In re Estate of Adelung ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
In re Estate of Madeline A. Adelung, deceased.
Lynda Adelung Heiden, Personal Representative
of the Estate of Madeline A. Adelung,
deceased, appellee and cross-appellant,
v. Kent A. Adelung, appellant
and cross-appellee.
___ N.W.2d ___
Filed July 31, 2020. No. S-19-705.
1. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
2. ____. An argument that does little more than restate an assignment of
error does not support the assignment, and an appellate court will not
address it.
3. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
4. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
5. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
6. Decedents’ Estates: Judgments: Appeal and Error. In the absence of
an equity question, an appellate court, reviewing probate matters, exam-
ines for error appearing on the record made in the county court. When
reviewing a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
7. Decedents’ Estates: Equity: Appeal and Error. Equity questions aris-
ing in appeals involving the Nebraska Probate Code are reviewed
de novo.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
8. Trial: Appeal and Error. Cases are determined in an appellate court on
the theory upon which they were tried.
9. Equity: Decedents’ Estates: Accounting. An action for an accounting
of estate property is in equity.
10. Judgments: Evidence: Appeal and Error. Despite de novo review,
when credible evidence is in conflict on material issues of fact, the
appellate court will consider and may give weight to the fact that the
trial court observed the witnesses and accepted one version of the facts
over another.
11. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
12. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
13. Decedents’ Estates: Courts: Jurisdiction. Generally, the county court
has exclusive original jurisdiction over all matters relating to dece-
dents’ estates.
14. Decedents’ Estates: Courts: Jurisdiction: Equity. The county courts,
in exercising exclusive original jurisdiction over estates, may apply
equitable principles to matters within probate jurisdiction.
15. Constitutional Law: Decedents’ Estates: Courts: Jurisdiction. The
county court’s jurisdiction under Neb. Rev. Stat. §§ 24-517(1) (Cum.
Supp. 2018) and 30-2211 (Reissue 2016) cannot be exclusive as to mat-
ters within the district court’s chancery and common law jurisdiction
conferred by Neb. Const. art. V, § 9.
16. Constitutional Law: Courts: Jurisdiction. The grant of jurisdiction
to the district court under Neb. Const. art. V, § 9, while original, is
not exclusive.
17. Courts: Jurisdiction: Words and Phrases. Under the doctrine of juris-
dictional priority, when different state courts have concurrent original
jurisdiction over the same subject matter, basic principles of judicial
administration require that the first court to acquire jurisdiction should
retain it to the exclusion of another court.
18. Statutes: Legislature: Intent. A collection of statutes pertaining to a
single subject matter are in pari materia and should be conjunctively
considered and construed to determine the intent of the Legislature, so
that different provisions are consistent, harmonious, and sensible.
19. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
20. Statutes: Appeal and Error. An appellate court will not resort to
interpretation to ascertain the meaning of statutory words that are plain,
direct, and unambiguous.
21. Principal and Agent. An agent and principal are in a fiduciary relation-
ship such that the agent has an obligation to refrain from doing any
harmful act to the principal.
22. ____. The Nebraska Uniform Power of Attorney Act places an agent
under a power of attorney in a fiduciary relationship with his or her
principal.
23. Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. In
­common-law and equity actions relating to decedents’ estates, the county
court has concurrent original jurisdiction with the district court.
24. Agency: Trusts. Neb. Rev. Stat. § 30-4045 (Reissue 2016)—the provi-
sion of the Nebraska Uniform Power of Attorney Act governing retro-
activity—should be construed similarly to Neb. Rev. Stat. § 30-38,110
(Reissue 2016)—the comparable provision of the Nebraska Uniform
Trust Code.
25. Equity: Decedents’ Estates: Accounting: Limitations of Actions. The
statute of limitations for an action in equity for an accounting of estate
property is 4 years.
26. Limitations of Actions: Words and Phrases. The accrual of a cause of
action means the right to maintain and institute a suit, and whenever one
person may sue another, a cause of action has accrued and the statute
begins to run, but not until that time. So whether at law or in equity, the
cause of action arises when, and only when, the aggrieved party has a
right to apply to the proper tribunal for relief.
27. Principal and Agent. A power of attorney authorizes another to act as
one’s agent.
28. Agency: Words and Phrases. An agency is a fiduciary relationship
resulting from one person’s manifested consent that another may act on
behalf and subject to the control of the person manifesting such consent
and, further, resulting from another’s consent to so act.
29. Principal and Agent. An agent and principal are in a fiduciary rela-
tionship such that the agent has an obligation to refrain from doing
any harmful act to the principal, to act solely for the principal’s ben-
efit in all matters connected with the agency, and to adhere faithfully
to the instructions of the principal, even at the expense of the agent’s
own interest.
30. ____. An attorney in fact, under the duty of loyalty, always has the
obligation to act in the best interest of the principal unless the principal
voluntarily consents to the attorney in fact’s engaging in an interested
transaction after full disclosure.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
31. Principal and Agent: Gifts: Intent. No gift may be made by an attor-
ney in fact to himself or herself unless the power to make such a gift is
expressly granted in the instrument and there is shown a clear intent on
the part of the principal to make such a gift.
32. Principal and Agent: Gifts: Fraud. The basic policy concern underly-
ing the law that forbids self-dealing is not linked to any duty an agent
may have to third parties, but is primarily addressed to the potential
for fraud that exists when an agent acting pursuant to a durable power
of attorney has the power to make gifts, especially after the principal
becomes incapacitated.
33. Agency. Powers of attorney are by necessity strictly construed, and
broad encompassing grants of power are to be discounted.
34. Landlord and Tenant: Property. A life tenant is entitled to and owns
by absolute title everything in the nature of income, profit, and gain
realized or accrued from the property during his or her tenancy.
35. Agency: Intent. An agency relationship may be implied from the
words and conduct of the parties and the circumstances of the case evi-
dencing an intention to create the relationship irrespective of the words
or terminology used by the parties to characterize or describe their
relationship.
36. Principal and Agent: Property. An agent has a duty to account to his
or her principal for all property or funds which he or she has received or
paid out on behalf of the principal.
37. Laches. The defense of laches is not favored in Nebraska.
38. ____. Laches occurs only if a litigant has been guilty of inexcus-
able neglect in enforcing a right and his or her adversary has suffered
prejudice.
39. Laches: Equity. Laches does not result from the mere passage of time,
but because during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage or preju-
dice of another.
40. Agency: Gifts. The rule of strict construction regarding authority under
a power of attorney to make gifts continues under the Nebraska Uniform
Power of Attorney Act.
41. ____: ____. The Nebraska Uniform Power of Attorney Act limits gifts
made via a general grant of authority.
42. Principal and Agent: Liability. An exoneration clause in a power of
attorney will not relieve an agent of liability if the clause was inserted
as a result of an abuse of a confidential or fiduciary relationship with
the principal.
43. Appeal and Error. Appellate courts do not consider arguments and
theories raised for the first time on appeal.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
Appeal from the County Court for Buffalo County: Gerald
R. Jorgensen, Jr., Judge. Affirmed as modified, and cause
remanded with directions.
Jared J. Krejci, of Smith, Johnson, Baack, Placzek, Allen,
Connick & Hansen, for appellant.
Blake E. Johnson and Paul A. Lembrick, of Bruning Law
Group, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Within a county court probate case, the personal representa-
tive filed an action against the decedent’s son to recover money
he received in two ways: (1) collecting and retaining farm
rents receivable under the decedent’s life estate and (2) writing
checks to himself and others under a power of attorney from
the decedent. The county court entered a judgment, from which
the son appeals and the personal representative cross-appeals.
