In re Estate of Tiedeman , 912 N.W.2d 816 ( 2018 )

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IN RE ESTATE OF TIEDEMAN
Cite as 25 Neb. App. 722In re Estate of Brian L. Tiedeman, deceased.
Dustin Lovorn, Special A dministrator of the Estate
of Brian L. Tiedeman, deceased, appellant and
cross-appellee, v. Sue A nn Brethouwer, appellee
and cross-appellant, and David L. Clark, Jr., and
Sheila G. Casares, Copersonal R epresentatives
of the Estate of Jody Clark, deceased,
appellees and cross-appellants.
___ N.W.2d ___
Filed April 10, 2018. Nos. A-16-887, A-16-933.
1. Decedents’ Estates: Wills: Trusts: Judgments: Appeal and Error.
The interpretation of the words in a will or a trust presents a question of
law. When reviewing questions of law in a probate matter, an appellate
court reaches a conclusion independent of the determination reached by
the court below.
2. Summary Judgment: Jurisdiction: Appeal and Error. When review-
ing cross-motions for summary judgment, an appellate court acquires
jurisdiction over both motions and may determine the controversy that
is the subject of those motions; an appellate court may also specify the
issues as to which questions of fact remain and direct further proceed-
ings as the court deems necessary.
3. Wills: Intent: Words and Phrases. Material provisions of a will are
defined as those provisions which express donative and testamen-
tary intent.
4. ____: ____: ____. Donative intent relates to words reflecting specific
bequests to particular beneficiaries, and testamentary intent concerns
whether the document was intended to be a will.
5. Wills: Words and Phrases. No particular words or conventional forms
of expression are necessary to enable one to make an effective testamen-
tary disposition of his or her property.
6. ____: ____. When construing the meaning of words in a document,
the process requires determining the correct sense, real meaning, or
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IN RE ESTATE OF TIEDEMAN
Cite as 25 Neb. App. 722proper explanation of an ambiguous term, phrase, or provision in a writ-
ten instrument.
7. ____. ____. Ambiguity exists in an instrument, including a will, when a
word, phrase, or provision in the instrument has, or is susceptible of, at
least two reasonable interpretations or meanings.
8. Parol Evidence: Wills: Intent. Parol evidence is inadmissible to deter-
mine the intent of a testator as expressed in his or her will, unless there
is a latent ambiguity therein which makes his or her intention obscure
or uncertain.
9. Wills: Words and Phrases. A patent ambiguity is an ambiguity appear-
ing on the face of the instrument, whereas a latent ambiguity is one
outside the will.
10. Wills: Intent. A patent ambiguity must be removed by interpretation
according to legal principles, and the intention of the testator must be
found in the will.
11. Wills. Patent ambiguities are resolved from within the four corners of
the will and without consideration of extrinsic evidence.
12. Wills: Words and Phrases. Where in a will there is such a patent ambi-
guity resulting from the use of the words and nothing appears within its
four corners to resolve or clarify the ambiguity, the words must be given
their generally accepted literal and grammatical meaning.
13. Wills. A latent ambiguity exists when the testator’s words are suscep-
tible of more than one meaning, and the uncertainty arises not upon the
words of the will as looked at themselves, but upon those words when
applied to the object or subject which they describe.
14. ____. A latent ambiguity arises when a beneficiary is erroneously
described, where no such beneficiary has ever existed as the one so
described, or when two or more persons or organizations answer the
description imperfectly.
15. Wills: Evidence. Extrinsic evidence is admissible both to disclose and
to remove the latent ambiguity of the will.
16. ____: ____. A patent ambiguity is a case where the same word in a will
has two meanings discernible from the face of the will itself, whereas a
latent ambiguity is a case where the word has two meanings, but only
when extrinsic evidence is brought to bear.
17. Wills. The law will not suffer an heir to be disinherited upon conjecture.
18. Wills: Intent. Although a testator may disinherit an heir, the law will
execute that intention only when it is put in a clear and unambigu-
ous shape.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
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IN RE ESTATE OF TIEDEMAN
Cite as 25 Neb. App. 722James L. Haszard, of McHenry, Haszard, Roth, Hupp,
Burkholder & Blomenberg, P.C., L.L.O., for appellant.
J.L. Spray and Ryan K. McIntosh, of Mattson Ricketts Law
Firm, for appellee Sue Ann Brethouwer.
Dale D. Dahlin, P.C., L.L.O., for appellees David L. Clark,
Jr., and Sheila G. Casares.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
Bishop, Judge.
