Tyson v. Tyson

• Decision Date: 17 March 1904
• Docket Number: 13,343
• Citation: 98 N.W. 1076,71 Neb. 438
• Parties: MARY ELLA TYSON v. AMASA F. TYSON ET AL
• Court: Nebraska Supreme Court

98 N.W. 1076

71 Neb. 438

MARY ELLA TYSON v. AMASA F. TYSON ET AL

No. 13,343

Supreme Court of Nebraska

March 17, 1904

ERROR to the district court for Washington county: CHARLES T DICKINSON, JUDGE. Affirmed.

AFFIRMED.

Brome & Burnett, for plaintiff in error.

Frank Dolezal and E. C. Jackson, contra.

ALBERT C. GLANVILLE, C., concurs. FAWCETT, C., not sitting.

OPINION

ALBERT C.

Peter Tyson died intestate in Washington county; the plaintiff in error is his widow; the defendant in error, Amasa F. Tyson is his only child, and had attained his majority at the time of his father's death. The other defendant in error is administrator of the estate. On the 15th day of January, 1903, the defendant in error, Tyson, filed a petition in the county court which, so far as is material at present, is as follows:

"The said decedent (referring to the intestate) died seized of the following described lands situated in said Washington county, to wit: The north half of the southwest quarter, N. W. 1/4 of S. E. 1/4, and lot 1 of section 9 in township 17 north, range 10 east, and containing about 156 and 3/4 acres of land, and all of which is a farm highly improved and the reasonable value of the use of the cultivated lands of said farm a year, being the rent thereof, is reasonably worth the sum of $ 350 a year and was worth said rental during the year 1902. That said Mary Ella Tyson claims a homestead interest in said premises, and occupies the dwelling house and buildings under her claim that the same was the homestead of said decedent and of herself during the lifetime of said decedent and at the time of his death, and your petitioner alleges that the said homestead consisting of the said dwelling house and outhouses and the land upon which the same are situated to the extent in value of $ 2,000 is a homestead, and that the said Mary Ella Tyson is entitled to use and occupy said dwelling house and outhouses with so much land upon which the same is situated as taken together with said buildings, shall equal in value the sum of $ 2,000, and no more, as a homestead. That in addition to said homestead, the said Mary Ella Tyson is entitled to dower interest in said land to the extent of one-third thereof, and is entitled to have the same set aside, and that your petitioner is entitled to the remainder of said premises, and that the said Mary Ella Tyson under the said claim of homestead and dower wrongfully excludes your petitioner therefrom, and wrongfully claims the whole of said real estate as homestead and dower, and refuses to account for the rent of that portion thereof not included in the homestead interest to which she is entitled; that said real estate is of the value of $ 11,750, and exceeds the homestead in value by $ 9,750, and the said Mary Ella Tyson also claims the right to receive from said estate the said sum of $ 35 a month as support, as specified in said order of this court, and is drawing the same."

The prayer is for the appointment of three persons to set off the homestead and dower of the plaintiff by metes and bounds, the former not to exceed $ 2,000 in value.

The answer, among other allegations, contains the following:

"That said Mary Ella Tyson is receiving $ 35 a month for her support, and is occupying and using the land described in said petition and claims the exclusive right so to do. Further answering, said Mary Ella Tyson alleges that the land described in said petition consists of 156 3/4 acres of land, being the land upon which the dwelling house of said deceased is situated, and not in any incorporated city or village; that said land and all of it was the homestead of said Peter Tyson and Mary Ella Tyson, his wife, upon which they resided at the time of the death of said Peter Tyson, and that said homestead and all of it at the death of said Peter Tyson vested in his surviving wife, Mary Ella Tyson, during her life, and said petitioner, Amasa F. Tyson, has no right to or interest in said land during the life of said Mary Ella Tyson. Said Mary Ella Tyson further shows to the court that said petitioner has no present interest in said land; that the county court of said Washington county has no right or power to try or in any manner adjudicate the claim and title of said Mary Ella Tyson to said land and all thereof, or by its judgments or decrees in any manner inquire respecting same, determine or interfere with her right to the use and possession thereof, or to set off a homestead or assign dower therefrom, and the said Mary Ella Tyson hereby objects to the exercise of any power or jurisdiction of said county court in that behalf."

A hearing was had, and the county court found that the plaintiff in error had a homestead in the premises, or in so much thereof as should not exceed in value $ 2,000, and was entitled to dower therein, and appointed three persons to assign her dower and homestead by metes and bounds. From that decree the plaintiff in error prosecuted error to the district court, where the decree of the county court was affirmed. The case is brought here by petition in error.

The plaintiff contends that the county court was without jurisdiction over the subject matter. This contention is based on section 16, article VI of the constitution, which gives county courts original jurisdiction in all matters of probate, settlements of the estates of deceased persons, the appointment of guardians and the settlement of their accounts, and such other jurisdiction as may be given by general law, but which also provides that they shall not have jurisdiction "in actions in which title to real estate is sought to be recovered, or may be drawn in question."

Guthman v. Guthman, 18 Neb. 98, 24 N.W. 435, involved a construction of the constitutional provision just quoted. In that case the widow made application in the county court for an assignment of dower, and inferentially homestead, in certain lands of which her...