In re Samson's Estate

• Citation: 7 N.W.2d 60,142 Neb. 556
• Decision Date: 18 December 1942
• Docket Number: 31536.
• Parties: In re SAMSON'S ESTATE. SAMSON v. NEUMANN et al.
• Court: Supreme Court of Nebraska

7 N.W.2d 60

142 Neb. 556

In re SAMSON'S ESTATE.

SAMSON v. NEUMANN et al.

No. 31536.

Supreme Court of Nebraska

December 18, 1942

Appeal from District Court, Burt County; Dineen, Judge.

Syllabus by the Court.

1. In determining whether the right to a widow's allowance under section 30-103, Comp.St.1929, survives her death, the common-law rule was that it did not. This right is a purely personal one, which she alone can enjoy. When she dies, her right to support ends.

2. A cause of action created by statute does not survive unless declared so to do by the statute itself or by provisions for its survival made by some other statute.

3. "It is fundamental that when a party to a pending suit dies and the cause of action in such suit is one that dies with the person, the suit abates and cannot be revived. The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death unless the cause of action on account of which the suit was brought is one that survives by law." 1 Am.Jur. 105, sec. 159.

John L. Barber, Jr., and Chatt & Ellenberger, all of Tekamah, for appellants.

C O. Stauffer, of Oakland, and McKenzie & Dugan of Omaha, for appellee.

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

PAINE Justice.

A claim for a widow's allowance was denied by the probate court. Widow appealed to district court and died while appeal was pending there. The executor of her estate had the district court enter a conditional order of revivor, to which a plea in abatement was filed objecting to such order. The district court overruled the plea in abatement, and revived the cause of action in the name of Carroll O. Stauffer, executor of the estate of Emma B. Samson, deceased, from which order the executor and heirs of the husband's estate appeal.

An examination of the transcript discloses the following pleadings, which may be epitomized briefly before a discussion of the legal points involved.

On October 11, 1940, Mrs. Emma B. Samson filed a petition in the county court of Burt county for a widow's allowance of $125 a month for her support and maintenance pending the administration of the estate of her husband, Oscar Samson, deceased, alleging that she is 73 years of age, an invalid, unable to care for and support herself, and is obliged to employ help to assist her in her housework and also personal care for herself; that the value of said estate is between $175,000 and $200,000, and the debts of the estate will not exceed $1,000.

On October 28, 1940, A. L. Neumann, executor of the estate of Oscar Samson, deceased, filed in the county court objection to widow's allowance, for the reason that she owns Nebraska real estate and has an income therefrom, as well as title to sufficient personal property, for her maintenance during the probating of the estate; that on August 12, 1927, Oscar Samson and Emma B. Samson entered into a postnuptial agreement, whereby she released and quitclaimed to the heirs of Oscar Samson all her right, title, interest, dower, claim or demand in or to the property of Oscar Samson, and is therefore barred from any widow's statutory allowance during the probate of the estate. Attached to said objection as exhibit A was the postnuptial agreement, in which each party waived all right, title and interest in the real or personal property of the other, the agreement reciting that Oscar Samson had bequeathed and devised to his wife the sum of $32,500 and certain real estate in the city of Oakland in his last will and testament.

On February 20, 1941, Emma B. Samson filed a second petition for widow's allowance, asking for the sum of $600 a month for her support and maintenance pending the administration of the estate.

On May 7, 1941, A. L. Neumann, executor, filed amended objections to application for widow's allowance, alleging that the deceased and the petitioner were married in 1911, the marriage being the third for the deceased and the second for petitioner, and both parties had children by their former marriagers; that Oscar Samson died August 27, 1940, at the age of 91 years; that on August 12, 1927, the parties entered into a postnuptial agreement, to which petitioner never made any objection or complaint during the lifetime of the deceased, and she is now estopped to question or attack said agreement, and is barred by reason of laches and delay from attacking the nuptial agreement.

