Estate of Moore v. Moore
| Decision Date | 25 November 1891 |
| Citation | 50 N.W. 443,33 Neb. 509 |
| Parties | ESTATE OF HAMILTON MOORE v. JOSEPHUS MOORE |
| Court | Nebraska Supreme Court |
ERROR to the district court for Dawson county. Tried below before HAMER, J.
Judgment of the district court reversed and action dismissed.
J. W Smith, and H. M. Sinclair, for plaintiff in error, cited contending that the probate court was without jurisdiction and its grant of administration void: Hawes, Jurisdiction of Courts, sec. 74; Patillo v. Barksdale, 22 Ga. 358; Crosby v. Leavitt, 4 Allen [Mass.], 411; Embry v. Millar, 1 A. K. Marsh [Ky.], 221; Christy v. Vest, 36 Iowa 286; Miltenberger v. Knox, 21 La. An., 399; Pinney v. McGregory, 102 Mass. 189; Thomas v. People, 107 Ill. 517; Stevenson v. Superior Ct., 62 Cal. 60; Griffith v. Frazier, 8 Cranch [U. S.], 9; Cutts v. Haskins, 9 Mass. 543; Holyoke v. Haskins, 5 Pick. [Mass.], 20; Wales v. Willard, 2 Mass. 120; Milia v. Simmons, 45 Wis. 334.
Connor & Woodruff, contra, cited, in reply to the contention: Gary's Prob. Law, secs. 33, 34, 36, 37, 178; Schouler's Ex. and Adm., secs. 24, 25, 27, 92; Lees v. Wetmore, 12 N.W. [Ia.], 238; Hobson v. Ewan, 62 Ill. 146; Schnell v. Chicago, 38 Id., 390; Bowles v. Rouse, 3 Gilm. [Ill.], 408; Wales v. Willard, 2 Mass. 120.
The defendant in error, Josephus Moore, in January. 1888, filed his petition in the county court of Dawson county, praying that letters of administration be granted upon the estate of his deceased father, Hamilton Moore. Subsequently, upon the hearing had for that purpose, letters of administration were granted upon said estate to one John B. Sheldon, who qualified as such officer and entered upon the discharge of the duties of his office. Afterwards, on the 12th day of July, 1888, the defendant in error presented to said county court the following claims against the estate, to-wit:
ESTATE OF HAMILTON MOORE, DECEASED,
In account with JOSEPHUS MOORE.
November 1, 1885, with the ex-
ception of eleven months
$ 3,525 00
1873-1874. To moneys laid out
and expended
315 00
February, 1887. To moneys laid
out and expended
June, 1884. To moneys laid out
and expended
575 00
July, 1885. To moneys laid out
and expended
200 00
October, 1885. To moneys laid
out and expended
400 00
October, 1885. For breaking done
for Hamilton Moore
By moneys had at various times
from March 1, 1873, to October
1884
$ 300 00
By balance
4,820 00
$ 5,120 00
$ 5,120 00
On the 16th day of August, 1888, Sylvanus Moore, one of the heirs of said estate, filed with said court written objections to the allowance of said claim on the following grounds:
On the hearing the county court allowed the sum of $ 2,500 on said claim. The contestant took an appeal to the district court, where the cause was tried to a jury, and a verdict was returned for the claimant for $ 2,705. Sylvanus Moore brings the case into this court for review, by petition in error.
It is contended that the order of the county court appointing the administrator, and all subsequent proceedings thereunder, are without jurisdiction, and this for the reason that Hamilton Moore was not an inhabitant of this state at the time of his death, and left no estate in Dawson county, nor in this state, to be administered upon.
Section 177, chapter 23, Compiled Statutes, bearing upon the question presented for our consideration, reads as follows:
By these provisions the legislature has conferred jurisdiction upon county courts to grant letters of administration in two classes of cases: First, where the deceased person was an inhabitant of the state at the time of his death; and second, where the deceased person was a non-resident of this state when he died, but left an estate to be administered in this state. Where the deceased was a resident of the state, the county court of the county where he resided has exclusive authority to grant letters testamentary or of administration, but in case the deceased person's last place of residence was in another state, territory, or country, the application for letters of administration may be made to the county court of any county of this state in which there is property to be administered, and the letters first granted extend to all the property or estate of the deceased in the state, wherever the same may be. The application for the appointment of an administrator must allege the necessary jurisdictional facts, for if a want of jurisdiction affirmatively appears from the face of the record, it is fatal to the proceedings, and the objection can be urged at any time. Stated differently, where there is a total failure to allege a fact upon a vital point in the petition, the county court acquires no jurisdiction to act, but where there is not an entire omission to state some material fact, but it is insufficiently set forth, the proceedings are merely voidable. (Hyde v. Redding, 16 P. 380; Sitzman v. Pacquette, 13 Wis. 291; Frederick v. Pacquette, 19 Wis. 541; Chase v. Ross, 36 Wis. 267; Wales v. Willard, 2 Mass. 120; Schouler's Ex. & Adm., secs. 91, 92.)
The right of the plaintiff in error to question the authority of the county court to grant letters of administration on the hearing of his objection to the allowance of the claim filed against the estate, depends upon whether the record of the county court on its face shows the lack of jurisdiction to make the appointment. It cannot be doubted that where a sufficient petition for administration is presented to the proper county court, and the statutory notice is given, its action in appointing an administrator is valid and binding unless revoked, or set aside on appeal. It will be presumed to have acted upon sufficient evidence. (Hobson v. Ewan, 62 Ill. 146; Johnson v. Johnson's Estate, 66 Mich. 525, 33 N.W. 413; Lees v. Wetmore, 58 Iowa 170, 12 N.W. 238.)
It appears from the averments in the application made to the county court for administration, that Hamilton Moore, at the time of his death, was not a resident of Dawson county; that he had no personal property, but was "equitably seized and possessed of real estate consisting of the southeast quarter of section 12, town 9, range 19 in said county and state." Upon the trial in the district court the plaintiff in error introduced in evidence a deed of said real estate executed by Hamilton Moore, a short time prior to his death, to Hannah Moore and Hattie Moore. This for the purpose of showing that the deceased...
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