Fischer v. Sklenar

• Decision Date: 14 July 1917
• Docket Number: 19999
• Parties: JOHN M. FISCHER, APPELLEE, v. VYT SKLENAR ET AL., APPELLANTS; WALLACE P. DIXON ET AL., APPELLEES
• Court: Nebraska Supreme Court

163 N.W. 861

101 Neb. 553

JOHN M. FISCHER, APPELLEE, v. VYT SKLENAR ET AL., APPELLANTS;

WALLACE P. DIXON ET AL., APPELLEES

No. 19999

Supreme Court of Nebraska

July 14, 1917

APPEAL from the district court for Burt county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Frank L. McCoy and E. H. Westerfield, for appellants.

E. C Page, B. E. Hendricks, B. C. Enyart and F. S. Howell, contra.

Fawcett & Mockett and H. M. Uttley, amici curiae.

LETTON J. HAMER, J., concurring.

OPINION

LETTON, J.

Action to quiet the title to certain lands in Burt county. Both parties claim title by inheritance from Augustine Sklenar, deceased, who died intestate in that county on the 27th day of December, 1909.

The plaintiff claims by mesne conveyances from Marie Anna Hamernik, a resident and citizen of Bohemia. The facts upon which plaintiff bases his claim of title are as follows: In the settlement of the estate of Augustine Sklenar, deceased, in the county court of Burt county, upon the application of the administrator for final settlement of the estate, a petition was filed in behalf of Mrs. Hamernik alleging that deceased died unmarried and without father or mother, that she was the illegitimate child of the deceased, that he had acknowledged himself in writing to be her father, and that she was his only child and sole heir, and praying that she be so adjudged and declared. She was so found and adjudged by the county court on August 27, 1912, and the real estate was duly assigned to her by said court.

The defendants are brothers and sisters of Augustine Sklenar, deceased, and parties claiming title under them. They admit that the deceased died intestate and unmarried, but deny that he had any children or issue either illegitimate or legitimate, and deny that he ever acknowledged himself to be the father of Mrs. Hamernik. They admit the administration proceedings, upon due notice, and the entry of the decree finding Mrs. Hamernik to be the sole heir and assigning the real estate to her, but deny that the same was made with jurisdiction or power in the court to enter such decree. They also allege that the deeds and conveyances from Mrs. Hamernik to the grantees therein under whom the plaintiff claims title are null and void as to these defendants and their grantees because they are in violation of the common law, of the Nebraska nonresident alien land statute, sections 6273, 6276, Rev. St. 1913, of the treaty of 1848 between the United States and Austria, of the Fourteenth Amendment to the Constitution of the United States and the Constitution of the state of Nebraska; as an attempt to take the property of the defendants without due process of law; and as contrary to the meaning of the treaty of 1848. The remaining pleadings amount in substance to general denials of the material facts pleaded in the answer. A motion for judgment upon the pleadings was made by plaintiff and the other parties interested in like relief. In substance the court found that the county court of Burt county had full jurisdiction to make the findings, orders, and decrees of August 27, 1912, and that the same were and are binding and conclusive; that Marie Anna Hamernik is the sole heir of Augustine Sklenar, deceased, and it quieted the title in the plaintiff. Defendants appeal.

Three points are presented for review: (1) Was the decree of the county court a final and competent adjudication of heirship in Mrs. Hamernik? (2) Was this made with jurisdiction of the subject-matter and of the parties, and was it conclusive and res judicata as against the defendants and all persons claiming through or under them? (3) Granting that said finding was a conclusive adjudication that Marie Anna Hamernik was the daughter and sole heir of the deceased, did the failure on her part to sell and dispose of the real estate within two years from the death of the intestate under the terms of the treaty deprive her of any interest which she may have had in the land and operate to carry the title to the brothers and sisters of the intestate?

