Boales v. Ferguson

Decision Date23 June 1898
Citation76 N.W. 18,55 Neb. 565
CourtNebraska Supreme Court
Syllabus by the Court.

1. An administrator, who undertakes, without an adjudication of heirship, to distribute funds in his hands as the residue of an estate administered by him, assumes the responsibility of making distribution to the proper persons.

2. Interlocutory orders made by the county court, adjusting the current accounts of an administrator, are only prima facie correct, and such accounts are subject to re-examination and correction at any time before the allowance of the administrator's final report.

3. An unconstitutional act of the legislature is as ineffectual as though it had never been passed. Its invalidity dates from its enactment, and not from the time it is adjudged to be in conflict with the supreme law.

4. The curative act of 1895 (Laws 1895, c. 32) was intended to legalize orders, judgments, and findings of the county court which depended for their validity on the decedents' act of 1889 (Laws 1889, c. 57), and has no relation to orders, judgments, and findings which were valid independent of that act.

5. To be available as a defense to an action, an estoppel in pais must be pleaded.

6. The county court possesses exclusive original jurisdiction in probate matters, and questions relating to the settlement of estates must be adjudicated there in the first instance.

Appeal from district court, Saline county; Hastings, Judge.

Action by Lavina A. Boales and others against E. I. Ferguson, as administrator of the estate of Emily A. Praul, deceased. From a judgment for plaintiffs, defendant appeals. Affirmed.J. D. Pope, for appellant.

F. I. Foss, Thos. Ryan, and J. W. Dawes, for appellees.


After the enactment of chapter 57, Sess. Laws 1889, known as “Baker's Decedents' Law,” and before it was declared unconstitutional by this court, Emily A. Praul died intestate; leaving an estate in Saline county, which the appellant, E. I. Ferguson, proceeded to administer under the direction and by the authority of the county court of that county. Surviving the deceased were her husband, William Praul, and four children, the issue of a former marriage. On the assumption that the new decedents' law was valid, and that under its provisions he was entitled to one-third of the money belonging to the estate in the hands of the administrator, Praul on April 2, 1891, petitioned in the county court for an order of distribution. Such an order was made. Fairly construed, it directed the administrator to distribute forthwith among the heirs at law of Emily A. Praul all funds of the estate then in his possession. Acting as he supposed under the sanction of this order, Ferguson paid to Praul on November 18, 1891, the sum of $1,530, and on August 17, 1892, the further sum of $167.59. Accounts rendered in the course of administration, including these sums among the items disbursed, were represented by the administrator to the county court, and were by it examined and approved. It is claimed by appellant that the order directing distribution and the orders approving these accounts remain in full force, and are conclusive of the matters here in controversy. We do not think so. There was no adjudication of heirship. It was not judicially determined that Praul was an heir of the deceased wife, and entitled to participate in the distribution of her estate. The decree was to make distribution to the heirs as provided by law. The heirs were not named, nor the amounts due them, respectively, determined, as contemplated by the statute, which provides (Comp. St. 1897, c. 23, § 290) that “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.” The administrator, having voluntarily assumed the responsibility of executing this indeterminate decree, must now bear the consequences of errors committed in its execution. It was the business of the court to decide who the heirs were, and the amount of their respective interests in the estate. The appellant was not required to take upon himself this judicial function, but, having assumed it of his own accord, he must answer to those who have suffered by his error. But counsel contend that, inasmuch as the new decedents' law had not been declared unconstitutional when the payments to Praul were made, Ferguson was justified in assuming that it was valid, and in acting on that assumption. To this proposition we cannot assent. The Baker law was enacted in violation of the constitution. It was never in force, and the decision of this court in Trumble v. Trumble, 37 Neb. 340, 55 N. W. 869, was a mere judicial declaration of a pre-existing fact. The court did not annul the statute, for it was already lifeless. It had been fatally...

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10 cases
  • State v. Lewis
    • United States
    • Ohio Supreme Court
    • June 26, 1906
    ...v. Lewis, 12 O. D., 46; Gilbert v. Thomas, 16 O. D., 9; 26 Am. & Eng. Ency. Law, 568, 641; Norton v. Shelby Co., 118 U.S. 425; Boales v. Ferguson, 55 Neb. 565; Cooley Constitutional Limitations, 188; Bartlett v. State, 73 Ohio St. 54; 50 O. L. B., 536; 70 O. L. R., 24; 23 Am. & Eng. Ency. L......
  • Fischer v. Sklenar
    • United States
    • Nebraska Supreme Court
    • July 14, 1917
    ... ... ordinary courts, justices of the peace, and courts of record, ... are not applicable. In Boales v. Ferguson , 55 Neb ... 565, 76 N.W. 18, cited by appellant, the heirs were not ... named, nor the amounts due them, respectively, determined, ... ...
  • Reyes v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 18, 1988 built up under it." Indicating that an unconstitutional statute is stillborn, Bockhorn quoted with approval from Boales v. Ferguson, 55 Neb. 565, 76 N.W. 18 (1898), to the effect "The Court did not annul the statute for it was already lifeless. It had been fatally smitten by the Constitu......
  • Lydick v. Chaney
    • United States
    • Nebraska Supreme Court
    • March 19, 1902
    ...2 How. (Miss.) 856. All questions relating to the settlement of estates must be adjudicated by it in the first instance. Boales v. Ferguson, 55 Neb. 565, 76 N. W. 18. It would seem clear, therefore, that the executor or administrator, having assets in his hands, may be made personally liabl......
  • Request a trial to view additional results

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