In re Estate of Akerson ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/16/2021 08:10 AM CDT
- 470 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470In re Estate of Nelda M. Akerson, deceased.
Ronald E. Akerson, Personal Representative of
the Estate of Nelda M. Akerson, deceased,
appellee, v. Hamilton County, Nebraska,
and Hamilton Manor Board of Trustees,
appellants, and State of Nebraska,
intervenor-appellee.
___ N.W.2d ___
Filed June 11, 2021. No. S-20-668.
1. Decedents’ Estates: Appeal and Error. 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.
2. Judgments: Appeal and Error. 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.
3. Wills: Trusts. The interpretation of the words in a will or a trust pre­
sents a question of law.
4. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
5. Decedents’ Estates: Appeal and Error. The probate court’s factual
findings have the effect of a verdict and will not be set aside unless
clearly erroneous.
6. Wills: Intent. The cardinal rule in construing a will is to ascertain and
effectuate the testator’s intent if such intent is not contrary to the law.
7. ____: ____. To arrive at a testator’s or testatrix’s intention expressed in
a will, a court must examine the will in its entirety, consider and liber-
ally interpret every provision in the will, employ the generally accepted
literal and grammatical meanings of words used in the will, and assume
that the maker of the will understood words stated in the will.
- 471 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 4708. Wills: Charities. Courts will view with favor donations by will for
charitable purposes, and will endeavor to carry them into effect, where
the same can be done consistently with the rules of law.
9. Decedents’ Estates: Real Estate: Title. In Nebraska, title to both real
and personal property passes immediately upon death to the decedent’s
devisees or heirs, subject to administration, allowances, and a surviving
spouse’s elective share.
10. Wills: Death. The provisions of a will take effect and become operative
at the time of the death of the testator, unless the will expressly provides
for vesting at a later time.
11. ____: ____. A will always speaks from the date of the testator’s death,
because the testator could always modify the distributions prior to his or
her death.
12. Wills: Interest: Time: Intent. Neb. Rev. Stat. § 30-24,102 (Reissue
2016) provides that general pecuniary devises bear interest at the legal
rate beginning 1 year after the first appointment of a personal represent­
ative until payment, unless a contrary intent is indicated by the will.
13. Wills: Interest. A will is an instrument in writing. Therefore, when
interest is required to be paid on a pecuniary devise pursuant to Neb.
Rev. Stat. § 30-24,102 (Reissue 2016), the legal rate of interest called
for is 12 percent per annum, as required by Neb. Rev. Stat. § 45-104
(Reissue 2010).
Appeal from the County Court for Hamilton County: Frank
J. Skorupa, Judge. Reversed and remanded with direction.
Andre R. Barry, Jennie A. Kuehner, and John F. Zimmer,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for
appellants.
Daniel E. Klaus and Timothy F. Clare, of Rembolt Ludtke,
L.L.P., for appellee.
Douglas J. Peterson, Attorney General, and Shereece Dendy-
Sanders for intervenor-appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
JJ.
Funke, J.
The probate court found that an $875,000 charitable bequest
to a nursing home facility lapsed, and the court ordered the
- 472 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470funds to be distributed to the residuary of the estate. Because
we conclude that the bequest did not lapse, we reverse, and
remand with direction.
BACKGROUND
Nelda M. Akerson was a lifelong resident of Hamilton
County, Nebraska. She died in June 2017 at age 85. Her will,
executed in June 2011, was admitted to probate in January 2018,
and Ronald E. Akerson (Ronald), the nephew of Akerson’s late
husband, was appointed personal representative for the estate.
The residuary of Akerson’s estate was divided one half to
Ronald and one half to various other relatives. The relevant
article of Akerson’s will stated:
I give the sum of Eight Hundred Seventy-five Thousand
and no/100 Dollars ($875,000.00) to HAMILTON
MANOR, Aurora, Nebraska, for its unrestricted use, as
determined by its Board of Directors.
The charitable bequests in this paragraph shall bear no
portion of the costs of administration nor estate or inher­
itance tax.
