dissenting.
I refer to the claimant herein as the plaintiff and to the administrator as the defendant.
The result of this decision is compounded confusion.
The confusion rests on two premises. The first is a failure to analyze and find the reason of a rule of law as a guide to its application. The second is a failure to confine the scope of the decision to the issue presented.
In the third full paragraph of the opinion the court states the plaintiff’s claim is one based on the conversion of stocks and cash by deceased in her lifetime. The value of the property converted is claimed to be $2,-204.28, being the value of stock and cash received by Mrs. Crane from the Fred A. Crane estate. Plaintiff alleges an indebtedness of $2,204.28 and prays for an al*280lowance of her claim for that amount of money. The issues were so treated in the county court and the claim allowed.
So the court starts off with a recognition of the fact that plaintiff’s claim is one based on an alleged tort of the intestate during her lifetime and sought the payment of a money claim. So stated it is nothing more than a claim against an estate.
The court then quotes from three of our recent decisions. It then concludes that the allowance or disallowance of the claim calls for a construction of the will of Fred A. Crane, deceased, and that the district court, and not the county court, has original jurisdiction of that matter.
That would seem to decide the matter upon the issue presented to the trial court and presented here, which is that of jurisdiction of the subject matter. The issue is: What court had jurisdiction to construe the will?
The court goes further and in the second from the last paragraph of its opinion holds that “this is not a proper claim against the estate of Maude C. Crane, deceased.” Here the court changes the issue to: “What does the will mean?” No reason is given for such a holding. Here the court, having concluded that the plaintiff at no time had her claim pending before a court having jurisdiction of the subject matter, and there never having been a trial of the issue on the merits of the claim presented, it then decides the issue on the merits and holds that plaintiff does not have a proper claim.
I fail to see where this court gets jurisdiction to decide that issue. It does it in a case in which it is first held that neither the county court nor the district court has jurisdiction of the subject matter.
The next sentence demonstrates that I have not misconstrued the court’s opinion. It is: “In the event the district court construes the will of Fred A. Crane, deceased, and finds that the appellant is entitled to certain property of that estate she then has a proper remedy *281at law to obtain it.” (Emphasis supplied.) Here the court denies to the plaintiff an election of remedies, and makes an election for her.
The court construes the will to the extent of holding that it does not support a “proper claim” against the estate of Maude C. Crane. That was the issue that the county court held in favor of the plaintiff. The district court held that it did not have jurisdiction to decide that matter and dismissed the claim because both the county court and the district court had no jurisdiction of the subject matter.
This court affirms the lack of jurisdiction and then decides the issue of the merits of the claim and in favor of defendant.
The court goes further and suggests an original action in the district court to construe the will. The court does not suggest who are necessary parties to that proceeding, but presumably the defendant here should be a defendant there if he is to be bound by the construction of the will. That construction would be subject to appeal here. Obviously it would be limited to a determination of whether or not the plaintiff was “entitled to certain property” of the Fred A. Crane estate, for the question of whether the will can be construed to support “a proper claim” against the Maude C. Crane estate is made res judicata by this opinion.
Just as obviously when that action is ultimately decided plaintiff must bring a third action which would be “a proper remedy” to obtain “certain property.” Just what that remedy is and what court has jurisdiction is left to the conjecture of the plaintiff.
It is also to be remembered that defendant both in the county court and the district court conceded the right of the plaintiff to the “residue” of the Fred A. Crane estate and by elaborate pleading traced part of the moneys into bonds which he held as administrator. So this court determines the issue largely in favor of the defendant while the subject matter at all times is held *282to be without the jurisdiction of the court.
While this action has been pending, while the next action to construe the will will be pending, and then while the action to recover “certain property” is pending (each consecutively), the closing of the probate of the Maude C. Crane estate will be suspended “between the heaven and the earth,” a result “sacrilegious in a court of conscience.” Gilbert v. Provident Life and Trust Co., 1 Neb. (Unoff.) 282, 95 N. W. 488.
Since the days of the Magna Charta our judicial system has been dedicated to the denial of delays that result in the denial of justice.
• It is because of the above considerations that I say the result of this decision is compounded confusion.
