In re Estate of Anderson

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www.nebraska.gov/apps-courts-epub/
07/08/2022 09:07 AM CDT
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758In re Estate of Carroll M. Anderson, deceased.
Krystal J. Collins, individually and as Personal
Representative of the Estate of Carroll M.
Anderson, appellee, v. Roger D. Anderson
and Carol J. Noble, appellants.
___ N.W.2d ___
Filed June 10, 2022. No. S-21-864.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
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. Jurisdiction: Final Orders: Appeal and Error. Under Neb. Rev. Stat.
§ 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction
of an appeal, there must be a final judgment or final order entered by the
tribunal from which the appeal is taken.
5. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a
special proceeding.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
8. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) include those legal rights that a party is entitled to enforce
or defend.
9. Final Orders: Appeal and Error. Having a substantial effect on a
substantial right depends most fundamentally on whether the right
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311 Nebraska Reports
IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758could otherwise effectively be vindicated through an appeal from the
final judgment.
10. Decedents’ Estates: Final Orders: Appeal and Error. An order deny-
ing a request pursuant to Neb. Rev. Stat. § 30-2457 (Reissue 2016) for
appointment of a special administrator and a concurrent request under
§ 30-2457 for an order restraining the personal representative is a final,
appealable order.
11. Decedents’ Estates: Wills: Courts: Jurisdiction. The fact that a district
court has obtained, via the transfer of the will contest under Neb. Rev.
Stat. § 30-2429.01 (Cum. Supp. 2020), “jurisdiction over the proceeding
on the contest” does not divest the county court of its original jurisdic-
tion in probate to protect the estate during the pendency of that will
contest by considering the merits of a petition for a special administrator
and request for a restraining order on the personal representative.
Appeal from the County Court for Boone County: Stephen
R.W. Twiss, Judge. Reversed and remanded for further
proceedings.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellants.
Keith A. Harvat, of Houghton, Bradford & Whitted, P.C.,
L.L.O., and Jeffrey C. Jarecki, of Jarecki, Sharp & Petersen,
P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In a probate action, the county court denied a petition by
the adult children of the decedent asking for appointment of a
special administrator and for an order restraining the personal
representative during the pendency of a will contest that had
been transferred to district court. The court denied the petition
on the grounds that the transfer of the will contest to district
court divested it of jurisdiction. The adult children appeal. We
reverse, and remand for further proceedings.
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758BACKGROUND
The underlying probate proceedings were commenced when
Krystal J. Collins filed an application for informal probate of
will, appointing herself personal representative of the estate
of Carroll M. Anderson (the decedent), whose estate was
worth at least $700,000. The estate included real estate of an
approximate value of $361,000. The remainder of approxi-
mately $341,000 consisted of payable-upon-death accounts
naming Collins as the beneficiary. The submitted will expressly
disinherited the decedent’s children, Roger D. Anderson and
Carol J. Noble. It devised most of the estate to Collins and
appointed Collins as personal representative. The date of death
of the decedent was January 31, 2021. The submitted will was
executed on January 27.
The county court granted Collins’ application and issued the
letters of personal representative as evidence of the appoint-
ment. Anderson and Noble thereafter objected to the informal
probate and to Collins’ appointment. Anderson and Noble
alleged that the decedent lacked testamentary capacity, Collins’
misconduct or inappropriate action caused the decedent to sign
the will, and the decedent was under undue influence when he
executed the 2021 will.
On June 7, 2021, they offered for formal probate a prior
will, executed in 2002, under which Anderson and Noble were
to inherit the residue of the decedent’s estate. Anderson and
Noble alleged they were concerned that Collins would use the
estate’s assets during the pendency of the will contest. In the
same filing, Anderson and Noble formally petitioned the court
to set aside the informal probate and appointment of Collins,
for an order determining the administration of the estate to be
unsupervised, for an order under Neb. Rev. Stat. § 30-2425(Reissue 2016) restraining Collins from acting as personal
representative, for appointment of Noble as personal represent­
ative, for appointment of Noble or another suitable person as
special administrator, for a decree that the 2021 will was not
valid, and for formal probate of the 2002 will.