INTRODUCTION
Following Brian L. Tiedeman’s death, his nephew Dustin
Lovorn filed a petition to have Tiedeman’s purported holo-
graphic will admitted to probate in the county court for
Lancaster County. Sue Ann Brethouwer and Jody Clark, two
of Tiedeman’s sisters, filed separate objections to Lovorn’s
petition, and the case was transferred to the district court for
Lancaster County. The district court granted partial summary
judgment in favor of Lovorn as to the document in question
being written by Tiedeman, but granted summary judgment in
favor of Brethouwer and Clark as to the document not being
made with the requisite testamentary intent to be a valid holo-
graphic will. Lovorn appeals the district court’s decision, and
Brethouwer and Clark cross-appeal. We affirm.
BACKGROUND
We initially note that while this appeal was pending, a sug-
gestion of death was filed notifying the court that Clark died
on December 27, 2017. On January 19, 2018, a stipulation
and joint motion for revivor was filed by the parties pursuant
to Neb. Rev. Stat. § 25-1401 et seq. (Reissue 2016), indicat-
ing that David L. Clark, Jr., and Sheila G. Casares (son and
daughter of Clark) were appointed and qualified as copersonal
representatives of Clark’s estate. The parties agreed the action
and interests of Clark should proceed in the names of her
copersonal representatives. The stipulation and joint motion
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Cite as 25 Neb. App. 722for revivor was sustained by order of this court entered on
February 1, 2018; however, this opinion will continue to refer
to Clark by her name.
Tiedeman died on February 24, 2015. His estate is com-
prised primarily of a farm operation and has a gross value of
approximately $4 million. Before his death, Tiedeman man-
aged the farm operation with Lovorn. Tiedeman’s only heirs
at law were his three sisters: Brethouwer, Clark, and Lovorn’s
mother. Lovorn filed a petition in county court on March 4 to
have the purported holographic will admitted into formal pro-
bate. We set forth the handwritten document below to reflect,
as best possible, its use of spacing and capitalization, and
its spelling:
5-22-14
I Brian L Tiedeman want all my
All Property to Dustin Lovorn
I here by attend to change my will.
[Signature]
The county court subsequently appointed Lovorn special
administrator of Tiedeman’s estate in order to manage the
farming operation to prevent waste.
Brethouwer filed an objection to the petition for formal
probate of the purported holographic will and transferred the
action to the district court. Her objection alleged as follows:
(1) The purported will does not express testamentary intent,
(2) Tiedeman did not have testamentary capacity at the time
of the purported will’s execution, (3) Tiedeman lacked men-
tal capacity to execute a will, (4) Tiedeman was under duress
from Lovorn when the purported will was created, and (5) the
purported will is the product of undue influence exercised by
Lovorn over Tiedeman. Clark filed a separate objection, alleg-
ing the document in question (1) was not executed properly
under Nebraska statutes governing the execution of a will, (2)
is not a valid holographic will, (3) does not express testamen-
tary intent, (4) is not in Tiedeman’s handwriting, (5) was not
made with testamentary intent at the time of its creation, (6) is
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Cite as 25 Neb. App. 722the product of undue influence by Lovorn over Tiedeman, (7)
was created while Tiedeman was under duress from Lovorn,
(8) was created at a time when Tiedeman did not have testa-
mentary capacity, (9) resulted from fraud by Lovorn, and (10)
was not intended to be a will and was the result of mistake by
Tiedeman. Lovorn filed separate answers to both objections
denying all of the allegations by both Brethouwer and Clark
listed above.
Brethouwer then filed a motion for summary judgment,
requesting judgment as a matter of law that the purported will
“did not express sufficient testamentary intent as required
by Neb. Rev. Stat. § 30-2328 (Reissue 2008).” Clark subse-
quently joined Brethouwer’s motion for summary judgment.
Lovorn filed a motion for partial summary judgment, request-
ing judgment as a matter of law that (1) the purported will
was in Tiedeman’s handwriting and (2) the purported will
“expressed sufficient testamentary intent as required by Neb.
Rev. Stat. §30-2328.”
At the hearing on the motions for summary judgment,
Lovorn offered the affidavit of attorney Patrick D. Timmer,
in which Timmer explained the circumstances of the creation
of the purported will. Counsel for Brethouwer and Clark
made objections to the affidavit, including arguments related
to extrinsic and parol evidence. The court took the offer of the
affidavit under advisement. And although counsel for Clark
challenged the accuracy of the affidavit based on alleged prior
inconsistent reporting by Timmer as to whether the purported
will was drafted by Tiedeman at home or at Timmer’s office,
this was only raised by argument and not through any evidence
submitted at the hearing.