All of this can be avoided if we go back to examine, restate, and follow the considered opinions of this court on the matters of jurisdiction of the county court in probate matters and of the district court in law and •equity matters.
The difficulty is that over a period of years the jurisdiction of the county court in this one respect has been diminished in our decisions by a slow process of decretion.
The established rule is: The word “claim” includes every species of liability which an executor or an administrator of an estate can be called upon to pay, or provide for payment, out of the general fund of the estate. Mueller v. Shacklett, 156 Neb. 881, 58 N. W. 2d 344.
I take it that there is no dispute that, on her theory of the construction of the will and her election of remedies, the plaintiff has a claim against the estate of Maude C. Crane. The dispute arises because that claim rests on language in a will long since probated and the estate which it controlled administered.
Here the basic issue is the determination of the rights of the plaintiff and Maude C. Crane under the will of Fred A. Crane. The important matter is the rights of *283the parties. The incidental fact is that, in this instance, those rights are determined by language in a will. Had the identical right been created by a contract or any written instrument other than a will, no one would think to challenge the county court’s jurisdiction to construe it as a foundation to allowing or disallowing the claim. The confusion arises because a will is involved and because of “some language” in our more recent decisions.
I have doubts if the rule relied on by the court has any application to a will that has been probated and the estate closed. But I prefer to meet the issue on the basis of the court’s opinion.
I have searched for the reason for the rule to determine its applicability.
A proper understanding of the applicable rules requires that we begin with decisions antedating those cited by the court.
In Reischnick v. Rieger, 68 Neb. 348, 94 N. W. 156, we had an almost identical fact situation and issue presented. In that case the plaintiff was the administrator of the estate of a deceased beneficiary of a will. He represented the rights of the beneficiary. He sued the executor of the testator’s will, praying for a construction of the will. The ultimate relief sought was the payment of one-eighth part of $450. The trial court construed the will and rendered judgment against the executor for $56.25 and costs. On appeal here the defendant contended that the subject matter of the suit was within the exclusive original jurisdiction of the county court and that the district court was without jurisdiction. We affirmed that contention. We held that: “* * * the decree is a construction of the will, and an order for distribution of a part of the estate of the testator. The assignment of the estate of a decedent is peculiarly a probate matter, and section 289, chapter 23, Compiled Statutes (Annotated Statutes, 5154) (now as amended section 30-1302, R. R. S. 1943), expressly provides for a *284decree therefor by the county court. That the construction of a will is also a probate matter is equally clear, because a construction of the will, when there is one, is necessarily involved in such decree. That being true, the question arises whether the original jurisdiction of the county court in such matters is exclusive. Article 6, section 16, of the constitution gives the county court original jurisdiction in all probate matters. Such jurisdiction is exclusive. Section 3, chapter 20, Compiled Statutes (Annotated Statutes, § 4787) (now section 24-503, R. R. S. 1943). In such matters it is a court of general jurisdiction. * * * Within its exclusive jurisdiction, its chancery powers are plenary. * * *.
“It seems to us, from the constitutional and statutory provisions quoted, taken in connection with the cases cited, the conclusion is irresistible that, on the case stated, the district court was without original jurisdiction. It is true, as has been urged by counsel, that it has been the practice in this state to invoke the original jurisdiction of the district court for the construction of wills, and the practice appears to have been recognized by this court. But we are aware of no case in which this court held that the district court has original jurisdiction in such actions, nor in which the question was squarely raised. We do not wish to be understood, however, as holding that the district court has no jurisdiction, under any circumstances, to construe a will. On the contrary, we can readily conceive of actions of which the district court has original jurisdiction, wherein the construction of a will would he necessarily involved. But in an action involving only matters of which the county court, as a court of probate, has jurisdiction, such jurisdiction is exclusive, and the district court can acquire jurisdiction only by appeal.” (Emphasis supplied.) The above is one of the earlier decisions which the court brushes aside.