Hamilton Manor was a nursing home facility in Aurora,
Nebraska, owned by Hamilton County and operated through
the Hamilton Manor Board of Trustees (board of trustees),
under Neb. Rev. Stat. § 23-3501 et seq. (Reissue 2012 & Cum.
Supp. 2020). In 1963, the voters of Hamilton County approved
a bond issue for the construction of the nursing home. The
facility opened in 1965. According to an affidavit submitted
by Ronald, Akerson wanted to gift money to Hamilton Manor,
because she appreciated the rehabilitation services she and her
sister received there.
In 2009, Hamilton Manor experienced financial difficul-
ties. The board of trustees explored the possibility of changing
Hamilton Manor’s operating structure to a “501(c)(3) non-
profit” corporation in an effort to raise additional funds for the
facility. In August 2009, articles of incorporation for an entity
named “Hamilton Manor Rehabilitation & Care Center” (the
corporation) were filed with the Nebraska Secretary of State.
- 473 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470The purpose of the corporation was to “construct, maintain[,]
and promote a nursing home and elderly care facility in Aurora
. . . and to promote services for senior citizens in Hamilton
County.” The board of trustees ultimately decided not to con-
vert Hamilton Manor to a nonprofit corporation, and as such,
Hamilton Manor remained owned by Hamilton County.
Around 2012, Hamilton County began loaning money to
Hamilton Manor to aid in its operation. By July 2016, Hamilton
County had loaned Hamilton Manor a total of $925,500. On
July 22, 2016, Hamilton County executed loan extension agree-
ments with “Hamilton Manor Rehabilitation and Care Center,”
“a County owned Nursing Home Facility, located in Aurora,
Hamilton County, Nebraska.” Per the agreements, the loans
were due on July 22, 2021.
Due to Hamilton Manor’s continued financial difficulties,
Hamilton County and the board of trustees sought alternative
solutions. In December 2016, Hamilton County and Hamilton
Manor, through its board of trustees, entered into a “Consulting
and Bed Transfer Agreement” (the Agreement) with Quality
Care Solutions, LLC (QCS), a Nebraska for-profit company
principally located in Aurora. Under the Agreement, QCS
was to construct a new nursing home in Aurora by March 1,
2018. The initial consulting phase of the project in which QCS
agreed to consult with Hamilton Manor on the day-to-day
operations of the facility was to continue until the new facil-
ity became operational, at which point Hamilton Manor would
transfer its licenses to operate 60 nursing home beds to QCS.
The Agreement stated that the board of trustees “intend[ed] to
continue to operate and manage the [nursing facility] until such
time as [QCS] has constructed a new 60-bed nursing home”
and that “Hamilton Manor shall continue to be licensed as a
nursing facility and certified for participation in the Medicare
and Medicaid programs in the name of and under the author-
ity of Hamilton Manor and the [board of trustees].” The board
of trustees agreed to close its facility and cease all operations
upon the opening of the new facility. Hamilton County agreed
- 474 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470to demolish the old nursing home building within a reason-
able time following the opening of the new facility and to not
operate a senior care facility on the property for 20 years. The
Agreement would terminate upon mutual agreement of the
parties, a material breach of the agreement by either party, or
QCS’ inability to obtain the necessary regulatory approval or
declaration of bankruptcy.
As of June 6, 2017, Hamilton Manor continued to operate as
a skilled nursing facility. Thereafter, QCS completed construc-
tion of the new facility, consistent with the March 2018 time-
line provided under the Agreement. By April 2018, Hamilton
County ceased operating Hamilton Manor and transferred its
bed licenses to QCS. Hamilton County demolished Hamilton
Manor, and on June 27, 2019, sold the real property on which
Hamilton Manor sat for $275,000. The board of trustees con-
tinues to exist and operates a separate checking account in the
name of Hamilton Manor for the purpose of winding up the
nursing home business.
