Clemons v. Heelan

• Decision Date: 22 September 1897
• Docket Number: 7425
• Citation: 72 N.W. 270,52 Neb. 287
• Parties: MARY CLEMONS, APPELLANT, v. MICHAEL HEELAN, APPELLEE, IMPLEADED WITH BRIDGET HANLON, APPELLANT, ET AL
• Court: Nebraska Supreme Court

72 N.W. 270

52 Neb. 287

MARY CLEMONS, APPELLANT, v. MICHAEL HEELAN, APPELLEE,

IMPLEADED WITH BRIDGET HANLON, APPELLANT, ET AL

No. 7425

Supreme Court of Nebraska

September 22, 1897

APPEAL from the district court of Lancaster county. Heard below before HALL, J. Reversed.

REVERSED AND REMANDED.

Ricketts & Wilson and Sawyer, Snell & Frost, for appellants.

Pound & Burr, contra.

RYAN C. HARRISON, J., not sitting.

OPINION

RYAN, C.

Mary Clemons filed her petition in the district court of Lancaster county alleging that on January 20, 1873, she had been married to Patrick Clemons; that she had continued to be his wife until the time of his death, which occurred on December 12, 1892; that on June 5, 1877, said Patrick Clemons had become the owner of a certain eighty acres of land in Lancaster county, which, on February 17, 1888, he had attempted to convey to one of the defendants, Patrick Helehan, and that on December 3, 1892, the said Patrick Clemons, by will, had devised said premises to Michael Heelan and Bridget Hanlon. It was further alleged that on March 20 1893, Thomas Heelan had been appointed administrator of the estate of Patrick Clemons. The defendants in the aforesaid petition were the said administrators, Michael Heelan Bridget Hanlon, and Patrick Helehan. In the petition it was averred that these defendants unlawfully and wrongfully had possession of the real property therein described, claiming to own the whole thereof in fee-simple, and denied the right of plaintiff to any part of said premises and had forcibly excluded plaintiff from her right of dower therein. It was further alleged that the plaintiff, at the time of filing the said petition, was thirty-eight years of age and that at the time of the death of her husband she was thirty-seven years old, and that her estate of dower was of the value of $ 2,000. The prayer was as follows: "Wherefore this plaintiff prays that the court may find and adjudicate that the plaintiff was the lawful wife of said Patrick Clemons and entitled to dower in the said premises, and further prays that the court shall find the value of her dower in the said premises according to the value of the said premises and her expectancy as shown by the tables of mortality, and that the court decree and adjudge such sum so found as the fair and reasonable value of this plaintiff's dower interest in the property to be a first and prior lien upon said premises, and unless the same be paid within a short time, to be fixed by the court, that the same should be sold and the proceeds thereof applied to the payment of this plaintiff's said dower, and for such other, further, and different relief as equity may require." Michael Heelan answered the petition, and in his answer prayed that his co-defendants, Bridget Hanlon and Patrick Helehan, and the plaintiff might be decreed to have no estate, right, interest, or title in the premises indicated, and for equitable relief in line with that specially prayed as above indicated. There were answers by the other defendants, but their nature need not be stated at length. It is sufficient to say that the petition and the answers presented a case wherein it appeared that the plaintiff, a widow of the deceased, was kept out of the possession of her dower right in the real property of the deceased by the defendants, who claimed the entire title and the exclusive right of possession. Where the right of the widow is not disputed it may be assigned in the county court. (Compiled Statutes, ch. 23, secs. 8-11.) If the dower right of the widow is disputed, however, we think she may, by an action in equity in a proper district court, settle such dispute. We shall therefore assume that the petition in this case stated sufficient facts to entitle plaintiff, on proper proof, to relief to the extent of establishing the fact that she was the widow of the deceased and as such was entitled to a decree by which all disputes as to the existence of her dower right would finally be settled.

By their separate answers the defendants alleged certain facts in bar of the dower right of the plaintiff. From the answer of Michael Heelan we quote the language in which this defense was set out, as follows: "And this defendant further answering alleges that Patrick Clemons was on the 18th day of May, 1880, divorced from the said plaintiff by a decree of divorce duly rendered by the county court of Larimer county, in the state of Colorado, in an action therein pending, wherein the defendant was plaintiff and the said plaintiff herein was defendant; that said county court had jurisdiction of the parties to said action and the subject-matter thereof, and that said decree has ever since remained in full force and virtue, unreversed, unmodified, and unappealed from, and that said Patrick Clemons ever since said decree remained single and unmarried; that said court, at the time said decree of divorce was rendered, had, by the laws of said state of Colorado, jurisdiction to try and determine actions for divorce, and the plaintiff, who was a party defendant in such cause for divorce in which said decree was rendered, was duly served with notice and summons therein in the manner provided by the laws of said state of Colorado." There was a reply in which was contained a general denial of all the averments of the several answers. On a trial of the issues there was a decree against the plaintiff from which she has appealed.

It cannot be doubted...