decree finding that due legal notice had been given to all parties interested, and ordering the conveyance to be made, and in case of failure the decree itself should have the effect of a conveyance, a minor heir who was not made a party is not affected by the decree. Holmes v. Columbia Nat. Bank, 4 Unof. 893 (97 N. W. 26).

Collateral attack.

246. (1885.) Titles to real property ac quired under proceedings of courts having jurisdiction cannot be attacked in collateral proceedings. Trumble v. Williams, 18 Neb. 144 (24 N. W. 716).

247. (1887.) Where an executor files a petition in the proper court for license to sell real property belonging to the estate of the testator, and the heirs and devisees sign a waiver of notice and enter an appearance in the case, or are duly served with notice, such notice will continue until the debts mentioned in the petition are paid by the sale of the real property described therein, and a purchaser under a license issued on such petition, who has paid the purchase price, the same being applied to the payment of the debts against the estate of the testator, and the sale having been confirmed and a deed made to such purchaser, may rely upon the title so acquired as against collateral attack from the heirs and devisees of such testator. Seymour v. Ricketts, 21 Neb. 240 (31 N. W. 781).

248. (1902.) Jurisdiction having attached in a proceeding for sale of real estate by an administratrix, the fact that no claims were ever filed or allowed against the decedent's estate cannot be advanced in a collateral was void. proceeding to show the sale Haight v. Hayes, 3 Unof. 587 (92 N. W. 297).

VII. ACTIONS.

Discharge of administrator as abatement of action, see Abatement and Revival, § 23. Right to sue for causing death of decedent, see Death, §§ 13-16.

Action against executor to set aside transfer as fraudulent by intestate, see Fraudu lent Conveyances, § 350.

Cannot maintain partition, see Partition, § 10.

Action against representative of deceased partner, see Partnership. § 279.

Jurisdiction of action for specific performance of contract by heir, see Specific Performance, § 87.

Disqualification of administrator as witness, see Witnesses. §§ 99-101.

Heir as representative of deceased person to disqualify witness, see Witnesses, § 73. Competency of witness to testify against deceased person, see Witnesses, §§ 66-125.

Who is representative of deceased person as going to qualification or competency of witness, see Witnesses, §§ 73-76.

Jurisdiction.

249. (1890.) District court has jurisdiction where an action is brought to recover property received by distributees of any estate liable for debts under subdivision 10, section 267, chapter 23, Compiled Statutes. Horst v. McCormick Co., 30 Neb. 558 (46 N. W. 717).

250. (1903.) The district court is not deprived of jurisdiction in an action by creditors of an estate against the administratrix thereof and the county judge for an accounting of the estate property because plaintiff might have moved to retax the costs in the county court, or brought an action on the bond of the administratrix, or sued to recover the statutory penalty for taking illegal fees. McGlave v. Fitzgerald, 67 Neb. 417 (93 N. W. 692).

251. (1903.) Where a suit in equity is to be regarded as part of the proceedings for settlement of the estate of a deceased person, it must be brought in the county court, which has exclusive original jurisdiction of such matters. Youngson v. Bond, 69 Neb. 356 (95 N. W. 700).

252. (1906.) The district courts of this state have jurisdiction in cases involving the ownership of property held in trust, though in the posession of and claimed by the administrator of the estate of a deceased person. Adams v. Dennis, 76 Neb. 682 (107 N. W. 865).

Right of action by administrator.

253. (1888.) Where a brakeman in the employ of a railroad company running between points in Nebraska and Kansas, is killed while so employed in Kansas, his administratrix, appointed in Nebraska, may maintain an action for damages in the courts of this state. Missouri P. R. Co. v. Lewis, 24 Neb. 848 (40 N. W. 401; 2 L. R. A. 67n).

