Johnson v. Marsh
| Decision Date | 22 June 1945 |
| Docket Number | 31930. |
| Citation | 19 N.W.2d 366,146 Neb. 257 |
| Parties | JOHNSON et al. v. MARSH et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable relevant, material, and well pleaded; but does not admit the conclusions of the pleader, except when supported by, and necessarily result from, the facts pleaded. It does not admit inferences of the pleader from the facts alleged, nor mere expressions of opinion, nor theories of the pleader, nor allegations of the pleader as to what will happen in the future, nor arguments, nor allegations contrary to the facts of which judicial notice is taken or which are contrary to law.
2. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in former proceedings involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.
3. Postnuptial contracts entered into by husband and wife while complete marriage relation exists settling their property rights, including their respective rights of inheritance in property of the other, are invalid.
4. A proceeding in the probate court to settle the estate of a decedent is a proceeding in rem, and every one interested in such settlement is a party in the probate court with constructive notice thereof whether he is named or not and this is particularly true as to the distribution of an estate under a will.
5. Equity will not afford relief if the complainant has a remedy by statutory proceeding in the original action, and to be entitled to equitable relief against the enforcement of a judgment procured by fraud the party must not have neglected to avail himself of a statutory remedy.
6. Independently of any limitation for the guidance of courts of law, equity may, in the exercise of its own inherent powers refuse relief where it is sought after undue and unexplained delay, and when injustice would be done in the particular case by granting the relief asked.
O B. Clark, of Lincoln, for appellants.
Brown, Crossman, West, Barton & Fitch and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, and Lester L. Dunn, of Lincoln, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
The plaintiffs in this action are the surviving nephews and nieces and successors in interest of surviving nephews and nieces of Ellen C. Marsh, deceased, without issue. Defendants, Melvin Johnson, Edith Johnson Unger, Charlotte Johnson Hintz and Luella Johnson Gardner, are also surviving nephews and nieces of decedent who refused to join with plaintiffs and have been named as defendants. Ellen C. Marsh, deceased, was the wife of DeWitt C. Marsh, deceased. Defendants, Bert M. Marsh, Harry Marsh and Retta McGee Dunning, are his nephews and niece. Defendant, Massachusetts Bonding and Insurance Company, was surety upon the bond of defendant, Arnold C. Blattspieler, special administrator of the estate of DeWitt C. Marsh, and defendant, United States Fidelity and Guaranty Company, was surety upon the bond of defendants, Bert M. Marsh and Fred H. Bruning, the executors of his estate.
The action was filed in the district court for Saline county on August 8, 1942, to obtain an accounting against all defendants, except defendant nephews and nieces who refused to join as plaintiffs, for property alleged to have constituted the estate of Ellen C. Marsh, deceased. An amended petition was filed on October 22, 1943. To plaintiffs' amended petition defendants filed demurrers which were sustained by the trial court. The plaintiffs elected to stand upon their amended petition and declined to plead further. Thereupon the trial court entered a judgment dismissing the action. Plaintiffs appealed to this court contending that the trial court erred in sustaining the demurrers and entering judgment of dismissal. We find that these contentions cannot be sustained.
Plaintiffs allege in substance that at the time of the marriage of DeWitt C. Marsh and Ellen C. Johnson in 1866 the husband had no property. Thereafter the wife acquired a separate estate of $7,500 which they both used in their business transactions. On July 1, 1891, they entered into a written postnuptial property agreement. They then had an estate of approximately $50,000. Plaintiffs do not have a copy of the agreement but its substance is alleged in the petition. It provided that they should thereafter each own an undivided one-half interest in all their property, including accumulations, and upon the death of either the survivor would take a life interest in the undivided one-half interest of the estate of the first deceased, at the expiration of which the estate of the first deceased would go to his or her heirs. They each waived and renounced all rights of inheritance and agreed to make distribution of his or her estate to the heirs at law of the first deceased.
