Edington v. Paulsen

• Decision Date: 05 June 1936
• Docket Number: 29699
• Citation: 267 N.W. 422,131 Neb. 198
• Parties: JAMES A. EDINGTON ET AL., APPELLEES, v. GLENN R. PAULSEN ET AL., APPELLANTS: W. A. C. JOHNSON ET AL., APPELLEES
• Court: Nebraska Supreme Court

267 N.W. 422

131 Neb. 198

JAMES A. EDINGTON ET AL., APPELLEES, v. GLENN R. PAULSEN ET AL., APPELLANTS:

W. A. C. JOHNSON ET AL., APPELLEES

No. 29699

Supreme Court of Nebraska

June 5, 1936

APPEAL from the district court for Garden county: GEORGE W. IRWIN JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

The probate court in the settlement of an estate has jurisdiction to determine the heirs of the decedent. When this fact is determined, the statute of descent passes the title to property.

Appeal from District Court, Garden County; Irwin, Judge.

Suit by James A. Edington and others against Glenn R. Paulsen, Velva I. Paulsen, and others, wherein named defendants filed a cross-petition. From a decree for plaintiffs, named defendants appeal.

Affirmed.

F. A Dutton, for appellants.

T. T. Bell, Prince & Prince, Taylor & Spiker and E. E. Richards, contra.

Heard before GOSS, C. J., GOOD, DAY, PAINE and CARTER, JJ., and KROGER, District Judge.

OPINION

DAY, J.

This is a suit to foreclose a real estate mortgage in which the defendants filed a cross-petition for the rescission of the contract for the sale of land covered by the mortgage. The trial court entered a decree of foreclosure finding against the defendants on their cross-petition.

Even though the pleadings are somewhat more voluminous than necessary, and the briefs discuss a number of questions, the only issue presented by the appeal is whether the abstract of title tendered to the defendants in accordance with the terms of the contract was sufficient to show a good title of record to the premises. During the trial of this case, it was stipulated that the objection of the defendants to the abstract was based upon the final decree of the county court in the estate of John H. Charles, deceased. The vendors, the plaintiffs in this case, were the heirs of John H. Charles, deceased, and secured their title as such. The title to this property formerly was in the name of John H. Charles and W. A. C. Johnson. The deeds which were delivered to the defendants were executed by W. A. C. Johnson and all the heirs at law of John H. Charles, deceased.

There were several final decrees entered in the proceedings for the probate of the estate of John H. Charles, deceased. It is apparent that there was an attempt to satisfy the objections of the attorney for the defendants. All of the final decrees were entered after proper notice to all parties interested, and determined who were the heirs of John H. Charles, deceased. The heirs of John H. Charles at the date of his death were determined in each instance to be the vendors of the land in controversy here.

The probate court in the settlement of an estate has jurisdiction to determine heirs of a decedent. When this fact is determined, the statute of descent passes the title to property. Fischer v. Sklenar, 101 Neb. 553, 163 N.W 861; Davis v. Davis, 112 Neb. 178, 199 N.W. 113. "In a proceeding in such court to determine heirship, the title to real estate is not drawn in question. The court...