In re Estate of Abbott-Ochsner

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www.nebraska.gov/apps-courts-epub/
05/18/2018 01:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
In re Estate of M arcia G. A bbott-Ochsner, deceased.
M ark D. A bbott, Personal R epresentative of
the Estate of M arcia G. A bbott-Ochsner,
deceased, appellant, v. Cynthia J. Sellon
and Russell G. A bbott, appellees.
___ N.W.2d ___
Filed April 13, 2018. No. S-17-528.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
3. Final Orders. A special proceeding includes every special statutory
remedy that is not in itself an action, or an integral step to commence it,
join issues in it, and conduct it to a final hearing and judgment.
4. Decedents’ Estates: Final Orders. A proceeding under Neb. Rev. Stat.
§ 30-2457 (Reissue 2016) is a special proceeding.
5. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
6. Final Orders: Appeal and Error. An order affects a substantial right
if it affects the subject matter of the litigation by diminishing a claim or
defense that was available to the appellant prior to the order from which
he or she is appealing.
7. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
8. Final Orders: Appeal and Error. A substantial right under Neb. Rev.
Stat. § 25-1902 (Reissue 2016) is not affected when that right can be
effectively vindicated in an appeal from the final judgment.
9. Decedents’ Estates: Final Orders: Appeal and Error. Orders denying
a request to remove a personal representative for cause are final and
immediately appealable by the person interested in the estate who peti-
tioned for the personal representative’s removal.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
10. Final Orders: Appeal and Error. To be a final order, the substan-
tial right affected must be of the appellant and cannot be claimed
vicariously.
11. Decedents’ Estates: Final Orders. In and of itself, and without addi-
tional facts indicating otherwise, an order appointing a special admin-
istrator pursuant to Neb. Rev. Stat. § 30-2425 (Reissue 2016) is not a
final order.
12. Final Orders: Appeal and Error. An appellate court does not entertain
direct appeals from interlocutory orders in order to avoid piecemeal
review, chaos in trial procedure, and a succession of appeals granted in
the same case to secure advisory opinions to govern further actions of
the trial court.
13. Decedents’ Estates. The underlying purpose of the Nebraska Probate
Code is to promote a speedy and efficient system for liquidating the
estate of the decedent and making distribution to the successors.
14. Final Orders: Jurisdiction: Appeal and Error. An appellate court’s
jurisdiction to review whether the lower court acted extrajurisdictionally
presupposes its appellate jurisdiction over an appeal from a final order
or judgment.
Appeal from the County Court for Douglas County:
Lawrence E. Barrett, Judge. Appeal dismissed.
Michael F. Coyle, Elizabeth A. Culhane, and Jacqueline M.
DeLuca, of Fraser Stryker, P.C., L.L.O., for appellant.
John M. Lingelbach, James A. Tews, and Minja Herian, of
Koley Jessen, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Pirtle,
Judge.
Heavican, C.J.
INTRODUCTION
This case involves the probate of Marcia G. Abbott-Ochsner’s
estate, most of which consists of a trust that was the subject
of a previous appeal to this court in In re Conservatorship
of Abbott (Abbott I).1 Two siblings filed a petition in county
court contesting the validity of the will presented for informal
1
In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
probate by their brother, who had been appointed by the county
court as the personal representative of the estate.
Pursuant to Neb. Rev. Stat. § 30-2429.01(1) (Reissue 2016),
the personal representative transferred his siblings’ will con-
test to the district court. Afterward, pursuant to Neb. Rev.
Stat. § 30-2425 (Reissue 2016), the county court granted the
siblings’ request to appoint a special administrator for the
estate, pending resolution of the district court proceedings. The
siblings had also sought appointment of a different personal
representative, but the county court’s order did not remove the
brother as personal representative. The brother appeals, arguing
that the county court lacked jurisdiction to appoint a special
administrator, because the case had been transferred to the dis-
trict court. The siblings disagree and assert, as a threshold mat-
ter, that an order appointing a special administrator pursuant to
§ 30-2425 is not a final order.
BACKGROUND
The “Abbott Living Trust” was created by Marcia G. Abbott-
Ochsner (Marcia) and her first husband, George W. Abbott, in
1995. Marcia and George were cotrustees of the trust, which
was divided into a revocable “‘Survivor’s Trust’” and an
irrevocable “‘Family Trust.’”2 Marcia and George had three
children—Russell G. Abbott, Cynthia J. Sellon (Cynthia), and
Mark D. Abbott—who were beneficiaries.
