Metzger v. Metzger

• Decision Date: 17 May 1922
• Docket Number: 22027
• Citation: 188 N.W. 229,108 Neb. 613
• Parties: KATHERINA METZGER, APPELLANT AND CROSS-APPELLEE, v. PHILLIP METZGER ET AL., APPELLEES AND CROSS-APPELLEES: GEORGE HERRING, APPELLANT AND CROSS-APPELLEE: FRANCIS P. GARVAN, CROSS-APPELLANT
• Court: Nebraska Supreme Court

188 N.W. 229

108 Neb. 613

KATHERINA METZGER, APPELLANT AND CROSS-APPELLEE, v. PHILLIP METZGER ET AL., APPELLEES AND CROSS-APPELLEES: GEORGE HERRING, APPELLANT AND CROSS-APPELLEE: FRANCIS P. GARVAN, CROSS-APPELLANT

No. 22027

Supreme Court of Nebraska

May 17, 1922

APPEAL from the district court for Madison county: WILLIAM V. ALLEN JUDGE. Reversed in part, and remanded, with directions.

REVERSED IN PART, AND REMANDED, WITH DIRECTIONS.

Albert & Wagner, for appellants.

Arthur F. Mullen and M. B. Foster, contra.

Heard before ROSE, DEAN, DAY and FLANSBURG, JJ.

OPINION

DAY, J.

Karl Metzger, a citizen of the United States and an inhabitant of the city of Norfolk, Madison county, Nebraska, died testate on January 4, 1918. At the time of his death he was seised in fee simple of a quarter section of suburban farm land situated in Knox county in this state, and also two lots in the city of Norfolk, the two lots and the improvements thereon constituting his homestead. His will was duly probated. Among other bequests in the will he devised to his wife, Katherina Metzger, all of his real estate for life, and one-half of the remainder to the children of his brothers and sister, and the other half to the children of his wife's brothers and sisters. He left surviving him no issue or direct descendants. All of the devisees to whom the real estate was devised were nonresident alien enemies, except the widow, the children of the widow's brother Peter, the children of her sister Margaretha, and George Herring (a son of the testator's sister), who were citizens of the United States. George Herring is the only next of kin of the testator who is not a nonresident alien. The widow elected to take under the statute rather than by the terms of the will. Thereafter proceedings in partition were commenced by the widow, in which action all of the devisees under the will, as well as the alien property custodian, were made parties defendant. The real estate was duly sold by a referee appointed by the court. At the sale the town lots brought $ 4,600, and the farm lands $ 20,640, making a total of $ 25,240. After deducting the costs incident to the sale, there remained for distribution the sum of $ 23,247.66.

It was the claim of the widow that she was entitled to receive one-half of the net proceeds of the sale of the real estate, and in addition thereto the value of her life estate in the homestead, which by stipulation of the parties was fixed at $ 1,090. In the distribution the trial court decreed that the widow was entitled to one-half of the net proceeds of the sale of the real estate, but denied her claim to the $ 1,090. From the decree denying her claim to the value of a life estate in the homestead the widow appeals.

The trial court further found that the nonresident alien enemies were entitled to receive one-third, and the other legatees one-sixth of the net proceeds of the sale of the real estate. After deducting from the share of the nonresident aliens an attorney's fee of $ 300 for the alien property custodian and $ 3 costs, the court ordered the balance of $ 7,446.24 to be deposited by the clerk of the court in some bank or trust company, to be paid to the nonresident aliens when friendly relations were again resumed between the government of the United States and an established government of Germany.

It was the claim of George Herring that, in addition to the share willed to him, he was entitled to that portion of the proceeds of the sale derived from the farm lands which was devised to the nonresident aliens, and, from that part of the decree denying him the right to the share devised to the nonresident aliens in the farm lands, he has appealed.

The alien property custodian filed a cross-appeal from that part of the decree denying him the right to the possession of that part of the proceeds belonging to the nonresident alien enemies.

With respect to the claim of the widow for a share of the proceeds of the sale in lieu of her homestead rights, it must be determined in the light of statutory provisions existing at the time of the death of her husband. Chapter 68, Laws 1917 which was in force at the time, provides in...