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758The following day, on June 8, 2021, before any hearing
was held or the court had ruled on the requests, Anderson and
Noble filed a notice of transfer to district court, pursuant to
Neb. Rev. Stat. § 30-2429.01 (Cum. Supp. 2020). The notice
set forth that they had filed the fees required by statute and
requested that the clerk of the county court transmit the docket
fee and record to the district court within 10 days.
Sixteen days later, the parties were given a notice of a
hearing to be held in county court on Anderson and Noble’s
requests for appointment of a special administrator and a
restraining order. The hearing was held on August 5, 2021.
At the hearing, the parties contested, as a threshold matter,
whether the transfer of the will contest to district court divested
the county court of jurisdiction to enter the orders.
The hearing proceeded before resolving the jurisdictional
question, which the court stated would be addressed in its
order. Anderson and Noble argued that the payable-on-death
beneficiary accounts created a conflict of interest support-
ing the appointment of a special administrator. Anderson and
Noble presented evidence at the hearing pertaining to the will’s
validity, as well as evidence pertaining to their contentions that
Collins had not fully accounted for the estate’s assets and that
she might dissipate estate assets during the pendency of the
will contest.
In an October 1, 2021, order, the county court found that
Anderson and Noble’s petition commenced a formal testacy
proceeding under § 30-2425 and that their notice of transfer
pursuant to § 30-2429.01(1) effectuated a transfer of jurisdic-
tion “over the proceedings on the contest” to the district court.
The court concluded that as a result, it lacked jurisdiction to
rule on the requests to appoint a special administrator and for
a restraining order.
Relying on In re Estate of Miller, 1 the court reasoned that
when a will contest is transferred pursuant to § 30-2429.01,
1
In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989).
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758the district court obtains jurisdiction over all proceedings
related to the action and the county court has no author-
ity over the matter. The court stated that such jurisdiction
remains in the district court until a final decision is reached
on the validity of the will and the matter is remanded to the
county court.
ASSIGNMENTS OF ERROR
Anderson and Noble assign that the county court erred in
(1) determining that it lacked jurisdiction over the petition for
appointment of a special administrator and for a restraining
order, (2) not granting their petition for a special administrator,
and (3) not granting their petition for a restraining order.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law. 2
[2] Statutory interpretation is a question of law. 3
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions. 4
ANALYSIS
This appeal presents two jurisdictional questions. Collins
contends as a threshold matter that we lack appellate juris-
diction from a final order or judgment. If we have appel-
late jurisdiction, then we must address whether the county
court was correct that the transfer of the will contest to
district court divested it of jurisdiction to determine the peti-
tion requesting the appointment of a special administrator
and an order restraining Collins. Both of these jurisdictional
2
Nebraska Republican Party v. Shively, ante p. 160, 971 N.W.2d 128(2022).
3
In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).
4
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758questions involve certain rights and procedures set forth under
the Nebraska Probate Code. 5
Statutory Scheme
The parties do not contest the county court’s determination
that Anderson and Noble commenced a formal testacy proceed-
ing. Formal testacy proceedings are governed by §§ 30-2425
to 30-2438.
Section 30-2425 describes that a formal testacy proceed-
ing is litigation to determine whether a decedent left a valid
will and is commenced by filing a petition as described by
§ 30-2426(a). Section 30-2425 also provides in relevant part:
Unless a petition in a formal testacy proceeding also
requests confirmation of the previous informal appoint-
ment, a previously appointed personal representative,
after receipt of notice of the commencement of a for-
mal probate proceeding, must refrain from exercising
his power to make any further distribution of the estate
during the pendency of the formal proceeding. A peti-
tioner 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 special administrator. In the absence
of a request, or if the request is denied, the commence-
ment of a formal proceeding has no effect on the powers
and duties of a previously appointed personal representa-
tive other than those relating to distribution.