The son challenges the county court’s jurisdiction of the
matter as one relating to a decedent’s estate and relating to
the action of an agent under a power of attorney. We consider
statutes governing powers of attorney, including retroactivity.
Except as to the son’s statute of limitations defense, we find no
merit to the appeal or the cross-appeal. We affirm the judgment
as modified and remand the cause with directions.
II. BACKGROUND
1. Decedent’s Family
Madeline A. Adelung (the decedent) and her husband lived
on a family farm outside Amherst, Nebraska. Her husband
owned and operated the farm during his lifetime. They had
three children: Sheralee Adelung Boe, Lynda Adelung Heiden,
and Kent A. Adelung (Adelung). Adelung remained in the
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306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
area, but in the mid-to-late 1970’s, Boe moved to Madison,
Nebraska, and Heiden moved to Lincoln, Nebraska.
The decedent’s husband died in 1987. He left a life estate in
the farm property to the decedent with the remainder interest
going to Adelung. The decedent wished to remain on the fam-
ily farm, and from 2008 to 2010, Adelung stayed at the farm
with the decedent nearly every night. In August 2010, the
decedent was moved to an assisted living facility. She died on
October 21, 2014.
2. Farm Income
After Adelung graduated from high school in 1975, he
farmed with his father. They had a 50-50 partnership, each
being responsible for half of the expenses and being entitled to
half of the revenue. Adelung continued to farm the land after
his father’s death, and the decedent initially charged him half
of the standard rental rate.
In 2000, Adelung began to explore a career change. In return
for Adelung’s care and companionship so that the decedent
could remain on the farm, she agreed to pay all of the farm
expenses, to not charge Adelung rent, and to let him collect all
of the farm income.
Also in approximately 2000, Adelung stopped farming the
land in which the decedent held a life estate. He began renting
the land to another individual. From 2010 to 2014, roughly half
of the rent Adelung received was from land owned by the dece-
dent. Adelung testified that he was essentially managing the
farm during that time and that the value of farm management
would be around 10 percent of the rental income.
3. Gifts
In July 2008, the decedent executed a power of attorney
conferring “[p]lenary [p]ower.” The document named Adelung
and Heiden as the decedent’s agents. It contained an “addi-
tional provision” on gifting which stated:
Gifting. To carry out on my behalf any plan or pattern
of gifting to my issue, including gifting to my Agent,
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306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
which had apparently been established or clearly con-
templated by myself. In determining whether to initiate
or continue any such gifting plan, my Agent shall give
consideration to the size of my estate in light of what
might reasonably be anticipated as my future needs and
the potential federal estate taxes which may be due upon
my death in order that such taxes may be lessened or
eliminated. If a gifting plan has not been initiated by me,
my Agent shall have complete discretion to make gifts to
my issue, including making gifts to my Agent, after con-
sideration of the foregoing factors. No individual or entity
shall have the right, by court action or otherwise, to com-
pel the initiation or continuation of any type of gifting
plan by my Agent and no individual or entity shall have
any claim or right of reimbursement from my Agent for
initiating or continuing a gifting plan or for not initiating
or continuing a gifting plan; it being my intention hereby
that my Agent shall have absolute discretion and shall
bear no liability for any decision made.
The decedent had never engaged in a pattern of gifting prior
to July 2008. From that point on, Adelung or his wife received
$2,000 checks each month from the decedent, which Adelung
alleged to be gifts. Checks were made payable to Adelung’s
wife for the purpose of staying within the annual federal gift
tax exclusion amount for each donee. Adelung testified that
the decedent wrote the checks for “quite a while,” but that in
approximately 2010, she wanted him to write them because she
was having trouble with arthritis. No gifts were made to Boe
or Heiden. According to Adelung, because the decedent wanted
him to continue writing the $2,000 monthly checks after she
was placed in assisted living facilities, he did so.
4. Probate Proceedings
In January 2015, a little less than 3 months after the dece-
dent’s October 2014 death, Heiden filed an application for
informal probate of the decedent’s will and to be appointed
personal representative. Letters of personal representative were
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
issued as evidence of such appointment. In the decedent’s will,
Boe, Heiden, and Adelung were named as devisees. After the
initial informal testacy and appointment proceeding, the record
does not show any other proceeding in the probate case until
February 1, 2016.
On that date, Heiden, as personal representative, filed within
the probate case a petition for an equitable accounting. She did
not pay a filing fee in connection with this petition. She asserts
that the county court did not assess a fee.
We summarize the petition’s allegations: The decedent was
“a vulnerable elderly person.” Adelung had a fiduciary or con-
fidential relationship with the decedent, including the relation-
ship of principal and agent by virtue of the power of attorney.
From at least 2000, Adelung received rent from the decedent’s
farmland without sufficient consideration. Adelung and his
wife received over $100,000 of the decedent’s money with-
out sufficient consideration. Adelung’s actions amounted to a
conversion of the decedent’s property, an unjust enrichment of
Adelung, and a breach of fiduciary duties.
Based upon these allegations, Heiden’s petition requested
that Adelung be ordered to account for that money and to repay
the decedent’s estate.
In an answer filed in the probate proceeding, Adelung raised
a number of affirmative defenses, including the statute of
limitations, the decedent’s ratification or consent during her
lifetime, laches, and res judicata.
5. County Court’s Decision
At some point, according to the county court’s judgment
(styled as a journal entry and order), Adelung moved to dismiss
the action for lack of subject matter jurisdiction. This motion is
not in our record. In the judgment, the court characterized the
proceeding as an “equity action.” The court determined that it
had subject matter jurisdiction, noting that it had broad powers
in probate matters and that Adelung was an interested party and
heir. Based on this reasoning, the court overruled the motion.
The court then turned to the merits.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
The court found that from 2000 to August 2010, “Adelung
was benefiting from the farm rents, was foregoing [sic] other
career opportunities and [the decedent] was benefitting in the
form of care, companionship and being allowed to remain at
home.” However, the court determined that farm rental income
between August 2010—when the decedent moved into assisted
living—and the decedent’s death was improperly collected by
Adelung. The court reasoned that during that time, “all of the
benefits were flowing to . . . Adelung to the detriment of [the
decedent’s] financial position” and “Adelung was not actively
working the farm, simply collecting the rents.”
The court determined that the $2,000 monthly checks were
not gifts. Instead, the court stated that the checks were com-
pensation for the care and companionship Adelung and his
wife provided to the decedent. The court found that 38 monthly
$2,000 checks from August 2010 until late 2013, totaling
$76,000, were improperly obtained by Adelung.
The court entered judgment against Adelung. It determined
that the value of the improperly obtained farm income was
$114,550 and that together with the improper gifts obtained
by Adelung, he must reimburse the estate $190,550. The judg-
ment made no reference to either the statute of limitations
or laches.
Adelung filed a timely appeal, and Heiden cross-appealed.
We granted Adelung’s petition to bypass review by the Nebraska
Court of Appeals. Adelung also filed a motion asking this court
to take judicial notice of the legislative history of 2015 Neb.
Laws, L.B. 314, and of a printout from Nebraska’s online trial
court case management system, known as JUSTICE, showing
the filing fees paid to the county court. In resolving this appeal,
we have taken notice to the extent appropriate to do so.