George died in 1996. Marcia suffered a stroke in 2011.
As a result of the stroke, Marcia suffered from expressive
aphasia—a disorder that affects the brain’s ability to use and
understand language. In March 2015, Marcia appointed Mark
as successor trustee to the living trust and Mark accepted the
appointment.
At the behest of Russell and Cynthia, the county court
ordered the appointment of a conservator and removed Mark
as trustee. At that time, the living trust was valued at approxi-
mately $2 million.
2
Id. at 514, 890 N.W.2d at 475.
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IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
As described in Abbott I, the county court considered evi-
dence that Mark was hostile toward Cynthia. Mark accused
Cynthia of murdering their aunt and receiving an unequal share
of their aunt’s estate. Mark repeatedly threatened to “‘make it
even,’” using the assets of the trust.3 Mark described his rela-
tionship with Russell and Cynthia as “‘WWIII.’”4
The county court also considered evidence that Mark had
refused to provide documentation concerning the trust and
trust activities, had acted as trustee before being appointed,
and had facilitated money transfers resulting in negative tax
consequences.
The county court found that Mark had violated several of
his duties under the Nebraska Uniform Trust Code, includ-
ing his duty to administer the trust in good faith, his duty of
loyalty, his duty of impartiality, and his duty to inform and
report. On appeal, we affirmed Mark’s removal as trustee,
concluding that Mark’s breach of his duty of impartiality was
dispositive.5
In September 2015, several months after Marcia had
appointed Mark as successor trustee, and apparently after a
conservator had been appointed for Marcia, Marcia executed
a pourover will. Marcia exercised her limited testamentary
power in the family trust to change the default equal distribu-
tion between the three children to a 100-percent distribution to
Mark and a 0-percent distribution to Russell and Cynthia. The
pourover will provided that Mark was to be the estate’s per-
sonal representative, with sole discretion to distribute Marcia’s
personal possessions.
Marcia died in October 2016. Mark filed an application
for informal probate of the 2015 pourover will and infor-
mal appointment of a personal representative of Marcia’s
estate. That same day, Mark accepted informal appointment as
3
Id. at 516, 890 N.W.2d at 477.
4
Id.
5
Abbott I, supra note 1.
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IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
personal representative of the estate. He also filed a petition
for declaratory judgment in the district court, seeking an order
declaring Marcia’s 2015 amendments to the living trust valid,
including her distribution of 100 percent of the assets to Mark.
The county court confirmed Mark’s informal appointment and
issued letters of personal representative. Russell and Cynthia
filed a petition in the county court to set aside the informal
probate of the will, for a formal testacy proceeding, and for
appointment of a different personal representative in the formal
proceedings. Russell and Cynthia alleged that the 2015 pour­
over will was not valid, because Marcia lacked the requisite
capacity to execute the will, and that the will was the product
of undue influence.
In their petition for formal proceedings, Russell and Cynthia
also requested an order, pursuant to § 30-2425, restraining
Mark from exercising any powers of a personal representative
and appointing a special administrator.
Pursuant to § 30-2429.01(1), Mark filed a notice of transfer
of Russell and Cynthia’s petition to the district court and paid
the required docket fee. After Mark filed his notice of transfer
under § 30-2429.01(1), a hearing was held in the county court
to determine Russell and Cynthia’s request for the appointment
of a special administrator during the pendency of the district
court proceedings.
Mark argued at the hearing that the county court no longer
had jurisdiction to appoint a special administrator, because
the proceeding to determine whether Marcia left a valid will
had been moved to the district court. Russell and Cynthia, in
contrast, asserted that although the will contest had been trans-
ferred to the district court, the county court retained jurisdic-
tion over the rest of the formal probate proceedings, such as
claims by creditors.
Mark conceded that some “ancillary matters” were still to
be handled by the county court, but that the appointment of
a special administrator was part of the will contest proceed-
ings in district court. When Mark pointed out that the request
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299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
for the appointment of a special administrator had been made
in the petition that was moved to district court, Russell and
Cynthia offered to file a separate motion.