As noted, Akerson died in June 2017. Her will was admit-
ted to probate in January 2018. In the fall of 2018, Ronald,
as personal representative, recognized the $875,000 charitable
bequest to Hamilton Manor in the estate’s federal estate tax
and Nebraska inheritance tax filings. On the federal estate
tax return, Ronald asserted that there were no plans to contest
or have interpreted any of the charitable devises made under
the will. In the inheritance tax filing, Ronald listed Hamilton
Manor as a charitable beneficiary of Akerson’s estate in the
amount of $875,000. But in September 2019, Ronald peti-
tioned the probate court of Hamilton County for construction
of Akerson’s will, asking that the court find the charitable
bequest to Hamilton Manor had failed and order the proceeds
to be administered as part of the residue of the estate. Ronald’s
petition incorrectly stated that Hamilton Manor was a nonprofit
corporation. Hamilton County and the board of trustees filed a
response stating that they owned and operated Hamilton Manor
and claiming that the bequest vested upon Akerson’s death.
- 475 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470Pursuant to Neb. Rev. Stat. § 30-2342.01 (Reissue 2016), the
State of Nebraska intervened on the side of Hamilton County
and the board of trustees.
The matter was tried to the county court on stipulated facts.
On August 14, 2020, the court issued its written order finding
that the bequest to Hamilton Manor lapsed. The court found
that on December 1, 2016, approximately 6 months prior to
Akerson’s death, Hamilton County and the board of trustees
entered into the Agreement with QCS. The court found that
in April 2018, Hamilton Manor ceased operating as a nurs-
ing home facility. The court found that “the bequest was not
to the [c]orporation,” because Akerson “did not specifically
identify any corporation in the bequest to Hamilton Manor.”
But then, the court found that the purpose of the corporation
was to “‘construct, maintain and promote a nursing home and
elderly care facility in Aurora, Hamilton County, Nebraska,’”
and that “[w]hen the [c]orporation entered into the Agreement,
that specific purpose no longer existed.” The court quoted
language from In re Estate of Harrington, 1 stating that “‘the
bequest at bar was in effect a gift to the objects and purposes
of plaintiff corporation, and not to the corporation itself.’”
The court found that “prior to [Akerson’s] death, Hamilton
Manor ceased to exist.” The court ordered the $875,000 to be
distributed to Akerson’s heirs in accordance with the will’s
residuary clause.
Hamilton County and the board of trustees filed this timely
appeal. We moved this case to our docket on our motion.
ASSIGNMENTS OF ERROR
Hamilton County and the board of trustees assign, restated,
that the probate court erred in (1) finding that the bequest
lapsed when Hamilton Manor was operating on the date of
death, although there was an agreement in place under which
the facility would close at a future date; (2) distributing the
1
In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949).
- 476 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470bequest under the will’s residuary clause, in contravention
of § 30-2342.01; and (3) failing to distribute the bequest to
Hamilton County and the board of trustees with interest under
Neb. Rev. Stat. § 30-24,102 (Reissue 2016).
STANDARD OF REVIEW
[1,2] In the absence of an equity question, an appellate
court, reviewing probate matters, examines for error appear-
ing on the record made in the county court. 2 When reviewing
a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unrea-­
sonable. 3
[3,4] The interpretation of the words in a will or a trust
presents a question of law. 4 When reviewing questions of law
in a probate matter, an appellate court reaches a conclusion
independent of the determination reached by the court below. 5
[5] The probate court’s factual findings have the effect of a
verdict and will not be set aside unless clearly erroneous. 6
ANALYSIS
Devise Did Not Lapse
The issues for disposition are whether the probate court
erred in finding that the charitable bequest to Hamilton Manor
lapsed and, if so, whether Hamilton County and the board of
trustees, as the political subdivisions that own and operate
Hamilton Manor, are entitled to interest.
Initially, we note that Akerson’s will bequeathed the monies
to “HAMILTON MANOR . . . for its unrestricted use, as deter-
mined by its Board of Directors.” However, the record is clear
2
In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).
3
Id.
4
Id.
5
Id.
6Id.- 477 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470that Hamilton Manor is operated by a board of trustees as is
required by statute. Despite this misnomer, none of the parties
dispute that Hamilton Manor is the beneficiary identified by
Akerson under the relevant will provision. Additionally, though
the probate court indicated in its order that the corporation
entered into the Agreement with QCS, the record clearly shows
that Hamilton Manor through its board of trustees was party to
the Agreement, and not the corporation.
