Downs v. Myers
Downs v. Myers
Opinion of the Court
This controversy arose in the county court of Burt county
In the district court on appeal, Will H. Thompson, trustee for Nellie P. Downs, Charles W. Potter and Scevolia A. Myers, three heirs at law, offered for the first time a claim for $900. The district court declined to entertain the appeal as to this 900-dollar item on the grounds that the trustee did not appeal from the judgment of the county court and that the general appeal of the aggrieved heirs, the beneficiaries of the trust, did not include their claim. From the judgment denying the relief sought by the trustee and the beneficiaries, they appealed to the supreme court.
Referring to the 900-dollar claim, there was an extended argument on the proposition that, contrary to the rulings in the district court, the trustee and beneficiaries were entitled to a hearing there and to a finding in their favor on the general appeal of the aggrieved heirs and that for the purposes of such relief a special appeal by the trustee was unnecessary. The position thus taken is based on decisions to the effect that such an appeal from the county court to the district court brings up the whole case. Opinions so holding are challenged by the administrator as inapplicable to the present inquiry, since the subject-matter was beyond
Wilford Myers and Anna Myers, February 6,1931, signed a paper purporting to assign the allowed claims of $500 and $1,500 to Will H. Thompson, trustee for Nellie P. Downs, Charles W. Potter and Scevolia A. Myers. The assignment recited that it was nonnegotiable and given to secure payment of $900. If the trustee did not realize from the assignment payment in full, assignors promised to pay the deficiency. The assignment was executed after the account of the administrator was approved but before he paid the claims against the estate. The record of the county court disclosed the existence of the assignment, but the issue of its validity was never presented, considered or adjudicated there or elsewhere. If valid, it was in effect collateral security for a debt of $900 owing by the individuals, Wilford Myers and Anna Myers, to Thompson, trustee for the individuals named as heirs. It was argued by the trustee that a consideration for the assignment was the dismissal of the appeal to the district court as to the items assigned, but it is contended by assignors that there was in reality no appeal as to the assignment and that consequently there was no consideration for it. In any event assignors condemned the assignment as invalid. This controversy was not properly involved in the settlement of the estate. There is nothing in the record to show that Anna C. King in her lifetime was indebted to Thompson as trustee or to the beneficiaries of the trust. None of them filed a claim against her estate. Their claim was against the assignors individually, not against the estate which was in
On the appeal by the heirs at law and on an appeal by the successor of Wilford Myers as administrator, other assignments of error were presented but are found upon examination of the record to be without merit.
There remains for consideration a cross-appeal by Wilford Myers, administrator. The county court charged him with $107.50, the purchase price of a barn sold at public auction. In the district court on appeal he was charged in addition to that sum $100 as the difference between the value of the barn and the sale price. The increase in this item is assailed as erroneous. On the evidence this point is well taken. The sale was authorized by the county court and was advertised. The barn was sold at public auction for $107.50. There was no evidence of fraud in the sale or proof that the administrator profited by the transaction. The evidence does not sustain the finding that its value was
Affirmed as modified.
Reference
- Full Case Name
- In re Estate of Anna C. King. Nellie P. Downs v. Wilford Myers, Administrator
- Status
- Published