In support of their argument that a special administrator
should be appointed, Russell and Cynthia offered Cynthia’s
affidavit. The affidavit was admitted over Mark’s objections
on the basis of subject matter jurisdiction, hearsay, foundation,
speculation, and unfair surprise. Cynthia averred in her affida-
vit that she had reviewed the trust activity records and believed
that approximately $800,000 was unaccounted for.
Russell and Cynthia also entered into evidence the county
court’s prior order appointing a conservator for Marcia and
removing Mark as trustee, as well as this court’s opinion in
Abbott I affirming the county court’s decision to remove Mark
as trustee. Russell and Cynthia argued that a special adminis-
trator was appropriate, given Mark’s past history of breaching
his fiduciary duties as trustee.
On April 10, 2017, the county court issued an order appoint-
ing a special administrator. The court did not remove Mark as
personal representative of the estate. Mark appeals from the
April 10 order.
ASSIGNMENTS OF ERROR
Mark assigns that the county court erred in (1) failing to
dismiss Russell and Cynthia’s petition when the case had
already been removed to district court; (2) failing to dismiss
for lack of jurisdiction Russell and Cynthia’s request for a spe-
cial administrator when the case had already been removed to
district court; (3) entering an order appointing a special admin-
istrator; (4) allowing Cynthia’s affidavit into evidence; (5) rul-
ing on the petition to set aside informal probate of the will, for
formal adjudication of intestacy, determination of heirs, and
appointment of personal representative without allowing Mark
the ability to cross-examine Cynthia; and (6) failing to restrict
the special administrator from acting during the pendency of
the litigation in district court.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.6
ANALYSIS
[2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether
it has jurisdiction over the appeal.7 Appellate review under
the Nebraska Probate Code is governed by Neb. Rev. Stat.
§ 30-1601 (Reissue 2016), which states that appeals from a
county court may be taken in the same manner as appeals
from a district court and that “[a]n appeal may be taken by
any party and may also be taken by any person against whom
the final judgment or final order may be made or who may be
affected thereby.”
There has not yet been a final judgment in which the probate
estate has been finally established.8 Thus, we must determine
whether Mark appeals from a final order.9 Final orders are
defined by Neb. Rev. Stat. § 25-1902 (Reissue 2016). As appli-
cable here, the question is whether, under § 25-1902, the April
10, 2017, order “affect[ed] a substantial right” and was “made
in a special proceeding.”
[3,4] A special proceeding includes every special statutory
remedy that is not in itself an action, or an integral step to
commence it, join issues in it, and conduct it to a final hear-
ing and judgment.10 Neb. Rev. Stat. § 30-2457 (Reissue 2016)
confers upon persons interested in an estate the specific right
to petition the county court to appoint a special administrator.
Thus, a proceeding under § 30-2457 is a special proceeding.
6
See Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).
7
See In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34
(2016).
8
See In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
9
See In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).
10
See In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
[5-8] Whether the April 10, 2017, order affected a substan-
tial right requires more analysis. A substantial right is an essen-
tial legal right, not a mere technical right.11 An order affects a
substantial right if it affects the subject matter of the litigation
by diminishing a claim or defense that was available to the
appellant prior to the order from which he or she is appeal-
ing.12 The duration of the order is also relevant to whether it
affects a substantial right.13 It is not enough that the right itself
be substantial; the effect of the order on that right must also
be substantial.14 And a substantial right under § 25-1902 is not
affected when that right can be effectively vindicated in an
appeal from the final judgment.15
This court has never determined whether an order appoint-
ing a special administrator upon a petition for formal probate
affects a substantial right of the informally appointed per-
sonal representative. A formal testacy proceeding is litigation
to determine whether a decedent left a valid will.16 Section
30-2425 states that a formal testacy proceeding “may be com-
menced by an interested person filing a petition as described
in section 30-2426(a) . . . or . . . section 30-2426(b).” Such a
petition may be either with or without a request for appoint-
ment of a personal representative.17
Russell and Cynthia filed a petition as described by
§ 30-2426(a). In the petition, they requested the appointment
of a personal representative. Mark is not appealing the com-
mencement of formal proceedings, and he is not appealing his
removal as personal representative, because no such order has
been made.
11
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
12
See id.
13
See id.
14
In re Adoption of Madysen S. et al., supra note 7.
15
In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
16
§ 30-2425.
17
See § 30-2425 and Neb. Rev. Stat. § 30-2426 (Reissue 2016).