The predominating issue for resolution is whether the
Agreement caused the bequest to Hamilton Manor to lapse
prior to Akerson’s death. If a beneficiary organization has
ceased to exist at the time the will goes into effect, the legacy
lapses. 7
Hamilton County and the board of trustees argue that
because Hamilton Manor was actively operating as a nurs-
ing home on the date of Akerson’s death, the devise vested
on that date, and that such vesting was not invalidated by the
terms of the Agreement that Hamilton Manor would close at
a future date. The State agrees with Hamilton County and the
board of trustees and argues that pursuant to the provisions
of Akerson’s will, Akerson intended Hamilton Manor, by and
through Hamilton County and the board of trustees, to receive
the $875,000. Hamilton County, the board of trustees, and the
State argued in the alternative that if the bequest did lapse,
then the court should apply the doctrine of cy pres and award
the funds to a similar charity in Hamilton County rather than
to Akerson’s heirs.
Ronald argues that the court correctly found that the
Agreement rendered the bequest to Hamilton Manor inef-
fectual. Ronald contends that on the date of Akerson’s death,
Hamilton Manor was no longer carrying out the charitable
objectives and purposes for which the bequest was given, and
that the bequest’s failure is akin to the failure of a condition
subsequent.
7
In re Estate of Joseph, 62 N.Y.S.2d 197 (1946); In re Matter of Walker,
185 Misc. 1046, 53 N.Y.S.2d 106 (1944).
- 478 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470[6-8] Resolution of this matter is dictated by the intent of
Akerson under her will, as well as provisions of the Nebraska
Probate Code. 8 The cardinal rule in construing a will is to
ascertain and effectuate the testator’s intent if such intent is not
contrary to the law. 9 Section 30-2341 states: “The intention of
a testator as expressed in [her] will controls the legal effect of
[her] dispositions.” To arrive at a testator’s or testatrix’s inten-
tion expressed in a will, a court must examine the will in its
entirety, consider and liberally interpret every provision in the
will, employ the generally accepted literal and grammatical
meanings of words used in the will, and assume that the maker
of the will understood words stated in the will. 10 Courts will
view with favor donations by will for charitable purposes, and
will endeavor to carry them into effect, where the same can be
done consistently with the rules of law. 11
Initially, we establish that Akerson’s will created a gift, or
devise, to Hamilton Manor that is charitable in nature. Under
the relevant provision, Akerson gave $875,000 to Hamilton
Manor, “for its unrestricted use.” Immediately thereafter,
Akerson referred to the devise to Hamilton Manor, and other
devises contained in the same article, as “charitable bequests.”
Additionally, under Nebraska law, nonprofit nursing homes are
classified as charitable institutions. 12 Thus, Akerson intended to
leave $875,000 to Hamilton Manor as a charitable gift.
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, and 30-4201 to
30-4210 (Reissue 2016 & Cum. Supp. 2020).
9
In re Estate of Barger, supra note 2; In re Estate of Johnson, 260 Neb. 91,
615 N.W.2d 98 (2000).
10
Id.
11Allebach v. City of Friend, 118 Neb. 781, 226 N.W. 440 (1929); Gould v.
Board of Home Missions, 102 Neb. 526, 167 N.W. 776 (1918); St. James
Orphan Asylum v. Shelby, 60 Neb. 796, 84 N.W. 273 (1900). See Garwood
v. Drake University, 188 Neb. 605, 198 N.W.2d 336 (1972).
12
Bethesda Foundation v. County of Saunders, 200 Neb. 574, 264 N.W.2d
664 (1978); Evangelical Lutheran Good Samaritan Soc. v. County of
Gage, 181 Neb. 831, 151 N.W.2d 446 (1967).
- 479 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470We next determine whether the charitable gift lapsed. The
undisputed timeline is that Hamilton County and the board of
trustees entered into the Agreement on December 1, 2016. The
Agreement provided for consultation services, the construc-
tion of a new nursing facility, and the closing of Hamilton
Manor, all by March 2018. Akerson died on June 6, 2017.
