In re Estate of Severson , 310 Neb. 982 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/04/2022 12:06 AM CST
- 982 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982In re Estate of Ryan Severson, deceased.
Don Feik, appellee, v. Diane Kelly, now known as
Diane Schubert, Personal Representative of
the Estate of Ryan Severson, appellant.
___ N.W.2d ___
Filed February 18, 2022. No. S-21-321.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Statutes. Statutory interpretation is a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is taken.
6. Decedents’ Estates: Final Orders: Appeal and Error. In probate
proceedings, an appellate court applies the rubric of Neb. Rev. Stat.
§ 25-1902 (Cum. Supp. 2020) to determine whether an order is final.
The relevant questions are whether the order was made during a special
proceeding and affected a substantial right.
7. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a
special proceeding.
8. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
9. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
- 983 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 98210. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) include those legal rights that a party is entitled to enforce
or defend.
11. Decedents’ Estates: Final Orders. A consideration regarding the final-
ity of orders in probate cases is whether the order ended a discrete—that
is, separate and distinct—phase of the proceedings.
12. Decedents’ Estates. One who is not willing to serve as a personal rep-
resentative cannot be compelled to accept such an appointment.
13. ____. Without acceptance by one appointed personal representative,
there can be no qualification.
14. ____. The Nebraska Probate Code requires qualification of a personal
representative before the issuance of letters.
15. Courts: Judgments. In the absence of an actual case or controversy
requiring judicial resolution, it is not the function of the courts to render
a judgment that is merely advisory.
16. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
17. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the County Court for Franklin County:
Timothy E. Hoeft, Judge. Reversed and remanded for further
proceedings.
Nicholas R. Norton and Elizabeth J. Klingelhoefer, of
Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for
appellant.
Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Over 3 years after a decedent’s death, an estate was opened
for the purpose of serving a lawsuit against the decedent.
- 984 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982The probate court appointed the decedent’s mother as per-
sonal representative, ordered that letters be issued to her, and
issued such letters even though the mother had not accepted
the appointment. Because the issuance of letters of per-
sonal representative was an unauthorized action without the
appointee’s qualification, we reverse, and remand for further
proceedings.
BACKGROUND
On March 1, 2021, Don Feik filed in the county court for
Franklin County an application for informal appointment of
a personal representative in intestacy. The application alleged
that Ryan Severson died on March 26, 2017; that no personal
representative had been appointed; and that Feik was unaware
of any unrevoked testamentary instrument of Severson’s relat-
ing to property in Nebraska. Feik alleged that as a creditor
of Severson’s estate, he was an interested person under the
Nebraska Probate Code. 1 Feik nominated Severson’s mother,
Diane Kelly, now known as Diane Schubert (Kelly), as per-
sonal representative. He alleged that Kelly had priority for
appointment and that there were no other persons having an
equal or prior right to appointment. Feik further alleged that
“[n]o bond is required because the Personal Representative will
not come into possession of funds and this estate is established
for the sole purpose of naming the Personal Representative of
the estate as a Defendant in an auto collision case in Kearney
County, Nebraska.”
Kelly objected to the application for informal appointment
of a personal representative and asked the court to dismiss it.
She asserted that because more than 3 years had passed since
Severson’s death, an appointment proceeding could not be
commenced under Neb. Rev. Stat. § 30-2408 (Reissue 2016).
She alleged that the court generally lacked jurisdiction to hear
such a claim.
1
See Neb. Rev. Stat. § 30-2209(21) (Reissue 2016) (defining “interested
person”).
- 985 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982Following a hearing, the probate court entered a March
23, 2021, order on application for appointment of personal
representative. According to the order, Feik filed the applica-
tion “because of a claim that arose against the estate of . . .
Severson for injuries that occurred from an automobile acci-
dent.” The court stated that granting dismissal as requested
by Kelly “would be contrary to its decision in the [Kearney
County] civil case and would create an absurd result.” The
court therefore allowed informal probate to proceed and
appointed Kelly as personal representative “for the purpose of
receiving service of the civil action filed in Kearney County.”
The court waived requirements of the personal representative
with regard to publication of notice to creditors and the filing
of an inventory.