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IN RE ESTATE OF ABBOTT-OCHSNER
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Upon commencement of a formal testacy proceeding, the
court shall fix a time and place of hearing.18 Section 30-2425
provides that “[u]nless a petition in a formal testacy pro-
ceeding also requests confirmation of the previous informal
appointment, a previously appointed personal representative
. . . must refrain from exercising his power to make any fur-
ther distribution of the estate during the pendency of the for-
mal proceeding.”
Section 30-2425 goes on to provide that a petitioner who
seeks the appointment of a different personal representative
in a formal proceeding “also may request an order restraining
the acting personal representative from exercising any of the
powers of his office and requesting the appointment of a spe-
cial administrator.”
Section 30-2425 states that if no special administrator is
appointed, then the commencement of a formal proceeding has
no effect on the powers and duties of the previously appointed
special administrator other than those relating to distribution.
But Neb. Rev. Stat. § 30-2438(a) (Reissue 2016) states that
if a formal proceeding for adjudication regarding the quali-
fication of one who previously has been appointed personal
representative in informal proceedings is commenced after
appointment, “the previously appointed personal representative
. . . shall refrain from exercising any power of administration
except as necessary to preserve the estate or unless the court
orders otherwise.” Though the court’s order was not explicit in
this case, such restriction apparently was to continue until the
court determined who is entitled to appointment as set forth in
§ 30-2438(b).
Section 30-2438 states that a formal proceeding for adjudi-
cation regarding the qualification of one who previously has
been appointed personal representative in informal proceed-
ings, when an issue concerning the testacy of the decedent
is or may be involved, is governed by both §§ 30-2426 and
30-2438. Russell and Cynthia presented in their petition issues
18
See Neb. Rev. Stat. § 30-2427(a) (Reissue 2016).
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regarding Mark’s qualification as personal representative. We
treat their petition as a request to have Mark’s qualification
adjudicated in a formal proceeding under § 30-2438.19
Mark asserts that his substantial rights were affected because
the April 10, 2017, order appointing a special administrator
“stripped Mark” of his powers to act as personal representa-
tive.20 But, as set forth above, the commencement of the formal
proceedings had already limited Mark’s power to do anything
other than preserve the estate.
Mark does not elaborate how appointing a special adminis-
trator to protect the estate affected his substantial rights, other
than to point out that he was nominated in the contested will
and that the estate and, ultimately, Mark, as an heir, will bear
the costs of the special administrator’s compensation. Mark
argues that the effect on these allegedly substantial rights can-
not be vindicated in an appeal from the judgment, because the
costs and any potential mishandling of the estate by the special
administrator cannot later be undone.
While rights of priority among persons seeking appoint-
ment, “who are not disqualified,” are set forth in Neb. Rev.
Stat. § 30-2412 (Reissue 2016), no determination of appoint-
ment in the formal proceeding has yet been made. And Mark
does not present any reason why the special administrator, an
uninterested third party, would mishandle the estate. Mark did
not object below that the special administrator was disqualified
or move for removal for cause. Mark does not explain how
a special administrator’s reasonable compensation would be
more burdensome to the estate than the reasonable compensa-
tion due to a personal representative who would otherwise be
acting during that time.21
[9] We have held that orders denying a request to remove
a personal representative for cause are final and immediately
19
See In re Estate of Sutherlin, 261 Neb. 297, 622 N.W.2d 657 (2001).
20
Reply brief for appellant at 7.
21
Neb. Rev. Stat. § 30-2480 (Reissue 2016).
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appealable by the person interested in the estate who petitioned
for the personal representative’s removal.22 Neb. Rev. Stat.
§ 30-2454 (Reissue 2016) grants a person interested in the
estate the right to petition for removal of a personal representa-
tive for cause. Orders subsequent to a hearing under that statute
are the final determination of that right. We have explained that
personal representatives have broad powers to administer and
distribute the decedent’s estate, usually without direction of the
county court.23 We have thus indicated that the right conferred
by § 30-2454 is more than a mere technical right, and one
that could not be effectively vindicated in an appeal from the
final judgment.24
We have also held that orders finally determining a personal
representative’s right to fees, as provided in § 30-2480, are
final.25 We reason that such orders are a final disposition of the
personal representative’s rights granted under § 30-2480.26
In In re Estate of Muncillo,27 we held that the court’s denial
of an application to appoint a special administrator pursu-
ant to § 30-2457(2) was a final order. As already described,
§ 30-2457(2) grants to a person interested in the estate the
right to petition for appointment of a special administrator to
preserve the estate and secure its proper administration. Not
only was this right finally determined by the court’s order,
but we explained that this right could not be effectively vin-
dicated upon appeal from entry of the later final judgment.28
Explaining that the probate of an estate can remain open for
22
See, In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007); In re
Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992); In re Estate of
Snover, supra note 10.