The Agreement came to fruition in April 2018, at which time
Hamilton Manor closed and transferred its bed licenses to
QCS. Under this set of facts, in accordance with well-settled
Nebraska law, we conclude that Akerson’s gift to Hamilton
Manor vested on the date of her death.
[9-11] In Nebraska, title to both real and personal property
passes immediately upon death to the decedent’s devisees or
heirs, subject to administration, allowances, and a surviving
spouse’s elective share. 13 The provisions of a will take effect
and become operative at the time of the death of the testator,
unless the will expressly provides for vesting at a later time. 14
“‘[T]he prevailing rule is that the fact that a [charitable]
organization named as a beneficiary in a will discontinues
its active functions after the execution of the will does
not impair its right to take the gift so long as its identity,
whether corporate or associative, continues without dis-
solution until the death of the testator.’” 15
A will always speaks from the date of the testator’s death,
because the testator could always modify the distributions prior
to his or her death. 16
13
§ 30-2401; Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
14
See, In re Estate of Barger, supra note 2; Carr v. Carr, 173 Neb. 189, 112
N.W.2d 786 (1962); Covenant Presbytery v. First Baptist Church, 2016
Ark. 138, 489 S.W.3d 153 (2016).
15
In re Estate of Lind, 314 Ill. App. 3d 1055, 1058, 734 N.E.2d 47, 49, 248
Ill. Dec. 339, 341 (2000). See, also, In re Boston Regional Medical Center,
Inc., 410 F.3d 100 (2005) (applying Massachusetts law); In re Estate of
MacPherson, 14 Cal. App. 3d 450, 92 Cal. Rptr. 574 (1970); Old Colony
Trust Co. v. Winchester Home, 324 Mass. 258, 85 N.E.2d 622 (1949).
16
In re Estate of Barger, supra note 2.
- 480 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470At the time of Akerson’s death, Hamilton Manor still oper-
ated as a skilled nursing facility and was capable of receiving
the gift. Section 23-3504(2) states that a board of trustees
appointed by a county board “[m]ay accept property by gift,
devise, bequest, or otherwise and may carry out any condi-
tions connected to the receipt of any gift, devise, or bequest.”
However, the fact that Hamilton Manor was capable of receiv-
ing the gift does not end our analysis. An organization must
also be capable of using the charitable gift for its intended
purpose and be willing to do so. 17
The language used by Akerson in her will leads us to con-
clude that she made the gift with a general charitable purpose
to benefit Hamilton Manor. In ascertaining Akerson’s intent,
we note that Akerson gifted Hamilton Manor the funds “for
its unrestricted use, as determined by its [board of trustees].”
In doing so, Akerson used no words of qualification or limita-
tion, nor did she provide for an alternative disposition of the
gift should Hamilton Manor cease to exist. These absences
qualify as evidence of a general charitable intent. 18 Further, the
Restatement (Third) of Trusts states that charitable purposes
include the promotion of health, governmental or municipal
purposes, and other purposes that are beneficial to the commu-
nity. 19 Nonprofit nursing homes and hospitals classify as chari-
table institutions. 20 Therefore, so long as Hamilton Manor was
willing and able, at the time of Akerson’s death, to use the char-
itable gift for the general promotion of health and governmental
services in Hamilton County, then the gift would not lapse.
Here, as of the date of Akerson’s death, even though Hamilton
Manor was scheduled to close approximately 9 months later, it
is uncontested that Hamilton Manor still provided the services
17
In re Boston Regional Medical Center, Inc., supra note 15.
18
Wood v. Lincoln General Hospital Assn., 205 Neb. 576, 288 N.W.2d 735(1980).
19
Restatement (Third) of Trusts § 28 (2003).
20
See, Bethesda Foundation, supra note 12; Evangelical Lutheran Good
Samaritan Soc., supra note 12; Allebach, supra note 11.