254. (1889.) Under section 202 of chapter 23 of Compiled Statutes, an administrator of an intestate's estate may maintain an action of ejectment for the recovery and possession of real property for the necessary

purposes of administration. Dundas v. Carson, 27 Neb. 634 (43 N. W. 399).

may

255. (1894.) An administrator maintain ejectment against the grantees of his decedent's heirs. His possessory interest is sufficient to maintain such action. Carson v. Dundas, 39 Neb. 503 (58 N. W. 141).

256. (1899.) An administrator cannot maintain a suit under the provisions of section 211, chapter 23, entitled "Decedents" (Comp. Stats. 1897). unless there are debts of the deceased to be paid and insufficient assets to discharge them, and, ordinarily, the claims must have been allowed or adjudicated against the estate. Hofmann v. Tucker, 58 Neb. 457 (78 N. W. 941).

257. (1903.) The personal representative of a deceased vendor may maintain a suit for specific performance of the contract under section 335a, chapter 23, Compiled Statutes 1901. Solt v. Anderson, 67 Neb. 103 (93 N. W. 205).

258. (1906.) Under a contract of membership in the relief department of the Chicago, Burlington & Quincy Railroad Company, which provided that the receipt of benefits by the beneficiary should bar all actions for damages arising from the death of the member, the beneficiary, after receiving the benefit provided for in the certificate of membership, cannot maintain an action to recover damage for herself caused by such death; but the receipt of such benefit will not bar her action as administratrix of the estate of the deceased for the benefit of her minor children. Chicago, B. & Q. R. Co. v. Healy, 76 Neb. 786 (107 N. W. 1005).

Continuation of litigation after death of party.

259. (1898.) Where a party dies after judgment has been rendered against him, the administrator of his estate may prosecute error without procuring an order reviving the action in his name. Webster v. City of Hastings, 56 Neb. 245 (76 N. W. 565).

260. (1902.) An administration of the estate in accordance with law must be procured, if it is desired to carry on the litigation after defendant dies intestate. Buck v. Hogeboom, 63 Neb. 672 (88 N. W. 857).

Right of special administrator to defend. 261. (1882.) A special administrator has authority in a proper case to appear and defend an action against the estate. Such power is to be inferred from the authority to bring and maintain suits; but his powers cease upon the appointment and qualification of a general administrator. Cadman v. Richards, 13 Neb. 383 (14 N. W. 159).

Effect of cessation of authority pending suit.

262. (1885.) Where, from any cause, the powers of an administrator cease, an action commenced by him will not therefore lapse; but upon the appointment of a new administrator the prosecution of the action will proceed. Burlington & M. R. R. Co. v. Crockett, 17 Neb. 570 (24 N. W. 219).

263. (1901.) An action does not abate by the removal of an administrator as party plaintiff during its pendency. Edney v. Baum, 2 Unof. 173 (96 N. W. 167). Defenses against executor or administrator. 264. (1902.) Defendant was not estopped from asserting his title to land for having received his pro rata share of rents and profits collected by the administraton who took possession of such land supposing it to be that of the intestate, he being at the time in a distant state, and there being nothing in the record to connect him with knowledge that the rents were derived from land to which he claimed title. Decker v. Decker, 64 Neb. 239 (89 N. W. 795).

265. (1903.) An account need not be presented to and allowed by the probate court in order to entitle the holder to plead it as payment upon a note made to a party since deceased, provided the deceased in his lifetime agreed that the account should be credited as a payment on the note. Parker v. Wells, 68 Neb. 647 (94 N. W. 717).

Right of administrator to waive defense.

266. (1902). An administrator cannot waive the defense of non-claim to the prejudice of his estate, either by agreement with the claimant or by neglecting to plead such defense. Estate of Fitzgerald v. First Nat. Bank of Chariton, 64 Neb. 260 (89 N. W. 813).

Election of defenses.

267. (1902.) Defenses to a petition for distribution under a will which allege that the cross-petitioner was omitted by mistake from the will and also that she is pro

vided for in the third clause of the will, are inconsistent, and a rule of the county court requiring an election on which of these defenses the cross-petitioner will proceed is fully warranted. Bollinger v. Knox, 3 Unof. 811 (92 N. W. 994).