On May 7, 1941, reply was filed in the county court to the answers and amended objections of the executor, admitting that Samson induced his wife to sign the postnuptial agreement under the representations that he owned property not worth over $140,000, that the provision he was making for claimant was of greater value than one-fourth of his entire estate, that he was making such provision for claimant to facilitate the settlement of his estate in the event of his death before that of claimant, and for the purpose of assuring her that she would receive a just share of his estate; that she later learned that said representations were untrue and were made for the purpose of cheating and defrauding her, and that he was worth the sum of $300,000, and that the agreement was not drawn for the purpose of facilitating the settlement of his estate, but for the purpose of leaving to his children a large part of his estate which in justice and right belonged to claimant as his wife.

Arguments were made to the acting county judge, and on May 7, 1941, it was ordered that the application for widow's allowance be denied and disallowed. The widow appealed to the district court. On August 3, 1941, the widow died, and her executor was substituted as claimant and permitted to proceed with the claim as ordered by the district court.

On November 21, 1941, A. L. Neumann, executor of the estate of Oscar Samson, deceased, filed plea in abatement, alleging that the claimed right to a widow's allowance had fully and completely abated and become extinguished by reason of the death of said Emma B. Samson, and objecting to any order or revivor and to the further continuance of this case in any respect whatsoever, and praying that the application for revivor be denied.

After a hearing on said matter on January 10, 1942, the plea in abatement was overruled, and the cause of action was revived in the name of the executor of the widow's estate. Motion for new trial being overruled, A. L. Neumann, executor of the estate of Oscar Samson, and five heirs appealed.

The decision of the trial court appears to be based upon our statute, section 20-1402, Comp.St.1929, reading: "No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office; which shall abate by the death of the defendant."

It is argued that, an action for a widow's allowance not being named therein, therefore it does not abate, and we are cited to the case of Cleland v. Anderson, 66 Neb. 252, 92 N.W. 306, 312, 96 N.W. 212, 98 N.W. 1075, 5 L.R.A., N.S., 136, which was an action to recover damages because of an unlawful conspiracy of the defendants whereby the plaintiff had been driven out of the lumber business and forced into bankruptcy, and in discussing the force and effect of said section 20-1402, Comp.St.1929, Commissioner Pound said:

"As the statute is construed by the court, no action will abate by reason of the death of the plaintiff, whatever the nature of the cause of action upon which it is based, except such as are expressly named. Under that section, therefore, whatever might have been the rule had not an action been pending, it must be held that the interest of the bankrupt in the action brought by him against Iddings, Brige, and Field would have passed to his personal representative upon his death, and, in consequence, was assignable."

In several states, decisions are found supporting the trial court in the case at bar.

"Under statute giving widow $500 from estate of husband in preference to all unsecured claims and without regard to widow's other rights under will or intestacy laws, right to payment vests in widow on death of husband, and survives to widow's administrator, where widow dies before payment is made (Act Gen.Assem. April 6, 1933, 38 Del.Laws, c. 185)." In re Hearn's Estate, 1937, 22 Del.Ch. 447, 195 A. 367.

The Missouri courts have held in several cases that, where a widow died pending appeal to the circuit court without having received allowance which was made to her by the probate court, the action may be revived in the name of her administrator. It is said that many opinions are found adverse to this, but that, as the Missouri court has held this way on several occasions, such opinions from other courts are not binding upon them. Williams v. Schneider, Mo.App., 1 S.W.2d 230.

This case has involved considerable research to ascertain what course should be adopted hereafter in Nebraska. In the first place all statutes in pari materia should be studied together and, in addition to section 20-1402, heretofore set out, section 20-1405, Comp.St.1929, reads: "Where one of the parties to an action dies, or his powers as a personal representative cease, before the judgment, if the right of action survive in favor of or against his representatives or successor, the action may be revived, and proceed in their names." And section 20-1410, Comp.St.1929, reads: "Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name;...