In re Jurgensmeier's Estate

• Decision Date: 14 August 1942
• Docket Number: 31369.
• Citation: 5 N.W.2d 233,142 Neb. 188
• Parties: In re JURGENSMEIER'S ESTATE. JURGENSMEIER v. JURGENSMEIER et al.
• Court: Nebraska Supreme Court

5 N.W.2d 233

142 Neb. 188

In re JURGENSMEIER'S ESTATE.

JURGENSMEIER v. JURGENSMEIER et al.

No. 31369.

Supreme Court of Nebraska

August 14, 1942

Syllabus by the Court.

1. A district court acquires jurisdiction of an appeal from an order in a probate proceeding if within 40 days from the date of the order a transcript thereof and of the proceedings relative to it is filed with the district court clerk, and if within 30 days from the date of such order the bond upon appeal, required by statute, has been executed and filed.

2. "An executor's sale of real estate, made pursuant to a power conferred by the will of the decedent, at which the executor is, either directly or indirectly, the purchaser, is voidable." Johnson v. Erickson, 110 Neb. 511, 194 N.W 670.

3. "Where, at an executor's sale pursuant to a power contained in the will, the executor is, either directly or indirectly, the purchaser, it is immaterial that he paid full value for the land, and that no actual fraud was intended. The law forbids such a sale, and it may be avoided in a suit by the interested parties." Johnson v Erickson, supra.

4. "The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands, as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself." Bassett v. Shoemaker, 46 N.J.Eq. 538, 20 A 52, 19 Am.St.Rep. 435.

5. Evidence examined, and held to establish that Jurgensmeier the executor, was not only interested in the purchase of this real estate so sold by him as executor, but that he acted in participation with his wife indirectly to purchase the same.

6. "In this connection it has been held that each of the persons interested has an individual election, and a ratification by some of the heirs or devisees will not preclude a repudiation by the others." 24 C.J. 637.

7. Evidence examined, and objectors held not to have ratified the executor's sale in suit.

8. An executor, who, in the exercise of a testamentary power and pursuant to a testamentary direction to sell lands for the purpose of division thereof between the legatees named in the will, unlawfully sells the same to his wife for a price that is manifestly less than their true value, should, on exceptions to his account in the probate court, be charged with the difference between such inadequate price and the true value of the lands so sold.

Lee Kelligar, of Auburn, for appellants.

Dwight Griffiths, pro se, Wm. G. Rutledge, of Auburn, and John C. Mullen and Gerald M. Mullen, both of Omaha, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

EBERLY Justice.

This is an appeal from the judgment of the district court for Nemaha county affirming the decree of the county court overruling certain exceptions to, and approving and allowing, the final account of Henry Jurgensmeier, executor of the last will and testament of John Jurgensmeier, deceased. John Jurgensmeier, Jr., and Anna Schlosser, a son and daughter of the deceased, and devisees under his will, together with Dwight Griffiths, the duly appointed guardian ad litem of Joseph Jurgensmeier, an incompetent son of the testator, separately appeal from the judgment of the district court.

John Jurgensmeier, a widower, died testate on February 4, 1938, leaving an estate consisting of both real and personal property. Of this real estate the following was situated in Nemaha county, Nebraska: The West Half of the Northeast Quarter and the East Half of the Northwest Quarter of section 19, township 5, range 14, consisting of 160 acres, estimated by the executor on June 28, 1938, in his inventory filed, to be of the value of $16,000; the Southeast Quarter of section 28, township 5, range 14, likewise estimated by the executor on the date last mentioned to be of the value of $16,000; and 258 and 84/100 acres of land owned by the deceased of the value of $1,500 is also inventoried as situated in Aurora county, South Dakota. In addition, personal property of the estimated value of $2,897.45, of which $1,420.72 was cash on deposit in banks, was made a part of the executor's inventory. Claims allowed against this estate aggregated but $1,390.

In his will the deceased bequeathed the sum of $200 to his Parish Priest, and gave and bequeathed to his three daughters in equal portions all of his household goods and the automobile he owned at the time of his death.