Time to sue and limitations.

268. (1900.) Where a claim against the estate of a deceased person is properly presented for examination and allowance within the time limited by order of the probate court, it is not barred even though action thereon be not taken until alter the time mentioned in such order for the presentation of claims against such estate. Schaberg v. McDonald, 60 Neb. 493 (83 N. W. 737).

209. (1901.) An action to foreclose a mortgage on the death of the mortgagor is not a suit to recover money only and not within the prohibition of section 227, chapter 23, Compiled Statutes 1899. National Life Ins. Co. v. Fitzgerald, 61 Neb. 692 (85 N. W. 948).

a

270. (1903.) A claim against a decedent's estate for a liability of decedent as stockholder in an insolvent corporation, does not become absolute so as to start the running of the limitation of the time within which it could be filed in the probate court, until it has been reduced to judgment in the district court. Hazlett v. Estate of Blakely, 70 Neb. 613 (97 N. W. 808).

271. (1905.) The provisions of section 117, chapter 23, Compiled Statutes 1903, apply to irregular administrative sales, but not to sales that are absolutely void. Brandon v. Jensen, 74 Neb. 569 (104 N. W. 1054). 272. (1906.) Section 117, chapter 23, Compiled Statutes, providing for limitation of actions against administrator, applies only to irregular and not void sales. Lyons v. Carr, 77 Neb. 883 (110 N. W. 705). Parties.

273. (1878.) Where a defendant dies pending an action against him the executor, administrator, or heir, may be admitted to defend the action. Gillette v. Morrison, 7 Neb. 263.

274. (1896.) Generally, an action to recover a debt payable to a deceased intestate must be brought by the administrator of the estate. Cox v. Yeazel, 49 Neb. 343 (68 N. W. 483).

275. (1902.) Where a claim against an estate has been assigned after filing, it

may be prosecuted in the name of the person by whom it was filed. Estate of Fitzgerald v. Union Savings Bank, 65 Neb. 97 (90 N. W. 994).

Substitution of heir.

276. (1901.) Where an administrator settles matters in litigation in a manner prejudicial to an heir, such heir may be substituted as plaintiff. Tecumseh Nat. Bank v. McGee, 61 Neb. 709 (85 N. W. 949).

277. (1901.) Where, during the proceedings in an action to recover a debt alleged to be due an estate, the trial court, on application of an heir at law, sets aside an order of dismissal made at the same term, on a stipulation entered into by the administrator and the defendant, and permits the heir at law to be substituted plaintiff and prosecute the action in her own name and right for her interest in the subject matter of the litigation, and the evidence upon such hearing has not been preserved in a bill of exceptions, the presumption is that there was sufficient evidence to support the finding and order made by the trial court on such hearing. Tecumseh Nat. Bank v. McGee, 61 Neb. 709 (85 N. W. 949).

Action by heirs alone.

278. (1896.) An action brought to recover a debt payable to a deceased person cannot be maintained by the heirs at law, unless there be no demands against their decedent ancestor and there has been no administration or the administration has been closed. Cox v. Yeazel, 49 Neb. 343 (68 N. W. 483).

279. (1904.) The heirs of an insolvent estate cannot prosecute an action in their individual capacity to recover newly discovered assets of the estate until the debts and costs of administration have been paid. Sharp v. Citizens Bank of Stanton, 70 Neb. 758 (98 N. W. 50).

280. (1907.) A suit in equity, brought to recover money due an estate of a deceased person alleged to be held in trust by defendants, cannot be maintained by the heirs or devisees before the administration of the estate is terminated in the county court. Prusa v. Everett, 78 Neb. 250 (110 N. W. 568). [Overruled on rehearing. 78 Neb 251.]