It is claimed that this contract continued in full force and effect until the death of Ellen C. Marsh intestate and without issue on May 22, 1929, at which time they had accumulated property valued at approximately $562,00. DeWitt C. Marsh, her husband, died without wife or issue April 15, 1932. They had resided in Nebraska as husband and wife a great many years and both were residents of Saline county at the time of their death. Ellen C. Marsh left surviving as her sole heirs at law, the plaintiffs, their predecessors in interest, her four nephews and nieces made defendants and her husband who after her death retained possession of her undivided one-half interest in the estate, as provided in the agreement, holding it in trust for her heirs at law, including plaintiffs. Claim is made that after the death of his wife, DeWitt C. Marsh executed a valid will devising her estate as provided in the postnuptial agreement which was never revoked and was in full force and effect at the time of his death. Plaintiffs do not have a copy of the will and its provisions are not recited.
Plaintiffs allege that in the latter months of his life DeWitt C. Marsh was mentally incompetent to make a will. Thereupon defendants, Fred H. Bruning and Arnold C. Blattspieler, who sustained a confidential relationship with him, together with defendants, Bert M. Marsh, Harry Marsh and Retta McGee Dunning, entered into a conspiracy to defraud Ellen C. Marsh's heirs and secure her estate for themselves and others with full knowledge of the postnuptial agreement and the valid will both of which were secreted or destroyed.
They also allege that on March 28, 1932, the conspirators, with knowledge of his incompetency to make a will, caused to be prepared and published a purported valid will of DeWitt C. Marsh and after his death caused it to be filed in the county court of Saline county for probate, together with the appointment of defendants, Bert M. Marsh and Fred H. Bruning as executors named in the will. William E. Lyon contested its probate but the conspirators by false testimony and suppression of facts procured an order of probate whereupon contestant appealed to the district court. Arnold C. Blattspieler was then appointed special administrator. He qualified, gave approved bond and took possession of all the personal property in the possession of DeWitt C. Marsh at the time of his death, together with all the real estate, the title to which was in DeWitt C. Marsh.
It is alleged that thereafter the special administrator unlawfully paid $20,000 to William E. Lyon and others and by extrinsic fraud secured dismissal of the appeal in the district court and secured issue of letters testamentary in the county court to Bert M. Marsh and Fred H. Bruning as executors who qualified, gave approved bond and took possession of all the property then in the hands of the special administrator. Thereafter, defendants by extrinsic fraud procedured a final decree of the county court distributing all the property to themselves and other persons, as provided in the will, to which they now hold the apparent title and right to possession, failing and refusing to account therefor to plaintiffs although holding all of the same in trust for them.
Plaintiffs assert that the conspirators violated their legal duty and did not fully disclose to the county court and the district court all the true facts and circumstances. That they suppressed all communications between plaintiffs and DeWitt C. Marsh after the death of Ellen C. Marsh. That they fraudulently concealed from and did not notify plaintiffs, who were nonresidents, of the death of DeWitt C. Marsh, the existence of the postnuptial agreement and prior valid will or the legal proceedings in the county and district courts. By reason thereof plaintiffs did not learn of facts and circumstances which would put them as reasonable persons upon inquiry until the spring of 1940 and thereafter plaintiffs acted diligently and with dispatch in making inquiry as to the facts. They made application for administration of Ellen C. Marsh's estate June 15, 1940, and obtained decree of heirship February 27, 1942.
Plaintiffs pray for an accounting of all money and property coming into the possession of defendants, or any of them, belonging to Ellen C. Marsh or DeWitt C. Marsh during the lifetime of either of them or belonging to the estate of either of them after death whether the same was a part of the estate of Ellen C. Marsh, as claimed in the petition, or a part of the estate of DeWitt C. Marsh, and whether defendants came into possession of the property by reason of the admission to probate of the will of DeWitt C....
To continue reading
Request your trial