Coe v. Covert

• Decision Date: 21 April 1983
• Docket Number: No. 82-177,82-177
• Citation: 214 Neb. 140,332 N.W.2d 699
• Parties: Herbert C. COE, Executor of the Estate of Lelah Mildred Coe, also known as Mildred Coe, deceased, Appellee, v. John A. COVERT, doing business as Drew's Antiques and Art Objects, Appellant, and Jack Drew, Appellee.
• Court: Nebraska Supreme Court

Page 699

332 N.W.2d 699

214 Neb. 140

Herbert C. COE, Executor of the Estate of Lelah Mildred Coe, also known as Mildred Coe, deceased, Appellee, v. John A. COVERT, doing business as Drew's Antiques and Art Objects, Appellant, and Jack Drew, Appellee.

No. 82-177.

Supreme Court of Nebraska.

April 21, 1983.

Syllabus by the Court

1. Decedents' Estates. Under South Dakota law no sale of any property of an estate of a decedent is valid unless made under an order of the probate court, except as otherwise provided. All sales must be reported under oath and confirmed by the court before title to the property passes.

2. Decedents' Estates: Executors and Administrators. Ordinarily, the acts of an executor or administrator in his individual capacity cannot operate as an estoppel against him in his representative capacity.

Thomas P. Leary, Omaha, for appellant.

William Jay Riley and Nick R. Taylor of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, for appellee.

BOSLAUGH, McCOWN, and HASTINGS, JJ., BRODKEY, J., Retired, and GARDEN, District Judge.

McCOWN, Justice.

The plaintiff executor filed this proceeding seeking to recover personal property of a decedent's estate which had been sold and delivered to the defendant Covert. The District Court sustained plaintiff's motion for summary judgment, enjoined the defendant from selling or transferring the property involved, directed that it be returned to plaintiff, and ordered plaintiff to return to defendant defendant's check representing funds paid for the property. The court retained other issues as to additional property for trial. The defendant Covert has appealed.

Lelah Mildred Coe, a resident of South Dakota, died testate on March 17, 1981. On April 29, 1981, the decedent's will was duly admitted to probate in the Circuit Court of Tripp County, South Dakota, and plaintiff, Herbert C. Coe, was duly appointed executor of his mother's estate. Plaintiff is the sole heir under his mother's will. The will was not contested and the time for filing claims against the estate expired on May 25, 1981, and no claims were filed.

On May 19, 1981, the defendants Covert and Drew traveled to Winner, South Dakota, at the invitation of plaintiff, and purchased some antiques that had belonged to the decedent, Lelah Coe. The defendants were aware that the antiques had belonged to the plaintiff's mother and that she had died in March 1981. The record indicates that plaintiff did not know that court authorization for sale was required, and plaintiff did not tell the defendants that he was the executor of his mother's estate.

The plaintiff and defendant Covert orally agreed to the sale of numerous items for a price of $5,350, and defendant Covert made out a check for that amount payable to the plaintiff individually, and delivered the check to the plaintiff. Defendants Covert and Drew then packed and removed the antiques and took them to Omaha, Nebraska.

The next day the attorney for the estate of Lelah Coe telephoned the defendant Covert and informed him that the plaintiff did not have any authority to sell the estate items. He also informed Covert that Covert's check had not been cashed, requested Covert to return the antiques, and offered to compensate the defendants for their expenses. Covert refused to return the property.

On the next day, May 21, 1981, the plaintiff filed this action in the District Court for Douglas County, Nebraska, seeking to recover the property from the defendants and to enjoin them from selling or disposing of it. The petition also alleged that the defendants had taken various additional items which were not a part of the oral agreement, without the consent of the plaintiff. A temporary restraining order was entered and extended indefinitely after a hearing on May 27, 1981.

Answers to plaintiff's petition were filed by the defendants. Thereafter, interrogatories were filed and answered and depositions of the defendants were taken.

The plaintiff filed a motion for summary judgment, and the defendant Drew also filed a motion for summary judgment on the ground that he merely accompanied Covert on the trip to South Dakota and that he had no interest in either the estate property or the check. The defendant Covert filed a motion to dismiss plaintiff's petition and dissolve the temporary injunction.

On the basis of the pleadings, affidavits, interrogatories, depositions, and the South Dakota statutes, the District Court sustained defendant Drew's motion for summary judgment and dismissed plaintiff's petition as to him. The court overruled defendant Covert's motion to dismiss and sustained plaintiff's motion for summary judgment.

The District Court found (1) that at the time of the oral agreement of sale between plaintiff and defendant Covert, plaintiff, as executor, did not have an order authorizing the sale of the property, said order being required by South Dakota law; (2) that as a matter of law such a sale is null and void in South Dakota, and such a finding is not against the public policy of Nebraska; and (3) that as a matter of law where an executor's sale is null and void by reason of lack of required court authorization, the defenses of estoppel, waiver, or clean hands are not applicable.

The District Court ordered that the oral contract of sale between plaintiff and defendant Covert, made on May 19, 1981, be declared void and of no legal effect; ordered that defendant Covert be permanently enjoined from selling or transferring any of the property, and directed him to return all of said property to the plaintiff; and upon return of the property, the plaintiff was...