23
In re Estate of Snover, supra note 10.
24
Id.
25
In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).
26
See id.
27
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
28
See id.
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years, we said that after the appeal from the final judgment, a
“special administrator cannot go back in time and preserve or
administer the estate long after the application to appoint has
been denied.”29
We find these cases inapposite to the present appeal. Even if
a personal representative’s substantial rights are affected by an
order granting a petitioner’s request to remove for cause under
§ 30-2454,30 the April 10, 2017, order did not remove Mark
as the personal representative. While priority among persons
seeking appointment “who are not disqualified” is set forth
by § 30-2412, to the extent Mark asserts that his right under
§ 30-2412 has been affected, the order before us is not a final
determination of his appointment.
[10] Likewise, our holding in In re Estate of Muncillo does
not apply to the facts of this case. To be a final order, the
substantial right affected must be of the appellant and cannot
be claimed vicariously.31 Given that Mark’s status as personal
representative has not been finally determined, Mark’s remain-
ing right allegedly affected is merely to prohibit the appoint-
ment of a special administrator to protect the estate while the
underlying will contest and his qualifications as personal rep-
resentative are litigated. It is unclear where such a right might
come from.
Any alleged right to avoid the appointment of a special
administrator is meaningfully different from the right con-
ferred by § 30-2457(2) to seek the appointment of a special
administrator to protect the estate upon commencement of a
formal proceeding that calls into question the informal appoint-
ment. Unlike an informally appointed personal representative,
the special administrator is appointed by the court in a for-
mal proceeding after notice and a hearing in which the court
has determined that the appointment is necessary to preserve
29
Id. at 674, 789 N.W.2d at 42.
30
See In re Estate of Weingarten, 10 Neb. Ct. App. 82, 624 N.W.2d 653 (2001).
31
See, e.g., In re Adoption of Amea R., supra note 15.
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the estate.32 Absent a motion to remove the special administra-
tor for cause, there is no reason to conclude that the appoint-
ment of the special administrator creates a risk of improper
administration of the estate that cannot later be undone. This
is in contrast to the refusal to appoint a special administrator
under the circumstances described in § 30-2425.
Other courts with similar final order jurisprudence distin-
guish orders appointing special administrators, which they
hold are not final, from orders appointing or removing a per-
sonal representative, which they hold are final.33 The court in
Estate of Keske,34 for instance, reasoned that the appointment
of a special administrator is not the kind of interim order that
precluded further hearing and investigation of the rights of
the parties.
With regard to its effect on any right of the appellant, the
April 10, 2017, order is analogous to the order we held was
not final in In re Estate of Peters.35 In In re Estate of Peters,
we held that an order reappointing a personal representative
after an estate has been formally closed is not a final order,
because it does not affect a substantial right. The estate had
been reopened upon discovery that a specific bequest had not
been paid, and as a result, excess distributions were made to
the residuary beneficiaries of the estate.36 We noted that while
reopening the estate and reappointing the personal representa-
tive forced the heirs to defend their distributions, which they
claimed was an improper collateral attack, the order was not
dispositive of their rights.37
32
See § 30-2457.
33
See, Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); Estate of
Keske, 33 Wis. 2d 64, 146 N.W.2d 450 (1966). But see Matter of Estate of
Franchs, 722 P.2d 422 (Colo. App. 1986).
34
Estate of Keske, supra note 33.
35
In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000).
36
See id.
37
See id.
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We cited, with approval, In re Miller Estate,38 wherein the
court said that the test of finality of a probate order is whether
it affects with finality the rights of the parties in the subject
matter. We concluded that the court’s order did not affect a
substantial right, because it did not diminish with finality
the heirs’ claims and defenses to returning a portion of their
bequests.39 The order simply was not dispositive of any of the
rights of the parties.40
[11] Similarly, here, the April 10, 2017, order did not affect
with finality Mark’s substantial rights. We hold that in and of
itself, and without additional facts indicating otherwise, an
order appointing a special administrator pursuant to § 30-2425
is not a final order.