281. (1907.) When all the debts and charges against an estate of a decedent have been paid, nothing remaining but the formal statutory proceedings to settle the

estate, and the administrator de bonis non refuses to bring an action to recover assets of the estate, the only heir at law and beneficiary under the will may maintain such action in equity, making the administrator de bonis non a party. Prusa v. Everett, 78 Neb. 251 (113 N. W. 571).

Appearance.

282. (1900.) When an administrator appears in a case involving the allowance of a claim against the estate, and asks leave to have the order of allowance vacated and leave to defend, and appeals from the judgment of allowance, such action will be a general appearance in the case and the court thereby obtains jurisdiction. Dredla v. Baache, 60 Neb. 655 (83 N. W. 916).

Pleading.

283. (1893.) After the revival of an action in the name of the executrix of plaintiff an answer was filed in which the original plaintiff was designated, but the answer showed that it was intended as an answer to the petition of the executrix and it was filed in that case. No motion was made to strike it from the files. Held, That this was not a fatal defect to the answer. Williams v. Eikenbary, 36 Neb. 478 (54 N. W. 852).

284. (1902.) An allegation that the executors of the estate of the payee, by virtue of the authority in them vested, sold and assigned the note in question to the plaintiff for a full and valuable consideration, is sufficient to raise the presumption of a valid sale, and that thereafter neither the estate nor the executors had any interest in the note or the mortgage security. Guthrie v. Treat, 66 Neb. 415 (92 N. W. 595; 103 Am. St. Rep. 718).

285. (1893.) After the reversal of a judgment the plaintiff died and the cause was revived in the name of the present plaintiff, who recited in her petition that she was the widow and the executrix of the original plaintiff, and alleged matters in controversy between defendant and the original plaintiff. Held, Sufficient to show that she was suing in her representative and not in her individual capacity. Williams v. Eikenbary, 36 Neb. 478 (54 N. W. 852).

286. (1903.) In an action by the personal representative of a deceased vendor, for specific performance of a contract, the allegations in the pleadings are binding upon all persons interested in the estate, In

Solt v.

the absence of fraud and collusion. Anderson, 67 Neb. 103 (93 N. W. 205).

287. (1903.) An allegation by a personal representative in a suit for specific performance of a land contract, that the prop erty is a homestead, is for the benefit of the heirs and cannot be said to prejudice them. Solt v. Anderson, 67 Neb. 103 (93 N. W. 205). Variance.

288. (1899.) There is a variance between allegations that claims were allowed against an estate and proof that the claims were presented but not adjusted. Hofmann v. Tucker, 58 Neb. 457 (78 N. W. 941).

Instructions.

289. (1903.) The question whether the legal situs of certain personalty belonging to the estate was in Wyoming or in Nebraska having been, by proper instructions, submitted to the jury, another instruction which in substance charges that the executor, as ancillary executor in Nebraska, will not be liable to the estate for personal property whose legal situs is in Wyoming, will not be held bad on the ground that it assumes the existence of property in Wyoming. Tunnicliff v. Fox, 68 Neb. 811 (94 N. W. 1032). Burden of proof.

289a. (1907). Where it is sought to charge a legal representative with debts owing by him to the deceased, the burden of proof is upon the party applying; but, when the contracting of such indebtedness is admitted or otherwise established, the burden is upon the legal representative to show that the same has been paid or accounted for. In re Estate of Mall, 80 Neb. 233 (114 N. W. 156).

Admissibility of evidence.

290. (1893.) After the death of a plaintil the action was revived in the name of his executrix. On the trial she sought to disprove the allegations of her petition by showing that her duties as executrix had ceased and she had been discharged. Held, That she should have pleaded the facts by supplemental petition, and not having done so the testimony was properly excluded. Williams v. Eikenbary, 36 Neb. 478 (54 N. W. 852).

