In re Estate of Clark , 31 Neb. Ct. App. 427 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/25/2022 01:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427In re Estate of Charles G. Clark, deceased.
Catherine Tucker, appellant, v. Marjorie E.
Wilkins and Genevieve L. Netz, Copersonal
Representatives, appellees.
___ N.W.2d ___
Filed October 18, 2022. No. A-21-897.
1. Wills: Trusts. The interpretation of the words in a will or a trust pre­
sents a question of law.
2. Statutes. Statutory interpretation is a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
4. Decedents’ Estates. The difference between strict per stirpes and mod-
ern per stirpes is the generation at which shares of the estate are divided.
5. ____. Under a strict per stirpes application, the estate is divided among
the decedent’s children regardless of whether any survive the decedent.
6. Decedents’ Estates: Wills: Intent. The cardinal rule concerning a
decedent’s will is the requirement that the intention of the testator shall
be given effect, unless the maker of the will attempts to accomplish
a purpose or to make a disposition contrary to a rule of law or pub-
lic policy.
Appeal from the County Court for Brown County: James J.
Orr, Judge. Affirmed.
James D. Gotschall, of Gotschall & Sholes, P.C., L.L.O., for
appellant.
Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell &
Henderson, and Avery L. Gurnsey for appellees.
Moore, Riedmann, and Welch, Judges.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427Riedmann, Judge.
INTRODUCTION
At issue in this appeal is the proper distribution of the pro-
ceeds of real estate devised under a will drafted in 1972, prior
to the adoption of the Uniform Probate Code. The county court
for Brown County sustained the motion for distribution filed
by the copersonal representatives of the estate over the objec-
tion of one of the devisees. The objector appealed. For the rea-
sons discussed below, we affirm the county court’s distribution
and determination of shares of heirs.
BACKGROUND
The facts are undisputed. Charles C. Clark executed a will
on January 17, 1972, and its relevant provisions are as follows:
II
I give and devise unto my grandson, Gerald W. Davis,
a life estate in the following described property . . . and
upon the death of my said grandson, I give, devise and
bequeath said real estate described in this paragraph to
my heirs at law then living in the proportions they would
inherit from me under the intestate laws of the State of
Nebraska as they now exist.
III
I give, devise and bequeath the balance remaining of
my property, both real and personal, after payment there-
from of the items mentioned in Paragraph I hereof, to
my two daughters, Nora B. Snyder and Goldie R. Davis,
share and share alike.
Clark died on December 24, 1972. He was survived by his
daughters, Snyder and Davis. Snyder had three children, all of
whom also had children. Davis had six children, four of whom
also had children. Snyder died in 1980, and Davis died in 2007.
Gerald W. Davis (Gerald), Clark’s grandson who was granted
a life estate in the real estate at issue, died on December 29,
2019. At the time of Gerald’s death, all of Snyder’s children
were deceased and four of Davis’ children were deceased,
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427leaving two of Clark’s original nine grandchildren and numer-
ous great-grandchildren.
Following Gerald’s death, the copersonal representatives of
Clark’s estate filed a petition requesting the sale of the subject
real estate and the determination of shares. They proposed that
the two remaining grandchildren each receive one-ninth of the
proceeds and that the balance be distributed to Clark’s great-
grandchildren by right of representation.
Catherine Tucker, one of Snyder’s grandchildren and Clark’s
great-grandchildren, filed an objection, asserting that in 1972,
when the will was drafted, Nebraska statutes provided for a
distribution method referred to as “strict per stirpes,” “clas-
sic per stirpes,” or “English per stirpes.” She proposed that
the will be interpreted to determine the distribution as of the
date of Clark’s death, not Gerald’s death. Under her proposed
method, the proceeds would be divided with half distributed to
Snyder’s remaining descendants and the other half distributed
to Davis’ remaining descendants.
Prior to the hearing on the motion to determine shares, the
parties stipulated that if the court accepted the copersonal rep-
resentatives’ interpretation of 1972 intestate law and the will,
their schedule of distribution should be followed. The parties
also agreed that if Tucker’s interpretation is correct, her sched-
ule of distribution should be followed.
The county court found that because Clark had no surviv-
ing spouse or children at the time of Gerald’s death, Neb. Rev.
Stat. § 30-102 (Reissue 1964) required that the proceeds from
the real estate be distributed to Clark’s “‘other lineal descend­
ants in equal shares if in the same degree of kindred, other-
wise by representation.’” The county court determined that
the copersonal representatives’ proposed distribution achieved
the appropriate result. The county court found that this was in
line with Clark’s intention, because otherwise, Clark would
have used the same language in paragraph II of his will that
he used in paragraph III, simply devising the real estate
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427“to my two daughters.” Following posttrial motions, Tucker
timely appealed.
ASSIGNMENTS OF ERROR
Tucker assigns, combined and restated, that the county court
erred in (1) interpretating Nebraska’s intestate laws as required
by Clark’s last will and testament and (2) finding that Clark’s
children were required to survive the life tenant for distribu-
tion to begin at the “‘child generation.’”
STANDARD OF REVIEW
[1] The interpretation of the words in a will or a trust pre­
sents a question of law. In re Estate of Brinkman, 308 Neb.
117, 953 N.W.2d 1 (2021).
[2] Statutory interpretation is a question of law. In re Estate
of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022).
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusions. Id.ANALYSIS
Tucker argues that this appeal is a matter of statutory inter-
pretation and that the county court erred in determining that the
distributions should be at the grandchildren level. She argues
that the intestate laws dictate that the distribution should be
at the child level. However, her argument does not take into
account the language of Clark’s will which must also be given
effect. Based on the language of the will and the intestate stat-
utes existing in 1972, we affirm the county court’s order and
determination of the shares of heirs.
