ancient rule in Nebraska

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

2019CHI is correct that the list of possible remedies in § 76-1427(1)(a), (b), and (c) are listed in the alternative and that § 76-1427(2) provides that a tenant who proceeds under § 76-1427 “may not proceed under section 76-1425 as to that breach.” But to the extent CHI’s motion to dismiss sufficiently asserted the affirmative defense of election of remedies,13 we conclude that the doctrine does not support the dismissal of tenants’ complaint. [7] Election of remedies is an ancient doctrine created by the courts.14 The doctrine of election of remedies is a somewhat vague notion lying somewhere be

2019CHI is correct that the list of possible remedies in § 76-1427(1)(a), (b), and (c) are listed in the alternative and that § 76-1427(2) provides that a tenant who proceeds under § 76-1427 “may not proceed under section 76-1425 as to that breach.” But to the extent CHI’s motion to dismiss sufficiently asserted the affirmative defense of election of remedies,13 we conclude that the doctrine does not support the dismissal of tenants’ complaint. [7] Election of remedies is an ancient doctrine created by the courts.14 The doctrine of election of remedies is a somewhat vague notion lying somewhere be

2019Bank, 216 Neb. 107 , 342 N.W.2d 191 (1983). 16 Id. - 759 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports VASQUEZ v. CHI PROPERTIES Cite as 302 Neb. 742 redress of a single injury.17 The basic purpose of the doctrine of election of remedies is to prevent a plaintiff from receiv- ing double recovery for a single injury or compensation that exceeds the damages sustained.18 It is considered a harsh rule which should not be applied in an oppressive manner.19 The doctrine of election of remedies normally does not pro- vide grounds for dismissing a complaint under § 6-1112(b)(6) for fa

2019Bank, 216 Neb. 107 , 342 N.W.2d 191 (1983). 16 Id. - 759 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports VASQUEZ v. CHI PROPERTIES Cite as 302 Neb. 742 redress of a single injury.17 The basic purpose of the doctrine of election of remedies is to prevent a plaintiff from receiv- ing double recovery for a single injury or compensation that exceeds the damages sustained.18 It is considered a harsh rule which should not be applied in an oppressive manner.19 The doctrine of election of remedies normally does not pro- vide grounds for dismissing a complaint under § 6-1112(b)(6) for fa

2019Bank, 216 Neb. 107 , 342 N.W.2d 191 (1983). 16 Id. - 759 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports VASQUEZ v. CHI PROPERTIES Cite as 302 Neb. 742 redress of a single injury.17 The basic purpose of the doctrine of election of remedies is to prevent a plaintiff from receiv- ing double recovery for a single injury or compensation that exceeds the damages sustained.18 It is considered a harsh rule which should not be applied in an oppressive manner.19 The doctrine of election of remedies normally does not pro- vide grounds for dismissing a complaint under § 6-1112(b)(6) for fa

2019Bank, 216 Neb. 107 , 342 N.W.2d 191 (1983). 16 Id. - 759 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports VASQUEZ v. CHI PROPERTIES Cite as 302 Neb. 742 redress of a single injury.17 The basic purpose of the doctrine of election of remedies is to prevent a plaintiff from receiv- ing double recovery for a single injury or compensation that exceeds the damages sustained.18 It is considered a harsh rule which should not be applied in an oppressive manner.19 The doctrine of election of remedies normally does not pro- vide grounds for dismissing a complaint under § 6-1112(b)(6) for fa

2019CHI is correct that the list of possible remedies in § 76-1427(1)(a), (b), and (c) are listed in the alternative and that § 76-1427(2) provides that a tenant who proceeds under § 76-1427 “may not proceed under section 76-1425 as to that breach.” But to the extent CHI’s motion to dismiss sufficiently asserted the affirmative defense of election of remedies,13 we conclude that the doctrine does not support the dismissal of tenants’ complaint. [7] Election of remedies is an ancient doctrine created by the courts.14 The doctrine of election of remedies is a somewhat vague notion lying somewhere be