The district court issued an order on August 15, 2016. In
that order, the court sustained objections to Timmer’s affidavit
as to paragraphs 10, 12, and 13, but received the remainder of
the affidavit. The court observed that parol evidence was not
admissible to determine the intent of a testator as expressed in
his or her will unless there is a latent ambiguity therein which
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Cite as 25 Neb. App. 722makes his or her intention obscure or uncertain. The court fur-
ther observed that with regard to the purported will in this case,
“it is apparent that no latent ambiguity exists.” Concluding it
could not consider extrinsic evidence to determine Tiedeman’s
testamentary intent, the court sustained objections to the three
paragraphs noted above.
The three excluded paragraphs of Timmer’s affidavit
averred: Tiedeman told Timmer that he wanted to change his
will to give all of his property to Lovorn, but that Timmer did
not have time to discuss a new will with him; Timmer handed
Tiedeman a piece of paper and told him to write, “‘I, Brian L.
Tiedeman, want all my property to go to Dustin Lovorn and I
hereby intend to change my will’”; and Timmer told Tiedeman
“to write ‘I hereby intend to change my will’ to show his inten-
tion as to the purpose of the document.”
In relevant part, the admitted portion of Timmer’s affidavit
averred: Timmer, an attorney, had worked with Tiedeman “on
a number of occasions” with regard to the administration of
Tiedeman’s father’s trust (Tiedeman was the trustee); Timmer
was scheduled to meet with Tiedeman on May 22, 2014, for
an allotted 45 minutes, and at that time, Tiedeman signed trust
administration documents and powers of attorney appointing
Lovorn as Tiedeman’s attorney in fact; during this meeting,
Timmer told Tiedeman to schedule another appointment to
discuss a new will, but he explained to Tiedeman that in the
meantime, he could “do what is called a holographic will”
and told him he could create a document in his own handwrit-
ing that is signed and dated; Timmer personally witnessed
Tiedeman writing on paper given to him and signing the
document, and this is the document that has been offered for
probate in Tiedeman’s estate; Tiedeman did not leave the con-
ference room during the course of the meeting and “the writing
of the will”; Lovorn did not accompany Tiedeman to this meet-
ing, nor did Lovorn speak to Timmer about “the will” until
after Tiedeman’s death; Tiedeman left “the holographic will”
with Timmer, which he placed in Tiedeman’s estate planning
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Cite as 25 Neb. App. 722file; Tiedeman told Timmer that Lovorn was already a joint
owner on some of Tiedeman’s accounts or that he was plan-
ning to add him to accounts; and Timmer stated that he was
aware on May 22 that Tiedeman had an existing will prepared
by another attorney, but that Timmer did not know the where-
abouts of that will.
With that evidence, the district court first considered whether
the purported holographic will was in Tiedeman’s handwriting.
The court stated that Timmer’s affidavit “clearly shows that
Timmer witnessed [Tiedeman] write and sign the document,
he then left the document with Timmer, who placed it in
[Tiedeman’s] estate planning file.” Since the court found there
were no genuine issues of material fact regarding this issue, it
granted partial summary judgment in favor of Lovorn, find-
ing that the “purported holographic will is in the handwriting
of [Tiedeman].”
The next issue considered by the district court was whether
the purported holographic will expressed sufficient testamen-
tary intent. Based on the evidence admitted, the court granted
summary judgment in favor of Brethouwer and Clark, finding
that “the writing fails to express sufficient testamentary and
donative intent.” It was the court’s opinion that the words
expressed Tiedeman’s intent to create a new will at a future
date. In sum, the court stated that “the purported holographic
will . . . does not contain sufficient material provisions express-
ing testamentary and donative intent and cannot be legally
recognized as a valid holographic will.”
The district court ordered the matter transferred back to
the county court “to carry the final decision to judgment and
execution.”
Lovorn filed a motion for the district court to set a super-
sedeas bond pursuant to Neb. Rev. Stat. § 30-1601 (Reissue
2016). The court entered an order stating “a supersedeas bond
is required by . . . Lovorn to appeal this matter and the amount
of said bond is $400,000.00.” Lovorn then filed his appeal
from the district court’s order granting summary judgment
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Cite as 25 Neb. App. 722in favor of Brethouwer and Clark; it was docketed as case
No. A-16-887.
