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Lund v. Rubeck

Supreme Court of Nebraska
Nov 19, 1954
66 N.W.2d 809 (Neb. 1954)

Opinion

No. 33580.

Filed November 19, 1954.

1. Wills: Executors and Administrators. Where property is devised to the widow of testator for her life, and at her death to his children, the children, during the life of the widow, cannot except to an allowance to the executor on behalf of, and affecting alone, the life interest. 2. Wills: Trusts. Where during the existence of the widow's life interest the property is held by a testamentary trustee under specified conditions, the remaindermen may not object to the trustee's report in the absence of a claimed breach of trust by the trustee affecting the beneficial interest of such remaindermen.

APPEAL from the district court for Dixon County: SIDNEY T. FRUM, JUDGE. Affirmed.

Leamer Graham and Norris W. Leamer, for appellants.

Harry N. Larson and John E. Newton, for appellee.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.


This is an appeal from an order of the district court for Dixon County dismissing the objections of the appellants to the executor's final report in the estate of Henry Rubeck, deceased.

Henry Rubeck died on April 15, 1937, leaving a will which was admitted to probate on May 24, 1937. Letters testamentary were issued to Emil Lund as executor of the estate. He continued to act as executor until he resigned on September 4, 1953. He filed his final report, and objections thereto were filed by the appellants. It was approved by the county court, and an appeal was taken to the district court by the appellants. The executor filed his petition in the district court praying for the approval of his final account, the allowance of executor's fees, and a reasonable allowance for the attorney for the estate. Appellants filed objections to the account of the executor and to the allowance of any fees to the executor and the attorney for the estate. The executor moved to dismiss the answer of the appellants for the reason that they were not real parties in interest. The motion was sustained and the answer was dismissed. The appellants bring the case to this court for review.

The deceased, Henry Rubeck, left surviving as his heirs at law, his wife, five daughters, four sons, and the daughter of a deceased son. The appellants are two sons, two daughters, and the daughter of the deceased son.

The body of the' will of Henry Rubeck was in four paragraphs which provided in substance as follows: 1. He gave to his wife all his household furniture and all the rest of his personal property. 2. He devised to his wife, during her life, the use of his residence in Wakefield, Nebraska. 3. He gave his wife all the income, after taxes, insurance and ordinary expenses for upkeep of the improvements have been paid, from 200 acres of farm land described in the will. 4. He devised and bequeathed to his children all of his property, real, personal or mixed and directed his executor and trustee to sell the same after the death of his wife, at public or private sale, the proceeds to be divided between his children living at his wife's death and the heirs of deceased children surviving at her death.

Administration proceedings to settle the estate of a decedent are proceedings in rem, and every person interested in such settlement is a party thereto whether he is named or not. Any person, whether he be a devisee, legatee, creditor, or the owner of a contingent interest, may appear for the purpose of protecting his rights. It follows that any person beneficially interested in the estate embraced in an executor's final account may file objections thereto. In re Estate of Statz, 144 Neb. 154, 12 N.W.2d 829. The beneficiaries of testamentary trusts may likewise file objections when their interests are involved. But unless a person has a beneficial interest in the final account he has no right to appear as an objector.

The objectors in the present proceeding are remaindermen under the will of Henry Rubeck. The will gave the widow all of his personal property, a life estate in the residence in Wakefield, and all the income from the 200-acre farm after the payment of taxes, insurance, and the ordinary expenses for upkeep of the improvements. It provides for the sale of the property and the distribution of the proceeds after the widow's death by the executor and trustee. The objections do not point out where the objectors are interested in the approval or disapproval of the final account. It is not asserted that the executor and trustee has failed to pay the taxes, insurance, and the ordinary expenses for the upkeep of the improvements. In fact, the chief objection seems to be to the expenditure of funds for new buildings and in rehabilitating old ones on the farm. This inures to the benefit of the remaindermen and does not constitute an injury to their beneficial interest. The cost is charged to income belonging to the widow, who appeared and asked for the approval of the executor's final account. There is no claim that the land has been improperly farmed, or that waste has been committed detrimental to the interests of these remaindermen. No contention is advanced, by pleading or otherwise, that funds of the estate are not available for the payment of attorney's and executor's fees or that the estate of the remaindermen is in any manner liable for their payment. Under such circumstances we fail to find any beneficial interest of these remaindermen which would be adversely affected by the approval of the executor's final report.

It is fundamental, we think, that where property is devised to the widow of testator for her life, and at her death to his children, the children, during the life of the widow, cannot except to an allowance to the executor on behalf of and affecting alone the life interest. Where during the existence of the widow's life interest the property is held by a testamentary trustee under certain specified conditions, the remaindermen may not object to the trustee's report in the absence of an allegation of a breach of trust on his part affecting the beneficial interest of such remaindermen. An application of the foregoing rules required a dismissal of the objections of the appellants in the trial court.

AFFIRMED.


Summaries of

Lund v. Rubeck

Supreme Court of Nebraska
Nov 19, 1954
66 N.W.2d 809 (Neb. 1954)
Case details for

Lund v. Rubeck

Case Details

Full title:IN RE ESTATE OF HENRY RUBECK, DECEASED. EMIL HARRY LUND, APPELLEE, v…

Court:Supreme Court of Nebraska

Date published: Nov 19, 1954

Citations

66 N.W.2d 809 (Neb. 1954)
66 N.W.2d 809

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