In re Wiley's Estate

Decision Date11 March 1949
Docket Number32483.
PartiesIn re WILEY'S ESTATE. SHEARER et al. v. BRUMBAUGH et al.
CourtNebraska Supreme Court

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Whether interests in land are equitably converted into personal property by dealings with the land depends upon the law of the state where the land is.

2. In the absence of pleading and proof to the contrary Nebraska courts presume that the law of the foreign jurisdiction which should be applied is the same as the Nebraska law, as to Constitution, statutes, and case law.

3. An executory contract for the sale and purchase of land enforceable for and against vendor and vendee, is a present equitable conversion of land into personalty and of personalty into land.

4. Where an owner of realty entered into a binding contract for the sale thereof prior to his death equity will treat the realty as personalty in distributing his estate.

5. County courts have the power to require executors and administrators to exhibit and settle their accounts and to account for all assets of the estate that have come into their possession and to hold them liable for the actual value of any property which they have unlawfully appropriated to their own use.

6. County courts, in carrying out their exclusive original jurisdiction in matters relating to the administration of the estates of deceased persons, have jurisdiction to determine title to personal property claimed by representatives of decedents' estates.

7. County courts should compel the representatives of estates to charge themselves with interest in their account when, by doing some unauthorized act they have abused their trust or have been guilty of some fault or wrong in its performance and are surcharged because thereof. Interest should be upon the amount so surcharged at the legal rate from the date of such unauthorized act.

8. A fiduciary seeking to profit by a transaction with the one who confided in him has the burden of showing that he communicated to the other, not only the lact of his interest in the transaction, but all information he had which it was important for the other to know in order to enable him to judge of the value of his property.

9. It is against sound principles of professional ethics for one who knows that he is to be called as a witness in a case to accept the retainer as lawyer in that case. And where, after retainer, it is apparent to an attorney that his testimony will be material in behalf of his client, it is his duty to confer with his client and associate counsel at once and finally determine whether he will become a witness. If it is decided that he shall be a witness, he should immediately sever his connection with the litigation.

Munger & Rhodes, of Omaha, for appellants.

Gray & Brumbaugh, Will H. Thompson, Lee & Bremers and Richard W. Lee, all of Omaha, for appellees.


WENKE Justice.

This action arises in connection with the administration of the assets of the estate of Solon L. Wiley who died testate on July 5, 1926, a resident of Douglas County. The will of the deceased was allowed and admitted to probate by the county court of Douglas County on September 3, 1926. William L. Shearer and Walter S. Wiley were nominated in said will to be the executors of the estate and pursuant thereto the county court, on the same day the will was allowed and admitted to probate, appointed them to act as such. They qualified on September 14, 1926, and continued to act in that capacity until they resigned. They resigned on July 16, 1942. However, prior to resigning they made a final report and accounting as executors dated May 20, 1942. Objections were filed thereto, a hearing was had thereon, and the county court entered judgment against the executors.

On appeal from the county court a trial was had in the district court for Douglas County. The district court found that the executors had failed to account for certain assets of the estate which assets William L. Shearer, one of the executors, had, on November 21, 1931, converted to his own use. The court then charged the executors, William L. Shearer and Walter S. Wiley,and each of them, with the reasonable market value of the assets so converted in the sum of $28,000 with interest thereon at four percent from that date.

The court further found that the waivers, assignments, and conveyances executed by Helen S. Saxe and Marion A. Chapman, devisees and legatees under the will of Solon L. Wiley, to William L. Shearer were procured by him through misrepresentation and without consideration and because thereof caused them to be vacated, canceled, and set aside.

From this judgment William L. Shearer and Walter S. Wiley appeal and Emmet S. Brumbaugh, administrator with the will annexed of the estate of Solon L. Wiley, deceased; Will H. Thompson, intervener, and Helen S. Saxe and Marion A. Chapman, heirs and beneficiaries of the will of Solon L. Wiley, deceased, cross-appeal.