Lovorn also filed a motion with the district court to recon-
sider the amount of the supersedeas bond and to extend time
to file the bond. Lovorn’s motion included an affidavit from
the president of a bond company, which affidavit indicated
the bond company was requiring $400,000 in collateral, plus
a $6,000 fee per year, for a $400,000 bond. Lovorn claimed
that he did not have sufficient assets to provide such collat-
eral and that the primary asset in the estate is farm ground,
which cannot be destroyed or removed, so a lesser bond
would protect the beneficiaries. Lovorn’s affidavit stated he
owned vehicles and miscellaneous assets totaling $68,753,
plus a one-half interest in the farm operation’s machinery
($152,440) secured by a bank and for which ownership is
“likely disputed.”
The district court overruled Lovorn’s motion for reconsid-
eration and for an extension of time to file a bond. Lovorn
then filed a motion with this court to review the district
court’s supersedeas bond amount and for leave to file his bond
out of time in response to the court’s decision to overrule his
motion for reconsideration; it was filed as a separate appeal
(case No. A-16-933). Brethouwer and Clark filed separate
motions for summary disposition with this court, both argu-
ing we lacked jurisdiction to hear Lovorn’s appeal based on
his failure to post the $400,000 supersedeas bond set by the
district court. Those motions were overruled, and we entered
an order setting the bond amount at $100,000, which Lovorn
subsequently posted.
The appeals in cases Nos. A-16-887 and A-16-933 have
been consolidated for briefing and disposition.
Although not relevant to this appeal, we note that follow-
ing the district court’s order regarding summary judgment,
Clark filed a petition in the county court to have a purported
lost will admitted to formal probate and nominated herself as
personal representative. The petition included the purported
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Cite as 25 Neb. App. 722copy of a lost will which was unsigned by Tiedeman. Lovorn
and his mother both filed objections to Clark’s petition to have
the lost will admitted to probate based on Lovorn’s pending
appeal. The county court scheduled a hearing date; however,
our record does not show any further information.
ASSIGNMENTS OF ERROR
Lovorn assigns nine errors, which we consolidate and
restate as follows: The district court erred (1) in finding
Brethouwer and Clark were entitled to judgment as a matter
of law that the purported holographic will did not contain suf-
ficient testamentary intent, (2) in failing to consider extrinsic
evidence in determining the testamentary intent of the pur-
ported will, and (3) in setting the supersedeas bond in the
amount of $400,000.
Brethouwer assigns on cross-appeal that the district court
erred by receiving any part of Timmer’s affidavit into evidence.
Clark assigns on cross-appeal that the district court erred
(1) by receiving any part of Timmer’s affidavit into evidence
and (2) by finding the purported will was in Tiedeman’s hand-
writing. She also assigns error to this court for reducing the
amount of the supersedeas bond.
STANDARD OF REVIEW
[1] The interpretation of the words in a will or a trust
pre­sents a question of law. 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. In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d
536 (2017).
[2] When reviewing cross-motions for summary judgment,
an appellate court acquires jurisdiction over both motions and
may determine the controversy that is the subject of those
motions; an appellate court may also specify the issues as to
which questions of fact remain and direct further proceedings
as the court deems necessary. Johnson v. Nelson, 290 Neb.
703, 861 N.W.2d 705 (2015).
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IN RE ESTATE OF TIEDEMAN
Cite as 25 Neb. App. 722ANALYSIS
Not Valid Holographic Will on Its Face.
The district court concluded that the document offered as
Tiedeman’s holographic will was in Tiedeman’s handwriting,
but that the words “I Brian L Tiedeman want all my All
Property to Dustin Lovorn I here by attend to change my will”
did not “express sufficient testamentary and donative intent” to
qualify as a holographic will. Rather, the court concluded that
the words expressed only “Tiedeman’s intent to create a new
will at a future date.”
Like the district court, we begin our analysis by setting forth
the statutory requirements for a holographic will. Pursuant to
Neb. Rev. Stat. § 30-2328 (Reissue 2016):
An instrument which purports to be testamentary in
nature but does not comply with section 30-2327 is valid
as a holographic will, whether or not witnessed, if the
signature, the material provisions, and an indication of
the date of signing are in the handwriting of the testator
and, in the absence of such indication of date, if such
instrument is the only such instrument or contains no
inconsistency with any like instrument or if such date is
determinable from the contents of such instrument, from
extrinsic circumstances, or from any other evidence.