2019CHI is correct that the list of possible remedies in § 76-1427(1)(a), (b), and (c) are listed in the alternative and that § 76-1427(2) provides that a tenant who proceeds under § 76-1427 “may not proceed under section 76-1425 as to that breach.” But to the extent CHI’s motion to dismiss sufficiently asserted the affirmative defense of election of remedies,13 we conclude that the doctrine does not support the dismissal of tenants’ complaint. [7] Election of remedies is an ancient doctrine created by the courts.14 The doctrine of election of remedies is a somewhat vague notion lying somewhere be

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

2021The doctrine has been applied in Federal tax matters since the Supreme Court’s decision in Bull v. United States, 295 U.S. 247 (1935), to allow the bar of the expired statutory limitation period to be overcome in limited circumstances in order to prevent inequitable windfalls to either taxpayers or the Government that would otherwise result from inconsistent tax treatment of a single transaction, item, or event affecting the same taxpayer or a sufficiently related taxpayer. . . .

2021Cite as 309 Neb. 838 As it has been described by another court: The ancient doctrine of equitable recoupment, which developed concurrently at common law and in equity, was judicially created to preclude unjust enrichment of a party to a lawsuit and to avoid wasteful multiplicity of litigation. . . .

2017Although this seems counterintuitive, there is a rationale sup- porting the distinction. (a) Sovereign Immunity Prior to State Tort Claims Act It had been long “laid down as a universal rule that a state is not liable to a person injured by the negligence of its employ- ees, unless there is a statute or constitutional provision permit- ting recovery.”18 We explained that the constitutional provi- sion19 permitting the State to be sued is not self-executing and requires legislative action to make it effective.20 The rule of sovereign immunity has been characterized as “‘an ancient rule inherite

2017Although this seems counterintuitive, there is a rationale sup- porting the distinction. (a) Sovereign Immunity Prior to State Tort Claims Act It had been long “laid down as a universal rule that a state is not liable to a person injured by the negligence of its employ- ees, unless there is a statute or constitutional provision permit- ting recovery.”18 We explained that the constitutional provi- sion19 permitting the State to be sued is not self-executing and requires legislative action to make it effective.20 The rule of sovereign immunity has been characterized as “‘an ancient rule inherite

1992The court based its decision on the ancient presumption that children born during a marriage are legitimate, noting that “[t]he presumption prevents nonparents from arriving on the scene, either during *153 or after the marriage, and staking claims, parental visitation rights, and responsibilities without the knowledge or consent of the true parent.” Helter, 239 Neb. at 743 , 478 N.W.2d at 8 .

1992The court based its decision on the ancient presumption that children born during a marriage are legitimate, noting that “[t]he presumption prevents nonparents from arriving on the scene, either during *153 or after the marriage, and staking claims, parental visitation rights, and responsibilities without the knowledge or consent of the true parent.” Helter, 239 Neb. at 743 , 478 N.W.2d at 8 .

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : “The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1982In so holding, we said in Merrill at 706 , 251 N.W. at 836 : "The general rule under the common law is that, where an estate in fee simple is given in one clause of a will, subsequent clauses attempting to cut down said estate would be void; but in Nebraska, on account of the peculiar provisions of our statute regarding the intentions of the testator, in construing a will it is held that, where a will in one clause makes an apparently absolute bequest of property, but in a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, t

1967The obsoleteness of the rule was well pointed out by Justice Edwards in the case of Williams v. City of Detroit, 364 Mich. 231 , 111 N. W. 2d 1 , when he said, it is: “* * * an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts.

1967The obsoleteness of the rule was well pointed out by Justice Edwards in the case of Williams v. City of Detroit, 364 Mich. 231 , 111 N. W. 2d 1 , when he said, it is: “* * * an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts.

