Higgins v. Vandeveer

• Citation: 85 Neb. 89,122 N.W. 843
• Decision Date: 25 September 1909
• Docket Number: No. 15,760.,15,760.
• Parties: HIGGINS ET AL. v. VANDEVEER ET AL.
• Court: Supreme Court of Nebraska

85 Neb. 89

122 N.W. 843

HIGGINS ET AL.

v.VANDEVEER ET AL.

No. 15,760.

Supreme Court of Nebraska.

Sept. 25, 1909.

Syllabus by the Court.

The county courts of this state are not vested with authority to adjudicate disputes between the surviving husband of a testatrix and her devisees concerning his right to an estate by the curtesy in her lands.

The county court does have jurisdiction to enter an order requiring administrators or executors appointed by it to deliver to a surviving husband lands in Nebraska, which came to their possession as such officers, where the only difference between said parties is one of law arising out of the construction of a will that has been admitted to probate by said court.

A district court on appeal from an order of the county court in such a proceeding has like power to construe a will, but in such proceedings neither court has jurisdiction to revoke in part the probate of said will.

The county court or the district court on appeal in such proceedings is without power to decide whether the husband has an estate by the curtesy in land situated in a sister state, or to direct that he recover possession thereof, and, if it attempts to do so, its findings and judgment to that extent are void and of no effect.

If a court spreads upon its records a judgment void in part because not responsive to the pleadings, or not pertaining to subjects within its jurisdiction a party against whom the judgment is directed or whose property rights it assumes to influence is entitled to have canceled and expunged from the records of the court so much of the judgment as is void.

And the statute of limitations does not present a bar to the right and power of the court to clear is records of unauthorized and illegal entries therein.

In an equitable action, a cross-suit must be germane to the original bill, and the issues thus introduced are limited to such as are necessary for the court to consider in deciding the questions raised in the original suit in order to do complete justice to all parties with respect to the cause of action on which plaintiff demands relief.

In a suit to vacate certain orders made by a county court and the district court upon appeal, construing a will to the effect that a surviving husband is entitled to an estate by the curtesy in the lands of his deceased testate wife, and revoking in part the will and its probate, wherein the heirs and legal representatives of the husband who departed this life subsequent to the entry of the judgment attacked and a grantee of said husband are made defendants, a cross-bill filed by said husband's representatives charging that said grantee procured his deed from the deceased husband by fraud is not germane to the bill, and will be stricken from the record on application of said grantee.

Appeal from District Court, Nemaha County; Raper, Judge.

Action by William A. Vandeveer, administrator with the will annexed of the estate of Eliza M. Vandeveer, deceased, and others, against Daniel Higgins and others. Judgment for plaintiffs, and defendants appeal. Reversed, with instructions.

See, also, 59 Neb. 333, 80 N. W. 1043.E. B. Quackenbush, J. H. Broady, and G. W. Cornell, for appellants.

H. A. Lambert and E. Ferneau, for appellees.

ROOT, J.

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, Neb., 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 seisin 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 disposed of 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, 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 day 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 seised in fee simple of specifically described tracts of real estate in Nebraska and South Dakota; that the petitioner was testatrix's 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 transcript 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, are 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 Cornellalleged 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...