Kirk v. Bowling

• Decision Date: 27 October 1886
• Citation: 29 N.W. 928,20 Neb. 260
• Parties: SOLOMON KIRK, PLAINTIFF IN ERROR, v. ISAAC W. BOWLING, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

29 N.W. 928

20 Neb. 260

SOLOMON KIRK, PLAINTIFF IN ERROR, v. ISAAC W. BOWLING, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 27, 1886

ERROR to the district court for Lancaster county. Tried below before MITCHELL, J.

REVERSED AND REMANDED.

James E. Philpott, for plaintiff in error.

Sawyer & Snell, for defendant in error, cited: Austin v Cambridgeport, 21 Pick. 224. Stearns v. Harris, 8 Allen, 598. Dale v. Hunneman, 12 Neb. 221.

OPINION

MAXWELL CH. J.

This is an action of ejectment brought by Bowling against Kirk to recover the possession of the north half of the south-east quarter of section twenty-six, township eight, range five east.

Kirk, in his answer, denies that Bowling has a legal estate in said land, or is entitled to the possession thereof, and also pleads the statute of limitations as a bar. On the trial of the cause in the court below a verdict was rendered in favor of Bowling, upon which judgment was rendered.

The testimony shows that Joab Hobbs entered the land in question, and received a patent from the United States; that in the year 1866 he made a will, which was admitted to probate in 1874, as follows:

"In matter of probate of Joab Hobbs, Feb. 24, 1874, case called, petitioner and subscribing witness appeared. No person appeared to contest the probate of said will, and it appearing that due notice was given, * * * Thomas McNeil, one of the subscribing witnesses, was sworn and examined, that said instrument is the last will and testament of said Joab Hobbs, and that he was in all respects competent to make a will. It is therefore ordered by me that said instrument be admitted to probate as and for the last will and testament of the said Joab Hobbs, which instrument is in the words and figures following, to-wit: Know ye all men by these writings that I, Joab Hobbs, being sound of mind, do make this my last will as follows: I will to my wife, Amanda Hobbs, my real estate and personal property, to be held and used by her during her lifetime, and at her death I will eighty acres of my land to John Wesley Hobbs, my son, said eighty acres being the north half of the N. W. quarter of section No. 25 in township No. 8, north of range No. 5 east. The balance of my land, being eighty acres, with all my personal property, shall be equally divided among the balance of my children."

Objection is made to the probate of the will as not being sufficient. The testimony shows the filing of a petition for the probate of the will, the giving of notice by publication of the time and place when and where a hearing would be had upon the matter, and the calling of one of the subscribing witnesses to prove the execution of the will, from whose testimony it appears that the will was properly executed in all respects, and that the testator was of sound mind. The will therefore was duly proved and it was ordered by the judge "that said instrument be admitted to probate as and for the last will and testament of the said Joab Hobbs." Under the common law rule the executor before proving the will could perform almost any of the acts incident to his office except those relating to certain suits. Thus he might seize and take into his hands any of the testator's effects. He might pay or take releases of debts owing from the estate, and might receive or release debts which were owing to it. So he might sell or dispose of the goods and chattels of the testator. Bac., Abr., tit. Exrs. and Adms., E, 14. Wentworth's Office of Exr., (14 ed.) 81 et seq. Willard on Exrs., 146-147.

The reason for the rule is very clearly stated by Judge Swan in his valuable work on Pleading and Precedents, 74, that "In England an executor derives title, not from the probate, but from the will; and hence the rule that if there be several executors, though some of them be under age, or have not proved the will, they must all join in one action." Under our system the executor derives his title and authority from the letters testamentary. The probate of a will is the proof before an officer authorized by law that the instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be. 2 Bouv. Law Dict. (14 ed.), 378. In England, at common law, the ecclesiastical courts had no jurisdiction of devises of lands, therefore in matters affecting the title or possession of real estate claimed under the will, the original must be produced and proved the same as any other disputed instrument. In this country, however, under the provisions of the statutes of the several states, the probate of a will is generally conclusive in a collateral proceeding. Bush v. Sheldon, 1 Day 170. Judson v. Lake, 3 Day 318. Laughton v. Atkins, 1 Pick. 535. Brown v. Lanman, 1 Conn. 467. Jackson v. Robinson, 4 Wend. 436. Jackson v. Hixon, 17 Johns. 123. Dublin v. Chadbourn, 16 Mass. 433. Stanley v. Kean, Taylor 93. Wells' Will, 5 Lit. 273.

In Brown v. Burdick, 25 Ohio St. 260, it was held that a copy of the probate and record of a will, duly certified by the probate judge, is conclusive evidence of the validity of the will, on the trial of a collateral issue between a stranger and the devisee respecting the property devised; and it is admissible as evidence on the trial of such issue, notwithstanding proceedings to contest it may be pending at the time it is offered and admitted in evidence. Mears v. Mears, 15 Ohio St. 90.

The judgment of the probate court, where...