In re Estate of Stieber
| Decision Date | 07 February 1941 |
| Docket Number | 30738 |
| Citation | 296 N.W. 336,139 Neb. 36 |
| Parties | IN RE ESTATE OF FRED STIEBER. v. CHRISTIAN O. SCHLYTERN, ADMINISTRATOR, ET AL., APPELLANTS ETTA MAY VANDERLIP ET AL., APPELLEES, |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JOHN L. POLK JUDGE. Reversed.
REVERSED AND REMANDED.
Syllabus by the Court.
1. The law of Nebraska favors the early vesting of estates, and if consistent with the intent of the testator, the court will construe a will so as to vest the estate immediately, even though the taker may be subject to being divested thereof later by some contingency.
2. A devise of real estate to the testator's widow for the period of her natural life, and upon her death so much thereof as may remain to two children of the widow, share and share alike, to them and to their heirs, creates but a life estate in the widow, even though the words " so much thereof as may remain" are construed to give power to the widow to sell the entire fee title during her lifetime.
3. The doctrine of acceleration of the time of the enjoyment of a remainder that is subject to a life estate, by the termination of the life estate by an act other than the death of the life tenant, such as an election by a widow to take by statute, will ordinarily be applied to cases in which such termination results in a diminution of the beneficial interests of the other beneficiaries in substantially the same proportion.
4. When a defect in a title to real estate in an action for partition is of such a nature that it may be removed by further proceedings in such action, without injustice to a purchaser at a sale had therein, such purchaser should not be released from his bid merely on account of such defect.
5. A county court in Nebraska in the exercise of its probate jurisdiction, as a distinct and independent branch of jurisdiction, has no power to construe wills.
Appeal from District Court, Lancaster County; Polk, Judge.
Proceeding in the matter of the estate of Fred Stieber, deceased, wherein Christian O. Schlytern, administrator of the estate of Fred Stieber, deceased, filed a pleading designated as " Application For Construction Of Will" opposed by Etta May Vanderlip and Charles Ruckle, which was consolidated in the district court for trial with a partition action by Mary Stieber and others against Almeda Stieber. From an adverse decree in the action to partition realty, and from an adverse decree in the other proceeding, Christian O. Schlytern, administrator of the estate of Fred Stieber, deceased, and Mary Stieber and others appeal, and Bernard Maxey, administrator d. b. n. w. c. t. a., is substituted in place of Christian O. Schlytern.
Decree in partition action reversed for further proceedings, and decree in the other proceeding reversed, with instruction that such proceeding be dismissed.
Holeman & Holeman, for appellants.
George I. Craven, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ., and TEWELL, District Judge.
Two separate actions were consolidated for trial in the district court for Lancaster county, and a separate final decree rendered in each cause. An appeal to this court was taken from each of such decrees, but both causes were argued and submitted to this court together. A disposition of each of such appeals is made herein. One of these actions was brought to partition real estate. It will be considered first.
Fred Stieber, sometimes herein called the testator, died testate and without issue on April 12, 1930. His last will was admitted to probate in Lancaster county on May 29, 1930. This will provided for the payment of his debts and expenses of burial and then contained paragraphs as follows:
All persons whose names appear as beneficiaries in said will survived the testator. Subsequent to the death of such testator, Katie Furst, above named, died intestate while a widow, leaving six children as her only heirs. Annie Amos, named in said will, also died intestate subsequent to the death of said testator, and left surviving as her only heirs her husband, Frank Amos, and one son. Frank Stieber and Maggie Jensen, named in said will, the six children of said Katie Furst, deceased, and the husband and son of said Annie Amos, deceased, together with the spouse of such of them as are now married, became plaintiffs in the amended petition filed in this action for partition of all real estate of which said testator died seised. Almeda Stieber, named in said will as the wife of the testator, is the sole defendant in such action. Etta May Vanderlip and Charles L. Ruckle, each of them named in said will, and each of them a child of Almeda Stieber by a former marriage, were not made parties to such action. On June 27, 1930, the widow, Almeda Stieber, filed her election to take under the statutes governing descent. In the amended petition, filed in this partition action on February 11, 1936, it was alleged, in substance, that the effect of such election by said Almeda Stieber was to cause an undivided one-half of the estate of said testator plus homestead rights to pass to his widow, and an undivided one-half thereof subject to homestead rights to pass to Frank Stieber, Katie Furst, Annie Amos and Maggie Jensen, named in said will, share and share alike. On February 14, 1936, with the knowledge and consent of the attorneys for all parties to the partition action, a decree was entered therein by which the interests of the various parties in the real estate involved were fixed in the ratio alleged in said amended petition, and by which a referee was appointed to make partition. The effect of this decree was to deny Etta May Vanderlip and Charles L. Ruckle, named in said will, any interest in said real estate, without their being parties to this action. After approval of a report of the referee to the effect that partition in kind could not equitably be made, a sale of all land involved was ordered. The real estate consisted of several tracts, a portion of which is located in each of the counties of Buffalo, Gage and Lancaster. Sale was duly made of all tracts involved, except the tract constituting the defendant Almeda Stieber's home-stead, each tract being advertised for sale and sold in the county in which it is located. At the various sales Etta May Vanderlip became the purchaser of each tract sold. She paid nothing to the referee at the time of sale, although the sale notices called for 10 per cent. of the sale price at the time of sale. Report of such sales was filed by the referee on June 4, 1936, and on June 13, 1936, upon motion of the plaintiffs, and with knowledge of attorneys for all parties, all sales were confirmed by the court and the referee ordered to "complete said sales by delivering good and sufficient deeds and abstracts to said purchaser." About sixteen months later, and on October 19, 1937, Frank Stieber, who was only one of the plaintiffs, filed a motion in this action by which he asked, among other things, that the confirmation of sale be set aside, and resale had at cost of Etta May Vanderlip, the purchaser, and that such purchaser be made to pay the deficiency, if any, between the purchase price at the new sale and that at the prior sale. On April 16, 1938, an order was entered purporting to set aside the order directing sale, entered March 5, 1936, and the order of confirmation entered June 13, 1936. This order was made merely upon said motion of Frank Stieber. On April 30, 1938, Etta May Vanderlip filed a motion by which she asked that the order of April 16, 1938, above mentioned, be Vanderlip filed what she termed an answer to motion and vacated. On May 14, 1938, an order was entered vacating the order of April 16, 1938, and setting the application of Frank Stieber for hearing. On June 4, 1938, Etta May application, and by which she alleged an ownership of an interest in the real estate involved in herself and her brother, Charles L. Ruckle, by virtue of the said will of said testator, and by which she asked to be released from her purchases at the sales held in this action, without cost or expense to herself, on account of the defect in necessary parties to the action. On February 2, 1939, after a hearing, the trial court entered an order purporting to release Etta May Vanderlip from each and all of her purchases at said sales without cost or liability to her on account of a lack of necessary parties to the partition action and inability of the referee to convey merchantable title to her. The appeal from this last mentioned order by one of the plaintiffs and by the executor of the estate of said Fred Stieber, deceased, is the matter now before this court in such partition action.
The question presented in the action for partition involves a construction of the above quoted provisions of the will of Fred Stieber, deceased, along with a consideration of the facts above stated. One contention of the appellants is that such will devised an undivided one-third interest to Almeda Stieber in fee, on account of the remainder over to Etta May...
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