Also on March 23, 2021, the court signed and filed a state-
ment of informal appointment of personal representative in
intestacy. It recited that it appeared all requirements of the
Nebraska Probate Code had been satisfied. The statement
further detailed that Kelly was “informally appoint[ed] . . . as
Personal Representative of [Severson’s] estate in unsupervised
administration, and Letters shall be issued to said Personal
Representative to serve without bond.” That same day, the
court issued letters of personal representative to Kelly.
On April 22, 2021, Kelly appealed. We moved the case to
our docket. 2
ASSIGNMENTS OF ERROR
Kelly assigns, restated and reordered, that the probate court
erred in (1) appointing her as personal representative of the
estate in the absence of jurisdiction to make the appointment
and when she objected to and did not accept the appoint-
ment, (2) allowing the application to proceed when it was
filed outside of the 3-year statute of limitations and was not
limited to the recovery of expenses of administration only,
(3) allowing the application to proceed in the absence of any
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 986 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982allegations that the informal probate would be opened for
purposes limited to recovering liability insurance, (4) finding
that not allowing the application would be contrary to law
and create an “absurd result,” and (5) finding that the savings
clause of Neb. Rev. Stat. § 25-201.01 (Reissue 2016) applied
to an amended complaint in the Kearney County case when the
plaintiffs in that case failed to properly commence an action
within the applicable statute of limitations and when no “new
action” was commenced.
STANDARD OF REVIEW
[1,2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 3
Statutory interpretation is a question of law. 4
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions. 5
ANALYSIS
We begin by emphasizing that the Kearney County civil
case is not before us in this appeal. At oral arguments, the
parties seemed to agree that no aspect of the Kearney County
case is final or appealable at this time. We consider only the
appointment orders and letters of personal representative from
the Franklin County probate case. Although some documents
from the Kearney County case were judicially noticed during
the March 22, 2021, Franklin County probate hearing but were
not included in the Franklin County Court’s bill of excep-
tions, those documents are unnecessary to the limited issues
before us. 6
3
In re Estate of Beltran, ante p. 174, 964 N.W.2d 714 (2021).
4
See In re Estate of Giventer, ante p. 39, 964 N.W.2d 234 (2021).
5
In re Estate of Beltran, supra note 3.
6
See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017) (bill
of exceptions is only vehicle for bringing evidence before appellate
court; evidence which is not made part of bill of exceptions may not be
considered).
- 987 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982Jurisdiction
[4,5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the appeal. 7 For an appellate court to acquire
jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is
taken. 8 Feik contends that the order appealed from is not a
final order.
[6,7] In probate proceedings, an appellate court applies the
rubric of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) to
determine whether an order is final. The relevant questions are
whether the order was made during a special proceeding and
affected a substantial right. 9 A proceeding under the Nebraska
Probate Code is a special proceeding. 10
[8-10] We turn our attention to whether the order affected a
substantial right. A substantial right is an essential legal right,
not a mere technical right. 11 A substantial right is affected if
an order affects the subject matter of the litigation, such as
by diminishing a claim or defense that was available to an
appellant before the order from which an appeal is taken. 12
Substantial rights under § 25-1902 include those legal rights
that a party is entitled to enforce or defend. 13
[11] In the context of multifaceted special proceedings that
are designed to administer the affairs of a person, an order
that ends a discrete phase of the proceedings affects a substan-
tial right because it finally resolves the issues raised in that
7
In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).
8
In re Estate of Beltran, supra note 3.
9
Id.
10
See id.
11
Id.
12
Id.
13
In re Estate of Larson, supra note 7.
- 988 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982phase. 14 Thus, a consideration regarding the finality of orders
in probate cases is whether the order ended a discrete—that
is, separate and distinct—phase of the proceedings. 15 A stat-
ute provides that “a proceeding for appointment of a personal
representative is concluded by an order making or declining
the appointment.” 16 Here, the probate court’s order appointing
Kelly as personal representative ended a discrete phase of the
probate proceeding. Moreover, the appointment order coupled
with the issuance of letters of personal representative imposed
fiduciary duties upon Kelly. 17 Because the order was made in
a special proceeding and affected a substantial right, it was a
final order.
