In re Grblny's Estate

• Decision Date: 05 April 1946
• Docket Number: 32036.
• Citation: 22 N.W.2d 488,147 Neb. 117
• Parties: In re GRBLNY'S ESTATE. JOHNSON, Atty. Gen., v. ABEGG.
• Court: Nebraska Supreme Court

22 N.W.2d 488

147 Neb. 117

In re GRBLNY'S ESTATE.

JOHNSON, Atty. Gen., v. ABEGG.

No. 32036.

Supreme Court of Nebraska

April 5, 1946

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Jurisdiction of the subject matter in a court of record is to be tested by the authorized extent of the powers of the court in respect to the cause of action before it.

2. By virtue of article 18, ch. 30, R.S.1943, county courts have jurisdiction over the administration of trust estates created by will and duly probated therein.

3. A will devising money or property to an executor in trust, the income to be used for the care and general education of the poor people of a church parish, creates a charitable trust with a general purpose.

4. The Attorney General is a proper party plaintiff and has the right and power to maintain a proceeding under section 30-1805, R.S.1943, for the removal of a trustee of a charitable trust for neglect or failure to give bond as required by sections 30-1801 and 30-1802, R.S. 1943.

5. Where the district court, in an appeal perfected by defendant from the county court, thereafter permits plaintiff upon application therefor to file his petition on appeal out of time, it will be presumed on appeal to this court, in the absence of a record to the contrary, that good cause was shown and that the district court thereby exercised a sound judicial discretion.

6. The fact that a trial judge has expressed an opinion upon a question of law, applicable to undisputed or admitted facts does not subsequently disqualify him in the trial of a cause involving such question.

7. As provided in section 25-323, R.S. 1943, the court may in a cause of which it has jurisdiction determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights.

8. In a case tried to the court, the presumption obtains that the court, in arriving at a decision, considered such evidence only as is competent and relevant, and this court will not reverse a case so tried because other evidence was admitted.

9. Where the language of a will is clear and unambiguous, the intention of the testator must be determined from the language thereof and extrinsic evidence is not admissible.

10. The powers conferred upon a trustee of a charitable trust can properly be exercised by his successors, unless it is otherwise provided by the terms of the trust.

Charles A. Fisher, of Chadron, for appellant.

Walter R. Johnson, Atty. Gen., H. Emerson Kokjer and C. S. Beck Asst. Attys. Gen., and Beatty, Clarke & Murphy, of North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

This case originated in the county court of Box Butte County, wherein on October 23, 1942, the Attorney General filed a petition seeking the removal of Frank Abegg, hereinafter called defendant, as trustee of an alleged charitable trust, public in character, created by the last will and testament of Frank Grblny, deceased. Relief was sought under section 30-1805, R.S.1943, because the trustee was alleged to have kept and retained in his possession, or converted to his own use, all the funds and property belonging to the trust without furnishing bond, as required by order of the county court, in the manner and within the time provided by sections 30-1801 and 30-1802, R.S.1943.

Upon notice to the trustee and issues tendered, a hearing was held and the county court made appropriate findings and entered judgment removing defendant as trustee. He appealed to the district court where pleadings were filed reiterating the issues. Hearing was had and the district court entered its decree affirming the judgment of the county court and finding and adjudging generally for plaintiff and against defendant. Defendant's motion for new trial was overruled and he appealed to this court.

His assignments of error are substantially as follows: (1) That the court had no jurisdiction of the subject matter, therefore, the district court had none on appeal; (2) that the Attorney General did not have the right or power to maintain the action; (3) that the trial court erred in overruling defendant's motions to nonsuit the plaintiff and strike plaintiff's petition on appeal because filed out of time; (4) erred in overruling defendant's application and showing for change of judge or change of venue; (5) erred in proceeding to trial when the county attorney and alleged beneficiaries were not before the court; (6) erred in the admission and exclusion of certain evidence; and (7) generally that the decree of the district court was contrary to law and not sustained by the evidence. We find that these contentions cannot be sustained.

