Bolton v. Bliss (In re Bolton's Estate)
| Citation | 238 N.W. 358,121 Neb. 737 |
| Decision Date | 16 October 1931 |
| Docket Number | No. 27763.,27763. |
| Parties | IN RE BOLTON'S ESTATE. BOLTON v. BLISS. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A contingent claim against an estate, mentioned in section 30-701, Comp. St. 1929, is one where the liability depends upon some future event, which may or may not happen, and which therefore makes it wholly uncertain whether there ever will be a liability. In the case of a contingent claim, the contingency does not relate simply to the amount which may be recovered, but to the uncertainty whether any amount will ever become due.
Syllabus by the Court.
An appeal from a decision, however erroneous, should not be allowed to prevail which does not affect the substantial rights of an appellant and will avail him naught.
Syllabus by the Court.
A receiver of a state bank who has filed a contingent claim against an estate of a deceased stockholder cannot appeal from an order in his favor impounding assets to pay such contingent claim in case same should become absolute.
Syllabus by the Court.
Contingent claims cannot be allowed by the county court before they have become absolute. One who has filed such contingent claim cannot appeal from an order granting him all the relief to which he is entitled under the law.
Appeal from District Court, Fillmore County; Proudfit, Judge.
In the matter of the estate of Monroe Bolton, deceased. The County Court approved the final report of the executrix, Sarah S. Bolton, and of the executor, Ernest L. Smith, but, because of certain contingent claims, directed certain property to be held until further order of the court, and, from the order of the County Court so providing, Clarence G. Bliss, Receiver of the State Bank of Minatare, and others, appealed to the District Court. The District Court dismissed the appeal, and the latter again appeal.
Judgment of the District Court affirmed.
Waring & Waring, of Geneva, for appellants.
Perry, Van Pelt & Marti and C. C. Cartney, all of Lincoln, for appellees.
Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and PAINE, JJ.
Contingent claims for possible stockholders' liability in four failed banks were filed in the county court of Fillmore county against the estate of Monroe Bolton. The county court approved the executor's final report, but, because of said contingent claims, directed them to hold property aggregating in value $70,176.33 until further order of the court. From this order the four contingent claimants appealed to the district court and the executors filed a motion to dismiss the appeal. The district court thereupon entered an order finding that no final order had been made by the county court from which the contingent claimants had a right to appeal, and dismissed the appeal. The receivers of the four banks bring the case to this court as appellants. The executrix and the executor are the appellees.
The following facts set out in the pleading will assist in making the controversy clear. Monroe Bolton, deceased, in his last will, made at Geneva, Nebraska, August 28, 1926, named his wife, Sarah S. Bolton, executrix, and Ernest L. Smith, the husband of his daughter Eva, as executor. In his will he devised certain tracts of real estate to his wife, other real estate to his son Ralph, and still other real estate to his daughter Lora. He gave to each of his three children $5,000 in cash and give the life estate in the remainder of his property to his wife and at her death it was to pass to his three children.
Monroe Bolton died September 23, 1927, and on October 25, 1927, letters of administration were issued. The inventory disclosed real estate of the approximate value of $25,000, certificates of deposit and shares of stock in corporations of the value of $89,367.94, and notes and accounts to the amount of $21,576.60, but the value of 314 2/3 shares of stock in six state banks in Nebraska was listed as unknown.
The receiver of the Citizens State Bank of Geneva filed a contingent claim against said estate, setting out that the decedent at the time of his death owned 40 shares of the capital stock of said bank and that said estate might at some future time be liable to the receiver of said bank in the sum of $4,000 thereon. The receiver of the Strang State Bank filed a similar contingent claim, based upon 33 shares of stock in that bank, of face value of $3,300, which decedent owned at the time of his death; and the receiver of the State Bank of Minatare filed a similar claim for $9,833.33, based upon 98 1/3 shares of stock which decedent owned in that bank; and the receiver of the State Bank of Nelson filed a contingent claim for $2,333.33, based upon 23 1/3 shares of stock which decedent owned in that bank at the time of his death; making the four contingent claims in said four banks amount to $19,466.66, being based on the ownership by the decedent of 194 2/3 shares of stock in said four banks.
Omitting references to a judgment of $10,000 of the Geneva State Bank allowed upon two notes of $5,000 each, which claim is not involved in this appeal, the final portion of the order entered by the county court upon January 22, 1930, upon the final report and petition for discharge of the executors reads as follows: “It is therefore ordered, adjudged and decreed by the court that said executors be and they are hereby discharged as to all matters except said four contingent claims; * * * that said executors shall continue to furnish bond in the amount of $20,000 until finally and fully discharged. It is further ordered that upon said executors presenting to this court receipts or other proof * * * and the contingent claims have been satisfied, or that the said contingent claims have been successfully defeated by litigation, said executors are discharged as to said contingent claims, it being specifically ordered and adjudged that said executors are continued in office for no purpose except * * * to litigate or discharge said contingent claims.
“It is further ordered and decreed that the executors in said estate are hereby directed to hold intact the properties:
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¦Magee's Inc. par and actual value ¦$15,600.00¦
+--------------------------------------------------------------+----------¦
¦Union Lumber Company of Ruskin, Nebraska, par and actual value¦9,500.00 ¦
+--------------------------------------------------------------+----------¦
¦M. Bolton Lumber Company, Geneva, Nebraska, actual value ¦30,000.00 ¦
+--------------------------------------------------------------+----------¦
¦Balance on deposit Citizen State Bank ¦4,608.99 ¦
+--------------------------------------------------------------+----------¦
¦Cash on hand ¦10,467.34 ¦
+--------------------------------------------------------------+----------¦
¦Aggregating ¦$70,176.33¦
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--and to keep the Bolton Lumber Company yards properly insured.
It is further ordered, adjudged and decreed that all claims against said estate of whatever nature, other than said four contingent claims above described, * * * are hereby forever barred against said estate; that any party interested in this estate desiring to appeal from an order herein shall give bond within the time required by law in the sum of $500.”
It is stated in the briefs that upon January 25, 1930, which was three days after the entry of the order barring all claims, except the four contingent claims, the receiver of the Exchange Bank of Ong filed a contingent claim for 100 shares of stock owned therein by the deceased, but such receiver is not an appellant herein. Unfortunately the clerk in making up the transcript did not show the dates of the filing of the instruments.
The receivers of the four banks having contingent claims duly filed appealed to the district court, and at the May, 1930, term thereof, at a session held September 5, 1930, the district court, upon the hearing upon the motion of the attorneys for the executors to dismiss the appeal, ordered “that unless appellants file pleadings setting forth their claims within fifteen days from this date, said appeal be dismissed; that if appellants file such claims within such time, the appellee have ten days thereafter in which to plead thereto.”
At the October, 1930, term of the district court an order was entered reading in part as follows: “This cause came on to be heard upon the motion to vacate the order of dismissal entered by this court on the 5th day of September, 1930, and the court, having heard the arguments of counsel, and being fully advised in the premises, finds that the record shows on its face that no final order was made in the county court of Fillmore county, Nebraska, from which the Citizens State Bank of Geneva, the Strang State Bank, the State Bank of Nelson or the State Bank of Minatare, have a right of appeal, and the said motion to vacate is hereby denied, and the appeal is dismissed.”
Appellees insist that appellants did not comply with the law which requires that they file their petitions within 50 days from the rendition of the judgment in the lower court, nor did they plead within the rule day fixed by the district court, and that such court was clearly within its discretionary power in dismissing their appeals, and that the dismissal took place at the May term of court and was not appealed from at that term.
[1] 1. Section 30-701, Comp. St....
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