Appointment of Kelly as
Personal Representative
We next consider Kelly’s assignment of error alleging that
the probate court “erred in appointing [her] as personal repre-
sentative of the Estate because it lacked jurisdiction to make the
appointment, [Kelly] objected to the appointment, and [she] did
not accept the appointment as required by Nebraska Revised
Statute § 30-2420.” During oral arguments, Kelly’s counsel
argued in connection with this assignment that the letters were
not effective. We understand Kelly’s assignment of error to
encompass a challenge to the issuance of letters of personal
representative to an appointee who refuses to qualify.
Several probate statutes speak to qualification of a personal
representative. One provides that “to acquire the powers and
undertake the duties and liabilities of a personal representative
of a decedent, a person must be appointed by order of the court
14
Id., citing John P. Lenich, What’s So Special About Special Proceedings?
Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239(2001).
15
In re Estate of Beltran, supra note 3.
16
Neb. Rev. Stat. § 30-2407(4) (Reissue 2016).
17
See Neb. Rev. Stat. § 30-2464 (Reissue 2016).
- 989 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982or registrar, qualify and be issued letters.” 18 Another specifies
that “the registrar . . . shall appoint the applicant subject to
qualification and acceptance.” 19 Yet another states that “[p]rior
to receiving letters, a personal representative shall qualify by
filing with the appointing court any required bond and a state-
ment of acceptance of the duties of the office.” 20
The latter two statutes touch on another important com-
ponent: acceptance. Acceptance of an appointment denotes
consent to the appointment. 21 “Consent is the preliminary
essential requirement for an appointment as an executor or
administrator.” 22
The Utah Supreme Court addressed the necessity of con-
sent in considering whether a court had the authority to com-
pel an individual to serve as an administratrix against her
will. 23 It found support for the requirement in its constitutional
and statutory provisions: The Constitution of Utah prohibited
“‘involuntary servitude,’” while a statute required that prior
to issuance of letters testamentary or of administration “‘the
executor, administrator or guardian must take and subscribe an
oath that he will perform according to law the duties of execu-
tor, administrator or guardian, which oath must be attached to
the letters.’” 24 The court explained the importance of appoint-
ing an individual willing to serve:
A highly personal trust arises from an appointment as
administrator and to compel one to serve against his will
for the benefit of those to whom he has no obligation
18
Neb. Rev. Stat. § 30-2403 (Reissue 2016).
19
Neb. Rev. Stat. § 30-2420 (Reissue 2016).
20
Neb. Rev. Stat. § 30-2444 (Reissue 2016).
21
See “Accept,” Oxford English Dictionary Online, http://www.oed.com/
view/Entry/1006 (last visited Feb. 14, 2022) (“[t]o consent to”).
22
33 C.J.S. Executors and Administrators § 88 at 793 (2009). See Matter of
Estate of Cluff, 587 P.2d 128 (Utah 1978).
23
See Matter of Estate of Cluff, supra note 22.
24
Id. at 129.
- 990 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982would constitute a violation of public policy as well. It is
necessary for the protection of estate heirs, creditors, and
the general public that an administrator serve free from
compulsion and that he only be allowed to serve when so
willing. Generally speaking, only a willingness to serve is
consistent with proper estate administration and the inter-
est of the Court. 25
The Utah Supreme Court’s reasoning is persuasive. We
need not discuss our own constitution, because our statute, as
set forth above, requires that “a personal representative shall
qualify by filing with the appointing court any required bond
and a statement of acceptance of the duties of the office.” 26 A
consequence of acceptance is contained in a different statute:
“By accepting appointment, a personal representative submits
personally to the jurisdiction of the court in any proceed-
ing relating to the estate that may be instituted by any inter-
ested person.” 27
With respect to acceptance, we find some parallels in our
recent decision concerning a guardianship. 28 There, the county
court directed that a ward’s parents be appointed as coguard-
ians upon issuance of letters of guardianship and upon the
parents’ filing, among other things, an acceptance of appoint-
ment. The parents never filed an acceptance. They appealed,
assigning that the court erred in ordering them to serve as
guardians over their objection. We agreed with the parents that
“one who is not willing to serve as a private guardian can-
not be compelled to accept such an appointment.” 29 And we
25
Id. at 129-30.
26
§ 30-2444 (emphasis supplied). See, also, Neb. Ct. R. § 6-1446 (providing
for appointment to be set aside where personal representative had been
appointed but failed to qualify by filing required bond and acceptance
within 60 days of appointment).