III. ASSIGNMENTS OF ERROR
Adelung assigns 10 errors. He claims that the county court
erred in determining that it had equitable subject matter juris-
diction over Heiden’s claims and in determining that it had
subject matter jurisdiction over Heiden’s petition despite her
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306 Nebraska Reports
IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
failure to pay a filing fee or obtain leave to file in forma pau-
peris. He also alleges the county court erred in (1) failing to
apply the statute of limitations to transactions which occurred
before February 2012, (2) finding that he was liable for the
farm rent voluntarily given to him by the decedent, (3) fail-
ing to apply the provisions of the Nebraska Uniform Power
of Attorney Act (NUPOAA), 1 (4) failing to determine that
Adelung was not liable due to the doctrine of consent, (5) fail-
ing to determine that Adelung was not liable due to the doc-
trine of exoneration, (6) failing to determine that Adelung was
not liable due to the doctrine of laches, (7) making factual find-
ings relating to the exoneration clause in the decedent’s power
of attorney and to the extent that it determined the decedent
lacked mental capacity other than the time shortly before her
death, and (8) entering judgment against Adelung.
On cross-appeal, Heiden alleges the county court erred in
failing to require that all funds transferred from the decedent’s
account from June 2008 to September 2013 and all farm rental
income be returned to the estate.
[1,2] In a few instances, Adelung’s brief fails to comply
with one or both of two appellate rules. To be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. 2 Similarly, an argument that does little more than
restate an assignment of error does not support the assignment,
and an appellate court will not address it. 3 We do not consider
those assignments or arguments.
IV. STANDARD OF REVIEW
[3-5] Subject matter jurisdiction and statutory interpretation
present questions of law. 4 A jurisdictional question which does
not involve a factual dispute is determined by an appellate
1
Neb. Rev. Stat. §§ 30-4001 to 30-4045 (Reissue 2016 & Supp. 2019).
2
Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020).
3
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
4
Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
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IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
court as a matter of law. 5 An appellate court independently
reviews questions of law decided by a lower court. 6
[6,7] In the absence of an equity question, an appellate court,
reviewing probate matters, examines for error appearing on the
record made in the county court. When reviewing a judgment
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 7
Equity questions arising in appeals involving the Nebraska
Probate Code 8 are reviewed de novo. 9
V. ANALYSIS
1. Type of Action
The county court characterized the proceeding below as an
“equity action,” that is, a suit in equity. We do not read the
parties’ briefs as challenging that classification. But two allega-
tions were inconsistent with a suit in equity. First, an action for
conversion sounds in law. 10 Second, a claim for unjust enrich-
ment is a quasi-contract claim for restitution. 11 And we have
held that any quasi-contract claim for restitution is an action
at law. 12
[8] Because the county court treated the matter as an equity
action, it necessarily tried the case on some basis other than
conversion or unjust enrichment. Cases are determined in an
5
Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
6
Hochstein v. Cedar Cty. Bd. of Adjustment, 305 Neb. 321, 940 N.W.2d 251
(2020).
7
In re Estate of Radford, 304 Neb. 205, 933 N.W.2d 595 (2019).
8
Neb. Rev. Stat. §§ 30-401 to 30-406, 30-701 to 30-713, 30-2201 to
30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, 30-4101 to 30-4118,
and 30-4201 to 30-4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019).
9
In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
10
Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015).
11
See City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
12
See id.
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IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
appellate court on the theory upon which they were tried. 13
Thus, we will determine the appeal based on the theory utilized
in the court below.
[9,10] Heiden sought to recover property that Adelung
received but which Heiden asserted belonged to the decedent’s
estate. In other words, she sought an accounting. An action
for an accounting of estate property is in equity. 14 Because the
action sounded in equity, we must review it accordingly. This
requires us to review the county court’s judgment de novo on
the record. Despite de novo review, when credible evidence is
in conflict on material issues of fact, the appellate court will
consider and may give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
over another. 15
2. Jurisdiction
Adelung presents two arguments challenging the county
court’s jurisdiction of this proceeding. One is based on the
nature of Heiden’s claims. This has two components: the extent
of the county court’s probate jurisdiction and its jurisdiction
over powers of attorney. The other stems from the court’s
failure to charge and collect a filing fee. In both arguments,
he claims the court lacked subject matter jurisdiction. Before
turning to his specific arguments, we recall general principles,
change in probate jurisdiction, and the development of jurisdic-
tion regarding powers of attorney.
(a) General Principles
[11,12] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
13
Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994).
14
Cheloha v. Cheloha, 255 Neb. 32, 582 N.W.2d 291 (1998), disapproved on
other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
15
Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017).
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IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
the general subject matter involved. 16 Lack of subject matter
jurisdiction may be raised at any time by any party or by the
court sua sponte. 17
(b) Probate Jurisdiction
[13] We have said that generally, the county court has exclu-
sive original jurisdiction over all matters relating to decedents’
estates. 18 But this is not as simple as it sounds.
Adelung directs us to Lambie v. Stahl, 19 where in 1965 this
court recognized that a title dispute between an estate repre­
sentative and a third person with an adverse claim was “ordi-
narily decided in another forum,” 20 that is, not in the ­probate
court. There, we said, “Jurisdiction to enforce a right of retainer
does not imply jurisdiction to render a personal judgment.” 21
In a later case, describing the legal regime prior to 1970, we
explained, “At least since 1879, the county court has had
exclusive original jurisdiction in all matters of probate and
the settlement of decedents’ estates, and the District Court has
had exclusive original jurisdiction in equity cases.” 22 Thus, at
the time of the Lambie decision, a county court simply had no
jurisdiction in equity cases.
[14-17] Shortly after Lambie, however, that changed, as we
explained in a 1985 case where we articulated three important
concepts: 23 First, the county courts, in exercising exclusive orig-
inal jurisdiction over estates, may apply equitable principles
16
Christine W. v. Trevor W., supra note 4.
17
Id.
18
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). See Neb.
Rev. Stat. § 24-517(1) (Cum. Supp. 2018). See, also, § 30-2211(a).
19
Lambie v. Stahl, 178 Neb. 506, 134 N.W.2d 86 (1965).
20
Id. at 507, 134 N.W.2d at 87.
21
Id. at 508, 134 N.W.2d at 87.
22
In re Estate of Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 785, 295
N.W.2d 275, 280 (1980).
23
See In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985).
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IN RE ESTATE OF ADELUNG
Cite as 306 Neb. 646
to matters within probate jurisdiction. 24 Second, applying the
constitutional avoidance canon, we determined that the county
court’s jurisdiction under §§ 24-517(1) and 30-2211 cannot be
“exclusive” 25 as to matters within the district court’s “chancery
and common law jurisdiction” conferred by Neb. Const. art.
V, § 9. Finally, we acknowledged that the grant of jurisdiction
to the district court under article V, § 9, while original, is not
exclusive. 26 Under the doctrine of jurisdictional priority, when
different state courts have concurrent original jurisdiction over
the same subject matter, basic principles of judicial administra-
tion require that the first court to acquire jurisdiction should
retain it to the exclusion of another court. 27
In the modern era, we have upheld a county court’s jurisdic-
tion over matters related to a decedent’s estate in numerous
situations. These include partitioning real estate belonging to
a decedent, 28 adjudicating a claim against a decedent’s estate
based upon an alleged oral contract to execute a will leaving
the decedent’s business to the claimant employee, 29 determin-
ing the title to personal property possessed by the decedent
where ownership was asserted by another, 30 resolving a claim
by a decedent wife’s personal representative of a share of
ownership of bearer bonds allegedly owned as tenants in
common as against a decedent husband’s personal represent­
ative, 31 and recovering an improper distribution from a pend-
ing estate 32 pursuant to a probate statute. 33 In each instance,
24
Id.
25
See id. at 332, 377 N.W.2d at 85.
26
Id.
27
Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019).
28
See In re Estate of Kentopp. Kentopp v. Kentopp, supra note 22.
29
See In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981).
30
See In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).
