Gilbert v. First Nat. Bank, Minatare, Neb.

Decision Date07 June 1951
Docket NumberNo. 32986,32986
Citation48 N.W.2d 401,154 Neb. 404
PartiesGILBERT v. FIRST NAT. BANK, MINATARE, NEB., et al.
CourtNebraska Supreme Court

Syllabus by the Court

1. A motion for judgment on the pleadings admits facts well pleaded or admitted, but does not admit conclusions of law, and it is only where, upon statements in the pleadings, one party is entitled by law to judgment in his favor that judgment should be so rendered by the court.

2. One having an interest in the result of pending litigation may intervene as a matter of right by virtue of section 25-328, R.R.S.1943.

3. An intervener must factually plead some interest in the subject matter of the litigation as distinguished from a mere denial of the rights of plaintiff or defendant.

4. The interest in a matter in litigation which will authorize a person to so intervene must be such a direct and immediate interest that the person or persons seeking to intervene will either lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.

5. Such an interest must be one arising from a claim to the subject matter of the action or some part thereof or a lien upon the money or property or some part thereof, as distinguished from an indirect, remote, or conjectural interest in the result of the suit which is not enough to permit intervention.

6. An intervener who is not an indispensable party cannot change the position of the original parties or change the nature and form of the action or the issues presented.

7. An intervener is ordinarily entitled to present only issues, as distinguished from facts, which sustain or oppose the respective contentions of the plaintiff and defendant or either of them.

8. The true representative is bound by those acts of an executor de son tort which are lawful and such as the true representative would be bound in any event to perform in the due course of administration.

9. Although an executor de son tort cannot by his own wrongful act acquire any benefit, yet he is protected in all his acts not for his own benefit which a rightful representative might do.

10. An executor de son tort is liable to the lawful representative or a creditor, either in an action at law for conversion, or in equity for an accounting, for all the assets of the estate he received, except such as were used in payment of such demands as he, having the burden, affirmatively shows by way of set-off were just and lawful claims against the estate and such payments for the use and benefit of distributees as would have been lawfully made in due course of administration.

11. The doctrine of subrogation is not administered by courts of equity as a legal right, but is applied to subserve the ends of justice and to equity in the particular case under consideration. It does not rest on contract, and no general rule can be laid down which will afford a test in all cases for its application. Whether the doctrine is applicable to any particular case depends upon the peculiar facts and circumstances of such case.

12. One advancing money to an executor or an administrator which is applied to the payment of debts for which the estate is bound may be subrogated to the place of the executor or administrator if it clearly appears by competent evidence that the estate has been benefited, or, in other words, that such money has been applied beneficially in payment of the debts.

13. It must be remembered, however, that the only equity of such a subrogee arises in case the money advanced has in fact been applied to the payment of debts for which the estate was justly and legally bound.

14. Such a subrogee can acquire no greater rights than those possessed by the party to whose rights he succeeded at the time such payments were made. In other words, a party cannot acquire by subrogation any rights not possessed by the party whose rights are subrogated.

15. Such rules apply as well where money is advanced or paid to an executor de son tort or a creditor of the estate, and applied by him to payment of debts for which the estate was justly and legally bound, since in such a situation it was in fact paid to the estate.

16. While such payments by third persons directly to a representative or creditors of an estate are not favored, reimbursement by way of subrogation will generally be allowed where it is clearly established that the payments were not made voluntarily but in good faith whereby the estate received the benefit thereof.

Jack L. Raymond, Scottsbluff, Robert L. Gilbert, Morrill, for appellant.

Atkins, Lyman & Ferguson and Mother-sead, Wright & Simmons, all of Scotts-bluff, for appellee.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff originally brought this action against The First National Bank of Minatare, hereinafter called the bank, to recover assets of the estate of Samuel M. Kelly, deceased. The petition substantially alleged that Samuel M. Kelly, also known as Sam Kelly, died intestate on October 29, 1949, at which time he had on deposit $1,775.13 in said bank payable upon his demand, and that plaintiff was appointed administrator of his estate on January 27, 1950. It alleged that although notified of his death on or about the date it occurred, the bank subsequently, without authority, paid out all of such money and, upon demand made by plaintiff on March 21, 1950, the bank refused to pay him any sum whatsoever.