- 481 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470of a skilled nursing facility. As such, the Agreement did not
prevent Hamilton Manor from carrying out the general chari-
table objectives and purposes of the gift. As Hamilton County
and the board of trustees point out, the Agreement established
that Hamilton Manor intended to continue its normal opera-
tions until construction of a new 60-bed nursing facility was
completed. The Agreement contemplated the possibility that
construction of the new facility could not be completed and
that the Agreement could be terminated.
Even if we assume for purposes of argument that termination
was unlikely, and the facts regarding the Agreement supported
the probate court’s conclusion that the charitable purposes
of the gift became impossible to achieve, the Legislature has
determined that a charitable gift will not fail under such cir-
cumstances. Section 30-2342.01(a) states that “no gift, devise
. . . for . . . charitable, or benevolent purposes, which in other
respects is valid under the laws of this state, shall be invalid
or fail . . . by reason that it is . . . impossible to achieve.” In
the words of § 30-2342.01(b), this court should “determine
and order an administration or distribution of the gift [or]
devise . . . in a manner as consistent as possible with the intent
expressed in the document creating the gift [or] devise.”
“Legacies and devises to the uses of charity are entitled
to peculiar favor and are regarded as privileged testa-
ments, and will not be declared void if they can by any
possibility, consistent with law, be considered as good. So
courts of equity go to the length of their judicial power
rather than that such a trust should fail.” 21
Favorably viewing Akerson’s charitable gift and endeavoring
to carry it into effect, we conclude that under the undisputed
facts, the gift did not fail, nor did it become impossible to
execute in strict accordance with the charitable purposes and
objectives of Akerson’s will. 22
21
Allebach, supra note 11, 118 Neb. at 787, 226 N.W. at 442.
22
See Wood, supra note 18, citing Trustees of Dartmouth College v. Quincy,
357 Mass. 521, 258 N.E.2d 745 (1970). See, also, Garwood, supra note 11.
- 482 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470In finding that the gift lapsed, the probate court relied upon
In re Estate of Harrington, 23 but the case is distinguishable
due to the language used in that will. In that case, the question
before the court was whether a seminary was in existence on
the date of the death of the testatrix within the meaning of the
provisions of her will. In the part of the will in controversy,
the testator devised property to the seminary “‘if in existence;
but if not in existence at the death of the survivor of said
testators,’” then to a church. 24 The seminary discontinued all
theological education 3 years prior to the testatrix’s death, but
remained an existing legal entity at the time of her death. The
court held that the seminary was nonfunctioning at the time
of the testatrix’s death and could not carry out the objects and
purposes of the gift. But the court stated that the issue was not
whether the gift had lapsed, because the testatrix provided for
a contingency by giving the gift to a church.
In the present case, there is no language in Akerson’s will
requiring that Hamilton Manor still be in existence at the time
of her death. Even if there were such a provision, it would be
satisfied because Hamilton Manor was in existence and opera-
tional on the date of Akerson’s death. Further, the recipients of
the gift are “political subdivision[s] of the state of Nebraska,
and the end of [their] existence cannot be safely asserted or
even foreseen.” 25 Therefore, we disagree with the probate
court’s conclusion that Hamilton Manor ceased to exist as of
Akerson’s death. In fact, Hamilton Manor, as Akerson knew it,
did exist at her death. And the board of trustees still maintains
an active account for Hamilton Manor.
Ronald argues that the closing of Hamilton Manor a short
time after Akerson’s death is similar to a breach of a condition
subsequent, which was an argument at issue in Allebach v.
City of Friend. 26 However, Ronald’s argument is inapplicable
23
In re Estate of Harrington, supra note 1.
24
Id. at 91, 36 N.W.2d at 582.
25
Allebach, supra note 11, 118 Neb. at 789-90, 226 N.W. at 443.
26
Allebach, supra note 11.
- 483 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470based on the language of the will at issue in Allebach. In that
case, the testator gifted $10,000 to the city of Friend “‘to be
used for the erection of a hospital.’” 27 The money was placed
in a separate fund and was not used for the erection of a hos-
pital within 4 years of receipt. The residuary beneficiary filed
a petition contending that the city had forfeited the gift. In
construing the will, the court found that the instruction to use
the money to erect a hospital amounted to a condition subse-
quent, which must be carried out within a reasonable period of
time. The court noted that a protracted delay in carrying out
the purposes of the gift could amount to a refusal and cause
the gift to revert. Ultimately, the court affirmed dismissal
of the petition, finding that consummation of the purpose of
the gift had not been delayed for an unreasonable amount
of time.