31
See In re Estate of Steppuhn, supra note 23.
32
See Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).
33
See § 30-24,106.
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jurisdiction arose from the county court’s jurisdiction under
§ 24-517(1).
(c) Powers of Attorney
Section 24-517(13) confers upon the county court “[c]oncur-
rent original jurisdiction with the district court in any matter
relating to a power of attorney and the action or inaction of
any agent acting under a power of attorney.” Adelung makes
a complex argument, but before considering it, some history
is helpful.
At the time of the 2008 power of attorney, powers of attor-
ney were governed by the Uniform Durable Power of Attorney
Act (UDPAA) 34 and by the common law. 35 The provisions of
the UDPAA were quite limited, focused mainly on validating
a durable power of attorney—“thereby trumping the com-
mon law agency principle that the authority of the agent
ceased upon the disability of the principal.” 36 The sections
of the UDPAA were, in turn, included in the definition of the
Nebraska Probate Code. 37 In the UDPAA, the only statute con-
ferring jurisdiction to a county court stated, “The county court
and the district court of the principal’s domicile shall have
concurrent jurisdiction to determine the validity and enforce-
ability of a durable power of attorney.” 38 But the UDPAA
lacked any provision for judicial review of an agent’s conduct
or any authorization for an agent to make gifts. Thus, in 2008,
the only forum for a challenge to an agent’s conduct was the
district court. 39
34
See Neb. Rev. Stat. §§ 30-2664 to 30-2672 (Reissue 2008).
35
See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act
and Power of Attorney Act: A New Era Begins, 46 Creighton L. Rev. 499
(2013).
36
Id. at 506.
37
See § 30-2201 (Reissue 2008).
38
§ 30-2671.
39
See, Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (2008);
Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003).
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In 2012, the Legislature repealed the UDPAA and enacted the
NUPOAA. 40 The 2012 legislation also repealed the Nebraska
Short Form Act, 41 which provided numerous definitions that
could be included in powers of attorney by reference to “[s]hort
form expression[s].” 42 All of the sections of the NUPOAA were
included within the scope of the Nebraska Probate Code. 43
The NUPOAA conferred concurrent jurisdiction on the
county court and the district court “to determine the validity
and enforceability of a power of attorney.” 44 But the NUPOAA
also greatly expanded the statutory scope: The Uniform Law
Commission “designed the [uniform act] to be comprehen-
sive in nature, addressing the many issues that arose with the
increased utilization of the durable power of attorney.” 45 And
among the statutory provisions included in the NUPOAA was
one authorizing a “petition [to] a court to construe a power
of attorney or review the agent’s conduct and grant appropri-
ate relief.” 46 Thus, when the NUPOAA conferred concurrent
jurisdiction “to determine the validity and enforceability of a
power of attorney,” 47 it did so in a much broader context than
the same words had conveyed under the UDPAA. 48
At the time the Legislature adopted the NUPOAA, it
made no corresponding change to § 4-517. The Legislature
remedied this omission in 2015, 49 adding the above-quoted
§ 24-517(13). With this understanding, we turn to Adelung’s
jurisdictional arguments.
40
See 2012 Neb. Laws, L.B. 1113.
41
See Neb. Rev. Stat. §§ 49-1501 to 49-1562 (Reissue 2010).
42
See § 49-1504(5).
43
See § 30-2201.
44
§ 30-4006(1).
45
Volkmer, supra note 35 at 506.
46
§ 30-4016(1).
47
§ 30-4006(1).
48
See § 30-2671.
49
See 2015 Neb. Laws, L.B. 314.
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(d) Adelung’s Jurisdictional
Arguments
(i) Power of Attorney
Adelung posits that the 2015 legislation adding § 24-517(13)
changed the county court’s jurisdiction contrary to the
Legislature’s purpose. He asserts that the 2012 grant of juris-
diction in § 30-4006(1) is “limited to determining ‘the validity
and enforceability of a power of attorney.’” 50 Reading the 2015
addition of § 24-517(13) as recognizing jurisdiction “in any
matter relating to a power of attorney and the action or inac-
tion of any agent acting under a power of attorney” 51 would, he
asserts, render § 30-4006(1) superfluous.
[18,19] Adelung relies on two well-established principles
of law. First, a collection of statutes pertaining to a single
subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of
the Legislature, so that different provisions are consistent,
harmonious, and sensible. 52 Second, a court must attempt to
give effect to all parts of a statute, and if it can be avoided,
no word, clause, or sentence will be rejected as superfluous or
meaningless. 53
Next, asserting that the difference between § 24-517(13) and
§ 30-4006(1) creates ambiguity, Adelung relies on legislative
history to show that L.B. 314—which added § 24-517(13)—
was not intended to make any substantive changes to county
court jurisdiction. He first notes the introducer’s statement
that the purpose of L.B. 314 was “to clearly define the juris-
diction of the County Court in one statutory section.” 54 He
50
Brief for appellant at 27 (quoting § 30-4006(1)).
51
§ 24-517(13).
52
Shelter Mut. Ins. Co. v. Freudenberg, 304 Neb. 1015, 938 N.W.2d 92
(2020).
53
Id.
54
Introducer’s Statement of Intent, L.B. 314, Judiciary Committee, 104th
Leg., 1st Sess. (Jan. 29, 2015).
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also ­emphasizes the introducer’s testimony to the Judiciary
Committee that the amendment “clarifies that the jurisdiction
is not changing but only becoming clearly stated. [The amend-
ment] does not change the jurisdiction of any court.” 55
We do not agree that the legislative history is as definitive
as Adelung claims. The committee statement asserted that the
amendment would “establish the county court’s concurrent
original jurisdiction with the district court in a number of areas,
including any matter relating to a power of attorney and the
inaction of any agent acting under a power of attorney.” 56
[20] But more important, in the absence of ambiguity, we
do not consult legislative history. An appellate court will not
resort to interpretation to ascertain the meaning of statutory
words that are plain, direct, and unambiguous. 57 And we need
not do so here.
The premise of Adelung’s ambiguity argument is flawed.
He compares only §§ 24-517(13) and 30-4006(1) and reads
the latter in isolation. But when § 24-517(13) is read in
the context of all of the NUPOAA, § 30-4006(1) cannot be
described as superfluous. The words “validity and enforce-
ability” therein must be read together with the other sections
governing virtually every aspect of a power of attorney. In
light of the broad scope of the NUPOAA and its “compre-
hensive . . . nature,” 58 the plain language of these sections
becomes consistent, harmonious, and sensible. And they cer-
tainly confer county court jurisdiction to “construe a power
of attorney or review the agent’s conduct and grant appropri-
ate relief.” 59
55
Judiciary Committee Hearing, L.B. 314, 104th Leg., 1st Sess. 11 (Jan. 29,
2015).
56
Committee Statement, L.B. 314, Judiciary Committee, 104th Leg., 1st
Sess. (Jan. 29, 2015).
57
Shelter Mut. Ins. Co. v. Freudenburg, supra note 52.
58
Volkmer, supra note 35 at 506.
59
§ 30-4016(1).
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(ii) Probate Jurisdiction
Adelung’s arguments regarding the probate court’s jurisdic-
tion of Heiden’s suit for an equitable accounting fare no better.
Several statutory provisions apply.
First, with certain specified exceptions, § 24-517(1) confers
jurisdiction of “all matters relating to decedents’ estates” to the
county court.
