In re Estate of Andersen

• Decision Date: 17 December 1908
• Docket Number: 15,381
• Citation: 118 N.W. 1108,83 Neb. 8
• Parties: IN RE ESTATE OF JENS ANDERSEN. v. CHRIS S. BORGAARD, EXECUTOR, ET AL., APPELLEES ANE MARIE ANDERSEN ET AL., APPELLANTS,
• Court: Nebraska Supreme Court

118 N.W. 1108

83 Neb. 8

IN RE ESTATE OF JENS ANDERSEN.

ANE MARIE ANDERSEN ET AL., APPELLANTS, v. CHRIS S. BORGAARD, EXECUTOR, ET AL., APPELLEES

No. 15,381

Supreme Court of Nebraska

December 17, 1908

APPEAL from the district court for Kearney county: ED L. ADAMS JUDGE. Affirmed.

AFFIRMED.

J. L McPheely, for appellants.

Lewis C. Paulson, contra.

DUFFIE C. EPPERSON and GOOD, CC., concur.

OPINION

DUFFIE, C.

Does a crop of corn which has matured, but which remains ungathered upon the stalks, pass to a devisee of the land, or is it personal property in such a sense that it passes under a paragraph of the will devising personal property? The question arises in this way: Jens Andersen departed this life November 27, 1905, in Kearney county, Nebraska. His last will and testament, bearing date August 14, 1902, was duly admitted to probate December 27, 1905. He left surviving him three nephews and five nieces. The nephews resided in Kearney county, and his nieces resided in the kingdom of Denmark. To each of his nephews he devised 80 acres of land, and the remainder of his estate he left to his nieces, the bequests being as follows: "I give, devise and bequeath unto my beloved nieces now living in Roskelda, Denmark, whose names are as follows: Karen Marie Andersen, Kestine Andersen, Ane Marie Andersen, Maren Andersen and Sise Marie Andersen, the remainder of all my property of whatever nature, share and share alike, to be divided after my death and sold and the proceeds to go to the aforesaid nieces, share and share alike." The three 80-acre tracts devised to the nephews were occupied by tenants, who had planted corn on a portion thereof, which at the time of the testator's death it is agreed had matured but which had not been gathered. The nieces made claim to the landlord's share of the crop, upon the theory that the same was personal property, and did not pass to the nephews, who took title to the land under the will of the testator. The probate court awarded the corn to the nephews, and on appeal the district court affirmed the holding. The nieces have appealed.

We may regard it as settled in this state that annual crops growing on the land do not pass to the purchaser at judicial sale. Aldrich v. Bank of Ohiowa, 64 Neb. 276, 89 N.W. 772; Foss v. Marr, 40 Neb. 559, 59 N.W. 122; Munday v. O'Neil, 44 Neb. 724, 63 N.W. 32. These cases appear to be based upon Beggs v. Thompson, 2 Ohio 95, and Cassilly v. Rhodes, 12 Ohio 88. That this rule does not obtain between grantor and grantee is evident from what is said by the court in Cassilly v Rhodes. The first paragraph of the opinion is in the following words: "If the question were between the grantor and grantee, whether growing crops, annual or other, pass by a deed of sale, it would be of easy solution. They are not, technically, 'emblements' but 'issues' or 'profits,' and part of the land, while in the owner's hands, and, unless excepted, pass by the deed, because it is construed most strongly against him who makes it." That this is the rule of the common law is asserted by all textwriters. 1 Kerr, Real Property, sec. 50, says: "Growing crops planted by the owner of the soil are a part of the realty, and, as a general rule, will pass with it on conveyance, even though reserved by parol by the grantor at the time of sale. And this seems to be the case even though the crops are at the time standing in the field unharvested, although ripe, and the season for gathering them is long past." Ohio and Pennsylvania are named by the author as two states where growing crops are held to be personal property to the extent that a parol reservation made by the grantor will be enforced, but even in these states, if no reservation of the crops are made either in the deed or by parol, the crop passes to the grantee. It is said in 4 Kent, Commentaries, p. *468: "If the land be sold without any reservation of the crops in the ground, the law is strict as between vendor and vendee; and I apprehend the weight of authority to be in favor of the existence of the rule that the conveyance of the fee carries with it whatever is attached to the soil, be it grain growing, or anything else, and that it leaves exceptions to the rule to rest upon reservations to be made by the vendor." In Baker v. Jordan, 3 Ohio St. 438, the vendor made parol reservation of a crop of corn upon the land. The court enforced the reservation in favor of the vendor. It said: "A deed purports to convey the realty. But what is the realty? Growing corn may be part of it, for some purposes, but it is generally to be considered as personalty. If the parties to a deed, either by words or their behavior, signify their understanding, that as between them it is personalty, the law will so regard it, and will respect their intention in the construction of the deed. When the evidence of such understanding is produced, it is not to contradict the deed, for with that it is perfectly consistent; but it is to show that what in some instances would go with the lands as part of the realty, was, in that case, converted into personalty by the will of ...