands mentioned, the
plaintiffs cannot maintain...