In the present case, however, Akerson’s gift to Hamilton
Manor was unconditional, save for the requirement that the
money be used for the facility’s general charitable purposes.
The Agreement did not make it impossible for Hamilton Manor
to carry out Akerson’s intent. Therefore, there is merit to
Hamilton County and the board of trustees’ argument that the
probate court erred in finding that the gift to Hamilton Manor
lapsed. Because the gift can be carried out in accordance with
Akerson’s intent, we do not need to consider the application of
the doctrine of cy pres. 28
Interest
[12,13] Section 30-24,102 provides that general pecuniary
devises bear interest at the legal rate beginning 1 year after the
first appointment of a personal representative until payment,
unless a contrary intent is indicated by the will. A will is an
instrument in writing. Therefore, when interest is required to
be paid on a pecuniary devise pursuant to this section, the legal
rate of interest called for is 12 percent per annum, as required
27
Id. at 783, 226 N.W. at 440.
28
See Allebach, supra note 11.
- 484 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470by Neb. Rev. Stat. § 45-104 (Reissue 2010). 29 In this case,
Ronald was appointed personal representative on January 5,
2018. As personal representative, Ronald recognized Hamilton
Manor as a charitable beneficiary in the estate’s federal estate
tax and Nebraska inheritance tax filings in the fall of 2018. The
bequest to Hamilton Manor began bearing interest on January
5, 2019. Ronald filed a petition for construction of will on
September 27, 2019.
Ronald argues that a beneficiary’s right to interest is quali-
fied. We have stated that charging a personal representative
with interest would be inequitable when the delay in payment
is caused by a will contest or through other litigation which
prevents speedy distribution of the estate. 30 A personal rep-
resentative is not ordinarily chargeable with interest, at least
until a reasonable time has elapsed after the will contest or
other litigation has been completed. 31 Hamilton County and
the board of trustees argue that this exception is judicially cre-
ated. However, they have not asked this court to overrule any
precedent.
We agree with Hamilton County and the board of trustees
that pursuant to the ordinary operation of § 30-24,102, an
award of interest is appropriate in this case. The only evidence
of delay in our record was caused by Ronald’s petition for
construction of the will. Ronald had previously asserted in tax
filings that the charitable bequest to Hamilton Manor would
be unchallenged. In his petition, Ronald requested the court
to find that the distribution to Hamilton Manor had failed
and to order that the proceeds be administered as part of the
residuary of the estate, of which Ronald held a one-half inter-
est. Ronald alleged that this would be most consistent with
Akerson’s intent, even though it is clear that Akerson intended
to make this gift to charity and did not provide a provision for
29
In re Estate of Peterson, 230 Neb. 744, 433 N.W.2d 500 (1988).
30
In re Estate of Kierstead, 128 Neb. 654, 259 N.W. 740 (1935).
31
In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989).
- 485 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE ESTATE OF AKERSON
Cite as 309 Neb. 470an alternative disposition. Furthermore, we are observant of the
provision in Akerson’s will in which she stated that she did not
desire “any person whomsoever” to “in any way, directly or
indirectly, [to] contest . . . the distribution of my estate for any
reason.” Therefore, even if Ronald’s contention that the gift
had lapsed was of pure intent, the law and the facts direct us to
hold Ronald responsible to Hamilton County and the board of
trustees for interest.
CONCLUSION
For the foregoing reasons, the decision of the probate court
should be and is hereby reversed and the cause is remanded
with direction to order that Akerson’s $875,000 charitable
bequest be distributed to Hamilton County and the board of
trustees, with interest accruing at 12 percent per annum com-
mencing January 5, 2019.
Reversed and remanded with direction.
Miller-Lerman, J., participating on briefs.
Papik, J., not participating.