[3,4] The district court found the purported holographic
will did “not contain sufficient material provisions,” which
§ 30-2328, set forth above, clearly requires. Material provi-
sions of a will are defined as those provisions which express
donative and testamentary intent. See In re Estate of Foxley,
254 Neb. 204, 575 N.W.2d 150 (1998). The district court cited
to Simonelli v. Chiarolanza, 355 N.J. Super. 380, 810 A.2d
604 (2002), which also considered a purported holographic
will, to explain that testamentary intent concerns whether
the document was intended to be a will and donative intent
relates to words reflecting specific bequests to particular
beneficiaries. In Simonelli, the document at issue stated, “‘In
case of death-goes to Lisa Simonelli.’” 355 N.J. Super. at
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Cite as 25 Neb. App. 722384, 810 A.2d at 606. The New Jersey court stated that its
governing statute for a holographic will required “‘material
provisions [to be] in the handwriting of the testator,’” id. at
385, 810 A.2d at 607, and concluded that the writing at issue
was devoid of such material provisions and therefore failed
to meet the statutory requirements of a holographic will. We
also note the New Jersey court’s reference to In re Estate
of Foxley, supra, for its statement, “Such words constitute
material provisions because they are the essence of any will.”
Simonelli v. Chiarolanza, 355 N.J. Super. at 388, 810 A.2d at
608. In summary, we agree that material provisions, meaning
words which express donative and testamentary intent, are the
essence of any will. Donative intent relates to words reflecting
specific bequests to particular beneficiaries, and testamentary
intent concerns whether the document was intended to be a
will. See Simonelli v. Chiarolanza, supra. See, also, In re
Estate of Foxley, supra.The district court in the present matter, like the New Jersey
court, concluded that the writing at issue failed to “contain suf-
ficient material provisions expressing testamentary and dona-
tive intent and cannot be legally recognized as a valid holo-
graphic will.” It found that the words “I Brian L Tiedeman
want all my All property to Dustin Lovorn” failed to contain
an operative verb to express a specific bequest and that the
word “to” by itself does not have “present [or] future mean-
ing.” However, Lovorn asserts those particular words can only
be understood as a specific bequest, because taken together,
the words describe who the beneficiary is and what property
is being devised. He concedes an “additional operative verb
would have made the document more clear,” but asserts “the
document as a whole is sufficient to show Tiedeman’s testa-
mentary intent.” Brief for appellant at 11. However, even if
this court were to agree with Lovorn and find the writing was
sufficient to establish donative intent, the writing still fails as
a valid holographic will because of the lack of testamentary
intent, which we discuss next.
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Cite as 25 Neb. App. 722The district court also considered the words “I here by
attend to change my will” and stated that “even when read
as ‘intend’ to change my will,” the words do not “sufficiently
evidence intent that the document is [Tiedeman’s] final will,
revoking all prior wills with the intention to dispose of his
property upon his death.” The court further stated, “[T]hese
words express Tiedeman’s intent to create a new will at a
future date and not that this expression intended the creation
of a final will.”
[5,6] No particular words or conventional forms of expres-
sion are necessary to enable one to make an effective testa-
mentary disposition of his or her property. Gretchen Swanson
Family Foundation, Inc. v. Johnson, 193 Neb. 641, 228 N.W.2d
608 (1975). However, when construing the meaning of words
in a document, the process requires determining the correct
sense, real meaning, or proper explanation of an ambiguous
term, phrase, or provision in a written instrument. See In
re Estate of Matthews, 13 Neb. App. 812, 702 N.W.2d 821(2005). We find no fault with the manner in which the district
court examined and interpreted the words contained in the pur-
ported holographic will.
However, Lovorn argues the district court ignored the legal
definition of the word “hereby” when determining whether
there was present or future intent. He points to other jurisdic-
tions’ definitions, as well as the legal definition of “hereby” as
either “[b]y this document” or “by these very words.” Black’s
Law Dictionary 842 (10th ed. 2014). Lovorn argues that using
one of these definitions would change Tiedeman’s words in
the document to “‘I [by this very document] attend to change
my will.’” Brief for appellant at 13. Lovorn asserts reading the
words in this way requires the statement to be understood as a
present intent to change his will.
Clark contends the use of the word “hereby” in the writ-
ing is inconclusive because it is not coupled with an operative
verb, which prevents it from adding present intent. Brethouwer
puts forth the same arguments, finding the lack of an operative
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Cite as 25 Neb. App. 722verb, even with the word “hereby,” cannot be interpreted as
present testamentary intent. Clark also contends the use of the
verb “‘want’” instead of “‘devise,’” “‘bequeath,’” or “‘give’”
indicates future intent and not a present intent to make a will.
Brief for appellee Clark at 8.