Second, contrary to positions taken at oral argument, statu-
tory authority for related proceedings appears in the Nebraska
Probate Code. Section 30-2405 authorizes interested persons
to “petition the court for orders in formal proceedings within
the court’s jurisdiction including but not limited to those
described in this article.” (Emphasis supplied.) This section
also confers upon the county court “jurisdiction of all proceed-
ings to determine how decedents’ estates subject to the laws of
this state are to be administered, expended and distributed.” 60
Section 30-2464(c) granted Heiden, as personal representa-
tive, the “same standing to sue and be sued in the courts of
this state . . . as his or her decedent had immediately prior to
death.” Before the decedent’s death, she had the right to seek
a review of the agent’s conduct and appropriate relief. 61 And
§ 30-2470 empowered the personal representative to “maintain
an action to recover possession of property or to determine the
title thereto.”
Third, § 30-2476(22) authorized Heiden to “prosecute or
defend claims or proceedings in any jurisdiction for the pro-
tection of the estate.” She certainly could have commenced
this action in the district court, which had concurrent jurisdic-
tion. But at that point, the district court’s jurisdiction had not
been invoked.
[21,22] These statutory provisions conferred ample author-
ity to pursue the equitable action against Adelung. He was a
devisee of the estate. As the decedent’s agent pursuant to the
power of attorney, he stood in a fiduciary relationship with
60
§ 30-2405.
61
See § 30-4016(1).
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the decedent. As we said prior to enactment of the NUPOAA,
an agent and principal are in a fiduciary relationship such that
the agent has an obligation to refrain from doing any harmful
act to the principal. 62 The NUPOAA places an agent under
a power of attorney in a fiduciary relationship with his or
her principal. 63
To escape the county court’s statutory jurisdiction over all
matters relating to decedents’ estates, Adelung relies on sev-
eral cases; but none supports his argument. One was merely
an example of a common-law or equitable action initiated in
a district court. 64 Another pertained to nonprobate property,
where the property was transferred by contract and was not
testamentary in nature. 65 One addressed the jurisdiction over
statutory fair and equitable distribution of tort claim proceeds
subject to subrogation for workers’ compensation benefits
paid by or on behalf of an employer. 66 One simply had no
relationship to a decedent. 67 And one, which also had no rela-
tionship to a decedent’s estate, attempted to use a different
subsection of § 24-517 to support injunctive relief in a county
court action. 68
[23] In common-law and equity actions relating to dece-
dents’ estates, the county court has concurrent original jurisdic-
tion with the district court. 69 This is such a case.
(iii) Filing Fee
Adelung’s jurisdictional argument asserts that because Heiden
did not pay a filing fee at the time she filed her petition, the
62
Crosby v. Luehrs, supra note 39.
63
See § 30-4014.
64
See Crosby v. Luehrs, supra note 39.
65
Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250 (1982).
66
See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
67
See Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990).
68
See Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) (addressing
§ 24-517(4)).
69
See In re Estate of Steppuhn, supra note 23.
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court did not acquire jurisdiction. Heiden responds that the
court did not charge a filing fee.
Adelung cites no authority for the proposition that a county
court does not acquire subject matter jurisdiction of an origi-
nal proceeding where no filing fee is paid. Certainly, the
Legislature understands how to make the payment of a fee
jurisdictional. 70
We find no merit to this argument. Because Adelung
addressed the matter purely as an issue of jurisdiction, we
express no opinion regarding any fees which may be owed
to the county court. 71 Having concluded that all of Adelung’s
arguments challenging the county court’s jurisdiction lack
merit, we turn to the substantive issues.
3. Power of Attorney:
Underlying Questions
Before addressing specific questions regarding Adelung’s
liability to the decedent’s estate, we resolve two issues regard-
ing the 2008 power of attorney.
(a) General Assignment
Adelung generally assigns that that county court “fail[ed] to
apply” several provisions of the NUPOAA, which he lists by
section number. We agree with Heiden that the court’s decision
does not disclose any erroneous recitation from the NUPOAA.
We do not address this general assignment further.
(b) UDPAA and Common Law,
or NUPOAA?
Adelung used the 2008 power of attorney both before
and after the operative date of the NUPOAA on January 1,
70
See, Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals from district
court to Court of Appeals or Supreme Court); Neb. Rev. Stat. § 25-2729
(Cum. Supp. 2018) (appeals from county court to district court).
71
See Neb. Rev. Stat. § 33-125(1)(a)(ii) (Reissue 2016) (establishing fee
for “any other proceeding under the Nebraska Probate Code for which no
court fee is established by statute”).
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2013. 72 Heiden does not dispute that the NUPOAA applies to
acts after that date. But the parties disagree whether it applies
to actions taken before that date. Adelung argues that it does.
We disagree.
One section of the NUPOAA controls its effect, both retro-
actively and prospectively. 73 Although it contains four subsec-
tions, only three apply here. And the dispute focuses on the
last one.
The first specifies that unless the act provides otherwise, the
NUPOAA applies to a power of attorney created before, on, or
after January 1, 2013. 74 By this language, the NUPOAA would
apply to the 2008 power of attorney.
The second states that the NUPOAA applies to a judicial
proceeding concerning a power of attorney commenced on
or after that date. 75 Because Heiden’s petition was filed over
3 years after the operative date, the NUPOAA applied to the
proceeding.
The last subsection, which the parties dispute, states that
“[a]n act done before January 1, 2013, is not affected by
the [NUPOAA].” 76 Although § 30-4045 is patterned after a
provision of the Uniform Power of Attorney Act, 77 which
was adopted in over half of the states, our research did not
uncover an examination by any court of language similar to
that in § 30-4045(4).
To aid in interpretation, Adelung directs us to the Nebraska
Uniform Trust Code (NUTC), 78 which contains a substan-
tially similar statute regarding its retroactive scope. 79 Our case
72
See 2012 Neb. Laws, L.B. 1113, § 48.
73
See § 30-4045.
74
§ 30-4045(1).
75
§ 30-4045(2).
76
§ 30-4045(4).
77
See Unif. Power of Attorney Act § 403, 8B U.L.A. 262 (2014).
78
Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & Cum. Supp.
2018).
79
See § 30-38,110(a).
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law shows that we have applied the NUTC to trusts created
prior to the NUTC’s enactment. 80 And we have recognized
that § 30-38,110(a)(3) required application of the NUTC to
judicial proceedings commenced prior to its operative date
“except in those instances where we determine that such appli-
cation would ‘substantially interfere with the effective conduct
of the judicial proceedings or prejudice the rights of the par-
ties,’ in which instance, we must apply prior law which has
been superseded by the NUTC.” 81
But the NUPOAA equivalent to § 30-38,110(a)(3)—
§ 30-4045(3)—does not apply here. Section 30-4045(3) gov-
erns the treatment of a judicial proceeding commenced before
January 1, 2013. Here, the proceeding was commenced in
2016, well after the NUPOAA’s operative date. Instead, this
proceeding is governed by § 30-4045(2), which applies the
NUPOAA to any judicial proceeding commenced after the
NUPOAA’s operative date. Thus, the NUPOAA applies to this
proceeding.
But that does not end our inquiry. Like the NUPOAA, the
NUTC states that “an act done before [the operative date] is not
affected by the [NUTC].” 82 And in none of those cases did we
apply or interpret the NUTC equivalent to § 30-4045(4). In one
case, the equivalent subsection was not mentioned. 83 In another,
the law was the same before and after the operative date. 84
For assistance regarding § 30-4045(4), we turn to a com-
ment to the Uniform Trust Code which provides further guid-
ance regarding retroactivity. It states:
80
See, In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d
700 (2011); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638
(2007); In re Trust Created by Inman, 269 Neb. 376, 693 N.W.2d 514
(2005).
81
In re Trust Created by Inman, supra note 80, 269 Neb. at 381, 693 N.W.2d
at 519.