Section 30-2438 provides that if an issue concerning the
testacy of the decedent is, or may be, involved, a formal pro-
ceeding for adjudication regarding the priority or qualifica-
tion of one who is an applicant for appointment as personal
representative or of one who previously has been appointed
5
See Neb. Rev. Stat. §§ 30-2201 to 30-2902 (Reissue 2016 & Cum. Supp.
2020).
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758personal representative in informal proceedings is governed by
both §§ 30-2426 and 30-2438.
Subsection (a) of § 30-2438 provides that if a formal pro-
ceeding “for adjudication regarding the priority or qualifica-
tion . . . of one who previously has been appointed personal
representative in informal proceedings” “is commenced after
appointment, the previously appointed personal representative,
after receipt of notice thereof, shall refrain from exercising
any power of administration except as necessary to preserve
the estate or unless the court orders otherwise.” Subsection (b)
of § 30-2438 provides that after notice to interested persons,
including all persons interested in the administration of the
estate as successors under the applicable assumption concern-
ing testacy, any previously appointed personal representative,
and any person having or claiming priority for appointment
as personal representative, “the court shall determine who is
entitled to appointment under section 30-2412, make a proper
appointment and, if appropriate, terminate any prior appoint-
ment found to have been improper as provided in cases of
removal under section 30-2454.”
Special administrators are governed by §§ 30-2457 to
30-2461. Section 30-2457(2) sets forth that a special admin-
istrator may be appointed in a formal proceeding by order of
the court upon a finding that “appointment is necessary to pre-
serve the estate or to secure its proper administration including
its administration in circumstances where a general personal
representative cannot or should not act.” Under § 30-2460, a
special administrator appointed by order of the court in any
formal proceeding has the power of a personal representative
except as limited in the appointment and duties as prescribed
in the order.
Transfer of the will contest to district court is described in
§ 30-2429.01. It states that if there is an objection to probate
of a will or if a petition is filed to set aside an informal pro-
bate of a will or to prevent informal probate of a will which
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758is the subject of a pending application, then “any party may
transfer the proceeding to determine whether the decedent
left a valid will to the district court” by the method set forth
therein. 6 After the clerk of the county court transmits to the
clerk of the district court a certification of the case file and
docket fee, the district court “shall have jurisdiction over the
proceeding on the contest.” 7 The district court’s final decision
and judgment on whether the decedent left a valid will is later
transferred to the county court, “and proceedings shall be had
thereon necessary to carry the final decision and judgment
into execution.” 8
Final Order
[4,5] We hold that the county court’s order denying the
petition for a special administrator and request for an order
restraining Collins pursuant to these statutes affected a sub-
stantial right and was a final order pursuant to Neb. Rev.
Stat. § 25-1902 (Cum. Supp. 2020). Under Neb. Rev. Stat.
§ 25-1911 (Reissue 2016), for an appellate court to acquire
jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is
­taken. 9 Section 25-1902(1)(b) defines a final order as “[a]n
order affecting a substantial right made during a special pro-
ceeding.” A proceeding under the Nebraska Probate Code is
a special proceeding, 10 and we have also held more specifi-
cally that a proceeding under § 30-2457 of the probate code to
appoint a special administrator is a special proceeding. 11
6
§ 30-2429.01.
7
Id.
8
Id.
9
In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).
10
Id.11
See In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504(2018).
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758[6-9] A substantial right is an essential legal right, not a
mere technical right. 12 A substantial right is affected if an order
affects the subject matter of the litigation, such as by diminish-
ing a claim or defense that was available to an appellant before
the order from which an appeal is taken. 13 It is not enough
that the right itself be substantial; the effect of the order on
that right must also be substantial. 14 Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend. 15 Having a substantial effect on a substantial
right depends most fundamentally on whether the right could
otherwise effectively be vindicated through an appeal from the
final judgment. 16 A substantial right under § 25-1902 is not
affected when that right can be effectively vindicated in an
appeal from the final judgment. 17
The purpose of a special administrator is “to preserve the
estate or to secure its proper administration including its
administration in circumstances where a general personal rep-
resentative cannot or should not act.” 18 The statutory prohibi-
tion on distributing the estate during the pendency of the peti-
tion in a formal testacy is expressly contemplated by § 30-2425
to be in conjunction with the possible request for the appoint-
ment of a special administrator. Likewise, when a party seeks
adjudication regarding priority or qualification of a personal
representative previously appointed in informal proceedings,
the restriction of § 30-2438(a) that “the previously appointed
personal representative, after receipt of notice thereof, shall
refrain from exercising any power of administration except
12
In re Estate of Beltran, supra note 9.
