In re House's Estate

• Decision Date: 15 November 1935
• Docket Number: 29370.
• Citation: 263 N.W. 389,129 Neb. 838
• Parties: IN RE HOUSE'S ESTATE. v. PINION ET AL. CRAVEN
• Court: Nebraska Supreme Court

263 N.W. 389

129 Neb. 838

IN RE HOUSE'S ESTATE.

CRAVEN v. PINION ET AL.

No. 29370.

Supreme Court of Nebraska.

November 15, 1935

Syllabus by the Court.

1. When, upon a petition to probate a will, the will is admitted to probate and later a petition in equity for revocation of the probate of said will is duly filed and issues thereupon are duly made up and tried in the county court, a transcript of the proceedings will not be deemed insufficient to confer jurisdiction of the subject-matter upon the district court when it fails to contain the petition for probate of the will, if the petition for revocation recites the fact of the petition for probate and the parties stipulated in the district court that the cause should be tried there upon the pleadings filed and used in the county court. In such a situation the action is considered as begun with the filing of the petition for revocation of probate.

2. Paragraph 2, rule 7, of the rules of this court, requires the praecipe for a cross appeal to be filed on or before the day originally fixed for the filing of appellant's brief.

3. " Order extending time originally fixed for appellant to file brief does not operate to extend the time for filing praecipe for cross appeal beyond the day originally fixed for appellant to file brief." Ellingwood v Schellberg, 121 Neb. 207, 236 N.W. 451.

4. " Where the fraud relied upon, for the vacation of a decree admitting a will to probate, is of such a character that it would have been available to defeat the probate of the will, an allegation that the plaintiff had no actual notice of the proceedings is not sufficient to excuse his failure to contest the will, where it appears that notice of the proceedings was given according to law, and he had notice of facts sufficient to put him upon inquiry." Miller v. Estate of Miller, 69 Neb 441, 95 N.W. 1010.

Appeal from District Court, Thurston County; Spear, Judge.

Proceedings in the matter of the estate of John R. House, deceased, wherein Nellie House Montgomery Craven filed petition for revocation of probate of the will, which was opposed by Paul A. Pinion, as executor of the estate of John R. House, deceased, Herbert V. Birk, Lizzie House Shoults, Alice House Shoults, Joseph E. House, Arthur D. House, and others. From a judgment of the district court reversing a judgment of the county court and allowing the former probate of the will to stand, Nellie House Montgomery Craven appeals and Herbert V. Birk, Lizzie House Shoults, Alice House Shoults, Joseph E. House, and Arthur D. House cross-appeal.

Affirmed.

Howard Saxton, of Omaha, and Allen & Requartte, of Lincoln, for appellants.

James H. Hanley, of Omaha, and John C. Mullen, of Falls City, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOSS Chief Justice.

This is an appeal from a judgment relating to the probate of the will of John R. House.

The will was made on December 23, 1926, and testator died the next day. The will devised approximately one-half of testator's real estate to his wife and the remainder to his executor in trust, with instructions to pay the net income from this portion to Nellie House Montgomery Craven, his only child. Upon her death, leaving issue, the real estate devised in trust was to pass to her " lineal heirs at law absolutely in fee simple." If she failed to leave issue, such real estate was to go to testator's heirs at law related to him " by blood." The will bequeathed to testator's wife and daughter, share and share alike, all his personal property except his stock in a certain grain company, which stock was bequeathed to the grain company. The estate consisted of more than 2,000 acres of fine land and of more than $30,000 in personal property.

The will was admitted to probate in the county court on February 28, 1927. October 15, 1929, Nellie House Montgomery Craven filed a petition in the county court, asking revocation of the probate of the will on the grounds that the executor and his attorney intentionally and fraudulently concealed from her the mental and physical incompetency of testator to make the will, alleging that she brings this action immediately upon the discovery of the facts as to the incompetency of testator. Issues were joined by pleadings filed by the parties interested and who had not been defaulted for want of pleadings filed by November 26, 1929. On December 11, 1929, the county court entered a decree revoking the order of February 28, 1927 (admitting the will to probate) and set the hearing for the probate thereof for December 12, 1929, on which date the county court found that the instrument was not the last will and testament of John R. House, ordered its probate refused and appointed William T. Craven, husband of Nellie House Montgomery Craven, as the administrator of the estate of John R. House. Craven gave bond, receipted to Pinion, executor, for the property described in the executor's final report, and the interested defendants appealed to the district court.

The cause was twice tried in the district court, once by Judge Ryan and once by Judge Spear. In the first trial the court ruled that the case should be tried to a jury on the contest of the will and to the court on the question of setting aside the probate. It was so tried and the jury disagreed. In the second trial the judge followed the same procedure. His order, made at the beginning of the trial was: " Thereupon the court decided to hear the issues on the petition for revocation of probate of the will to the court itself without a jury, and decided that the issues on the petition for probate of the will, the objections thereto, and the contents thereof, be tried by the jury."

On September 22, 1933, the jury returned a five-sixths verdict, finding that the instrument offered for probate was the last will and testament of John R. House, deceased. On May 21, 1934, the court found that plaintiff was entitled to present to the court and jury the issues raised by her petition for revocation, ordered the will admitted to probate and that the judgment be certified to the county court and proceedings be there had to carry out the terms of the will. In legal effect this reversed the judgment of the county court and allowed the former probate of the will to stand. Plaintiff appealed and defendants undertook to cross-appeal.

Plaintiff raises at the outset her objection that defendants failed, in the transcript from the county court to the district court, to include or to show any petition for the probate of the will of John R. House. She argues that such a petition was absolutely necessary to be shown in the transcript to give the district court jurisdiction of the subject-matter.

In answer to this contention defendants cite In re Estate of Francis, 94 Neb. 742, on page 743, 144 N.W. 789, 50 L.R.A.(N.S.) 861, where this language appears in the opinion: " It was first contended that no petition for the probate of the copy of the alleged will was ever filed in the county court, and therefore that court was without jurisdiction. The transcript, however, recites that such a petition was filed; and although no copy of it is found in the record, still the recitation of the fact of the filing of such a petition will be taken as true, and therefore the court was not without jurisdiction."

It is to be noted that in the above case the opinion says that the transcript " recites that such a petition [for probate of the copy of an alleged will] was filed." We have ex amined the transcript in the case and find it contains what the opinion says it contains. We have also examined the original briefs in that case and find that much of their content was used in discussing the precise point passed upon by the court in the few lines above quoted.

In the instant case the action was begun by plaintiff in the county court by the filing of the " Petition for Revocation of...