82
§ 30-38,110(a)(4).
83
See In re Margaret Mastny Revocable Trust, supra note 80.
84
In re Trust Created by Inman, supra note 80.
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This Code cannot be fully retroactive, however.
Constitutional limitations preclude retroactive application
of rules of construction to alter property rights under
trusts that became irrevocable prior to the effective date.
Also, rights already barred by a statute of limitation
or rule under former law are not revived by a possibly
­longer statute or more liberal rule under this Code. Nor is
an act done before the effective date of the Code affected
by the Code’s enactment. 85
[24] We agree with Adelung that § 30-4045—the provi-
sion of the NUPOAA governing retroactivity—should be con-
strued similarly to § 30-38,110—the comparable provision of
the NUTC. But we disagree with his conclusion. While the
NUPOAA applies to this proceeding, the plain language of the
statute makes it clear that the NUPOAA does not apply retroac-
tively to acts done before its effective date. 86 To the extent that
Adelung’s actions as an agent prior to January 1, 2013, may
have violated a duty he owed to the decedent under the UDPAA
or the common law, applying the NUPOAA would prejudice
the decedent’s rights. And of course, as personal representative
of the decedent’s estate, Heiden stands in the decedent’s shoes
to assert those rights. Because the plain language of the statute
makes it clear that the NUPOAA does not apply retroactively to
acts done before its effective date, Adelung’s use of the power
of attorney prior to January 1, 2013, is not governed by the
NUPOAA but his actions after that date are.
4. Liability Issues
We now turn to the other substantive issues raised by
Adelung’s appeal and Heiden’s cross-appeal. Because of the
county court’s factual findings, it seems expedient to address
the issues in four segments of time.
85
Unif. Trust Code § 1106, comment, 7D U.L.A. 380 (2018) (emphasis
supplied).
86
See § 30-4045(4).
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(a) Before August 2010:
Heiden’s Cross-Appeal
The county court determined that Adelung was not liable to
the estate for either farm rents he collected or checks he wrote
to himself or his family members prior to August 2010, when
the decedent moved to an assisted living facility. Heiden’s
cross-appeal, by separate assignments, challenges both of
those conclusions.
The court specifically found that the decedent was “very
competent and aware of her surroundings and situation” dur-
ing this period of time. Here, our standard of review becomes
critical.
We have reviewed the record de novo. But we are permit-
ted to consider and give weight to the county court’s observa-
tion of the witnesses and credibility assessments. Having done
so, we find no merit to Heiden’s cross-appeal. In light of the
county court’s findings, we are not persuaded that Adelung
acted contrary to the decedent’s express instructions or in con-
travention of her wishes. We affirm that portion of the county
court’s judgment.
(b) August 2010 Through January 2012:
Statute of Limitations
Although Adelung raised the statute of limitations below,
the county court’s judgment made no mention of it. The parties
agree that Neb. Rev. Stat. § 25-207 (Reissue 2016) governs
this proceeding. Under that statute, an action must be brought
within 4 years.
Adelung argues that Heiden’s petition was filed on February
1, 2016; that the decedent “initiated and always knew about
the money [Adelung] was receiving”; and that the county court
erred in allowing Heiden to recover for transactions which
occurred before February 1, 2012. 87 Heiden acknowledges
the rules that a statute of limitations begins to run as soon as
the claim accrues and that an action in tort accrues as soon
87
Brief for appellant at 28.
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as the act or omission occurs. 88 But she argues that in certain
categories of cases, the injury is not obvious and the individual
is wholly unaware that he or she has suffered an injury or dam-
age. 89 In such cases, it is manifestly unjust for the statute of
limitations to begin to run before a claimant could reasonably
become aware of the injury. Heiden argues that Adelung “did
not present sufficient evidence to demonstrate . . . that [the
decedent] was even aware that such money was being taken.” 90
We disagree.
[25,26] First, we have already determined that the parties
tried this case as an action in equity for an accounting of estate
property. The statute of limitations for an action in equity for
an accounting of estate property is 4 years. 91 The accrual of a
cause of action means the right to maintain and institute a suit,
and whenever one person may sue another, a cause of action
has accrued and the statute begins to run, but not until that
time. So whether at law or in equity, the cause of action arises
when, and only when, the aggrieved party has a right to apply
to the proper tribunal for relief. 92
For the sake of completeness, we note that a probate statute
prevents a cause of action belonging to a decedent, which had
not been barred as of the date of the decedent’s death, from
being barred sooner than 4 months after death. 93 Because this
action was commenced more than 4 months after the dece-
dent’s death, that statute does not apply here.
Second, we think the evidence is essentially undisputed that
the decedent initiated the practice of Adelung’s retaining the
farm rents. The decedent initially signed the checks for gifts
to Adelung and his family members. Coupled with the county
88
See Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).
89
See Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).
90
Brief for appellee at 28.
91
See Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319 (1962).
92
Id.
93
See § 30-2409.
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court’s finding that the decedent was “very competent and
aware of her surroundings and situation,” this evidence estab-
lishes that the decedent was aware of these transactions at the
times they were occurring. Thus, the cause of action accrued
with each transaction. As personal representative, Heiden
stands in the decedent’s shoes. The decedent’s knowledge
binds the estate. Upon our de novo review, we conclude that
the statute of limitations bars any recovery for money Adelung
received prior to February 1, 2012.
(c) February Through December 2012:
Before NUPOAA’s Operative Date
[27,28] In this section, we address the money Adelung
received from or on behalf of the decedent prior to the opera-
tive date of the NUPOAA. The 2008 power of attorney was in
effect throughout this period. A power of attorney authorizes
another to act as one’s agent. 94 An agency is a fiduciary rela-
tionship resulting from one person’s manifested consent that
another may act on behalf and subject to the control of the
person manifesting such consent and, further, resulting from
another’s consent to so act. 95
(i) Duty Under Power of Attorney
[29,30] During this period of time, the duty of an agent
under a power of attorney was well established; thus, we
recall the general principles establishing that duty. An agent
and principal are in a fiduciary relationship such that the
agent has an obligation to refrain from doing any harmful act
to the principal, to act solely for the principal’s benefit in all
matters connected with the agency, and to adhere faithfully
to the instructions of the principal, even at the expense of
the agent’s own interest. 96 An attorney in fact, under the duty
of loyalty, always has the obligation to act in the best interest
94
Crosby v. Luehrs, supra note 39.
95
Id.
96
Archbold v. Reifenrath, supra note 39.
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of the principal unless the principal voluntarily consents to the
attorney in fact’s engaging in an interested transaction after
full disclosure. 97
[31,32] With respect to gifts, we articulated a related rule.
No gift may be made by an attorney in fact to himself or her-
self unless the power to make such a gift is expressly granted
in the instrument and there is shown a clear intent on the part
of the principal to make such a gift. 98 The basic policy concern
underlying the law that forbids self-dealing is not linked to
any duty an agent may have to third parties, but is primar-
ily addressed to the potential for fraud that exists when an
agent acting pursuant to a durable power of attorney has the
power to make gifts, especially after the principal becomes
incapacitated. 99
[33] Closely related is a rule of strict construction. Powers of
attorney are by necessity strictly construed, and broad encom-
passing grants of power are to be discounted. 100
(ii) Collection of Farm Rents
Adelung argues that he did not use the power of attorney
to collect the farm rents. Thus, he argues, his duty to the
decedent under the power of attorney was not implicated. We
disagree.
