In re Estate of Fletcher
| Decision Date | 09 January 1909 |
| Docket Number | 15,387 |
| Parties | IN RE ESTATE OF WILLIAM FLETCHER. MARY J. FLETCHER, APPELLANT, v. WALTER S. FLETCHER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Saline county: LESLIE G. HURD JUDGE. Reversed.
REVERSED.
J. E Addie and R. D. Brown, for appellant.
R. M Proudfit and R. P. Anderson, contra.
Appeal from a judgment of the district court for Saline county, modifying a judgment of the county court settling and allowing the final account of Mary J. Fletcher as executrix of the last will and testament of her husband William Fletcher, deceased. The executrix appeals.
1. The attorneys who appeared for the executrix have requested that their names be stricken from the docket as her attorneys, and from the briefs filed herein. No one appeared to argue the case for the executrix, but the briefs referred to are still on file, and, there not being any evidence before us that appellant has elected not to urge the errors assigned, we have concluded not to affirm the judgment under rule 2 of this court.
2. William Fletcher died August 7, 1904, and his last will and testament was duly probated September 7 of that year. The widow is therein given, during her natural life, all property, real and personal, of the testator, and is appointed executrix of said will, with succession in said office to Walter Fletcher, a son of the deceased. After the death of the widow the property of the deceased husband is to be sold and the proceeds equally divided among four children. The testator directs that his debts and the expense of administering his estate shall be paid out of his personal property, and, if that is insufficient, the executrix is authorized to sell so much of his real estate as may be necessary to supply the deficiency. Three hundred and fifteen dollars and thirty-five cents in claims were allowed against said estate. The executrix appealed from the allowance of one claim, and on the 14th day of December, 1905, it was disallowed in the district court, but at the costs of the estate. There then remained, exclusive of costs incurred, but $ 70 in claims against said estate.
On the 2d day of January, 1906, on the widow's application, and without notice to the other devisees under the will, the county court granted her an allowance of $ 25 a month out of the assets of the estate from the date of the testator's death until the close of her administration for the support of herself and a minor child, said to be under 14 years of age. In June, 1906, said Walter Fletcher applied to the county court for a revocation of said order because it was made ex parte, without notice, and for the further reason that the widow was in possession of the estate of the deceased; that to permit the order to stand would necessitate a sale of a portion of the real estate of the deceased and thereby defeat the intention of the testator as evidenced by his will. June 11, 1906, the county judge modified the order first made by him, so that from said date the widow's allowance would not be a charge on anything other than the income from the estate, and directed her to forthwith file her final report. An appeal was not taken from this order. In September, 1906, the executrix filed her report, claiming a balance of $ 654 due her from the estate. Objections were filed thereto, and the county judge disallowed some of the items, so that there was found to be due the widow $ 504.51. The devisees appealed, and the district court disallowed the item of $ 200 selected and claimed by the widow under subdivision 1, sec. 176, ch. 23, Comp. St. 1905, $ 75 attorney fees paid by her, and all of the allowance for support for herself and child. Some questions other than the disallowance of said items are also presented.
3. It is claimed that the widow should account for rent received by her for the use of a house and two lots in the city of Crete. The court found that said property was the homestead of the deceased, and that finding is sustained by the evidence. The widow, upon her husband's death, became seized of a life estate in said homestead, and she need not account for the use thereof or the rents accruing subsequent to her husband's death. Durland v. Seiler, 27 Neb. 33, 42 N.W. 741.
4. The widow claimed that an item of $ 95.40 cash included in the inventory of the estate was not received by her. It is suggested that she is absolutely bound by the inventory, but we do not so understand the law, but that the inventory is open to denial or explanation. Cameron v. Cameron, 15 Wis. 1, 82 Am. Dec. 652; Stewart's Estate, 137 Pa. 175, 20 A. 554; Baker v. Brickell, 87 Cal. 329, 25 P. 489.
5. The executrix claims credit for seventy-five dollars paid by her to attorneys in securing her allowance and in defending the son's application for the annulment thereof. She cannot charge the estate for moneys expended for her personal benefit and those items were properly disallowed. McDowell v. First Nat. Bank, 73 Neb. 307, 102 N.W. 615.
6. The item of $ 200 cash selected by the widow was properly allowed by the county court, and improperly disallowed by the district court. Comp. St. 1905, ch. 23, sec. 176, subd. 1. Section 200, ch. 23, supra, provides that the personal property aforesaid shall not be considered assets in the hands of executors or administrators. The allowance above referred to is in the nature of a specific exemption. Godman v. Converse, 43 Neb. 463, 61 N.W. 756; Tomlinson v. Nelson, 49 Wis. 679, 6 N.W. 366; Jackson v. Wilson, 117 Ala. 432, 23 So. 521; Western Nat. Bank v. Rizer, 12 Colo.App. 202, 55 P. 268. Counsel argue that sections 152, 153, 154, ch. 23, supra, control the instant case, and that they do not provide that the widow of a testator shall receive $ 200 or any personal property, and that section 176, supra, relates solely to estates of those dying intestate. All of the cited sections were contained in one comprehensive act of legislation. Section 176 specifically provides that the allowance therein referred to shall be made without regard to whether the husband died testate or intestate, and we are not justified in ignoring the plain letter of the law.
7. The devisees other than the widow claim that she is not entitled to an allowance for support pending settlement of the estate. It is suggested that the order for her maintenance was made without notice; that the will of the deceased confined the widow's support to the rents and profits of his estate that the order for maintenance was not made within the time fixed for the settlement of said estate, nor was the time extended therefor; and that the orders for allowance were interlocutory and did not conclude the estate. The statute is silent concerning notice of the application of a widow for an allowance from the estate of her deceased husband. Such notice is not jurisdictional, although the executor or administrator, ordinarily, ought to be notified, but not necessarily by citation or service of process. Freeman v. Washtenaw Probate Judge, 79 Mich. 390, 44 N.W. 856; Bacon v. Perkins, 100 Mich. 183, 58 N.W....
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