Omaha daily bee., 1903-05-25
SUPREME COURT SYLLABI.

l. Inc ulsCTellOn conferred upon the mort
gagee by clause in a chattel mortgage
authorizing him to take possession Of the
mortgaged property whenever he may deem
himself unsafe or Insecure. is not to be ex-
ercised arbitrarily: such belief must rest on
reasonable grounds.
2. The facts that would warrant such be-
lief must be such as did not exist or Of
which the mortgagee was ignorant at the
time Of taking the mortgage
3, When an officer effects valid levy on
personal property consisting of ponderous
articles the fact that he leaves such prop
erty on the promises of the debtor In
charge of a custodian who is In the employ
of the debtor and who permits the debtor
to use such property, does not constitute an
abandonment of the levy as to the debtor
and those having notice.
4. Where a chattel mortgage is signed by
one member of the firm without authority
and without the knowledge or consent OF
his partner or the mortgage, and delivered
to third party to be delivered to the mort
gagee, and the mortgage upon learning OF
such mortgage takes time to decide
until after dissolution of the firm and
until after he had notice Of such dissolu-
ton, such mortgage is not binding on the
partner not joining therein.
.. In an action of replevin where one OF
the parties claim the property by virtue OF
a levy thereon by him as an officer II is
not error to direct the jury in case they find
for him to find the fair, reasonable and
market value Of such property without al
the same time directing the attention of tho
jury to the manner in which said property
must be sold by the officer, and his want
or diSCretlOn possessed by other owners OF
goods to accept or reject such offers as are
not considered a fair equivalent for them.
6. If the plaintiff in replevin to whom the
property has been delivered may under any
circumstances show that subsequent to the
delivery the property has been taken from
him under an execution against the defend
ant in the action, he cannot do so without
at the same time abandoning any claim OF
his own to the property and consenting that
It may be applied in satisfaction of the
judgment on which the execution against
the defendant issued.
ll!2i, Chicago 81 Paul, Minneapolis &
krsns. Error from Burt Former judg-
ment adhered to. Per curiam.
/. Upon re-examination of the cause the
judgment heretofore rendered is adhered to.
1853, Inglehart against Lull. Error from
Douglas. Former judgment adhered to.
Pound. c., division No. 2. Sedgwick, j.,
l.. The former opinion in this cause. -
Neb;. =. 80 N. w: Rep, 1852, adhered to.
Extrinsic evidence to show the nature
peace, upon a motion directed against an
alleged charge of issues on appeal, should
be clear, convincing and satisfactory and
should be carefully Scrutinized.
ll15o Sharp against Call Error from
Hamilton. Affirmed. Hastings, c., division
1. Where trustees of an insolvent corpora
tion have, with knowledge Of the pendency
Of an action against It, divided among
assets. one of the trustees, who is also
treasurer, and paid out the money divided.
cannot recover contribution from another
director because of payment of q Judgment
against him, as trustee, for so converting
the company's assets.
124S2. Tuniclife against Fox Error from
Douglas county; Affirmed. kirkpatrick,
/. An instruction will not be held erro neous
on account of the use Of a technical term
therein without eXplanat ton, If the barge
OF the court, as a whole, sufficiently ex-
plains the sense in which such term is
used, and is to be understood by the Jury
z, executor. whose fS n
Wisconsin, and who also qualities as an
cillary administrator in Nebraska, cannot
be charged as such ancillarly administrator
with property Of the estate whose legal
sltus is IN wyoming, and for which he ac-
counted to the court of Wisconsin.
8. The question whether the legal situs
Of certain personal property belonging to
the estate was in Wyoming or in Nebraska
having been, by proper instructions sub
mitted to the jury, another instruction
which in substance charges that the ex-
ecrtor ecu, ro as "a anelIary executor IN Nebraska
9 %goms w NOT Be Ssf ssd Sad sH' on is the
ground that Il assumes the existence of
4. a Wisconsin executor, prior to the
death Of the testatrix. had been the lat
ter's trustee, and afterwards became
charged with certain personal property
which he had managed as trustee. In filing
court, he included therein a schedule OF
property coming into his possession. and
an account of his dongs, as such trustee.
discharged Before such discharge he
qualified as ancllary executor In Nebraska,
report % a as @ executor S Heretofore iied % in in ths m
Wisconsin court which included his report
as trustee. In a proceeding instituted in
Nebraska, resisting the allowance of his
final report as ancillary executor Held
that matters relative to the previous trus-
teeship of the executor were properly with
drawn from the jury, as having been ad-
Judicatcd in the domiciliary court
5. Where parties interested have been duly
served with notice by court having juris-
diction in sister state to appear and show
cause at time stated why the final re-
port OF an executor should not be allowed
and settled, such court having Jurisdiction
of person and subject matter a properly
authenticated transcript of the proceedings
had will not be held inadmissible In the
hearing was had and a judgment rem
dered at Subsequent term of such court
6. Where by the terms OF will the minor
son of the sole legatee Hereunder would
ta Ike the estate whom he arrived at the age
Of 25 years, providing his father survived
his mother; and It appears that at the time
cf the trial the parents OF the. minor were
10Th living. Held, that such minor child
did not have such an interest in the estate
section 2ss of chapter Vxiii. Compiled Stat.
utes. to file objections to the allowance OF
the final report Of the executor.
Z. Where the objections of such minor are
stricken and the mother of the minor who
is the legatee. is permitted to and does file
the same and other objections, upon which
cision being affirmed on error to this court
the rule OF the Il ial court in striking such
objections If error, would be without
prejudice.
g. An ancillary executor in Nebraska, al
the instance of the probate judge, procured
and filed with his report an Inventory OF
certain household goods, which had been
owned by the testatrix but which had been
given away by her before her death and OF
which the executor never obtained posses
sion. Held. that the executor could not be
charged with the value of such goods.
O. Under the law of this state an executor
cannot be charged with the rent of real
estate until 1t becomes necessary OF
proper to reduce such real estate
10 actual possession for the protec.
tion of the creditors of such estate, or un-
til the executor is ordered so to do by the
proper court.
To- instructions examined and held prop.
erly given.
to sustain verdict and judgment.
1882 c., r. l. p. r. Co. against
Holmes. Error from Douglas county. Re
versed. Pound, c.. Department No. ?.
the benefit OF the widow and children under
section 2, chapter 2i, compiled statutes,
evidence as to the amount OF property left
by the deceased is inadmissible. Chicago
r. J. & p r GO; Go sIYada agYaainst Hamoei' Nen''
2 Where evidence admissible for the one
purpose is not relevant as to other sub
jects OF for other purposes, an instruction
limiting its effect must be asked; but where
evidence received is not admissible for any
purpose no such request is necessary,
g. 1t is error to permit an expert witness
TO give his opinion on the ultimate fac
to be determined by the jury.
Where the facts staed 1PSn ana %f the so6
ciusion is one which must necessarily be
drawn from such facts, error In permit