Youngson v. Bond, 64 Neb. 615, 90 N. W. 556, was an action brought in district court by an administrator with *285the will annexed against the widow and heirs of the testator. It was an action to reform a will and to quiet title to real estate. The question of jurisdiction of the subject matter was raised. The construction of the will was involved. The trial court rendered judgment reforming the will and quieting title in the administrator. We reversed and dismissed the cause. On rehearing it was contended that the action was one for the construction of a will and hence was within the original jurisdiction of the district court. We denied that contention in Youngson v. Bond, on rehearing, 69 Neb. 356, 95 N. W. 700. We held: “It is well settled that the county court has full and complete equity powers as to all matters within its exclusive jurisdiction. Clothed with these powers, its authority to construe a will, when necessary to enable its officers to settle an estate properly, is as clear as its authority to set aside on equitable grounds an order admitting a will to probate. Is its jurisdiction in such a case exclusive? This, we think, must depend upon the purpose and end of the proceeding. Where a suit in equity is to be regarded as part of the proceedings for settlement of the estate of a deceased person and has no further object than to procure or advance such settlement, it must be brought in the county court. The obvious purpose of the statute is to give all powers necessary to complete and speedy settlement of estates to one court, and to require all proceedings toward that end to be brought in that court in the first instance. To permit a concurrent equity jurisdiction, as to such proceedings, in the district court, in view of the principle that a court of equity which has acquired jurisdiction for one purpose will hold it for all purposes so far as necessary to give complete relief and render a full decree covering the whole controversy, would be very likely to lead us back little by little to the old time suits for administration. (In this connection see 19 Am. Jur., Equity, § 172, p. 156; 30 C. J. S., Equity, § 61, p. 404-410; 4 Pomeroy’s Equity Jurisprudence (5th Ed.), § 1155, p. *286461.) For these reasons, we think a suit by an administrator with the will annexed for construction of the will, in order to enable him to administer the estate properly, is not maintainable in the first instance in the district court. Such a suit is in reality a part of the proceedings for settlement of the estate. It is very different from a suit by trustees under a will, after settlement of the estate, to obtain a construction of the provisions of the will relating to their trust. Such a suit is not in any sense a part of the settlement of the estate. The district court has undoubted jurisdiction over such a trust, whether to enforce it, to give directions for its execution, or to appoint new trustees. Hence its power to construe the instrument creating the trust is clear. With respect to the administrator, with the will annexed pending settlement of the estate, the case is entirely distinct. The estate is not before the district court for settlement, nor can it come before that court except by appeal. Hence that court ought not to be giving directions to the officer of another court, how to administer an estate in the other court, except as its appellate jurisdiction is invoked.” (Emphasis supplied.) The syllabus points were: 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. Hence a suit by an administrator with the will annexed for construction of the will in order to enable him to administer the estate properly is not maintainable in the first instance in the district court.
The above case is cited by the court in the instant case but no quotes are taken from it. It is another one of those “earlier decisions” that is put aside.
In both of these above decisions it will be noted that we recognized that there were cases within the original exclusive jurisdiction of the district court where the construction of a will was necessarily involved.
*287This is pointed up by our decision in Fisher v. Fisher, 80 Neb. 145, 113 N. W. 1004, again cited but not quoted from by the court in the instant case. That was an action brought in the district court to partition real estate. The answer turned upon the construction of a will. It was contended that the county court had jurisdiction to hear and determine the issue. Reischick v. Rieger, supra, and Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, were relied on. We denied the contention holding: “It is the rule, doubtless, that the county court has jurisdiction in an action by the executor to construe a will for the purpose of affording information to the executor for the administration of the estate, but the principal action here is to partition the land. The construction of the will is only incidental to the main relief sought. It is quite clear that the county court could not have jurisdiction in an action to partition the land, and, we think, it is likewise clear that it would not have jurisdiction of an action for the construction of a will between two or more heirs or devisees claiming title to the same tract of land.” (Emphasis supplied.) This case also is one of the “earlier decisions” that is now brushed aside.
In this connection see, also, Gotchall v. Gotchall, 98 Neb. 730, 154 N. W. 243, where we held, in an action to declare a trust and to determine the rights and duties of the trustee, that the “construction of the will is only incidental to the real purpose of the action” and that the county court was without jurisdiction to determine the issues.
The above decisions, then, lay down the basis of these rules:
When the nature of a proceeding is such that it falls within the original jurisdiction of the county court, that court has the power to construe a will as an incident to the exercise of its jurisdiction.
