Omaha daily bee., 1909-10-30
Supreme Court Syllabi

1897. In re estate OF John Manning
Bonaeum AGAINST Manning. Appeal nom
remanded. Root, j.
/ a provision IN the viii Of a testator.
who died prior to the enactment o. chapter
y, laws Of Nebraska, 1907, sections fq0i. ct
seq, Cobbey's Annotated statutes, 1907. that
his widow should have her dover right in
All property real and personal OF which I
die possessed" construed to mean that she
had a right to the net Income during her
natural life from one-third OF his estate.
2 II a reasonable construction OF a will
clearly establishes that an executor Is
charged with the duty OF dividing the tes-
tator's estate and to do so win necessitate
a sale OF real property, a power Is thereby
given the executor to sell and convey said
5 In such a case II the executor fails to
qualify, or after qualification resigns HIS
trust and the viii DOGS not indicate that
In the executor, a power to sell and convey
real estate Will pass to, and vest in, any
qualified administrator with the will an
nexed, appointed by the court TO administer
said estate.
4 Neither the husband nor the wife can
abandon the family homestead and there-
after sell and convey the same to another
TO the exclusion OF the homestead right Of
an insane person." Weatherington AGAINST
Smith, n Neb. 1853.
g. The widow Of a testator is entitled,
under subdivision l, section 176 chapter q,
compiled statutes. 1905. to the chattels
therein specified, and also to 500 in cash
from her husbands estate, and said prop
erty Is not assets In the hands OF the eXecu-
tor" In re Fletcher estate, - Neb., -.
u9 N. ID. 222
G. Prior to the enactment Of chapter ~.
laws of Nebraska. 1907. the widow of 4
t~estator did not have the right by electing
to take under the law, and not under the
Will OF her deceased spouse, to inherit his
personal property as though he had 6ied
T. II the widow, during the time her de-
ceased husbands estate Is In process of ad-
ministration, Is in the custody OF the state
In the hospital for the insane and main
tanned by IL without cost to her, or his
estate. II is within the discretion OF the
county court not to allow her anything for
support during that period.
8 1t is the duty OF a guardian ad Item
Of an insane defendant TO submit to the
court for Its consideration every relevant
Tact involving the rights Of his ward; but
u the guardian errs II is the duty OF the
court TO protect the rights of the incompe-
guardian.
15576. Loosing against Loosing. Appeal,
washington Judgment OF district court
set asidei judgment entered Ia this court
N conformity with opinion. Root, j.; Reese,
G. j., not sitting.
l. II an estate Is devised to a person
generally or Indefinitely with q power Of
disposition, II carries the fee; but II the
testator gives the first taker an estate for
remainder to definitely described individ-
uals, the expires Limitation for life will
control the operation OF the power and
prevent II from charging the life estate
to a fee.
2. Where there is q power to appoint
among certain objects and no gift In de-
fault OF appointment, the court will imply
a gift to the objects of the power.
3. Where the donee of a power is given
discretion In making an appointment, that
discretion will not be controlled by the
court provided a substantial gift is made
to each object OF the powen
T. Should the donee depart this life with
out haVing exercised the power, the court
cannot exercise the discretion vested In the
donee, but will divide the property equally
among the beneficiaries Of the power.
5, Where q testator devises to his wife a
life estate In certain lands and lots, with
the power to dispose Of or distribute"
the remainder as she sees fit, and later In
the will there is a statement that the wife
Is to give two of their children out of said
remainder so much thereof las she sees
tit" and II appears from the Will and all
of The circumstances surrounding the de-
ceased that II was his intention to devise
all of his estate and not to permit any
part thereof to vest In strangers to his
blood, the widow took a power In trust
for the benefit OF the children referred to
and Is not at liberty to exercise that power
for the benefit OF. any one else.
6. Subsequent provisions In a will Will not
prevail to take from an estate in fee sim
pie, qualities that the law regards as In
seperable from II, such as the right to en-
cumber or convey; they are, however, OPP
erative to define the estate given and may
l hEl u utHlOIHAIdAO NHdA4 NILA in NON
would be a fee, was intended to be a lesser
estate; but II a consideration Of the entire
instrument convinces the Judgment that the
estate first granted was Intended to be a
fee simple. then subsequent clauses restrict
ing alienation and suggesting that the fee
should descend TO the devisees' children,
will not clog OF denude the fee Heretofore
7. A decree for the specific performance
of a contract Is not a matter OF right. but
rests in the sound discretion Of a court,
/ ana In 1VYah M anffnn WHARF II nnnnQF re-
that the defendant is an aged and n~literate
woman that the contract purports to dis
tribute the estate of her late husband IN
violation Of the terms Of his win and that
at the time she signed the contract she did
not know her legal rights. but was over
reached by her children, the petition will
s. An undelivered deed signed by the
donee OF a power, who was ignorant OF her
rights and privileges. will be cancelled In an
equitable action involving a construction or
the will creating said power, and of the
rights of all devisees and legatees named
therein.
Saunders county. Judgment Of district
court modified and affirmed. Root, j.;
Reese, G. H., not sitting.
l. A petitioner In ad quad damnum pro-
ceedings who owns the land on each side
OF q water course at the point where he
proposes to construct and maintain a dam
does not by a judgment In his favor and
payment of the damages assessed acquire
the right in perpetuity to flow the lands OF
upper riparian owners, but secures a priv
ilege which may be lost by abandonment
or non-user for an unreasonable length Of
time.
2. "A miller may also be Uninterrupted
continuous and adverse possession and user
obtain said right of flow9ge.
g. II the exercise OF that privilege Is
commenced by virtue OF ad quad dRmnum
proceedings, possession and use alone, no
matter how long continued. VIII not vest
the miller with any title, privilege or right