13
Id.14
Id.15
Id.16
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
17
In re Estate of Beltran, supra note 9.
18
§ 30-2457(2).
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758as necessary to preserve the estate or unless the court orders
otherwise” operates together with a request for appointment
of a special administrator. As we explained in In re Estate of
Cooper, 19 taken together, § 30-2454 provides that a personal
representative shall not act except in limited circumstances
during the pendency of a petition to remove the personal repre-
sentative, while § 30-2457 provides for appointment of a spe-
cial administrator to preserve the estate and secure its proper
administration while the personal representative cannot do so
because of the restrictions of § 30-2454.
We held in In re Estate of Muncillo 20 that an order denying
the appointment of a special administrator is a final, appealable
order. In re Estate of Muncillo involved a dispute in formal
probate about whether certain payable-on-death accounts were
part of the estate. We explained that if a probate court wrong-
fully denies the application to appoint a special administrator,
the petitioner’s right to have a special administrator appointed
cannot be effectively vindicated on appeal from a later final
judgment. This is because the probate of an estate can remain
open for years and the special administrator cannot go back in
time and preserve or administer the estate long after the appli-
cation has been denied. 21
[10] A request for an order restraining the personal repre-
sentative is intertwined with a request for a special admin-
istrator, and the harm that could be caused by the denial of
such a request can similarly not later be undone. Recently, in
In re Estate of Lakin, 22 we relied on In re Estate of Muncillo
to hold to be final an order denying a petition for suspen-
sion, removal, and surcharge of the personal representatives
19
In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008). See, also,
In re Estate of Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013).
20
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
21
See id.22
In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021).
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IN RE ESTATE OF ANDERSON
Cite as 311 Neb. 758and for appointment of successor copersonal representatives
or a special administrator. We hold that an order denying a
request pursuant to § 30-2457 for appointment of a special
administrator and a concurrent request under § 30-2457 for an
order restraining the personal representative is a final, appeal-
able order.
We are unpersuaded by Collins’ argument that the order
at issue is not final because Anderson and Noble are “clearly
disinherited.” 23 This argument conflates the question of finality
with an underlying issue that is still pending before the district
court on the will contest.
Collins’ reliance on our decision in In re Estate of Beltran 24
to argue that the county court’s order did not affect a sub-
stantial right because the order did not end a discrete phase
of the proceedings and because the dispute involves money
rather than real or personal property is misplaced. We held
in In re Estate of Beltran that an order effectively denying
discovery, which denied an attempt at that time to determine
what monetary assets should be included in the estate, was not
a final order because the rights affected could effectively be
vindicated in an appeal from the final inventory. In re Estate
of Beltran did not involve the denial of a petition to appoint a
special administrator and restrain the personal representative
during a will contest. In In re Estate of Muncillo, the order
denying the petition to appoint a special administrator was
final despite the underlying dispute involving only monetary
assets. 25 Furthermore, we did not reason therein that the order
represented the closure of a discrete phase of the proceedings,
which is but one consideration in determining whether it is
final under § 25-1902. In re Estate of Muncillo is apposite and
controlling over the case at bar.
23
Brief for appellee at 14.
24
In re Estate of Beltran, supra note 9.
25
See In re Estate of Muncillo, supra note 20.
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Cite as 311 Neb. 758County Court Jurisdiction
Having determined that we have appellate jurisdiction, we
consider whether the county court correctly determined that
the transfer of the will contest to district court divested it of
jurisdiction to consider the merits of Anderson and Noble’s
requests for a special administrator and restraining order dur-
ing the pendency of that contest. We hold that the county
court erred.
