Mote v. Kleen

• Decision Date: 20 February 1909
• Docket Number: 15,541
• Parties: LAURA MOTE ET AL., APPELLANTS, v. BEN KLEEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

119 N.W. 1125

83 Neb. 585

LAURA MOTE ET AL., APPELLANTS, v. BEN KLEEN ET AL., APPELLEES

No. 15,541

Supreme Court of Nebraska

February 20, 1909

APPEAL from the district court for Franklin county: ED L. ADAMS JUDGE. Affirmed.

AFFIRMED.

Dorsey & McGrew and Bernard McNeny, for appellants.

H Whitmore and Samuel Rinaker, contra.

OPINION

DUFFIE, C.

In December, 1893, Robert W. Sipes and his wife, Elvira, purchased the southwest quarter of section 20, township 3, range 14, in Franklin county, with the proceeds of other lands owned by them jointly. The land was purchased from Salvador Hayes, and he conveyed the north 80 acres to Mrs. Sipes and the south 80 acres to her husband, each taking title to a separate 80 acres. The house, barn, granary, well and cistern were located on the north 80 acres to which the wife held title. The south 80 acres was the better land, and all, or nearly all, in a state of cultivation. Sipes and his family moved onto the land in March, 1894, occupying the house and making use of the buildings and other improvements upon the north 80 acres. The south 80 acres was farmed in connection with the wife's land, and was the most productive, portions of the north 80 acres being quite rough, and about 30 acres thereof used as a pasture.

Sipes departed this life November 16, 1894, leaving as his heirs, his wife, Elvira, who has since intermarried and is now known as Elvira G. Whitmore, Ada B. Sipes, a minor daughter born of their marriage, also Laura Mote, Etta Blemler, Ida S. Smith and Luella Wright, daughters of Sipes by a former marriage. The plaintiffs Hugh and Glen Wright are children of Luella Wright, whose death occurred since that of her father. Sipes died intestate, and his widow was appointed administratrix of the estate, but after serving a year or more she resigned, going to the state of Illinois, and George E. Shepard was appointed administrator. Final settlement of the estate was delayed in consequence of foreclosure proceedings, which finally terminated in this court (Orient Ins. Co. v. Hayes, 61 Neb. 173, 85 N.W. 57), but the final report and discharge of the administrator appears to have taken place in 1901. During the course of the administration Shepard applied to the district court for license to sell the south half of the southwest quarter of said section 20, and after due notice and hearing he was authorized to and did sell the same to Elvira G. Whitmore, Sipes' former wife, and who held the principal claims against the estate, consisting of allowances made by the county court for the support of herself and family during the administration. She paid the administrator $ 1,100 for the land, obtained a deed therefor, and afterwards conveyed the whole quarter to the defendant Ben Kleen. After paying the debts due from the estate there remained the sum of $ 254, which the probate court ordered distributed among the heirs of Sipes. This distribution was made, and the receipts of all the children of Sipes by his first wife, acknowledging payment to them, are found in the bill of exceptions. This action is brought by the plaintiffs, Laura Mote, Etta Bemler and Ida Smith, surviving daughters of Robert W. Sipes, and Hugh and Glen Wright, the only children of a deceased daughter, their claim being that the south 80 acres of the southwest quarter of said section 20, to which the father held title, was his homestead; that the sale thereof by the administrator was absolutely void; and they asked that said sale and all conveyances and incumbrances placed thereon since the date of said sale may be set aside and held for naught.

It is conceded that the rights of the heirs of one who dies in possession of a homestead take precedence of the creditors, and that the sale of a homestead property for the payment of debts of the deceased is void. Tindall v. Peterson, 71 Neb. 160, 98 N.W. 688; Bixby v. Jewell, 72 Neb. 755, 101 N.W. 1026; Holmes v. Mason, 80 Neb. 448, 114 N.W. 606.

The principal contention between the parties arises from the fact that Sipes and his family lived upon the north 80 acres to which the wife held title, that there were no buildings or improvements of any kind on the south 80 acres, except that the land had...