Whalen v. Kitchen

• Decision Date: 20 February 1901
• Docket Number: 10,745
• Citation: 85 N.W. 278,61 Neb. 329
• Parties: HERBERT WHALEN ET AL., APPELLEES, v. JAMES B. KITCHEN ET ET AL., APPELLANTS
• Court: Nebraska Supreme Court

85 N.W. 278

61 Neb. 329

HERBERT WHALEN ET AL., APPELLEES, v. JAMES B. KITCHEN ET ET AL., APPELLANTS

No. 10,745

Supreme Court of Nebraska

February 20, 1901

APPEAL from the district court for Douglas county. Heard below before SCOTT, J. Appeal dismissed.

APPEAL DISMISSED.

George E. Pritchett and J. C. Cowin, for appellants.

William D. Beckett and J. W. Woodrough, contra.

OPINION

NORVAL, C. J.

In 1890 Richard Kitchen died, leaving a will, by the terms of which among other provisions, he gave to Herbert and Wallace Whalen the sum of $ 10,000 each, with the proviso that his executor might pay such legacies in stock of the Kitchen Brothers Hotel Company, but that the whole estate was to be settled within three years from the death of testator. The executor James B. Kitchen, failed to pay these legacies within the period limited in the will for closing the estate, and after the expiration of such time filed in the county court his report, in which he asked leave of court to deposit stock with such court in payment of such legacies, and prayed for an approval of his accounts and his discharge as executor. The Whalen children, through their guardian ad litem, filed objections to this report and demanded that their legacies be paid in cash, with interest from the time they should have been paid. From the judgment of the county court in the premises, adverse to said legatees, they appealed to the district court, and there such proceedings were had that a judgment was duly entered for the full amount of their legacies. From this judgment of the district court said executor appeals to this court, and this hearing is on a motion to dismiss the appeal, on the ground that no provision is made by the law for the appeal of matters of this character, but that the proper mode for obtaining a review here is by proceeding in error only.

Section 675 of the Code of Civil Procedure provides: "That in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court to the supreme court of the state," etc. Prior to the enactment of this statute all judgments of the district court must be reviewed by petition in error, and since its enactment "actions in equity" may be reviewed either on appeal or by petition in error. It was ruled in the case of the Nebraska Wesleyan University v Craig's Estate, 54 Neb. 173, 74 N.W. 605, that an appeal will not lie to this court from an order of the district court allowing a claim against an estate, and the statute governing the procedure in cases of that nature is there examined and construed. That an appeal will not lie in analogous cases, see the authorities cited in Nebraska Wesleyan University v. Craig's Estate, supra, also Her v. Darnell, 5 Neb. 192; Sheedy v. Sheedy, 36 Neb. 373, 54 N.W. 560. It is, however, contended that this proceeding is essentially of an equitable nature, and not legal, and for that reason appeal will lie as well as error. To this we can not assent. While it is true that in England, to a large extent, courts of equity had cognizance of the settlement and adjustment of estates, such is not the case in this country, but the powers of courts of equity in cases of that nature are not only restricted, but in a majority of the states wholly nullified. Pomeroy, Equity Jurisprudence, sec. 77. In said section it is well stated: "It is true that the statutory rules for the settlement of estates are largely based upon the principles which had been settled in equity, and that equitable doctrines are constantly enforced by the courts of probate; but it is no less true that this important head of equity jurisdiction has been greatly restricted, or even practically abandoned, in all the states." If such jurisdiction...