DocketNumber: No. 22436
Citation Numbers: 108 Neb. 735
Judges: Aldrich, Day, Dean, Flansburg, Morrissey, Rose
Filed Date: 6/12/1922
Status: Precedential
Modified Date: 9/9/2022
This case has been before this court in its different phases a number of times. The only issues now presented involve the right of the defendant Schlater, as special administrator of the estate of Jane A. Dovey, deceased, to an accounting as to certain moneys held by the firm of E. Gf. Dovey & Son, plaintiff. The trial court found the defendant entitled to such an accounting and entered judg
Among other items, upon which there is now no controversy, the trial court found the administrator entitled to the sum of $7,147.79, which the court found was a one-fourth share of an account, held by the partnership, which represented funds furnished and held as the individual and personal property of Edward G-. Dovey, deceased; and the sum of $15,695.64, being one-third of the rents collected from the real estate of which Edward G-. Dovey died seised.
Jane A. Dovey was the widow of- Edward G. Dovey, deceased. There were three sons. In 1876 Edward G. Dovey, who was at that time engaged in the mercantile business in Plattsmouth, had taken into partnership with him his son George E. Dovey. On the books of the partnership was one account which was denominated the “stock account.” Edward G. Dovey owned a number of properties, having no connection with the partnership, from which he derived rentals. His collections from these properties and from his individual business interests were mingled with the partnership assets and entered of record in this “stock account.” Throughout the partnership books the “stock account” was, it seems, the personal account of Edward G. Dovey with the partnership and appears as an account of moneys due to him for capital furnished.
It is the contention of George E. Dovey that these amounts, represented by the stock account, had, in fact, become partnership assets, and did not remain the personal and individual property of Edward G. Dovey, nor an account of any liability, on the part of the partnership, to Edward G. Dovey. The evidence, however, we believe does not bear out that contention.
A statement of the accounts of the partnership, prepared by George E. Dovey on January 31,1881, was found among the partnership papers. This statement shows the total assets of the partnership at that date to be $97,755.96, and shows that there were liabilities against the firm in the
We have reached the conclusion that the partnership was a partnership where George E. Dovey was to share in the profits only, and that the moneys furnished the partnership by Edward G. Dovey, the account of which was kept in the so-called “stock account,” did not become the property of the partnership, but at all times remained the property of Edward G. Dovey and stood on the books as a liability from the partnership to Edward G. Dovey. Since the stock account represented a liability of the firm and was payable to and represented individual property of Edward G. Dovey, we think it is clear that a one-fourth interest therein descended by operation of law to Jane A. Dovey. This amount, $7,147.79, the trial court has awarded to her administrator, and it seems to us the judgment in that respect is correct.
The statute, relating to dower, in force at the time in question (Comp. St. 1881, ch. 23) provides:
“Section 1. The widow of every deceased person shall be entitled'to dower, or the use, during her natural life, of one-tliird part of all the lands whereof her husband was seised, of all estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.”
“Section 11. When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same with the children or other heirs of the deceased or may receive one-third part of the rents, issues and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.”
The plaintiff’s argument is that this statute, which provides that the widow may continue to occupy the premises of her deceased husband with her children, or may receive one-third of the rents, issues and profits thereof, so long as the heirs or others interested do not object, without having the dower. assigned, is unavailing to the defendant administra to r, for the reason that the statute is only permissive, and that Jane A. Dovey has never demanded, nor has she, during her lifetime, received her share of these rents, and that she has never perfected an
Upon an examination of the record, and in view of the findings of the trial court, and the persuasive weight to he given to those findings, we are unable to come to any other conclusion than that at which the trial court arrived, and that is, that the rents were collected during the lifetime of the widow by her son, George E. Dovey, and were mingled with the partnership funds, with the understanding and agreement between the widow and her sons that the rental moneys should be so used, and that she was entitled to and, in fact, had a one-third interest in them. The several legal questions raised on those issues, it seems to us, are therefore based upon a false premise in fact.
At one stage of the proceedings, the pleadings, signed by George E. Dovey, and which are admitted in the record in this case as an admission- against interest, contained a declaration that “whatever rents were collected and received by him (George E. Dovey) during said period of years (July 25, 1881, to September 23, 1909) were so collected and received as the agent of all the respective parties in interest, and by the consent of all the respective parties in interest, and that said rents so collected and received were placed with the assets of E. G. Dovey & Son with the knowledge, acquiescence and consent of all the parties in interest, including Jone A. Dovey.”
It is true that the record contains no specific and express agreement to the effect that the rents were to be collected and that the widow should receive a one-third part of them. In family arrangements of this kind such specific agreements are not necessarily expected. The actions and doings of the parties and the natural inferences to be drawn therefrom are sufficient to furnish evidence of such agreements and understandings.
The evidence discloses that the three sons recognized and spoke of the right of their mother to a one-third interest in the rents. The rent moneys were placed in the partnership, in which she had an interest, which interest
It was not necessary that dower should be set off to the widow, or that she should demand an assignment of dower before she Avould be entitled to receive rents; but, in the absence of objections on the part of the heirs, she was entitled to receive her share of the rents, issues and profits of the lands in which she Avas entitled to dower. The assignment of dower does not create her right in the estate, but only segregates it from .the interest of the heirs. Her dower interest in the land was never specifically set apart to her, but this did not depriwe her of her right to her
It is our conclusion that the. trial court properly found that the defendant, as administrator of the estate of Jane A. Dovey, is entitled to an accounting for one-fourth of the funds represented by the stock account, and to a one-third interest in the rents, issues and profits of the real estate of Edward G-. Dovey, that on these amounts the credits allowed by the trial court were correct, and that the defendant was entitled to recover the balance found due.
The judgment is therefore
Affirmed.