1959Hardt v. Orr, 142 Neb. 460 , 6 N. W. 2d 589 .

1959Hardt v. Orr, 142 Neb. 460 , 6 N. W. 2d 589 .

1950This contention is answered in Tucker v. Heirs of Myers, 151 Neb. 359 , 37 N. W. 2d 585 , wherein we held: “The general rule in this state is that, in construing a will, where the will in one clause makes an apparently absolute bequest of property, but a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, the two clauses are to be construed together to ascertain the true character of the estate in fact granted-by the first clause; and in such case, contrary to the ancient rule at common law, the second clause is effective and

1950This contention is answered in Tucker v. Heirs of Myers, 151 Neb. 359 , 37 N. W. 2d 585 , wherein we held: “The general rule in this state is that, in construing a will, where the will in one clause makes an apparently absolute bequest of property, but a subsequent clause makes a further bequest of the remainder after the death of the legatee taking under the first clause, the two clauses are to be construed together to ascertain the true character of the estate in fact granted-by the first clause; and in such case, contrary to the ancient rule at common law, the second clause is effective and

1945Co., 74 F. 442 , it is said: “The ancient rule in England extended to practicing attorneys generally the privilege from arrest by the ordinary process of court, on the theory that they were ‘always supposed to be there attending,’ and that the ‘business of the court or their client’s causes would suffer by their being drawn into any other than that in which their personal attendance is required.’ 3 Bl.

1929In Hiles v. Benton, 111 Neb. 557 , Judge Redick is quoted with approval as saying: “It occurs to me that the rule of law here spoken of does not include legal rules of construction in conflict with the very rule of construction sought to be established by the statute, for this would be a felo de se.” In Libby v. Clark, 118 U. S. 250 , an ejectment action from Kansas, Libby claimed under a patent issued to Hurr, an Ottawa Indian, granting him and his heirs 320 acres of land duly allotted to him as an Indian of the Ottawa tribe, pursuant to the terms of a treaty ratified July' 28, 1862.

1929In Hiles v. Benton, 111 Neb. 557 , Judge Redick is quoted with approval as saying: “It occurs to me that the rule of law here spoken of does not include legal rules of construction in conflict with the very rule of construction sought to be established by the statute, for this would be a felo de se.” In Libby v. Clark, 118 U. S. 250 , an ejectment action from Kansas, Libby claimed under a patent issued to Hurr, an Ottawa Indian, granting him and his heirs 320 acres of land duly allotted to him as an Indian of the Ottawa tribe, pursuant to the terms of a treaty ratified July' 28, 1862.

1913The supreme court of Wisconsin, in Hack v. State, 141 Wis. 346 , directly overruled several cases in that state holding to the ancient rule.

1907And this rule prevails generally in this country, where not changed by statute. 1 Washburn, Real Property (5th ed.), p. 715; Nichols v. Nichols, 28 Vt. 228 ; Stout v. Dunning, 72 Ind. 343 ; Wood v. Sugg, 91 N. Car. 93, 49 Am.

1907And this rule prevails generally in this country, where not changed by statute. 1 Washburn, Real Property (5th ed.), p. 715; Nichols v. Nichols, 28 Vt. 228 ; Stout v. Dunning, 72 Ind. 343 ; Wood v. Sugg, 91 N. Car. 93, 49 Am.

1902Diamond State Iron Co. v. Rorig, 93 Va., 595, 603 .—Reporter.

1899(Chesley v. Josselyn, 7 Gray [Mass.] 490; Rice v. Stone, 1 Allen [Mass.] 569.)” In Cole v. Kerr, 19 Neb. 553 , it was held that a mortgage executed, delivered, and properly recorded March 30, 1882, purporting to convey “40 acres of wheat, 30 acres of oats, now growing, 75 acres of corn, to be planted, and 50 acres of broom-corn, to be planted, tended, and delivered in Juniata,” conveyed no title or lien upon the corn as against the levy of an execution of date November 25, 1882.