Higgins v. Vandeveer
| Decision Date | 25 September 1909 |
| Docket Number | 15,760 |
| Citation | 122 N.W. 843,85 Neb. 89 |
| Parties | DANIEL HIGGINS AND THOMAS R. EDWARDS, ADMINISTRATORS, ET AL., APPELLEES, v. WILLIAM A. VANDEVEER, ADMINISTRATOR, ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Nemaha county: JOHN B. RAPER JUDGE. Reversed with directions.
REVERSED.
J. H Broady, George W. Cornell and E. B. Quackenbush, for appellants.
H. A Lambert and E. Ferneau, contra.
ROOT, J. REESE, C. J., absent and not sitting.
In 1894 Eliza M. Kimberly, a childless widow, married Absolom Vandeveer, and continued in said wedlock until February 6, 1895, upon which day she died testate and childless, a resident of Nemaha county, Nebraska, the owner of real estate, a part whereof is in Nebraska and a fraction thereof in South Dakota. Mrs. Vandeveer acquired her real estate and made her will before said marriage. On the petition of the executor the will was admitted to probate in the county court of Nemaha county in March, 1895. July 15, 1895, Absolom Vandeveer, who survived the testatrix, filed a petition in said court, wherein he stated his relation to the deceased, her seizin and death without issue, asserted that he was tenant by the curtesy of her lands, and prayed "that he may recover and hold said premises during his natural life as tenant by curtesy, and for such other and further relief as equity may require." The administrators with the will annexed and the beneficiaries named in the will all appeared by counsel, and separately answered that the land referred to was the sole property of the deceased, and had been devised by her last will and testament, which had been duly probated and never revoked or canceled. In reply the petitioner admitted that the land was the separate property of his late wife; that she received none of it from him, and denied the other allegations in the answer. By the consideration of the county court Absolom Vandeveer was defeated.
In the district court, upon the identical issues presented in the county court, a motion by defendant for judgment on the pleadings was sustained, and Vandeveer's petition dismissed. On appeal, December 6, 1899, we reversed the judgment of the district court. Vandeveer v. Higgins, 59 Neb. 333, 80 N.W. 1043. The estate of Mrs. Vandeveer has not been settled, but is still under the control of the administrators. All of said devisees and legatees are nonresidents of Nebraska. Subsequently, the exact date not being shown by the evidence, but evidently in January, 1900, the representatives of the estate acquiesced in the claim of the surviving husband, paid him the accumulated rents for the Nebraska real estate, and surrendered possession thereof to him. Vandeveer retained such possession and enjoyed the rents and profits until his death, which preceded the commencement of this action. The mandate of this court was filed with the clerk of the district court in October, 1902. During the December, 1902, term of said court, and on the 8th day of that month, a judgment was entered in the journals vacating the judgment appealed from, and decreeing generally that Vandeveer was entitled to the estates of curtesy and homestead in the lands of his deceased wife. On the 3d of January, 1903, during the same term of court, another judgment was rendered upon said mandate, and entered in said journal, again vacating the judgment appealed from, and finding specifically that the marriage of the testatrix revoked her will so far as it interposed any obstacle to her surviving husband's estate of curtesy, and adjudged that to that extent said will and the probate thereof be revoked and held for naught; that Mrs. Vandeveer died without issue and seized in fee simple of specifically described tracts of real estate in Nebraska and South Dakota; that the petitioner was testatrix' surviving husband, and, further, directed that a transcript of said findings and judgment be certified to the county court to the end that said judgment might be carried into execution. In the meantime, in September, 1902, the defendant Cornell, who was then a practicing attorney at law residing in Auburn and counsel for Absolom Vandeveer, procured from his client a deed for the South Dakota lands. July 18, 1904, the county court acted upon said transcript, and modified its judgment so "that the said will of Eliza M. Vandeveer is revoked to the extent of the interest of the plaintiff, and that the said will and the probate thereof is void as to the plaintiff (Absolom Vandeveer) in so far as it would affect his said right, title and interest in and to the real estate therein devised and in said transcripted judgment of the district court particularly described, the same as if the said Eliza M. Vandeveer had died intestate."
This action was commenced October 16, 1907, by the administrators with the will annexed of the estate of the testatrix and her devisees, against the said Cornell and the heirs of Absolom Vandeveer, deceased. It is alleged that the decree rendered January 3, 1903, was procured fraudulently and is void, being controlled by the judgment rendered in December, 1902; that the county court did not have jurisdiction over the subject matter involved in the proceedings before it upon Vandeveer's application, and that all orders made therein, and the subsequent judgments of the district court and of this court on appeal, were also absolutely null and void; that, by reason of the premises, the title of the beneficiaries in the will to the South Dakota land is clouded, and their progress to recover their rights therein impeded. Plaintiffs pray that all of said orders and proceedings be canceled as null and void, and for equitable relief. The defendant Cornell practically enters a general denial coupled with a plea of the statute of limitations. His codefendants filed a like pleading, and as a cross-petition against said Cornell alleged that he procured the deed from Vandeveer for the South Dakota lands by fraud and deceit, and prayed that the petition be dismissed; that said deed be canceled, and Cornell decreed to reconvey said lands to them, or that they recover from him $ 6,000, the alleged value thereof. On Cornell's motion the cross-petitions were dismissed without prejudice to another action, and replies were duly filed. On a consideration of all of the evidence, the court found for plaintiffs, except on the charge that the decree rendered January 3, 1903, by the district court was procured fraudulently, and canceled and held for naught its judgment in the case of Vandeveer against the representatives of Eliza M. Vandeveer, deceased. All of the defendants appeal, and the representatives of Absolom Vandeveer appeal from the order of the district court dismissing their cross-petitions.
1. Plaintiffs argue that the county court is without jurisdiction to assign an estate by the curtesy, that the judgment, in so far as it revoked the will and the probate thereof, did not respond to any allegation in Vandeveer's petition, and that the several judgments and orders are void so far as the Dakota land is concerned. The tenant by curtesy consummate has the right of possession during his natural life, and may maintain ejectment therefor. Moore v Ivers, 83 Mo. 29. Counsel for defendant argue that an estate by the curtesy is analogous to dower, and, as the county court has jurisdiction where there is no issue of fact to determine to set off and assign the last named estate, good logic dictates that we should hold the same power to exist under like circumstances in that tribunal for the recovery of the other interest; that in either event the county court will be taking a necessary step in the settlement of an estate, a field wherein it has exclusive original jurisdiction. In Swobe v. Marsh, 73 Neb. 331, 102 N.W. 619, it is clearly demonstrated that the assignment of dower does not pertain to the settlement of the estates of deceased persons, and that the county court's jurisdiction of the subject arises solely by virtue of section 8, ch. 23, Comp. St. 1905. No mention is made in that statute of the estate of curtesy, nor has the legislature by any other act vested the county court, so far as might be done under the constitution, with power to set off or assign estates by the curtesy, a fact that clearly indicates the legislative will not to extend the widow's remedy to the surviving husband. Wilson v....
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