Recently, in Bohling v. Bohling, 26 we explained that the mat-
ter over which the district court has jurisdiction in a transfer
under § 30-2429.01 is limited. In Bohling, we addressed an
appeal from an order of the district court determining that the
originally submitted will for probate was valid and certifying
its judgment to the county court. We noted that although the
parties presented arguments on appeal pertaining to the mean-
ing of the will, our appellate review was confined to whether
the court erred on the question of the will’s validity—because
that was the narrow question over which the district court
had jurisdiction under the transfer. 27 In so stating, we relied
on the language of § 30-2429.01 which provides that the
district court’s authority over the proceedings is limited to
“determin[ing] whether the decedent left a valid will” and that
the district court has “jurisdiction over the proceeding on the
contest.” We held that under this statute, “[a]ny issues regard-
ing construction of the will are properly left to the probate
court, except where they bear on the will’s validity.” 28
Previously, in In re Estate of Sehi, 29 the Nebraska Court
of Appeals, in holding that the supersedeas bond require-
ment was mandatory whether the will contest was heard in
county court or in district court, reasoned that the matter is
26
Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (2021).
27
See id.28
Id. at 635, 962 N.W.2d at 231.
29
In re Estate of Sehi, 17 Neb. App. 697, 772 N.W.2d 103 (2009).
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Cite as 311 Neb. 758not submitted to the district court’s general jurisdiction to
hear an entire case or controversy when a will contest is trans-
ferred to district court under the provisions of § 30-2429.01.
Instead, “a will contest heard in district court is actually
part of the overall probate proceeding in county court.” 30
The Court of Appeals stated that the statutory power of the
district court to hear a will contest pursuant to § 30-2429.01
“is limited to determining that matter alone and the rest of
the probate proceeding remains in the jurisdiction of the
county court.” 31
[11] Accordingly, the fact that a district court has obtained,
via the transfer of the will contest under § 30-2429.01, “juris-
diction over the proceeding on the contest” does not divest the
county court of its original jurisdiction in probate to protect
the estate during the pendency of that will contest by consid-
ering the merits of a petition for a special administrator and
request for a restraining order on the personal representative.
The statements in In re Estate of Miller that were relied on by
the county court must be read in the context of the holding
in that case, which was that the county court lacked jurisdic-
tion to tax costs and fees specifically relating to the allegedly
vexatious will contest that had been transferred to the district
court. 32 We said in that context that “[w]hen a will contest
is transferred pursuant to [§ 30-2429.01], the district court
obtains jurisdiction over all proceedings related to the action”;
“[j]urisdiction remains with the district court until a final deci-
sion is reached as to the will’s validity and the case remanded
to the county court”; and “[o]nce the contest is transferred to
the district court, the county probate court has no authority
over the matter other than to carry out the district court’s final
decision after remand.” 33
30
Id. at 706, 772 N.W.2d at 109.
31
Id. (emphasis supplied).
32
See In re Estate of Miller, supra note 1.
33
Id. at 729, 437 N.W.2d at 797.
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Cite as 311 Neb. 758We disapprove of In re Estate of Miller to the extent it could
be read as suggesting that during the pendency of a will con-
test proceeding transferred to district court, the county court is
divested of its original jurisdiction over the administration of
a probate estate outside the contours of the will contest pro-
ceeding. We will not delineate here what hypothetical matters
might lie outside the contours of a transferred will contest in
another case, but hold that the matters submitted by Anderson
and Noble laid outside the boundaries of the will contest. Thus,
the county court was not divested of jurisdiction to decide
those matters.
CONCLUSION
Although the parties dispute the underlying merits of
Anderson and Noble’s petition for a special administrator and
request for a restraining order on the personal representative,
we will not decide those matters for the first time on appeal
when they were not decided by the county court because of
its erroneous belief that it lacked jurisdiction. We reverse
the order of the county court and remand the cause for fur-
ther proceedings.
Reversed and remanded for
further proceedings.