The will further provided: "Fourth: After the payments, I give, devise and bequeath the whole of my estate then remaining, real and personal, in equal portions, share and share alike, to my children, Mary Henderson, Alice Jurgensmeier, Joseph Jurgensmeier, Henry Jurgensmeier, Bernard Jurgensmeier, John Jurgensmeier and Anna Jurgensmeier, or their issue, by right of representation, the real estate herein mentioned being subject to sale by my executor for purposes of distribution prior to final settlement of my estate as in paragraph First above set forth. ***"

The will was duly admitted to probate and Henry Jurgensmeier, nominated therein as executor, was so appointed by the county court and duly qualified as such.

The first paragraph of the will is as follows: "First: I hereby authorize and direct my executor to pay all of my just debts, funeral expenses, and expenses of administration, out of my estate as soon after my decease as same can conveniently be done, same to be paid out of my personal estate, not herein specifically bequeathed, if same be sufficient for such purpose, but if same is not sufficient, then I hereby authorize and empower my executor to sell so much and such of my real estate as to him seems best for such purpose, and, also, for the purpose of the proper distribution of my estate as hereinafter set forth, I hereby authorize and empower my executor to sell any or all of my real estate, if same to him seems best, and to make, execute and deliver good and sufficient deeds of conveyance thereof, all without the aid or intervention of any court therefor."

Under this provision the executor first sold the "north" farm consisting of 160 acres for $100 an acre. The validity of this sale is unquestioned. Later, on March 6, 1939, at a time when no sale was necessary to secure funds for payment of the debts of the deceased or the costs of administering his estate, the "home" or "south" farm was sold by the executor at public sale for the sum of $60.50 an acre to Clara Jurgensmeier, wife of the executor. In the executor's deed conveying these premises to this purchaser, it is recited, "having elected that it seems best for me to sell said real estate for the purpose of a proper distribution of said estate of said deceased, pursuant to the power conferred upon me as such executor by the will of the said John Jurgensmeier, deceased," I do execute the conveyance to such purchaser. The executor filed his final report and petition for final settlement on August 27, 1940. Due notice of the pendency thereof was given by publication in the Nemaha County Herald, a newspaper of general circulation in such county, for three consecutive weeks. Upon the filing of the executor's final report, objections thereto were filed by two of the devisees and legatees already named. Prior to the hearing upon these objections, Dwight Griffiths, Esq., an attorney at law, was appointed guardian ad litem for Joseph Jurgensmeier, a mental incompetent, who is interested in said estate as one of the devisees and legatees. The guardian ad litem thereupon, in behalf of his ward, filed objections to the report similar to those presented by the objectors last above mentioned. Upon hearing in the county court all objections to the final account as filed were overruled, excepting only that the executor was required to reimburse the estate to the extent of $40 overpayment made by him. Appeal was thereupon lodged in the district court for Nemaha county, where, upon hearing, the order of the county court approving the executor's final report was in all respects affirmed. The two objectors and the guardian ad litem prosecute appeals from the judgment of the district court to this tribunal.

The first matter presented is the challenge to the jurisdiction of the district court based on the contention, presented by a special appearance on behalf of the executor, that the transcript of the appeal from the county court was not filed in the district court "within the statutory time of within ten days after perfecting such appeal."

The chronology of events comprising the matters challenged are as follows: November 28, 1940, order of county court approving final report of executor made and entered; December 10, 1940, notice of appeal given and bond of appeal in behalf of John Jurgensmeier and Anna Jurgensmeier Schlosser given and approved; December 12, 1940, notice of appeal and request for transmission of transcript to district court given by the guardian ad litem; December 21, 1940, transcript of county court proceeding filed in district court.

Two sufficient reasons require us to sustain the action of the district court: First, the district court journal recording the action on this special appearance recites that "hearing is had, evidence taken." This evidence not being perpetuated and incorporated in the bill of exceptions allowed in this case, we are compelled to assume that the judgment entered by the district court was in accord with the proof. Second, the record discloses that a good and sufficient appeal bond was given by the two objectors and approved by the county court on the twelfth day after the entry of the final...