Adelung relies upon our decision in Eggleston v. Kovacich, 101
but he reads it too broadly. There, we stated that the defend­
ant did not use the power of attorney when the principal
herself signed signature cards and the defendant also signed
them but only as a co-owner on a multiple-party account that
provided for a right of survivorship. In other words, because
the principal acted on her own behalf and the agent did not
97
Crosby v. Luehrs, supra note 39.
98
Id.
99
Id.
100
Archbold v. Reifenrath, supra note 39.
101
Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).
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sign for the principal, we said he did not “use” the power of
attorney. 102 That case does not stand for the proposition that an
agent’s status must be disclosed or that express reference must
be made in using a power of attorney. There, the principal
acted directly and the agent did not act as an agent regarding
those accounts.
[34] The record here is clear that at all times, the decedent
owned a life estate in the farm. A life tenant is entitled to and
owns by absolute title everything in the nature of income,
profit, and gain realized or accrued from the property during
his or her tenancy. 103 There is no evidence that she ever termi-
nated the life estate before her death. Nor is there any evidence
that at any time after she began allowing Adelung to collect the
rents, she collected any rents herself.
[35] Even before the 2008 power of attorney, Adelung col-
lected the farm rents as the decedent’s agent. An agency rela-
tionship may be implied from the words and conduct of the
parties and the circumstances of the case evidencing an inten-
tion to create the relationship irrespective of the words or ter-
minology used by the parties to characterize or describe their
relationship. 104 The circumstances here show that an agency
relationship existed prior to the 2008 power of attorney. The
2008 power of attorney simply created a more extensive, for-
mal agency relationship.
[36] Other than Adelung’s relationship as the decedent’s
agent, the record does not establish any basis during the dece-
dent’s lifetime enabling Adelung to collect the farm rents. An
agent has a duty to account to his or her principal for all prop-
erty or funds which he or she has received or paid out on behalf
of the principal. 105 That is precisely the nature of this action.
102
Id. at 594, 742 N.W.2d at 484.
103
See Slocum v. Bohuslov, 164 Neb. 156, 82 N.W.2d 39 (1957).
104
Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).
105
Cheloha v. Cheloha, supra note 14.
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(iii) Power of Attorney
We read all of Adelung’s arguments regarding the 2008
power of attorney to rely upon the NUPOAA. We have already
rejected Adelung’s argument that the NUPOAA applies to his
actions under the power of attorney prior to the NUPOAA’s
operative date. Strictly construing the power of attorney in light
of the common law that controlled his duties to the decedent at
that time, we see no merit to any arguments he asserts regard-
ing his liability for actions taken prior to January 1, 2013.
(iv) Laches
Adelung asserts that we should apply the equitable defense
of laches. He asserts that if the decedent “had truly wanted
[him] to stop receiving the money involved in this action,
[she] would have been guilty of inexcusable neglect for allow-
ing these transactions to go on so long and allowing so much
potential monetary liability to accumulate.” 106 We disagree.
[37-39] The defense of laches is not favored in Nebraska. 107
Laches occurs only if a litigant has been guilty of inexcus-
able neglect in enforcing a right and his or her adversary has
suffered prejudice. 108 Laches does not result from the mere
passage of time, but because during the lapse of time, circum-
stances changed such that to enforce the claim would work
inequitably to the disadvantage or prejudice of another. 109
We are not persuaded that laches has any application here.
We have already determined that the statute of limitations
applies to bar collection of money Adelung received prior to
February 1, 2012. His argument seems to be focused on the
years of his life when he devoted his time and attention to
keeping the decedent on the farm. But that changed in 2010,
106
Brief for appellant at 42.
107
Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d
105 (2015).
108
Id.
109
Id.
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when the decedent moved to an assisted living facility. We
see nothing about his circumstances between February 1, 2012,
and January 1, 2013, that would support a laches defense.
(d) January 2013 to Decedent’s Death:
After NUPOAA’s Operative Date
(i) Effect of NUPOAA
As we have already explained, the NUPOAA applies to
powers of attorney created before its operative date. 110 The
NUPOAA also applies to a judicial proceeding commenced, as
this one was, after that date. 111 And, obviously, the provision
of § 30-4045(4), regarding acts done before the operative date,
does not apply to the time period we consider in this part of
our analysis.
a. Rule of Strict Construction
Adelung argues that § 30-4024(5) altered the ­common-law
rule of strict construction of powers of attorney. That section
states, “Subject to subsections (1), (2), and (4) of [§ 30-4024], if
the subjects over which authority is granted in a power of attor-
ney are similar or overlap, the broadest authority controls.” 112
At least as to gifts made by an agent, we disagree.
First, by its terms, § 30-4024(5) is “[s]ubject to” § 30-4024(1).
And § 30-4024(1) authorizes an agent to “[m]ake a gift,” but,
in relevant part, “only if the power of attorney expressly grants
the agent the authority.” The plain language of the statutory
text requires an express grant of authority.
The comment to the section of the uniform act correspond-
ing to § 30-4024(1) explains that the uniform act “enumer-
ates the acts that require an express grant of specific author-
ity and which may not be inferred from a grant of general
authority.” 113 This approach, the comment explains, “follows a
110
See § 30-4045(1).
111
See § 30-4045(2).
112
§ 30-4024(5).
113
Unif. Power of Attorney Act § 201, comment, 8B U.L.A. 226 (2014).
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growing trend among states to require express specific author-
ity for such actions as making a gift.” 114 The comment identi-
fies the ration­ale for this approach: “the risk those acts pose to
the principal’s property and estate plan. Although risky, such
authority may nevertheless be necessary to effectuate the prin-
cipal’s property management and estate planning objectives.” 115
We do not perceive any legislative intention to shield gift mak-
ing under a power of attorney from strict construction. Indeed,
the uniform act’s comment suggests otherwise.
Second, the comment notes, “Ideally, these are matters
about which the principal will seek advise [sic] before granting
authority to an agent.” 116 Here, the attorney who drafted the
2008 power of attorney testified that he “drafted this docu-
ment for [Adelung]” and that he “[n]ever met, never talked to
[the decedent].” He recalled that there “may have been some
conversation,” presumably with Adelung, about “whether there
need[ed] to be a gifting clause or not.” He could not recall the
purpose for including the gifting clause, but testified there “had
to be some type of a conversation that led [him] to believe there
needed to be the gifting clause.” And, again, he confirmed that
the conversation was not with the decedent. Obviously, the
decedent did not seek that attorney’s advice.
Third, the comment goes on to state that “[n]otwithstand-
ing a grant of authority to perform any of the enumerated acts
. . . , an agent is bound by the mandatory fiduciary duties set
forth in [the uniform act’s equivalent of § 30-4014(1)] as well
as the default duties that the principal has not modified.” 117
These include acting in accordance with the “principal’s best
interest,” 118 in “good faith,” 119 and “only within the scope
114
Id.
115
Id., 8B U.L.A. at 226-27.
116
Id., 8B U.L.A. at 227.
117
Id.
118
§ 30-4014(1)(a).
119
§ 30-4014(1)(b).
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of authority granted, or reasonably implied by, the grant of
authority in the power of attorney.” 120
[40] Finally, § 30-4021 states that “[u]nless displaced by a
provision of the [NUPOAA], the principles of law and equity
supplement the act.” We are not persuaded that the drafters of
the uniform act or the Nebraska Legislature intended to loosen
the rule of strict construction with respect to gift making. Thus,
we hold that the rule of strict construction regarding author-
ity under a power of attorney to make gifts continues under
the NUPOAA.
b. Authority to Make Gifts
Omitting the exoneration clause, we recall the specific lan-
guage employed in the 2008 power of attorney. It stated:
Gifting. To carry out on my behalf any plan or pattern
of gifting to my issue, including gifting to my Agent,
which had apparently been established or clearly con-
templated by myself. In determining whether to initiate
or continue any such gifting plan, my Agent shall give
consideration to the size of my estate in light of what
might reasonably be anticipated as my future needs and
the potential federal estate taxes which may be due upon
my death in order that such taxes may be lessened or
eliminated. If a gifting plan has not been initiated by me,
my Agent shall have complete discretion to make gifts to
my issue, including making gifts to my Agent, after con-
sideration of the foregoing factors.