When the nature of a proceeding is such that it falls within the original jurisdiction of the district court, that *288court has the power to construe a will as an incident to the exercise of its jurisdiction.
The rule is stated that: “In the absence of statutory provision therefor, courts of equity generally have no power to construe wills, except as incident to their jurisdiction over trusts, or where other recognized grounds of equity jurisdiction exist.” 96 C. J. S., Wills, § 1075, p. 741.
I have analyzed those decisions called to our attention by counsel and our own research. They show that where the court has held that the district court had original jurisdiction to construe a will, it has been done in cases involving trusts or other recognized grounds of equity jurisdiction.
The three decisions relied on by the court for quotations all fall into the above classification. Hahn v. Verret, 143 Neb. 820, 11 N. W. 2d 551, was an action to quiet title. Annable v. Ricedorff, 140 Neb. 93, 299 N. W. 373, was an action in partition. DeWitt v. Sampson, 158 Neb. 653, 64 N. W. 2d 352, was an action to quiet title.
The construction of a will in the above cases was, as we said in Fisher v. Fisher, supra, “incidental to the main relief sought.” St. James Orphan Asylum v. Shelby, 75 Neb. 591, 106 N. W. 604, was an action to quiet title. Fisher v. Fisher, supra, was an action in partition. Klug v. Seegabarth, 98 Neb. 272, 152 N. W. 385, cited but not quoted by the court, was an action to have a specific bequest declared a lien upon real estate; Mohr v. Harder, 103 Neb. 545, 172 N. W. 753, was an action in partition; Abbott v. Wagner, 108 Neb. 359, 188 N. W. 113, was an action to impress a trust upon a residuary estate; Krause v. Krause, 113 Neb. 22, 201 N. W. 670, was an action in partition; Merrill v. Pardun, 125 Neb. 701, 251 N. W. 834, was an action to declare and enforce a trust; In re Estate of Stieber, 139 Neb. 36, 296 N. W. 336, was an action in partition; Jones v. Shrigley, 150 Neb. 137, 33 N. W. 2d 510, was an action to quiet title and for specific performance; In re Trust Estate of *289Myers, 151 Neb. 255, 37 N. W. 2d 228, involved the disposition of a trust estate; and Jacobsen v. Farnham, 155 Neb. 776, 53 N. W. 2d 917, 33 A. L. R. 2d 543, was an action to quiet title.
The above cases, in result, are in full accord with the rule that the district court has jurisdiction to construe a will as an incident to the exercise of its equity jurisdiction.
The effect of our decisions is that we have limited the original jurisdiction of the district court to construe wills to those cases where the construction of the will is an incident to the exercise of its original jurisdiction.
It is also patent that the court in its “earlier decisions” started on the theory that the construction of a will by the district court exercising its original jurisdiction was in the nature of an exception to the rule that the county court in the exercise of its probate power had that jurisdiction generally.
Such is the fair import of our decision in Reischick v. Rieger, supra, quoted above, where we held that we could “conceive of actions” where the district court had original jurisdiction. In Abbott v. Wagner, supra, we held the action involving a trust maintainable in district court “even though it involves a construction” of a will. (Emphasis supplied.)
In Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276, we held: “It is true that the district court has jurisdiction in equity of actions to construe wills, in cases where a trust relation exists by reason of the terms of the instrument itself * * * and to determine the rights of parties thereunder; while the county court has exclusive original jurisdiction in the probate and contest of wills, and in their construction for the purposes of administration and settlement of estates(Emphasis supplied.)
Pomeroy states the Nebraska position as follows: “In the states of the second class (including Nebraska), the jurisdiction of the probate courts over everything pertaining to the regular administration and settlement of *290decedents’ estates is virtually exclusive. The equitable jurisdiction over the subject is neither concurrent nor auxiliary and corrective. It exists only in matters which lie outside of the regular course of administration and settlement, which are of purely equitable cognizance, and which do not come within the scope of the probate jurisdiction.” 4 Pomeroy’s Equity Jurisprudence (5th Ed.), § 1154a, p. 455.
In Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, the major premise of the decision was: “Where a suit in equity is to be regarded as part of the proceedings for settlement of the estate of a deceased person and has no further object than to procure or advance such settlement, it must be brought in the county court.” The minor premise was: “* * * a suit by an administrator with the will annexed for construction of the will, in order to enable him to administer the estate properly, is not maintainable in the first instance in the district court.” (Emphasis supplied.)
The difficulty in our decisions is that in applying Youngson v. Bond, 69 Neb. 356, 95 N. W. 700, we have largely overlooked the broad scope of the major premise and have taken the minor premise as the rule of the case. We have in some of our decisions restricted the rule of the minor premise by making it the exclusive rule for the jurisdiction of the county court to construe a will.
In Fisher v. Fisher, supra, we stated the minor premise as the rule. In In re Estate of Buerstetta, 83 Neb. 287, 119 N. W. 469, we said: “It is conceded that the authority of the county court in actions to consider wills is confined to the purpose of giving necessary and proper directions to an executor so that he may effectually execute the intentions of the testator * * (Emphasis supplied.)'
In Merrill v. Pardun, supra, we stated a rule, applicable to that case, that the county court had “no jurisdiction to construe wills to determine rights of devisees or legatees as between themselves, * * *.”
*291In In re Estate of Gibson, 130 Neb. 278, 264 N. W. 762, we stated the rule to be that the county court had original jurisdiction to construe wills insofar as it is necessary to enable the personal representatives of the decedent to properly administer decedent’s estate. >
In Austin v. Austin, 147 Neb. 109, 22 N. W. 2d 560, we held that: “The construction of the devise by a probate court is solely for the guidance of the legal representatives of the estate, * * (Emphasis supplied.)
In Klug v. Seegabarth, supra, we stated a rule more nearly in accord with the rule of the major premise in Youngson v. Bond, 59 Neb. 356, 95 N. W. 700. It is: “Where the purpose of the proceeding is (1) to further administration or settlement of the estate, (2) to construe a will for the guidance of the executor or administrator, then the only court having original jurisdiction is the county court; * * ((1) and (2) supplied by me.)
Certainly where a claim is filed for the payment of money, the determination of whether it is a valid claim in whole or in part is a necessary proceeding to further the administration and settlement of the estate.
In In re Estate of Mattingly, 131 Neb. 891, 270 N. W. 487, we held: “Although the county court, as a court of probate, has exclusive original jurisdiction as to all matters of probate, and in allowing claims it does so generally as in a civil law action, still the county court while so acting by virtue of its plenary powers in probate matters has power to try and determine matters of an equitable character in connection with such law matters and grant equitable relief to the same extent as the district court has in the exercise of its general equitable jurisdiction.”
The allowance or disallowance of a claim against an estate is one of the first duties of the county court in a probate proceeding. In the performance of that duty, the county court has full authority to construe the- will. The county court had jurisdiction of- the subject matter *292of this claim and full authority to adjudicate it. The district court likewise had jurisdiction on appeal.
The court holds that the plaintiff’s remedy is to proceed in district court in an original action and there secure a construction of the will and a determination only of her rights to “certain property.”
The difficulties with this position are many. It makes the construction of the will the primary, and not the incidental, matter for decision. We have approved the rule: “ ‘There must be some contest or controversy
of which equity will take jurisdiction, which necessitates a construction of a will, before the interpretation will be made.’ ” Price v. Shiels, 149 Neb. 330, 31 N. W. 2d 91. (Emphasis supplied.)
The district court does not have original jurisdiction to allow or disallow claims against estates. We have directly held: The district courts of this state have no original jurisdiction to allow claims against the estate of a decedent or to order the payment of such claims out of funds in the hands of the administrator. Craig v. Anderson, 3 Neb. (Unoff.) 638, 92 N. W. 640. This was approved in Rehn v. Bingaman, 151 Neb. 196, 36 N. W. 2d 856.
By the finding made herein this rule is avoided, for plaintiff’s only remedy now is to sue somebody for “certain property.”
The allowance of the claim is the primary relief sought by the plaintiff. The original jurisdiction of the county court and the lack of original jurisdiction of the district court to allow or disallow the claim brings this matter clearly within the jurisdiction of the county court and the district court on appeal. The county court has the power to construe the will as an incident to the exercise of its original jurisdiction to allow or disallow claims. I would so hold.