In re Heirship of Robinson
| Decision Date | 15 January 1930 |
| Docket Number | 26944 |
| Citation | 228 N.W. 852,119 Neb. 285 |
| Parties | IN RE HEIRSHIP OF SHERMAN C. ROBINSON. ALICE E. ROBINSON ET AL., APPELLANTS, v. W. M. CLARK, ADMINISTRATOR, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Johnson county: JOHN B. RAPER JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
Article 16, c. 15 (sections 1481-1488) Comp. St. 1922, chapter 65, §§ 1-3, Laws 1925, commonly known as the act to determine heirship, examined, and its scope, intent, and purpose determined.
The above act is independent and complete within itself, and so remains notwithstanding the amendment of 1925. Thus, the provisions of sections 1423 and 1424, Comp St. 1922, in so far as they infringe upon this act, were by it repealed by implication.
Such act provides for a limited and circumscribed form of administration of an estate, independent of that of an ordinary administration thereof, when more than two years have elapsed since the death of an intestate and no application for administration of the estate has been filed in this state within the interim.
A proviso in a statute should be strictly construed, and this in the light reflected by the act or statutes of which it forms a part, not in derogation of the intent and purpose of the original, but in furtherance thereof.
The proviso contained in section 1484, Comp. St. 1922, construed, and held to include liens existent on the lands of a decedent at and prior to his death, which come within the provisions of our recording acts, and such as arise by reason of judgments, attachments and executions, and other liens of a similar nature; but does not include that which resembles liens created by reason of the death of the decedent in favor of all creditors under section 1220, Comp. St. 1922, such as the allowed Kansas claims here involved.
" A grant of administration has, as a matter of right, no extraterritorial force or operation." Burton v. Williams, 63 Neb. 431, 88 N.W. 765.
The allowance of the claims by the probate court of Douglas county, Kansas, did not affect the lands in Nebraska.
Under section 16, art. 5, of the Constitution, a county court upon its probate side is a court of general jurisdiction, and, after due and legal notice has been given its judgments upon probate matters, including that of determining heirship (as in this proceeding), unless appealed from, are final and cannot be collaterally attacked.
In a proceeding in such court to determine heirship, the title to real estate is not drawn in question. The court simply determines who are the heirs, and the law of descent passes the title.
Additional Syllabus by Editorial Staff.
Comp. St. 1922, §§ 1481-1488, providing for proceedings to determine heirship, held not violative of Const. art. 3, § 14, providing that no law shall be amended, unless the new act contains the sections as amended, and sections so amended shall be repealed.
Comp. St. 1922, § 1380, authorizing executor or administrator appointed in another state to serve in this state in his representative capacity under restrictions under which nonresident may sue, with certain exceptions, has reference only to ordinary actions under the Code, and not to proceedings to sell land of a deceased person for the payment of his debts; latter being special and partaking of the nature of a proceeding in rem.
Under Comp. St. 1922, §§ 1481-1488, providing for proceedings to determine heirship where more than two years have elapsed since death of resident or of nonresident owning realty in state and no application for administration has been made by heirs or persons claiming to be creditors, and that decree therein shall bar all claims against deceased's estate whether absolute or contingent, if more than two years pass and no administration has been taken out in state, all claims are barred.
Right given by Comp. St. 1922, §§ 1481-1488, providing for proceedings to determine heirship, to creditor of deceased person to subject deceased's property to payment of debt owing creditor, is at best a conditional right dependent on compliance with conditions as imposed by statute and bar arises on failure of such compliance, whether it be as to manner or time.
Appeal from District Court, Johnson County; Raper, Judge.
Proceeding by Alice E. Robinson and another to determine heirship and descent of real property of Sherman C. Robinson, deceased, opposed by W. M. Clark, as administrator of the estate of Sherman C. Robinson, deceased, in Douglas county, Kansas. Judgment of the county court in favor of petitioners was modified by the district court, and petitioners appeal. Reversed and remanded, with directions.
Frederick J. Patz and Lewis C. Westwood, for appellants.
Jay C. Moore, contra.
This is a proceeding lodged in the first instance in the county court of Johnson county, Nebraska, on May 9, 1928, by the petitioners, appellants herein, under sections 1481, 1482, and 1483, Comp. St. 1922, chapter 65, Laws 1925, and section 1484 of such statutes, for the purpose of having determined their heirship to lands in such Johnson county. Judgment was rendered in favor of the petitioners, appeal taken by the appellee herein to the district court, where the judgment of the county court was modified, as hereinafter indicated; to reverse which this appeal is had.
The questions involved herein are presented to this court for the first time, and, being complicated, it becomes necessary to detail both the law and the facts more than is usual.
The law applicable is as follows: Section 1481: "Where more than two years have elapsed since the death of a person residing in this state, or residing outside of the state, but owning real estate or any interest therein situated within this state, or who had made entry on any government lands and had not received patent therefor, and no application has been made in the state of Nebraska for the appointment of an administrator either by his heirs or by persons claiming to be creditors of said deceased, any heir of the deceased or other person having derived title to any real property or any interest therein from said deceased or from any of his heirs either by direct or mesne conveyances may make application by petition to the county court of the county in which the deceased resided at the time of his death, or in cases where the deceased was a nonresident of the state at the time of his death then in the county court of the county where the real estate or some part thereof belonging to the deceased in his lifetime is situated, for a determination of the time of the death of the decedent, and a determination of the heirs of said deceased, the degree of kinship and the right of descent of the real property belonging to said deceased." Laws 1925, ch. 65, sec. 1.
Section 1482: Laws 1925, ch. 65, sec. 2.
Section 1483: "Upon such hearing if it shall appear to the court that more than two years have elapsed since the date of the death of the deceased, that he died intestate seised of an estate of inheritance in this state, or that he died intestate having entered on government lands and not yet received a patent therefor, and that no application has been made in the state of Nebraska for the appointment of an administrator of the estate of said deceased, the court shall determine who are the heirs of said deceased, their degree of kinship and the right of descent of the real property of which the deceased died seised, or on which he had made an entry, and shall make and enter his decree accordingly." Laws 1925, ch. 65, sec. 3.
Section 1484: "Such decree, unless appealed from as provided by law, shall be binding and conclusive upon all persons including creditors and heirs, and all claims or demands against the estate of such deceased, whether due or to become due, whether absolute or contingent, shall be forever barred: Provided, however, that this section shall not be construed to effect or limit the term within which any lien against the real estate of said deceased may be enforced."
The record discloses that the petition of the applicants in both the county and district courts met every requirement of the above statutes, as did also the notice had prior to the hearing in such county court. The answer, in substance, simply challenged the right of these respective courts to enter judgment as prayed by petitioners, for the reason that claims had been filed and allowed in Kansas, as hereinafter set forth, and that they were unpaid, and that there was no other property save and except the lands here in question out of which to pay the same; further, that the claims so allowed in the Kansas court existed at the time of the death of the decedent, and were his unsecured obligations, and by his death liens were imposed on his entire estate...
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