This gifting clause was, at most, a general grant. It did not
specifically refer to the farm rentals. Nor did it refer to checks
payable to Adelung or his spouse or child.
[41] The NUPOAA limits gifts made via a general grant
of authority in two ways. First, § 30-4040(2) states that “lan-
guage in a power of attorney granting general authority with
respect to gifts” authorizes gifts, as applicable here, only
“(a) . . . in an amount per donee not to exceed the annual
120
§ 30-4014(1)(c).
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dollar limits of the federal gift tax exclusion.” But more impor-
tant, § 30-4040(3) permits a gift “only as the agent determines
is consistent with the principal’s objectives if actually known
by the agent and, if unknown, as the agent determines is con-
sistent with the principal’s best interest based on all relevant
factors.” The statute identifies five specific factors, including
the value and nature of the principal’s property; the principal’s
foreseeable obligations and need for maintenance; minimiza-
tion of taxes; eligibility for a benefit, program, or assistance;
and the principal’s personal history of making gifts. 121
As the comment to this section of the uniform act makes
clear, to the extent a principal’s objectives “may potentially
conflict with an agent’s default duties under the [NUPOAA],
the principal should carefully consider stating those objectives
in the power of attorney, or altering the default rules . . . , or
both.” 122 Adelung does not claim that the 2008 power of attor-
ney altered the default rules.
The stated objectives did not support the gifts. The power
of attorney stated only two: “what might reasonably be antici-
pated as [the decedent’s] future needs” and lessening or elimi-
nating federal estate taxes. Neither objective was furthered by
these gifts. Heiden testified that Adelung told her the decedent
“had less than $50,000 in the bank, because [the decedent] was
broke.” A certified public accountant testified that “currently,
you could pass through your estate over 12 million without any
federal estate tax.”
Upon our de novo review, we are not persuaded that the
provisions of the NUPOAA authorized the gifts Adelung made
on the decedent’s behalf. In reaching this conclusion, we give
weight to the county court’s factual findings.
c. Exoneration Clause
Adelung also relies upon the exoneration clause of the 2008
power of attorney, which states:
121
See § 30-4040(3)(a) to (e).
122
Unif. Power of Attorney Act § 217, comment, 8B U.L.A. 248 (2014).
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No individual or entity shall have the right, by court
action or otherwise, to compel the initiation or con-
tinuation of any type of gifting plan by my Agent and
no individual or entity shall have any claim or right of
reimbursement from my Agent for initiating or continuing
a gifting plan or for not initiating or continuing a gifting
plan; it being my intention hereby that my Agent shall
have absolute discretion and shall bear no liability for any
decision made.
Adelung focuses on § 30-4015(1), which states that a pro-
vision “relieving an agent of liability for breach of duty is
binding on the principal . . . except to the extent the provision:
(a) [r]elieves . . . for breach of duty committed dishonestly,
with an improper motive, or with reckless indifference[.]” He
claims not to have acted in any of these ways.
[42] In passing, Adelung acknowledges § 30-4015(1)(b).
Under § 30-4015(1)(b), an exoneration clause in a power of
attorney will not relieve an agent of liability if the clause was
“inserted as a result of an abuse of a confidential or fiduciary
relationship with the principal.” He asserts that at the time of
the 2008 power of attorney, he “was not in a confidential or
fiduciary relationship with [the decedent].” 123 We disagree.
The comment to the uniform act provision mirroring
§ 30-4015(1) explains that the language in subsection (1)(b)
“provides . . . an additional measure of protection for the
principal.” 124 But the Nebraska Legislature was not satisfied
with only that measure of protection. It supplemented the
uniform act by adding § 30-4015(2), which states that an
“exculpatory term drafted or caused to be drafted by an agent
is invalid as an abuse of fiduciary or confidential relation-
ship unless the agent proves that the exculpatory term is fair
under the circumstances and that its existence and contents
were adequately communicated to the principal.”
123
Brief for appellant at 36.
124
Unif. Power of Attorney Act § 115, comment, 8B U.L.A. 208 (2014).
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At the time of the 2008 power of attorney, Adelung had already
been acting for some years as the decedent’s agent in collect-
ing the farm rents. That activity imposed upon him a fiduciary
relationship. This alone seems sufficient under § 30-4015(1)(b)
to defeat the exoneration clause. But § 30-4015(2) reinforces
our conclusion. By hiring his own attorney to draft the power
of attorney, Adelung “caused [the exoneration clause] to be
drafted.” 125 Section 30-4015(2) imposed upon him the burden
to prove that the clause was fair and adequately communicated
to the decedent. He did not do so. The attorney who prepared
it never spoke with the decedent. The notary public who
administered the decedent’s acknowledgment did not recall
discussing with her what the document authorized Adelung to
do and denied that he would “normally” do so. Even Adelung
did not claim that he provided any explanation to the decedent
regarding its contents and meaning. He merely left it with her
the day before it was signed and recalled her statement that she
“had looked it over.” Adequate communication required more
than this.
Adelung also asserts that Heiden waived the right to contest
the exoneration clause, by failing to attack it in her petition.
He relies upon a rule of pleading recited in a case long ago,
that “where the illegality of an agreement is not suggested by
the plaintiff’s pleadings or proofs it must, in order to be avail-
able to the adverse party, be especially pleaded.” 126 We are not
sure that this rule survives under our current pleading rules, 127
but, in any event, the challenge to the exoneration clause was
asserted by the proofs.
We find no merit to Adelung’s arguments attempting to rely
upon the exoneration clause. The Legislature demanded an
extra measure of protection regarding such provisions. This
appeal illustrates why it did so.
125
See § 30-4015(2).
126
Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463, 485, 62
N.W. 899, 907 (1895).
127
See Neb. Ct. R. Pldg. § 6-1109 (rev. 2008) (pleading special matters).
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d. Arguments Not Raised Below
[43] On appeal, Adelung raises two arguments for the first
time. He argues that the NUPOAA authorizes an agent to per-
form the acts necessary to maintain the customary standard of
living of the principal’s close family members, including the
principal’s children. He also contends that under the NUPOAA,
agents are entitled to reasonable compensation, and that he
is not liable for the decedent’s subsequent qualification for
Medicaid. Because appellate courts do not consider arguments
and theories raised for the first time on appeal, 128 we decline to
further consider these arguments.
(ii) Laches
As we discussed in a preceding section, Adelung relies upon
the defense of laches. There, we determined that it did not
apply to the period from February through December 2012.
For the same reasons, it does not apply to the time period from
January 2013 to the decedent’s death.
VI. CONCLUSION
Because the county court had jurisdiction of the proceeding,
we have jurisdiction of this appeal. We find no merit to Heiden’s
cross-appeal. Except as to the defense of the statute of limita-
tions, Adelung’s appeal lacks merit. Upon our de novo review,
we affirm the judgment as modified and limited to Adelung’s
actions after February 1, 2012, and we remand the cause to
the county court with directions to calculate the amount of the
modified judgment in conformity with this opinion.
Affirmed as modified, and cause
remanded with directions.
Funke, J., not participating.
128
Junker v. Carlson, 300 Neb. 423, 915 N.W.2d 542 (2018).