Spencer v. Wolf

• Decision Date: 16 June 1896
• Citation: 49 Neb. 8,67 N.W. 858
• Parties: SPENCER ET AL. v. WOLF.
• Court: Nebraska Supreme Court

49 Neb. 8

67 N.W. 858

SPENCER ET AL.

v.WOLF.

Supreme Court of Nebraska.

June 16, 1896.

Syllabus by the Court.

1. Section 177, c. 23, Comp. St. 1895, construed, and held: (1) When a person dies intestate, being an inhabitant of this state, letters of administration must be granted in the county of which he was an inhabitant at the time of his death. (2) If an intestate, at the time of his death, resided outside this state, and left here an estate to be administered, then an administrator may be appointed in any county in which any of such estate is situate, and the administrator first appointed will be entitled to the entire estate of the intestate in this commonwealth, to the exclusion of administrators appointed afterwards in other counties of the state (3) The judgment of a county court appointing an administrator is not void because the petition therefor does not allege that the intestate was, at the time of his death, a resident of the state of Nebraska.

2. A petition for the appointment of an administrator must allege the necessary facts which confer jurisdiction on the county court, and if it fails to do so the judgment of the court appointing the administrator will be void. Moore's Estate v. Moore, 50 N. W. 443, 33 Neb. 509, followed.

3. It is not necessary, in a petition for letters of administration, to set out the description of either the real or personal property belonging to the intestate's estate. In re Miller, 49 N. W. 427, 32 Neb. 480, followed.

4. A petition by a creditor of an intestate to be appointed his administrator alleged that the intestate died seised of real and personal estate situate in the county, that the real estate was worth about $5,600, and that the personal estate was estimated to be worth several hundred dollars. Held, the allegations were sufficient.

5. Persons not under guardianship, and not minors, nor under other legal disability, cannot be heard to complain of a judgment rendered in a proceeding to which they were parties, because the notice required by law of such proceeding was not given them, when the record discloses that they voluntarily appeared and participated in such proceeding.

6. Section 178, c. 23, Comp. St. 1895, construed, and held: (1) That a county court is not by this statute absolutely required to appoint the widow or next of kin of an intestate, or some person selected by them, administrator of the intestate's estate. (2) If it appears that the person proposed for administrator is unsuitable or incompetent, the county court is not obliged to appoint such person, notwithstanding that application may be made therefor by the widow or next of kin within 30 days after the intestate's death.

Appeal from district court, Gage county; Bush, Judge.

Petition by William A. Wolf to the county court for an order appointing him administrator of the estate of C. H. Spencer, deceased. The order was granted, and from a judgment of the district court, rendered on appeal, affirming the same, Mary A. Spencer and others, widow and heirs of decedent, appeal. Affirmed.

J. E. Cobbey, for appellants.

Murphy & Le Hane, for appellee.

RAGAN, C.

From the record and the briefs of the respective counsel the undisputed facts in this case seem to be as follows: Charles H. Spencer, a resident and citizen of the state of Iowa, died intestate in the state of Colorado on the 16th of August, 1892. He left a widow, Mary A. Spencer, and a son, H. C. Spencer, residents of the state of Iowa. He left another son, L. E. Spencer, a resident of Gage county, Neb., and he also left a daughter, Mary E. Dudley, a resident of the state of Colorado. None of his heirs were minors. At the time he died, Charles H. Spencer was indebted to the German National Bank of Beatrice, Neb. William A. Wolf was cashier of this bank, and in March, 1893, he petitioned the county court of Gage county to appoint him administrator of the estate of the intestate. This appointment was resisted by the widow and heirs of Spencer, deceased; and, while the application was pending, L. E. Spencer also petitioned the county court to appoint him administrator of his deceased father. The county court, however, refused to appoint L. E. Spencer, and appointed Wolf, who accepted the trust and qualified therefor. From this action of the county court, the widow and heirs of Spencer, deceased, appealed to the district court, and the case was submitted to that tribunal upon the transcript of the proceedings had in the county court, and a judgment rendered affirming the judgment of the county court. To reverse this judgment of the district court, the widow and heirs of Charles H. Spencer, deceased, have prosecuted here a petition in error.

1. The first argument relied on here for a reversal of the judgment of the district court is that the county court had no jurisdiction to appoint Wolf administrator of Spencer's estate. It is not disputed but that the county court is by the constitution and laws of the state invested with exclusive original jurisdiction in the matter of settling up the estates of deceased persons and the appointment of administrators, but it is said that the petition filed by Wolf to be appointed administrator conferred no jurisdiction upon the county court to act, because the petition did not allege that Spencer, at the time of his death, was a resident of the state of Nebraska. There is no merit in this contention. Section 177, c. 23, Comp. St. 1895, provides: “When any person shall die intestate, being an inhabitant of this state, letters of administration of his estate shall be granted by the probate court of the county of which he was an inhabitant or resident at the time of his death. If such deceased person, at the time of death, resided in any other territory, state or country, leaving estate to be administered in this state, administration thereof shall be granted by the probate court of any county in which there shall be estate to be administered; and the administration first legally granted shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the probate court of every other county.” This section provides for the appointment of administration in two classes of cases: (1) When a person shall die intestate, being an inhabitant of this state, then letters of administration must be granted by the county court of the county of which he was an inhabitant or resident at the time of his death; and (2) if an intestate, at the time of his death, resided outside of this state, and left an estate here to be administered, then the county court of any county in which the deceased left an estate to be administered may appoint an administrator, and the first administrator so appointed becomes entitled to the entire estate of the deceased in the state, to the exclusion of any other administrator appointed in any other county of the state. Atkinson v. Hasty, 21 Neb. 663, 33 N. W. 206, is not authority for the contention of the plaintiff in error, notwithstanding in that case it was said: “The jurisdiction of the county court by section 177 * * * is made to depend upon the facts that the deceasedhad died intestate, and was at the time of his death an inhabitant or resident of the county in which the court is authorized to act.” But it is evident that the writer of that opinion was speaking of the first division of said section 177. In Moore's Estate v. Moore, 33 Neb. 509, 50 N. W. 443, said section 177 was construed, and it was held...