Thereafter, defendant bank filed a motion to make Vera Feidler a party defendant, for the reason that she was a necessary party and claimed an interest in the subject matter of the action by reason of a survivorship account created by Sam Kelly and Vera Feidler. After a hearing the motion was sustained, and plaintiff was directed to file an amended petition making her a defendant. Thereafter plaintiff filed an amended petition reciting substantially the allegations of his original petition and adding: 'That the plaintiff has been advised by the defendant Bank that said moneys were paid to Vera Feidler.'

Upon the filing thereof, Vera Feidler filed a motion for leave to intervene and set up a claim to a part of the money claimed by plaintiff for the reason that she drew a part of such funds from defendant bank and used them to pay lawful claims against the estate. Leave was granted, and she filed a petition in intervention, considered also by the parties as an answer, alleging in substance that after the death of Sam Kelly she withdrew $1,140.66 from the account which had been deposited in the name of Sam Kelly or Vera Feidler in case of death, for payment of certain specific charges which would have been proper claims against his estate, and that defendant bank paid $250 to Glenn Kelly on a check not drawn by intervener but by Sam Kelly during his lifetime. She admitted that she thereafter withdrew the balance of the deposit and placed it in another account, and offered to confess judgment therefor in favor of plaintiff. She alleged that if the bank wrongfully paid out the deposit, that she was also liable with the bank therefor, except the $250 aforesaid, and that she was entitled to a set-off for the amount withdrawn and paid for the benefit of the estate. Her prayer was for such relief, and for such other and further relief as might be just and equitable.

Plaintiff's motion thereafter filed, to strike the paragraphs of intervener's petition relating to payment of such claims for the benefit of the estate, and the prayer thereof, was overruled. In that connection, plaintiff in this appeal assigned such action by the trial court as error, but since such assignment was not contained by plaintiff's motion for new trial, it will not be considered here. Plaintiff then answered, denying generally.

The defendant bank answered plaintiff's amended petition, denying generally, but admitting the date of Sam Kelly's death and notice thereof, and admitting that on that date deceased had $1,775.13 on deposit with it payable on his demand. In that connection, it alleged, however, that the deposit was in the name of 'Sam Kelly or Vera Feidler, in case of death only' and that the bank and Vera Feidler, both mistakenly and without advice of counsel, construed said deposit to be a survivorship account whereby the funds lawfully became the exclusive property of Vera Feidler upon the death of Sam Kelly, after which Vera Feidler withdrew all of said funds except the sum of $250 paid by the bank to Glenn Kelly, a son of deceased, upon a check given to him and signed by Sam Kelly prior to his death, the payment of which check was made at the request of the widow of deceased. It alleged that if the bank wrongfully paid out moneys from the account of Vera Feidler, then she was liable with the bank for such withdrawal, and if she paid out $1,140.66 for the benefit of the estate as alleged in her petition in intervention, it should be set off as just claims against the estate, and for such other and further relief as might be just and equitable. Plaintiff's reply denied generally the allegations of such answer. The defendant bank also answered the petition in intervention, alleging substantially the same facts as in its answer to plaintiff's amended petition, and prayed for like relief. Prior to the introduction of any evidence, plaintiff's motion for judgment on the pleadings was overruled, and intervener offered to confess judgment for $384.47.

All of the evidence was stipulated. It was in substance that Samuel M. Kelly, also known as Sam Kelly, died intestate on October 29, 1949; that plaintiff was appointed administrator of his estate; that on October 29, 1949, deceased had $1,775.13 on deposit in defendant bank payable upon his demand; that on March 21, 1950, plaintiff demanded payment thereof which was refused, the bank having theretofore paid all of it to Vera Feidler, except $250 paid on December 10, 1949, to Glenn Kelly on a check, exhibit No....

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