291. (1901.) Under objections to a claim presented for allowance to the probate court, (1) that deceased did not, at the time of his death, owe claimant anything whatever, and (2) that the estate did not owe claimant anything at the time the

objection was filed, the administrator may prove payment, release, fraud or any other fact which will show that claimant has no valid claim against the estate. Graham v. Estate of Townsend, 62 Neb. 364 (87 N. W. 169).

292. (1903.) Where parties interested have been duly served with notice by a court having jurisdiction in a sister state to appear and show cause at a time stated why the final report of an executor should not be allowed and settled, such court having jurisdiction of a person and subject matter, a properly authenticated transcript of the proceedings had will not be held inadmissible in the courts of this state because it shows that a hearing was had and a judgment rendered at a subsequent term of such court. Tunnicliff v. Fox, 68 Neb. 811 (94 N. W. 1032).

Own

in his 293. (1903.) Declarations favor made by a decedent in his will are not admissible in favor of his estate against a party filing a claim against the estate. Estate of Bennett v. Taylor, 4 Unof. 800 (96 N. W. 669).

294. (1905.) An admission by a deceased person that an account kept in a certain book is correct is not sufficient to warrant the admission in evidence of a copy of this account in another book. Fitch v. Martin, 74 Neb. 538 (104 N. W. 1072).

295. (1903.) The admission in evidence of a book showing an account between a decedent and one who has filed a claim against his estate, is not prejudicial error where all the items which the court allowed the jury to consider are charges made by the decedent against the claimant, even though the foundation for the admission of such book as a book of account has not been properly laid. Estate of Bennett v. Taylor, 4 Unof. 800 (96 N. W. 669).

Sufficiency of evidence.

296. (1896.) Where the pleading and the evidence show that an administrator de bonis non has not been discharged, a verdict for the heirs in an action by them is contrary to the evidence. Cox v. Yeazel, 49 Neb. 343 (68 N. W. 483).

297. (1901.) In an action by an heir to recover the amount of a deposit made by the deceased in defendant bank, evidence showing the defendant received the money from the deceased sustains a verdict for

plaintiff, as against a contention that the same was transferred to another bank. Tecumseh Nat. Bank v. McGee, 61 Neb. 709 (85 N. W. 949).

298. (1905.) Evidence in an action by a creditor for a personal judgment against the executor, he also prosecuting litigations unfairly towards a company of which he was the chief officer, does not sustain a judgment for plaintiff. McDowell v. First Nat. Bank of Sutton, 73 Neb. 307 (102 N. W. 615).

299. (1906.) In an action by heirs of a deceased person to set aside a certain contract of settlement, made by one claiming to act as agent for all the plaintiffs, where by certain attorneys were given a portion of the real estate, evidence held to sustain a finding that such settlement was not fraudulent or without authority. Kertson v. Kertson, 77 Neb. 688 (110 N. W. 750). Judgment.

300. (1879.) A judgment rendered in Iowa against an administrator of a de. ceased person, against whom the action was commenced before his death, is final and conclusive, and a charge upon the estate. Creighton v. Murphy, 8 Neb. 349.

301. (1902.) When an administrator is sued only in his official character, a judg ment can not be rendered aginst him personally. Burton v. Williams, 63 Neb. 431 (88 N. W. 765).

302. (1902.) A judgment against an administrator is, in legal effect, an adjudication subjecting the assets within the jurisdiction of the court to the satisfaction of the claim in suit. Burton v. Williams, 63 Neb. 431 (88 N. W. 765). Revivor of judment.

Review of allowance of claims, see ante, §§ 147-172.

303. (1882.) Revivor of judgment against an administrator. Fox v. Abbott, 12 Neb. 328 (11 N. W. 303).

Execution and enforcement of judgment.

304. (1902.) A judgment against a defendant as administrator will not support an action against him in his personal capacity, even though it award execution against his individual property in case the assets of the estate cannot be reached. Burton v. Williams, 63 Neb. 431 (88 N. W. 765).

305. (1902.) A judgment against an administrator cannot, except, perhaps, under