As noted above, “hereby” means “[b]y this document,”
Black’s Law Dictionary, supra, and “intend” means, in relevant
part, “[t]o have in mind a fixed purpose to reach a desired
objective; to have as one’s purpose . . . [t]o signify or mean,”
id. at 930. The combination of the words “hereby intend”
with the words “to change my will” does not clarify whether
Tiedeman meant that with “this document,” he was actually
changing or revoking an existing will and creating a new will
at that moment, or that with “this document,” he was signifying
his plan to change an existing will in the future. For example,
the writing in question could have simply been a note written
by Tiedeman to remind Timmer of his plans to later change
his will, particularly since an admitted portion of Timmer’s
affidavit indicates Timmer told Tiedeman to schedule another
appointment to discuss a new will. On the other hand, if
the excluded portions of Timmer’s affidavit could be consid-
ered, an argument can certainly be made that the writing was
intended to evidence present testamentary intent. As set forth
earlier, testamentary intent concerns whether the document was
intended to be a will.
It is significant, therefore, whether the district court could
have considered evidence outside the four corners of the pur-
ported will to determine testamentary intent under the cir-
cumstances present here. In construing the words within the
four corners of the document, we can find no error with the
district court’s analysis and conclusion that the writing indi-
cates only future intent and lacks present testamentary intent.
Accordingly, we next consider whether extrinsic evidence may
be considered to determine testamentary intent, because if so, a
different outcome is possible.
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Cite as 25 Neb. App. 722Extrinsic Evidence.
[7,8] Ambiguity exists in an instrument, including a will,
when a word, phrase, or provision in the instrument has, or is
susceptible of, at least two reasonable interpretations or mean-
ings. In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536(2017). In the present matter, the court construed the writing
to indicate only Tiedeman’s future intent to change his will, as
discussed above. Lovorn argues the document should be con-
strued to show present testamentary intent. Clearly, the words
are ambiguous in this regard. And as noted above, Lovorn’s
argument is certainly more persuasive if the excluded portions
of Timmer’s affidavit can be considered. However, parol evi-
dence is inadmissible to determine the intent of a testator as
expressed in his or her will, unless there is a latent ambiguity
therein which makes his or her intention obscure or uncertain.
In re Estate of Mousel, 271 Neb. 628, 715 N.W.2d 490 (2006).
The district court concluded that there was no latent ambigu-
ity in the document at issue and that therefore, the extrinsic
evidence contained in paragraphs 10, 12, and 13 of Timmer’s
affidavit could not be considered. We agree.
[9-12] A patent ambiguity is an ambiguity appearing on
the face of the instrument, whereas a latent ambiguity is one
outside the will. In re Estate of Florey, 212 Neb. 665, 325
N.W.2d 643 (1982). See, also, In re Estate of Corrigan, 218
Neb. 723, 358 N.W.2d 501 (1984) (patent ambiguity in will
is one appearing on face of instrument as result of language
contained therein). It is evident that the ambiguity at issue
here is a patent ambiguity. The ambiguity arises from the writ-
ing itself, or from the face of the document. The words could
indicate Tiedeman’s intent to change an existing will with
this particular document or his intent to change an existing
will at some time in the future. A patent ambiguity must be
removed by interpretation according to legal principles, and
the intention of the testator must be found in the will. In re
Estate of Mousel, supra. Patent ambiguities are “resolved from
within the four corners of the will and without consideration
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Cite as 25 Neb. App. 722of extrinsic evidence.” In re Estate of Matthews, 13 Neb. App.
812, 816, 702 N.W.2d 821, 825 (2005) (court rejected argu-
ment that extrinsic evidence could be considered for purpose
of considering circumstances under which holographic will
was made; will at issue involved patent ambiguity, not latent
ambiguity). Where in a will there is such a patent ambiguity
resulting from the use of the words and nothing appears within
its four corners to resolve or clarify the ambiguity, the words
must be given their generally accepted literal and grammatical
meaning. In re Estate of Florey, supra. Construction includes
the process of determining the correct sense, real meaning, or
proper explanation of an ambiguous term, phrase, or provision
in a written instrument. In re Estate of Matthews, supra. This
is precisely what the district court did in this instance to reach
its conclusion that the writing expressed “Tiedeman’s intent to
create a new will at a future date and not that this expression
intended the creation of a final will.”
[13-15] We now explain why the writing at issue does not
involve a latent ambiguity, which would allow consideration
of extrinsic evidence. A latent ambiguity exists when the testa-
tor’s words are susceptible of more than one meaning, and the
uncertainty arises not upon the words of the will as looked
at themselves, but upon those words when applied to the
object or subject which they describe. In re Estate of Mousel,
supra. See Krueger v. Krueger, 169 Neb. 82, 98 N.W.2d 360(1959). For example, when a will contained a devise of land
to the “‘Masonic Lodge for Crippled Children,’” on its face
there would appear to be no ambiguity. See In re Estate of
Bernstrauch, 210 Neb. 135, 136, 313 N.W.2d 264, 266 (1981).