We note that in In re Estate of Lorenz,41 the Nebraska Court
of Appeals addressed the merits of an appeal directly from an
order of summary judgment in probate proceedings, which
determined the allowance of the interested person’s claim
against the estate, will contest, and request for the appoint-
ment of a special administrator. But the court’s order appeared
to be a final determination of the interested person’s claim,
and the Court of Appeals did not discuss why it considered the
order to be final.42
Likewise, the Court of Appeals’ decision in In re Estate
of Wilson43 does not stand for the proposition that an order
appointing a special administrator is final. The court did not
discuss the direct appealability of the order, which, in any
event, was the denial of a motion to vacate a prior appoint-
ment of the special administrator. The special administrator
38
In re Miller Estate, 106 Mich. App. 222, 307 N.W.2d 450 (1981).
39
See In re Estate of Peters, supra note 35.
40
See id.
41
In re Estate of Lorenz, 22 Neb. Ct. App. 548, 858 N.W.2d 230 (2014),
reversed in part on other grounds 292 Neb. 543, 873 N.W.2d 396 (2016).
42
See id.
43
In re Estate of Wilson, 8 Neb. Ct. App. 467, 594 N.W.2d 695 (1999).
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in In re Estate of Wilson had been appointed some 21 months
before. If anything, the court’s decision in In re Estate of
Wilson stands for the proposition that the appointment of a
special administrator is not a final order. For, if it were, then
the appellant’s failure to appeal from the order within 30 days,
as required by Neb. Rev. Stat. § 25-1931 (Reissue 2016) would
have foreclosed a later challenge to the appointment.
[12,13] We do not entertain direct appeals from interlocutory
orders in order to avoid piecemeal review, chaos in trial proce-
dure, and a succession of appeals granted in the same case to
secure advisory opinions to govern further actions of the trial
court.44 The underlying purpose of the Nebraska Probate Code
is to promote a speedy and efficient system for liquidating the
estate of the decedent and making distribution to the succes-
sors.45 Allowing a piecemeal appeal from an order appointing a
special administrator defeats that purpose.
[14] We find no merit to Mark’s argument that even if the
appeal is not from a final order or judgment, we have appel-
late jurisdiction to consider whether the lower court acted
without jurisdiction. The legal proposition upon which Mark
relies states that though we lack jurisdiction over the merits
of an extrajurisdictional act, we have jurisdiction to determine
whether the lower court had the power to enter the judgment or
final order sought to be reviewed.46 Our jurisdiction to review
whether the lower court acted extrajurisdictionally presupposes
our appellate jurisdiction over an appeal from a final order
or judgment.
We have never held that we have appellate jurisdiction to
determine if the lower court acted within its jurisdiction in
an appeal from a nonfinal order. Our appellate jurisdiction is
governed by statute. Nowhere does the Legislature provide
44
State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
45
Neb. Rev. Stat. § 30-2202 (Reissue 2016); In re Estate of Kentopp.
Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).
46
In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE ESTATE OF ABBOTT-OCHSNER
Cite as 299 Neb. 596
for our immediate review of all interlocutory orders alleged
to be entered by the lower court without jurisdiction. The
Legislature has provided only, as relevant here, that an order
is final if it affects a substantial right. Whether the lower court
acted with jurisdiction does not change the nature of the right
affected by the court’s action. To the extent that the Court of
Appeals in In re Interest of Angeleah M. & Ava M.47 concluded
differently, that case is disapproved.
We have already concluded in this case that the April 10,
2017, order did not affect Mark’s substantial rights. We express
no opinion on the merits of Mark’s argument that the county
court lacked jurisdiction to appoint a special administrator once
the will contest had been removed to district court.
CONCLUSION
For the foregoing reasons, we lack jurisdiction over Mark’s
appeal from the April 10, 2017, order. We dismiss the appeal.
A ppeal dismissed.
Wright, Miller-Lerman, and K elch, JJ., not participating.
47
In re Interest of Angeleah M. & Ava M., 23 Neb. Ct. App. 324, 871 N.W.2d 49
(2015).