Estate of Widger, In re

• Decision Date: 26 April 1990
• Docket Number: No. 88-727,88-727
• Citation: 235 Neb. 179,454 N.W.2d 493
• Parties: In re ESTATE OF Eva M. WIDGER, Deceased. Marlin E. WIDGER et al., Appellants, v. Orville E. WIDGER, Personal Representative of the Estate of Eva M. Widger, Deceased, Appellee.
• Court: Nebraska Supreme Court

Page 493

454 N.W.2d 493

235 Neb. 179

In re ESTATE OF Eva M. WIDGER, DeceasedMarlin E. WIDGER et al., Appellants, v.Orville E. WIDGER, Personal Representative of the Estate of Eva M. Widger, Deceased, Appellee.

No. 88-727.

Supreme Court of Nebraska.

April 26, 1990.

Syllabus by the Court

1.Appeal and Error.On appeal, the district court reviews the county court judgment for error appearing on the record.

2.Accounting: Equity.An action for an accounting may under one set of circumstances find its remedy in an action at law and under another find it within the jurisdiction of equity.

3.Parties: Equity.Where close relationships of the parties are involved, an adequate remedy is available only within the equitable jurisdiction of the court.

4.Equity: Appeal and Error.In an appeal from an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the Supreme Court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

5.Limitations of Actions: Laches: Equity.Although ordinarily one has the undoubted right to bring an action within the statutory period of limitations, courts of equity have inherent power to refuse relief after undue and inexcusable delay independent of the statute, when not to do so would work injustice in the particular case.What constitutes laches is to be determined in light of the circumstances of the particular case.

6.Laches.The defense of laches is not favored in Nebraska.It will be sustained only if a litigant has been guilty of inexcusable neglect in enforcing a right to the prejudice of his adversary.

7.Laches: Equity.Laches is not tenable to defeat an equity cause when there has been no material change in a defendant's position.

Terry E. Savage, Imperial, for appellants.

Guy G. Curtis, of Curtis & Curtis Law Firm, Imperial, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Appellants claim that both the district court for Chase County and the Chase County Court erred in denying their claims for rents and profits against the estate of Eva M. Widger because of laches.We reverse and remand with directions.

The appellants, two of Eva Widger's sons, Marlin E. and Percy D. Widger, and two of her grandchildren, James R. and Abbie Jo Widger, all partial owners of a Chase County farm, filed claims against the mother-grandmother's estate for their share of the farm's rents and profits.Owners of the remaining interests in the farm, Orville and Glenn Widger, did not file claims.

In 1943, subject to a life estate in their father, each of five Widger brothers inherited an undivided two-fifteenths interest and their mother, Eva Widger, obtained a one-third interest in the Chase County farm.Upon the father-husband's death in 1969, interests in the land were held five-fifteenths by Eva Widger; two-fifteenths by each of four brothers: Marlin, Percy, Orville, and Glenn; and one-fifteenth each by James and Abbie Widger, children of the fifth brother, who was by then deceased.Marlin Widger testified that after the claims were filed against the estate of Eva Widger, he obtained the interests of James and Abbie Widger, giving him a four-fifteenths interest in the farm.

From 1969 until she died on November 8, 1984, Eva Widger had sole possession of the farm.With the exception of Marlin Widger, none of the appellants ever instituted legal proceedings to collect a share of the farm's rents and profits.In 1974, Marlin sued his mother for rents and profits.He received a settlement.

After his mother's death, Marlin submitted to the personal representative of his mother's estate a claim wherein he asked for his share of the farm's rents and profits from 1975 through 1984.The other appellants submitted the same type of request, but extended the period to 1969 through 1984.The personal representative of Eva Widger's estate denied all claims.Thereupon, the appellants pursued their claims and filed petitions in the estate for an accounting of their respective shares of rents and profits from the farm.The personal representative filed an accounting for the years 1981 through 1984, which was received into evidence.After a hearing, the appellants' claims were denied by the Chase County Court.The county judge concluded that the appellants were not entitled to recover rents and profits that had accrued during the lifetime of Eva Widger because of laches.On appeal, the district court reviewed the county court judgment for error appearing on the record, seeNeb.Rev.Stat. § 25-2733(Reissue 1989)(formerly Neb.Rev.Stat. § 24-541.06(Cum.Supp.1988)), and affirmed the judgment.

An action for an accounting may under one set of circumstances find its remedy in an action at law and under another find it within the jurisdiction of equity.Gesell v. Reeves, 229 Neb. 842, 429 N.W.2d 363(1988);Philip G. Johnson & Co. v. Salmen, 211 Neb. 123, 317 N.W.2d 900(1982).

Where close relationships of the parties are involved, an adequate remedy is available only within the equitable jurisdiction of the court.Id.See, Cook v. Wilkie, 181 Neb. 596, 150 N.W.2d 124(1967);Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319(1962).In an appeal from an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the Supreme Court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of...