Primarily we have presented for decision only questions of law dependent upon undisputed facts. Insofar as they are important to decision the facts are substantially as follows: Frank Grblny died testate January 19, 1933. His will was duly admitted to probate in the county court of Box Butte County on March 3, 1933. On that date defendant was appointed executor in which capacity he qualified and served until discharged as such on August 6, 1940. Thereafter he assumed to continuously act as trustee of the alleged charitable trust created by the will. Since decree of distribution, and at the time of the trial, defendant had at all times in his possession, purportedly as trustee, all of the trust funds and property belonging to the testamentary trust estate.

In that connection the will provided: '7th:--The balance or residue of my estate, both real and personal of which I may die seized shall be held by my executors hereinafter named as a trust fund; said trust fund to be invested by them and the income from the said fund is to be divided as follows; One half to be used for the care and education of the poor people of the Holy Rosary Parish, Alliance, Nebraska, * * *.

'10th--I hereby give to my executors hereinafter named full power to decide as to what children are to receive help and aid from the fund hereinbefore created.

'Lastly, I make, constitute and appoint C. A. Newberry and Frank Abegg to be Executors of this my last Will and Testament, hereby revoking all former wills by me made.'

C. A. Newberry designated in the will as one of the executors was deceased prior to the death of the testator.

The testator's will did not direct that no bond be required of the trustee and on August 10, 1940, the county court entered an order directing defendant as trustee of the trust estate to furnish bond in the sum of $5,000, as required by law. On that date, and at all times since, defendant had full and complete notice and knowledge of the entry of such order. Nevertheless, thereafter at all times and until October 26, 1942, after this action was commenced and he had notice thereof, defendant failed, neglected, and refused to furnish the bond as required. That he otherwise violated his duties and obligations as testamentary trustee and failed to meet the requirements of section 30-1801, R.S.1943, is beyond question. It is admitted by him in his own testimony.

It was in the light of these facts and the issues upon which they were presented that the district court affirmed the judgment of the county court entered December 7, 1942, ordering defendant removed as trustee; requiring him to account for, deliver, and pay into the county court forthwith all sums, securities, notes, mortgages, and other property and amounts of every kind and character belonging to the trust estate for delivery to a successor trustee upon his appointment and qualification. Further the district court by its own decree removed defendant as trustee of the trust estate and ordered and directed him forthwith to account for and turn over all trust assets to the county court for delivery to a successor trustee upon his appointment and qualification. The decree ordered defendant to make an accounting to such successor trustee of his acts and doings as such trustee from the time of his appointment to the date thereof and awarded plaintiff all costs. The district court also ordered its judgment certified to the county court and that such proceedings be had therein as were necessary to carry its judgment into execution.

We conclude that the evidence sustains the judgment of the district court and unless there is some reason in law requiring the court to conclude otherwise it must be affirmed.

In that regard we are first confronted with the question whether the county court had jurisdiction of the subject matter. It is the contention of defendant that it did not because the district court generally has exclusive jurisdiction over the supervision of trusts. He relies primarily upon Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745; In re Estate of Frerichs, 120 Neb. 462, 233 N.W. 456; and John A. Creighton Home for Poor Working Girls Trust v. Waltman, 140 Neb. 3, 299 N.W. 261, but they do not sustain the contention because not controlling in the situation at bar.

It is the general rule that jurisdiction of the subject matter in a court of record is to be tested by the authorized extent of the powers of the court in respect to the cause of action before it. In re Estate of Statz, 144 Neb. 154, 12 N.W.2d 829. As chapter 42, Laws 1931, the legislature of this state adopted a statute entitled: 'An Act to invest the county court with jurisdiction of trust estates created by the wills of deceased persons; to provide for the qualification appointment and removal of testamentary trustees, and for the management and settlement of such trust estates.' The act now appears as article 18, ch. 30, R.S.1943. Its provisions are so clear and conclusive of the question of jurisdiction of...