However, in In re Estate of Bernstrauch, it became evident
that there was no such entity called the Masonic Lodge for
Crippled Children. This resulted in two entities seeking to be
designated as the proper devisee. Accordingly, the Nebraska
Supreme Court concluded that a latent ambiguity existed, not-
ing, “A latent ambiguity arises when a beneficiary is errone-
ously described or where no such beneficiary has ever existed
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Cite as 25 Neb. App. 722as the one so described” or “when two or more persons or
organizations answer the description imperfectly.” Id. at 139,
313 N.W.2d at 267. Further, “extrinsic evidence is admis-
sible both to disclose and to remove the latent ambiguity of
the will.” Id. It is clear that a latent ambiguity is not the type
of ambiguity at issue in the present appeal; the ambiguity in
Tiedeman’s purported will is within the face of the document
itself and is therefore a patent ambiguity.
[16] In summary, a patent ambiguity is a case where the
same word in a will has two meanings discernible from the
face of the will itself, whereas a latent ambiguity is a case
where the word has two meanings, but only when extrinsic evi-
dence is brought to bear. In re Estate of Smatlan, 1 Neb. App.
295, 501 N.W.2d 718 (1992).
Clark correctly argues that any question regarding the tes-
tamentary intent of the purported holographic will is a patent
ambiguity. She relies on In re Estate of Matthews, 13 Neb.
App. 812, 702 N.W.2d 821 (2005), to assert extrinsic evidence
cannot be used, and she argues the district court should have
sustained her objection and kept the entirety of Timmer’s
affidavit out of evidence. As noted earlier, in In re Estate
of Matthews, this court rejected an argument that extrinsic
evidence could be considered for the purpose of considering
the circumstances under which a holographic will was made,
since the will at issue involved a patent ambiguity, not a
latent ambiguity.
Both Brethouwer and Clark direct us to In re Estate of
Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998), where the
court considered whether the decedent’s handwriting on a
photocopy of a previously executed will (and which was main-
tained in folder containing original will) was made with suf-
ficient testamentary intent to constitute a proper holographic
codicil. The decedent’s personal representative submitted the
original will and the purported holographic codicil for pro-
bate. A grandson objected to the admission of the purported
codicil. Evidence was adduced that the decedent did not like
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Cite as 25 Neb. App. 722the grandson and that she told one of her attorneys she did
not want the grandson to be an ongoing beneficiary or to par-
ticipate in a previously established irrevocable trust. The trial
court concluded the decedent had complied with the require-
ments of a holographic codicil and admitted the photocopy as
a valid holograph, and this court affirmed on appeal. See In re
Estate of Foxley, 6 Neb. App. 1, 568 N.W.2d 912 (1997). The
Nebraska Supreme Court reversed, finding that the handwrit-
ten words at issue in that case, standing alone, did not evi-
dence a clear testamentary intent. It stated:
Although one might be sympathetic toward giving
effect to the decedent’s perceived testamentary intent,
the Legislature has chosen to require that testamentary
intent be expressed in certain ways before an instrument
is entitled to be probated as a will. Unfortunately for the
decedent, the instrument in this case fails. See Matter
of Estate of Muder, 159 Ariz. 173, 765 P.2d 997 (1988).
In this case, the testimony of [the decedent’s] attorney
and [one of] her daughter[s] . . . indicates that when [the
decedent] changed the terms on the copy of her will,
she was at least considering, if not actually intending, to
write [her grandson] out of her will. We cannot conclude,
however, that she had come to a final decision when writ-
ing on the copy of the will. We must remember that both
the original and the copy of the will were found together
in the den of [the decedent’s] home, and an argument can
be made that she was simply making notes on the copy
of the will as to possible changes and had not, at the time
of making those notes, made a final decision as to [her
grandson]. If she was making a final decision, a plausible
argument can be made that she would have made those
changes on the original. If we make an exception in this
case to the rule that holographic words, standing alone,
have to demonstrate a clear testamentary intent, where
do we stop? To weaken the rule would be to invite mis-
chief or outright fraud by overreaching heirs, friends, or
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Cite as 25 Neb. App. 722other potential beneficiaries taking advantage of testators
in their most vulnerable moments, such as advanced age
or right after an argument with one of the children or
grandchildren. If one has made a final decision to write
an heir out of his or her will, this must be done in such
a way that the expression of this intention complies with
the statute.
