In re Shierman's Estate

Decision Date31 May 1935
Docket Number29120.
CourtNebraska Supreme Court

Syllabus by the Court.

1. " When an appeal is taken from the county court to the district court the case is to be tried in the appellate court upon the issues that were presented in the court from which the appeal was taken." Bishop v. Stevens, 31 Neb. 786, 48 N.W. 827.

2. " The district court has no power in an original action either directly or indirectly to determine whether an instrument proposed for probate is the last will of a deceased person. Original jurisdiction in such matters is conferred by the Constitution upon the county court alone." Brown v. Webster, 87 Neb. 788, 128 N.W 635.

3. " County courts of the state, which are by the Constitution and laws given exclusive original jurisdiction in all matters of probate settlements of estates of deceased persons, etc., have the power and authority, with respect to the subjects mentioned, to try and determine actions of an equitable character, and grant equitable relief, when proper, to the same extent as a district court regarding other subjects in the exercise of its general equitable jurisdiction." Williams v. Miles, 63 Neb. 859, 89 N.W. 451.

4. Where infants have been disinherited or deprived of valuable property rights by the will of a parent deceased, it is proper for a near relative or other person interested in their welfare to institute proceedings in the interest of the minors as next friend to contest such will, negotiate for a compromise of the litigation, execute a contract of settlement thereof if for the benefit of the infants and approved by the court after an examination of the facts, and a judgment thereon for the distribution and division of the estate in accordance therewith after final administration of the estate will be binding upon the infants and all other persons parties thereto.

Appeal from District Court, Adams County; Blackledge, Judge.

Proceeding in the matter of the estate of John W. Shierman, deceased wherein Nettie A. Shea was appointed executrix, and wherein William Francis Shierman and another, by R. D. Gaston, their next friend, filed objections. From an adverse judgment of the district court, on appeal from the county court, the objectors appeal.

Judgment reversed, and cause remanded, with directions.

County courts, which are by the constitution and laws given exclusive original jurisdiction in matters of probate, have the power to try and determine matters of an equitable character in connection with such matters, and grant equitable relief, to the same extent as a district court has in regard to subjects in the exercise of its general equitable jurisdiction.

McNeny & Sprague, of Red Cloud, for appellants.

J. E. Willits, of Hastings, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ., and CHAPPELL, District Judge.

CHAPPELL, District Judge.

John W. Shierman, a widower, and owner of a large estate, shortly before his death executed what is claimed was a will, devising certain specific property absolutely to his sister, Nettie A. Shea, appellee in this court, in which alleged will he gave her unconditional, unlimited and uncontrolled discretion as to the remainder of his property and the income therefrom. The will, by its terms, did not impose or attempt or intend to impose any trust or obligation with reference to this part of the estate in any manner whatsoever. He made suggestions therein that she do certain things with reference to the management and income therefrom for the benefit of his two sons, then but five and six years of age, but she was not required to comply with any of such suggestions or pay any sums thereunder at the instance of any person or legal entity. On July 27, 1931, this purported will was presented to the county court of Adams county, Nebraska, for probate, and on August 15, 1931, was admitted to probate, and the sister qualified as executrix of the estate without bond, as provided in the will. No guardian or guardian ad litem was appointed by the court for the infant sons to protect their interest, and no objections were filed by any one for them to the admission of the will to probate. The only other relative of the minor children in that county was their grandmother. Upon learning of the probate of the will and discovery of its contents, the grandmother's husband, R. D. Gaston, appellant in this court, as next friend of the children, during the May to August term of the Adams county court, filed application to vacate the decree probating the will, setting forth therein proposed objections to wit: (1) That the testator was of unsound mind when the will was executed; (2) that its execution was obtained by improper and undue influence brought upon him by the sister, appellee. Shortly thereafter L. B. Stiner, as attorney for appellee, made an independent investigation of the facts charged in the suggested objections. He made a trip to Denver, Colorado, for this purpose and, while there, consulted witnesses to determine the truth or falsity of the objections. Thereafter on August 28, 1931, after consultations with and upon advice of her counsel that, in his opinion, they could not sustain the will if a contest were had, the appellee and next friend of the children executed an agreement which was prepared by appellee's counsel disposing of and settling the contest of the will for the purpose of protecting the minor children and avoiding further litigation. Appellant took one copy of the agreement and appellee took the other. This agreement, in substance, gave appellee certain valuable properties absolutely, which she would have lost, had objections to the probate of the will been sustained, withdrew objections to and consented that the probate of the will remain in full force and effect, and provided that appellee, upon final administration of the estate, that is, after the administration of the estate had been completed in the county court, would convey and transfer the rest of the property to a trustee to be administered by such trustee for the use and benefit of the minor sons. This contract further provided that, should anything occur between the date of the contract and final administration to prevent such transfer, then and in that event the agreement itself should operate as a conveyance and transfer of the property.

There is confusion in the record as to whether the motion to set aside the probate of the will and proposed objections thereto were withdrawn or whether the contract executed by them was ever filed in the county court. The next friend, appellant and L. B. Stiner, then counsel for appellee, testified that this was done, but the county court records do not disclose the fact. We deem it immaterial. The fact is plain that thereafter no hearing was ever had upon the motion and proposed objections in the county court, and the contract between the parties dismissed and withdrew the objections to the instrument and the probate of it. On November 12, 1931, after the term had ended in which the original judgment of probate had been entered, and after appellant had lost the right to set the probate of the will aside during the term, appellee filed in the county court an alleged revocation of the contract and a dismissal of her attorney, L. B. Stiner, for the reasons that it was not her voluntary judgment, agreement or contract, that her signature thereto was obtained by coercion, restraint, misrepresentation, over persuasion, intimidation, demand, command, undue influence and fraud upon her rights by appellant and her attorney, L. B. Stiner. Appellant, upon learning of this, filed an application in the county court on behalf of the minors, setting forth the contract of settlement and compromise, and asking that the contract be declared binding on all the parties thereto and entered as a judgment of the court for the purpose of division and distribution of the property after administration of the estate was completed, and that appellee be removed as executrix. Upon hearing this application in the county court on January 7, 1932, the court made no findings as to the contract, but overruled the motion. Appellant appealed to the district court, wherein he filed a like application called a petition, and appellee filed as answer a general denial. After trial upon these issues the district court entered a decree finding that the parties had entered into the agreement as alleged in the petition; that it was intended to be the basis of a settlement and final judgment, but that it was not delivered to or filed in the county court before the appellee undertook to rescind or revoke it; that before making the agreement appellant had filed objections to the probate of the will within the time in which they were entitled to be heard, and to have the original judgment of probate opened up; that appellant was entitled to contest the probate of the alleged will; that, relying upon the agreement, contestants did not proceed further with the contest, and that the claimed revocation of the agreement was not made or made known to the court or contestants until after expiration of the term in which the original judgment of probate had been entered; that the county court should have either received and acted on the agreement or opened up the case and allowed a contest of the will; that the contestants were misled, had not been negligent and should not lose both the benefits of the contract of settlement and the right to contest. The district court then ordered that appellee make an election within ten days in the district court whether she would accept the contract and have judgment thereon according to its terms, or whether the judgment for...

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