
    William Kelley, appellant, v. Cora Judson, appellee.
    Filed May 15, 1920.
    No. 20994.
    Appeal from the district court for Lancaster county: Leonard A. Flansburg, Judge.
    
      Affirmed.
    
    
      C. J. Campbell, for appellant.
    
      J. C. McNerney, contra.
    
   Morrissey, C. J.

Action to quiet title. A general demurrer to the petition was sustained, and the action dismissed. Plaintiff appeals.

The facts alleged in the petition are almost identical with those alleged in the case of Tyrrell v. Kelley, ante, p. 555. Briefly stated, Frank J. Kelley, without authority, undertook to convey all of his wife’s interest in the homestead to one of his brothers. Plaintiff and the grantee are both brothers of Frank J. Kelley, deceased, and plaintiff claims to be entitled to a one-eighth interest in the property by descent.

The petition alleges the invalidity of the . deed. It also alleges that Frank J. Kelley made a will giving and bequeathing all of his personal property to his wife, Flora Kelley, and that the will did not pass the title to his real estate. The prayer is that the title to an undivided one-eighth interest in the premises be quieted in plaintiff; that the will be construed as not having devised real estate; that the deed to Emmett Kelley be declared, null and void, and a receiver appointed to take charge of the property.

The only question presented is whether the title to the real estate passed by the will- to Flora Kelley. This question has already been decided in the case herein-before mentioned. We are content to abide by the construction of the will made in that case. Plaintiff has no title to the property, and his petition does not state a cause of action.

Aeeirmed.

Flansbttrg, J., not sitting.  