Clark’s will provided that “upon the death of [Gerald], I
give, devise and bequeath said real estate described in this
paragraph to my heirs at law then living in the proportions they
would inherit from me under the intestate laws of the State of
Nebraska as they now exist.” The applicable intestate law at
the time Clark executed his will was § 30-102, which provided
in part:
- 431 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427When any person, leaving no husband or wife sur-
viving, shall die, seized of any real estate, or any right
thereto, or entitled to any interest therein in fee simple,
or for the life of another, not having lawfully devised the
same, it shall descend subject to his debts, in the manner
following: (1) In equal share to his children, and to the
lawful issue of any deceased child by the right of repre-
sentation; and if there be no child of the deceased living
at his death, the estate shall descend to all his other lineal
descendants; and if all such descendants are in the same
degree of kindred to the deceased, they shall have the
estate equally; otherwise they shall take according to the
right of representation.
Read together, Clark provided that his heirs living at the
time of Gerald’s death should inherit the real estate in the
manner in which they would inherit from Clark if Clark had
died intestate. Tucker argues that because Clark’s daughters
were alive at the time of Clark’s death, the proceeds should
be equally divided between the daughters and pass to their
surviving heirs. If we were to adopt Tucker’s interpretation,
under § 30-102 the real estate shares would pass to Snyder
and Davis, who were living at the time of his death. But this
interpretation requires that we look back to the date of Clark’s
death and acknowledge that Snyder and Davis were still alive,
but simultaneously acknowledge their deaths so that the real
estate would pass to their issue. Given the language of Clark’s
will, we decline to do so. Instead, we interpret Clark’s direc-
tive as one that requires that we determine his living heirs at
the time of Gerald’s death and then look to the intestate law of
1972 to determine how they would inherit.
Because Clark’s daughters were not living at the time of
Gerald’s death, the latter portion of § 30-102(1) applies, which
states:
[A]nd if there be no child of the deceased living at his
death, the estate shall descend to all his other lineal
descendants; and if all such descendants are in the same
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427degree of kindred to the deceased, they shall have the
estate equally; otherwise they shall take according to the
right of representation.
[4] Tucker relies upon In re Estate of Evans, 20 Neb. App.
602, 827 N.W.2d 314 (2013), stating that it decided the very
issue before us. In In re Estate of Evans, we explained:
The difference between strict per stirpes and modern per
stirpes is the generation at which shares of the estate are
divided. Strict per stirpes begins at the generation clos-
est to the decedent, regardless of whether there are any
surviving individuals in that generation, whereas modern
per stirpes begins at the first generation where there is liv-
ing issue. Thus, the distinction between strict per stirpes
and modern per stirpes will be most evident in instances
where all of the heirs in the closest degree of kinship
are deceased.
20 Neb. App. at 610–11, 827 N.W.2d at 321. Tucker argues
that prior to adoption of the Uniform Probate Code, Nebraska
operated under the strict per stirpes model, and because Clark
executed his will prior to the code’s adoption, strict per stirpes
applies here. We disagree.
[5] Under a strict per stirpes application, the estate is divided
among the decedent’s children regardless of whether any sur-
vive the decedent; however, § 30-102 expressly stated that
if there be no child of the deceased living at his death,
the estate shall descend to all his other lineal descend­
ants; and if all such descendants are in the same degree
of kindred to the deceased, they shall have the estate
equally; otherwise they shall take according to the right
of representation.
Furthermore, in In re Estate of Evans, supra, the decedent
had not executed a will, whereas in the present case, we are
tasked with determining the effect of a testamentary provision
which invokes the intestate law. Based upon the language of
the will, Clark intended that the real estate would be distributed
to his heirs living at the time of Gerald’s death according to the
intestate laws existing in 1972.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE ESTATE OF CLARK
Cite as 31 Neb. App. 427[6] The cardinal rule concerning a decedent’s will is the
requirement that the intention of the testator shall be given
effect, unless the maker of the will attempts to accomplish a
purpose or to make a disposition contrary to a rule of law or
public policy. In re Estate of Brinkman, 308 Neb. 117, 953
N.W.2d 1 (2021). To arrive at a testator’s intention expressed
in a will, a court must examine the decedent’s will in its
entirety, consider and liberally interpret every provision in a
will, employ the generally accepted literal and grammatical
meaning of words used in the will, and assume that the maker
of the will understood words stated in the will. Id.Considering the other provisions in the will, we find the
county court’s interpretation consistent with Clark’s inten-
tion. In paragraph III of the will, Clark devised his residual
estate “to my two daughters, . . . Snyder and . . . Davis, share
and share alike.” Had he intended that the distribution be the
same under paragraph II, he could have utilized the same
language. Because he did not, it is reasonable to assume he
intended a different result. We assume that the maker of the
will understood the words stated in the will. See In re Estate of
Brinkman, supra.Clark’s closest living lineal descendants at the time of
Gerald’s death were two of his grandchildren. Consequently,
the shares are to be divided at that level with each of the sur-
viving grandchildren receiving one-ninth of the proceeds and
the remaining great-grandchildren taking by right of represen-
tation. Giving full effect to the intentions of Clark as expressed
in the language of his will, we find no error by the county
court, which adopted the distribution as set forth by the coper-
sonal representatives’ petition to sell real estate and determine
shares of heirs.
CONCLUSION
We affirm the county court’s order and distribution schedule.
Affirmed.