1. The appellants insist that no formal and valid decree of heirship and distribution of the land to Mrs. Hamernik was ever made; that it contains no language constituting a judgment, and hence is no adjudication. After making the customary recitals, the decree recites that the administrator de bonis non of the estate and the attorney in fact for Mrs. Hamernik appeared in person, and that each was sworn as a witness and testified in the matter. After finding that due notice of the hearing had been given, and the finding of facts as to the death of Sklenar, his ownership and possession of the real estate, that due notice had been given of the time limited for the filing of claims against the estate, that an order had been made barring claims, that all claims allowed have been paid, and that more than two years have elapsed since administration was begun, the decree proceeds: "The court further finds that Augustine Sklenar, deceased, left no widow surviving him; that he left surviving him as his sole and only heir at law Marie Anna Hamernik, of Trebon, Bohemia, Europe, and that said Marie Anna Hamernik is now of full legal age." A number of other findings were made. The court then allows and confirms the reports of the administrator and orders the balance in his hands paid to the attorney of Mrs. Hamernik. The decree then proceeds: "It is further adjudged and decreed by the court that the real estate belonging to said estate, as hereinabove described and fully set out, be, and the same hereby is, assigned to Marie Anna Hamernik, of Trebon, Bohemia, Europe." The land had been fully described in a foregoing part of the decree.

The statute, sections 1494, 1495, Rev. St. 1913, provides: "1494. After the payment of the debts, * * * the county court shall, by a decree for that purpose, assign the residue of the estate, if any, to such other persons as are by law entitled to the same." "1495. In such decree the court shall name the persons, and the proportions or parts to which each shall be entitled." The decree found that Mrs. Hamernik was "the sole and only heir at law" of the deceased, and it assigned the real estate, which was described in the decree, to her by name. It may be conceded that it would have been better for the court to have made a more specific and formal entry adjudging that Marie Anna Hamernik was the child of Augustine Sklenar, was duly acknowledged to be such by him, and is his sole heir. Proceedings to administer estates of deceased persons in probate courts are statutory. When the record shows that the statutory findings and orders have been made, it is sufficient, even though not in the ordinary form. A finding that a person is the sole heir of another, and a judgment and order assigning the estate of the deceased to the person so found, naming the person and the proportion to which he is entitled, and assigning the estate to the person who is by law entitled to the same, complies with the statute. The authorities cited by the appellant applying to ordinary courts, justices of the peace, and courts of record, are not applicable. In Boales v. Ferguson, 55 Neb. 565, 76 N.W. 18, cited by appellant, the heirs were not named, nor the amounts due them, respectively, determined, and the administrator having assumed the responsibility of distributing the estate before this was done was held to answer to those who had suffered by his error.

2. It is conceded by defendants that as a general rule probate courts in the exercise of their original jurisdiction in the settlement of estates are vested with power and jurisdiction at the time a final decree of distribution is made, to ascertain and determine the persons who constitute the heirs at law of the deceased, and that if such adjudication is made upon proper notice as required by the statutes of the several states, either personal or constructive, it is final and conclusive against all parties interested, whether present or absent, whether having received actual notice, or not, and against the whole world. But defendants maintain that this general rule is not applicable in the state of Nebraska. It is their contention that, in view of the history of the constitutional and statutory provisions concerning the jurisdiction of the probate and county courts of Nebrsaska in territorial times, and since the territory became a state, the makers of the Constitutions of 1866 and 1875 intended to and did take away all jurisdiction of the probate and county court with reference to real estate, and that no act, judgment or decree of such courts can in any manner affect the title to lands. They concede that a judgment of heirship is valid and effectual as to the personal property of the deceased and is sufficient to authorize the administrator or executor to distribute the property in accordance with the decree. Their argument, much abridged, is about as follows: That in the organizing act of 1854 (1 Complete Session Laws, p. 4) section 9, creating the territory of Nebraska, it was provided: "That the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. * * * The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and justices of the peace, shall be as limited by law: Provided, that justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute." That in the Constitution of 1866, art. IV, sec. 4, it was provided: "The jurisdiction of the several courts herein provided for both appellate and original shall be as fixed by law: Provided, that probate courts, justices of the peace, or any...