In re Estate of Sieker

• Decision Date: 06 May 1911
• Docket Number: 16,393
• Citation: 131 N.W. 204,89 Neb. 216
• Parties: IN RE ESTATE OF KARL SIEKER. HEINRICH SIEKER, APPELLANT, v. AUGUST SIEKER, ADMINISTRATOR, ET AL., APPELLEES
• Court: Nebraska Supreme Court

131 N.W. 204

89 Neb. 216

IN RE ESTATE OF KARL SIEKER. HEINRICH SIEKER, APPELLANT, v. AUGUST SIEKER, ADMINISTRATOR, ET AL., APPELLEES

No. 16,393

Supreme Court of Nebraska

May 6, 1911

APPEAL from the district court for York county: GEORGE F. CORCORAN JUDGE. Affirmed.

AFFIRMED.

France & France, for appellant.

C. F Stroman and Power & Meeker, contra.

OPINION

REESE, C. J.

Karl Sieker, a resident of York county, died testate in said county on the 9th day of December, 1907, leaving a widow and a family of children, of which plaintiff was one. After the death of Karl, and on the 10th day of February, 1908, his will was presented to the county court for probate. The widow and all the heirs resided in York county. Upon the production of the will, with the petition of August Sieker, for its admission to probate, the county judge made an order reciting the fact of the application for the probating of the will, and fixing the 7th day of March, 1908, at the hour of 10 o'clock A. M., at the judge's office, as the time and place for hearing the petition, and directed that the order be published for three successive weeks in the York County Republican, a weekly newspaper published and of general circulation in said county, "when all persons interested in said matter may appear and show cause why the prayer of petitioner should not be granted." The notice was published as ordered, and on the date named the will was admitted to probate, and, the widow declining to act as executrix, August Sieker was appointed administrator with the will annexed. In October, 1908, plaintiff filed his petition in the county court praying that the order probating the will might be vacated and set aside, and the application for its probate be opened in order that he might contest the same. The reasons assigned by him for the opening of the case, though deemed meritorious by him, need not be stated here. His petition was denied by the county court, when he appealed to the district court, where the order made by the county court denying his petition was affirmed. Plaintiff appeals to this court.

The only contention by plaintiff is that the publication of the notice was not sufficient to give the county court jurisdiction to hear the matter of the probating of the will. The widow and heirs, of which plaintiff is one, all resided in York county. No personal service was had upon any of them, and plaintiff had no knowledge of the proceeding until long after the entry of the decree. The sole question therefore is: Was the publication of the notice all that the law required?

The statute providing for notice of an application for the probate of a will is section 140, ch. 23, Comp. St. 1909 (Ann. St. 1909, sec. 5005), and is as follows: "When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, such court shall appoint a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively, previous to the time appointed, and no will shall be proved until notice shall be given as herein provided." By this section there appears to be a discretion lodged with the county judge to cause the notice to be served personally or by publication. It will be observed that the notice is not specifically required to be given to the heirs, but to "all persons interested." This is probably the reason why the practice has become almost universal to give the notice by publication, for no court can know in advance who may be interested in the matter of the probate of a will. The "interest" may be confined to heirs, devisees and legatees, or it may extend to others unknown to the county judge and to the petitioner. In case the order should be for personal service, it is quite possible that no jurisdiction would be had over "interested" parties not served, and, as to them, the proceeding be void. By giving the notice by publication this danger is avoided.

In Dame, Probate and Administration, sec. 82, in discussing the question of notice, it is said: "The method of service of the notice rests in the discretion of the court. It may be by personal service upon all parties interested, or by publication in such newspaper, printed in this state, as the court...