Emmet S. Brumbaugh was appointed and qualified as administrator with the will annexed of the estate after the resignation of William L. Shearer and Walter S. Wiley, the executors.

Solon L. Wiley at the time of his death was 85 years of age. He left surviving him as heirs at law three children and two grandchildren, all of whom are beneficiaries under the provisions of his will. The three children are Walter S. Wiley, a son, Ruth Harrison, a daughter, and Anna Katherine Shearer, a daughter. The two grandchildren are Helen S. Saxe, a granddaughter, and Marion A. Chapman, a granddaughter.

Solon L. Wiley was married twice, his wives being sisters. The first wife was Anna C. to whom was born a son, Walter S. Wiley, one of the executors herein, and a daughter, Edith Anna Wiley, who through marriage became Edith Anna Sherwin. To this marriage two children were born, namely, Helen S. Sherwin and Marion A. Sherwin. Edith Anna died before her father and at the time of his death both grandchildren had married and were then and are now Helen S. Saxe and Marion A. Chapman. The second wife was Kate M. to whom was born two daughters, namely, Ruth and Anna Katherine. Anna Katherine married William L. Shearer, one of the executors of the estate, and Ruth married Thomas S. Harrison.

For the purpose of convenience we shall refer to Solon L. Wiley, the person whose estate is herein involved, as Solon L. Wiley in all matters discussed before his death and as deceased in all matters discussed after his death; to appellant William L. Shearer as Shearer; to appellee Emmet S. Brumbaugh, administrator with the will annexed, as the administrator; to appellee Will H. Thompson, attorney for the executors during most of the period herein involved, as Thompson; and to appellees Helen S. Saxe and Marion A. Chapman, who are heirs of the deceased and beneficiaries under his will, as heirs.

In its inception the relationship of the parties was such that the principle is applicable that no one should attempt to serve another when he claims personal interests that conflict therewith. The evidence shows that the personal interests of both executor Shearer and his counsel, Thompson, conflicted with that of the estate. Out of the situation, when choice was made by the executor between his claimed personal interest and his duty to the estate, the trouble herein involved began.

This proceeding is to require an accounting by the executors and to force them to bring the assets of the estate into court to be turned over to the administrator for the purpose of distribution. We will therefore only determine the issues necessarily involved therein. When such an accounting has been made and the assets of the estate fully accounted for the question of claims, whether properly allowed, waived, outlawed, or filed out of time, can be determined. Also at that time the expenses of administration, including the allowance of attorney's fees and other expenses relating to the administration of the estate but not executors' fees, which are herein denied, can also be determined and the assets applied and distributed to those entitled thereto in the manner required by law. We do not herein determine any of the rights of Thompson for services rendered, expenses had, or costs advanced for the deceased in his lifetime as they relate to the assets of the estate, including any claim to or lien on the proceeds of the contract of sale of the Wyoming ranch. However, as to the moneys Thompson handled and distributed for the executors while acting as their counsel there must be an accounting. We will consider that issue in connection with our disposition of the final accounting by the executors.

The record establishes that Solon L. Wiley, on December 24, 1919, entered into a contract with Robert S. Trumbull for the sale of the Wiley ranch located in Park County, Wyoming. The ranch was referred to in the contract as about 2,400 acres and was sold for a consideration of $50,000. However, subsequently, but during the lifetime of Solon L. Wiley, the agreed acreage of the ranch was reduced to approximately 2,000 acres and the consideration to $48,000. This was done pursuant to the provisions of a supplement attached to the contract.

The evidence further establishes that, in April 1923, Solon L. Wiley assigned his interest in this contract, together with his interest in a contract for the sale of some Sarpy County, Nebraska, lands, to Shearer as security for an advance of $1,800.

In this connection it should be said that the evidence is clear and conclusive that the assignment of Solon L. Wiley's interest in the contract for the sale of the Wiley ranch in Wyoming, insofar as Shearer is concerned, was...

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