Jackson v. O'Rorke

• Decision Date: 17 March 1904
• Docket Number: 13,472
• Citation: 98 N.W. 1068,71 Neb. 418
• Parties: GERTRUDE M. JACKSON ET AL., APPELLEES, v. MINNIE JACKSON O'RORKE ET AL., APPELLEES, IMPLEADED WITH JOHN HARER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

98 N.W. 1068

71 Neb. 418

GERTRUDE M. JACKSON ET AL., APPELLEES, v. MINNIE JACKSON O'RORKE ET AL., APPELLEES, IMPLEADED WITH JOHN HARER ET AL., APPELLANTS

No. 13,472

Supreme Court of Nebraska

March 17, 1904

APPEAL from the district court for Gage county: CHARLES B. LETTON JUDGE. Reversed with directions.

Reversed and remanded, with directions.

E. O Kretsinger, for appellants.

R. W Sabin, contra.

OLDHAM, C. AMES and HASTINGS, CC., concur.

OPINION

OLDHAM, C.

On the 6th day of February, 1893, George W. Jackson died intestate, seized in fee of 200 acres of land situated in Gage county, Nebraska. He left surviving him his wife, Minnie Jackson, now Minnie Jackson O'Rorke, and three minor children, Gertrude M., Edna L. and Leonard D. Jackson. His widow was appointed and duly qualified as administratrix of the estate, and also as guardian of each of the minor heirs. In 1894 the widow, as administratrix, made final settlement and distribution of the personal effects of the intestate, but was not formally discharged by the county court as administratrix. It appears that from the time of the death of the intestate, the widow, as guardian and administratrix, had leased the real estate from year to year until the year 1900, at which time she executed a lease to John Harer and Elize Harer, defendants in the case at bar, for a period of 5 years beginning March 1, 1901, and ending March 1, 1906. The lease was signed by Mrs. O'Rorke in her individual name. At the time this lease was executed, Gertrude M. Jackson had attained her majority, being then 20 years of age; and shortly after the execution of the lease and before the institution of the instant suit, Edna L. Jackson attained her majority. Thereupon, Edna L. and Gertrude M. Jackson begun an action for partition of the real estate, making Minnie Jackson O'Rorke and Leonard D. Jackson, who is still a minor, and John Harer and Elize Harer parties defendant. The petition for partition alleged, in substance, that the plaintiffs and defendant, Leonard D. Jackson, were each entitled to a one-third interest in the real estate of the ancestor, subject to the dower interest of Minnie Jackson O'Rorke. Minnie Jackson O'Rorke answered admitting the allegations of plaintiffs' petition; Leonard D. Jackson, by his guardian ad litem, also filed an answer setting up the allegations of the petition and joining in the prayer for partition. The tenants, Harer and Harer, filed answer admitting the allegations of the petition as to the respective interests of the widow and heirs in the estate, but set up their rights as tenants to the occupancy of the premises during the term of the lease, and asked that when partition be made, it be made subject to their leasehold interest in the entire estate. On the issues thus joined, the court decreed a partition of the estate as prayed for by plaintiffs and the answering defendants, Minnie Jackson O'Rorke and Leonard D. Jackson, and appointed commissioners to partition the estate according to the decree, and continued the hearing on the answer and cross-petition of the lessees until a succeeding term of the court. The commissioners appointed reported that the estate was not susceptible of division in kind, and found that the interest of all the partitioners would be best subserved by a sale of the property. Issues were then joined on supplemental pleadings between the partitioners and the lessees on the question of the validity of the lease. On the hearing of the cause, the court made certain findings of fact which are fully supported by the record, and which we adopt as our own independent findings for the purpose of the disposition of this case. The first of these findings is that the administratrix of the estate had made final settlement of the estate in 1894, or 6 years before the execution of the lease to defendants Harer and Harer, but that she had never been formally discharged as administratrix until after the institution of the present suit. Second, that in the execution of the lease, Minnie J. O'Rorke, the administratrix and guardian, had intended to convey both her personal and representative interest in the estate to the lessees for a period of 5 years. Third, that at the time of the execution of this lease, Gertrude M. Jackson was of full age, and never consented to the lease; that after the execution of the lease and before the institution of this suit, Edna L. Jackson arrived at her majority; that Leonard D. Jackson was, and still is, and will remain a minor during the full term of the leasehold estate; and that Minnie Jackson O'Rorke was possessed of a consummate right of dower in the lands, which had not been admeasured at the time the lease was executed.

The court found, as conclusions of law from these facts, that the lease was null and void as to the interest of the plaintiff, Gertrude M. Jackson, and that it was terminated, so far as the interest of Edna L. Jackson was concerned, at the date of the bringing of this suit, but that the lease was still in full force and of binding effect so far as it concerned the undivided interest of defendant Leonard D. Jackson and the dower interest of defendant Minnie O'Rorke. The decree closed with an equitable distribution of costs which we think should not be disturbed.

From this decree an appeal was taken by defendants Harer and Harer, and the case is now here for trial de novo on the issues involved in their answer and cross-petition.

The first contention of appellants is based on what we regard as a very restricted view of the holding of this court in Lewon v....