Muller v. Harms
| Citation | 221 N.W. 898,117 Neb. 657 |
| Decision Date | 28 November 1928 |
| Docket Number | No. 26156.,26156. |
| Parties | MULLER v. HARMS ET AL. |
| Court | Supreme Court of Nebraska |
MULLER
v.
HARMS ET AL.
No. 26156.
Supreme Court of Nebraska.
Nov. 28, 1928.
Under the statute granting to an administrator the right to possession of decedent's real property and to the rents thereof “until the estate shall have been settled,” an administrator's lease for a longer period is not necessarily “void,” as distinguished from “voidable,” but may be accepted and ratified by mutual consent of the lessee and the heirs and continued in full force after the settlement of the estate and the discharge of the administrator, the heirs subsequently receiving the rent. Comp. St. 1922, § 1320.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Lucy Muller, guardian of the estate of Walter Frederick Muller and another, minors, against Ernest A. Harms and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.
Fischer & Fischer and J Gerald MacVeigh, all of Omaha, for appellant.
J. C. Travis, of Omaha, for appellees.
Heard before GOSS, C. J., ROSE, THOMPSON and EBERLY, JJ., and REDICK and STALMASTER, District Judges.
ROSE, J.
This is an action to recover $450, the amount of a claim for two monthly instalments of unpaid rent, each for $225. The property for which rents are claimed is the Apollo Theatre at 2824 Leavenworth street, Omaha. It was formerly owned by Fritz Muller, now deceased. He left surviving him his widow and their two minor sons, Walter Frederick Muller and Paul Ernest Muller. Charles B. Schleicher, administrator of decedent's estate, entered into a lease demising the Apollo Theatre to Ernest A. Harms and Mathilda A. F. Harms for a term of five years for $13,500 payable in instalments of $225 on the first day of each month beginning January 1, 1926. The lease was in writing and was formally executed by lessor and lessees. The latter paid the monthly rents from January 1, 1926, until October 1, 1926, but in the meantime, September 24, 1926, gave notice that they would terminate their tenancy October 31, 1926. The attempt to do so was resisted and this suit was brought to recover the instalments due under the lease November 1, 1926, and December 1, 1926. The administrator settled decedent's estate and was discharged. These and other facts were pleaded in detail by plaintiff. The plaintiff is Lucy Muller, guardian of the two minors. The lessees are defendants.
To the petition a general demurrer was interposed by defendants and sustained by the court. Plaintiff refused to plead further and her action was dismissed. From that judgment she has appealed.
Plaintiff contends as pleaded that defendants are bound by the lease and that they are indebted to her for two months' rent. Defendants take the position that the administrator had no power to make the lease and that it was void, because it provided for a long tenancy after the settlement of decedent's estate. A...
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