In re Estate of Foxley, 254 Neb. at 210-11, 575 N.W.2d at
154-55.
[17,18] In re Estate of Foxley certainly emphasizes the
importance of being true to the statutory requirements by mak-
ing sure that an instrument expresses testamentary intent in
certain, clear ways before being entitled to be probated as a
will; further, courts should not give effect to any “perceived”
testamentary intent. Id. at 210, 575 N.W.2d at 154. Also signif-
icant in the quote above is the point made at the end regarding
decisions to write an heir out of a will. Notably, the Nebraska
Supreme Court has said that “‘“the law will not suffer the heir
to be disinherited upon conjecture.”’” Lowry v. Murren, 195
Neb. 42, 45, 236 N.W.2d 627, 630 (1975). Although a testator
may disinherit an heir, “‘“the law will execute that intention
only when it is put in a clear and unambiguous shape.”’” Id.To the extent Tiedeman intended to disinherit his sisters, the
writing at issue certainly does not provide for that in clear and
unambiguous terms.
Lovorn’s counsel also referred to In re Estate of Foxley,
254 Neb. 204, 575 N.W.2d 150 (1998), during oral argument
as an example of a Nebraska case where extrinsic evidence
was used to interpret the testamentary intent behind a docu-
ment, because in its analysis, the Nebraska Supreme Court
mentioned the location where the purported codicil and the
original will were found. However, In re Estate of Foxley
does not support Lovorn’s position. The Nebraska Supreme
Court was clear that the handwritten words on the photocopy
of the will, standing alone, could not be understood to have
testamentary intent without referring to the typewritten words
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Cite as 25 Neb. App. 722of the original will (extrinsic evidence) and that therefore, the
purported holographic codicil was invalid. In that case, there
may have been a different outcome that would have given
effect to the decedent’s perceived testamentary intent if the
extrinsic evidence could have been considered. The same can
be said here. However, the Nebraska Supreme Court was clear
in In re Estate of Foxley that testamentary intent had to be
discerned from the handwritten words alone. That is precisely
what the district court did in this case.
Lovorn also asserts the district court should have admitted
Timmer’s entire affidavit based on In re Estate of Dimmitt, 141
Neb. 413, 3 N.W.2d 752 (1942). Lovorn reads In re Estate of
Dimmitt to allow extrinsic evidence to be considered to “‘show
the facts and circumstances surrounding the situation under
which Tiedeman created the will.’” Brief for appellant at 15,
quoting In re Estate of Dimmitt, supra. However, Lovorn’s
reliance on In re Estate of Dimmitt is misplaced. The dispute
in In re Estate of Dimmitt was over an attempt to admit both a
will and a deed into probate together in order to convey a tract
of the decedent’s land. In re Estate of Dimmitt has been found
to be distinguishable from cases where the will purports to be
complete on its face and makes no reference to any extrinsic
document. See In re Estate of Matthews, 13 Neb. App. 812,
702 N.W.2d 821 (2005). We likewise find In re Estate of
Dimmitt inapplicable here, because there is no attempt in this
case to incorporate an extrinsic document into the will like the
deed in In re Estate of Dimmitt.
In summary, we agree with the district court’s decision that
the purported holographic will could not be legally recognized
as a valid holographic will. The court correctly determined
that the document did not contain sufficient material pro-
visions expressing testamentary and donative intent within
the document itself and that extrinsic evidence could not be
considered to aid in that determination since there was no
latent ambiguity.
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Cite as 25 Neb. App. 722Supersedeas Bond.
Lovorn assigned as error that the supersedes bond amount
of $400,000 set by the district court was both an excessive
amount and in excess of 50 percent of his net worth, which he
argues is contrary to Neb. Rev. Stat. § 25-1916 (Reissue 2016).
However, after considering the motions for summary disposi-
tion on this issue, we reduced the supersedeas bond amount
to $100,000, which Lovorn posted, making his assignment
of error, and Clark’s cross-appeal on this issue, moot before
this court.
Remaining Assigned Errors.
On cross-appeal, Brethouwer and Clark both assign as
error the district court’s admission of Timmer’s affidavit,
other than paragraphs 10, 12, and 13. Clark also assigns as
a separate error the district court’s finding that the writing in
question was in Tiedeman’s handwriting. However, an appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.
Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284(2017). Having already found the document in question is not
a valid holographic will, we need not decide these remaining
assigned errors.
CONCLUSION
For the reasons set forth above, we affirm the district
court’s order.
A ffirmed.