Fauber v. Keim

• Decision Date: 09 October 1909
• Docket Number: 15,471
• Citation: 122 N.W. 849,85 Neb. 217
• Parties: CATHARINE FAUBER, APPELLANT, v. HARRISON KEIM, APPELLEE
• Court: Nebraska Supreme Court

122 N.W. 849

85 Neb. 217

CATHARINE FAUBER, APPELLANT, v. HARRISON KEIM, APPELLEE

No. 15,471

Supreme Court of Nebraska

October 9, 1909

REHEARING of case reported in 84 Neb. 167. Reversed.

REVERSED.

OPINION

ROSE J.

Plaintiff commenced this suit in the district court for Thayer county to establish a lien on 160 acres of defendant's land in Thayer county for the amount of a legacy under her father's will, and to require defendant, who took the land under it, to account to her for her share of the estate. Joseph Keim, the father of both plaintiff and defendant formerly owned the property, and disposed of it by a will containing the following provisions:

"(1) I give and bequeath to my beloved wife, Mary Keim, the sum of $ 200 in money and all personal property which she is entitled to under the laws of the state of Nebraska and the use of two rooms, of her own choosing, in my dwelling house, so long as she shall occupy the same, and the interest on the sum of $ 3,000 during her natural life. I direct that my executors hereinafter named shall leave said sum in my home place, when they shall sell the same, and the same shall remain a lien thereon and the purchaser thereof shall annually pay to my said wife the interest thereof at the rate of seven per cent. per annum during her natural life.

"(2) I give and bequeath to each of my children, as follows: To my son, William Keim, the sum of $ 254; to my son, Jacob Keim, the sum of $ 654; to my son, Harrison Keim, the sum of $ 200; to my daughter, Mary Bates, the sum of $ 404; to my daughter, Annie Hay, the sum of $ 522; to my daughter, Eliza Bender, the sum of $ 340.

"(3) I give and bequeath to my daughters, Catharine Fauber and Cerilla Bender, as follows: To my daughter, Catharine Fauber, the sum of $ 1,817, and to my daughter, Cerilla Bender, the sum of $ 373, upon the following conditions, however: In case either or both of them are married at my death the aforesaid sums are to remain in my home place and be a lien thereon, and the interest thereon to be paid annually to them, according to their respective shares; but in case either or both of them become widows, my executors are to collect said money and pay it to them, according to their respective shares; but in case the husbands of either or both of them survive them, said sum or sums is to be paid to their heirs.

"4. I direct that my executors have my home place appraised by six disinterested freeholders to be appointed by the county court of Thayer county, who shall appraise the same and after the same is so appraised my son, Harrison, is to have the refusal thereof at the appraised value, and in case he does not elect to take it, then my son Jacob is to have the refusal; and in case he does not elect to take it, then my son William is to have the refusal thereof; and in case he does not so elect, then my executors are to sell the same at either public or private sale as they shall deem to the best interest of my estate, and execute a deed to the purchaser thereof, whoever the same may be.

"5. I further direct my executors to sell all my estate both real and personal and pay my debts and the aforesaid legacies and in case there is a surplus, after the payment of the debts and the aforesaid legacies, the same shall be equally divided between my children subject, however, to the same conditions and restrictions as to Catharine Fauber and Cerilla Bender."

Among other things, it is disclosed by the record that Joseph Keim died in June, 1888, and that his will was probated in July following. His widow, Mary Keim, died in January, 1903. At the time of testator's death plaintiff was a married woman, and her husband is still living. The "home place" mentioned in the will is the land in controversy. In the manner described by testator it was appraised at $ 5,000 and accepted by defendant. When the will was executed October...