27
Neb. Rev. Stat. § 30-2445 (Reissue 2016).
28
See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661(2021).
29
Id. at 11, 958 N.W.2d at 668.
- 991 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982stated that “[o]nly after a written acceptance is filed and the
guardian submits to the personal jurisdiction of the court will
letters of guardianship be issued by the court.” 30 But in that
case, because the parents never accepted the court’s appoint-
ment, no letters issued. In rejecting the assignment of error,
we stated that “the appointment they assign as error was never
completed and cannot be completed without their voluntary
acceptance.” 31
The record is devoid of any statement of acceptance filed
by Kelly. To the contrary, she filed an objection “as nomi-
nated personal representative” to the application for informal
appointment of personal representative in intestacy and asked
the court to dismiss the application. At oral argument, Feik
conceded that no acceptance had been filed by Kelly.
[12-14] As we stated with respect to a private guardian, it
follows that one who is not willing to serve as a personal rep-
resentative cannot be compelled to accept such an appointment.
Without acceptance by one appointed personal representative,
there can be no qualification. 32 And the Nebraska Probate Code
requires qualification of a personal representative before the
issuance of letters. 33 In other words, in the absence of qualifi-
cation, the issuance of letters as part of the appointment proc­
ess is not authorized by statute.
Here, the court issued letters to Kelly without her qualifica-
tion. Because this action was not statutorily authorized, we
reverse the order directing issuance of letters and the letters
issued in accordance with that order, and remand the cause for
further proceedings.
[15] We express no opinion on the validity or effect of
any actions taken in reliance upon the letters issued to Kelly.
30
Id.31
Id. at 11-12, 958 N.W.2d at 669.
32
See § 30-2444.
33
See §§ 30-2403, 30-2420, and 30-2444.
- 992 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982Such questions may well exist, but they are beyond the scope
of the present probate proceeding. In the absence of an actual
case or controversy requiring judicial resolution, it is not the
function of the courts to render a judgment that is merely
advisory. 34 And to the extent that the reasoning of the county
court conveyed in an order within the probate proceeding may
seem to express an opinion on matters outside the scope of the
appointment proceeding itself, we reverse those portions of the
probate court’s order.
Statute of Limitations
Kelly also argues that § 30-2408 prohibited the commence-
ment of the appointment proceeding. The parties agree that it
was commenced more than 3 years after Severson’s death and
that no prior appointment or probate proceeding had occurred.
But Kelly contends that no exception under § 30-2408 applies
while Feik relies upon the exception in subsection (4), which
states that “an informal . . . appointment proceeding may be
commenced thereafter if no formal or informal proceeding for
probate or proceeding concerning the succession or administra-
tion has occurred within the three-year period, but claims other
than expenses of administration may not be presented against
the estate.” We agree with Feik.
[16] The exception applies because no such proceeding
had occurred within the 3-year period. Statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unam-
biguous. 35 Over a decade ago, we declared that “[§] 30-2408
clearly permits an informal appointment proceeding to be
commenced more than 3 years after the decedent’s death ‘if
no formal or informal proceeding for probate or proceed-
ing concerning the succession or administration has occurred
34
State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019).
35
In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007).
- 993 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF SEVERSON
Cite as 310 Neb. 982within the three-year period.’” 36 Thus, a proceeding could be
commenced here to appoint a personal representative. We read
the clause regarding “claims other than expenses of adminis-
tration” as limiting the scope of the proceeding rather than its
commencement. 37
Remaining Assignments of Error
[17] Because we reverse the order directing issuance of let-
ters of personal representative and remand the cause for fur-
ther proceedings, we need not consider Kelly’s other assigned
errors. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and contro-
versy before it. 38
CONCLUSION
Because the court’s issuance of letters of personal repre-
sentative to Kelly as part of the appointment process without
Kelly’s qualification was not authorized by statute, we reverse
the court’s actions doing so and remand the cause for further
proceedings.
Reversed and remanded for
further proceedings.
36
Id. at 921, 735 N.W.2d at 367.
37
See, e.g., Ader v. Estate of Felger, 240 Ariz. 32, 375 P.3d 97 (Ariz. App.
2016) (clause limits claims that may be brought in tardy proceeding).
38
In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).