In re Estate of Marsh

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www.nebraska.gov/apps-courts-epub/
12/04/2020 08:08 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
In re Estate of Gale H. Marsh, deceased.
Sarah J. Marsh and Carla M. Marsh, Cotrustees of
the Gale H. Marsh Revocable Trust Agreement,
appellees, v. County of Richardson,
Nebraska, appellant.
___ N.W.2d ___
Filed December 4, 2020. No. S-20-102.
1. Decedents’ Estates: Taxation: Appeal and Error. On appeal of an
inheritance tax determination, an appellate court reviews the case for
error appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Decedents’ Estates: Appeal and Error. In reviewing a judgment of
the probate court in a law action, an appellate court does not reweigh
evidence, but considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor of the suc-
cessful party, who is entitled to every reasonable inference deducible
from the evidence.
4. ____: ____. The probate court’s factual findings have the effect of a
verdict and will not be set aside unless clearly erroneous.
5. Statutes: Appeal and Error. Statutory interpretation presents a question
of law. When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusions reached
by the trial court.
6. Motions for Continuance: Appeal and Error. A motion for contin­
uance is addressed to the discretion of the trial court, whose ruling will
not be disturbed on appeal in the absence of an abuse of discretion.
7. 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 matter before it.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
8. ____: ____. If the court from which an appeal was taken lacked jurisdic-
tion, then the appellate court acquires no jurisdiction.
9. Jurisdiction. One who invokes the power of the court on an issue other
than the court’s jurisdiction over one’s person makes a general appear-
ance so as to confer on the court personal jurisdiction over that person.
10. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
11. Decedents’ Estates: Taxation: Jurisdiction. Neb. Rev. Stat.
§ 77-2018.02(1) (Supp. 2019) confers upon the county court subject
matter jurisdiction of an independent proceeding brought for the sole
purpose of determining Nebraska inheritance tax.
12. Statutes. Basic principles of statutory interpretation require a court to
give statutory language its plain and ordinary meaning.
13. Decedents’ Estates: Taxation: Jurisdiction: Notice. Published notice
is not a prerequisite of a county court’s subject matter jurisdiction of an
independent proceeding for the sole purpose of determining Nebraska
inheritance tax; rather, such jurisdiction is invoked by the filing of a
petition to initiate the proceeding.
14. Appeal and Error. Error without prejudice is not a ground for reversal.
15. Gifts: Intent. To make a valid inter vivos gift, there must be an inten-
tion to transfer title to property, delivery by the donor, and acceptance
by the donee.
16. Gifts. Ordinarily, actual delivery is necessary where the subject of the
gift is capable of manual delivery, but where actual manual delivery can-
not be made, the donor may do that which, under the circumstances, will
in reason be considered equivalent to actual delivery.
17. ____. The exercise by the donee of dominion over the property which
is the subject of a gift, or an assertion of a right to the property by the
donee, generally will constitute an acceptance.
18. Deeds: Intent. Whether a deed or other instrument conveying an inter-
est in property has been delivered is largely a question of intent to be
determined by the facts and circumstances of the particular case.
Appeal from the County Court for Richardson County:
Curtis L. Maschman, Judge. Affirmed.
Douglas E. Merz, Richardson County Attorney, Samantha K.
Scheitel, and Thomas J. Gist for appellant.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
Steven J. Mercure and Lindy L. Mahoney, of Nestor &
Mercure, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
After Gale H. Marsh died, his daughters brought a proceed-
ing to determine the amount of inheritance tax due. The dispute
centered on the ownership interest of Marsh’s revocable trust
in a limited liability company valued at over $12 million. The
county court determined that assignments signed by Marsh
rather than the trustees were valid. The County of Richardson
(County) appeals. Finding no error by the county court in the
respects alleged, we affirm.
II. BACKGROUND
1. Procedural Background
Marsh, a domiciliary of Richardson County, Nebraska, died
on April 6, 2017. On March 22, 2018, his daughters, Sarah
J. Marsh and Carla M. Marsh, filed in the county court for
Richardson County a petition for determination of inheritance
tax. The petition alleged that Sarah and Carla (collectively
cotrustees) were cotrustees of the Gale H. Marsh Revocable
Trust Agreement, that they had a legal interest in the prop-
erty involved in the determination of inheritance tax, that
they were the beneficiaries of the trust property, and that they
were the only persons against whom an inheritance tax may
be assessed.
Together with the petition, the cotrustees filed a number of
documents, including an inventory and an inheritance tax work-
sheet. The inventory stated that the Gale H. Marsh Revocable
Trust owned a 15.62152-percent interest in Marcasa, LLC;
that the total value of Marcasa was $12,914,162; and that the
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
trust’s interest amounted to $1,412,171.88. The inheritance
tax worksheet showed assets of the estate of $1,476,720.88
and total deductions of $585,250.26, for a net value of property
subject to Nebraska inheritance tax of $891,470.62. According
to the inheritance tax computation, Sarah owed $4,081.22 and
Carla owed $4,033.49. On March 26, 2018, the cotrustees
filed an application and moved the court for an order allowing
payment of tentative inheritance tax by Sarah and by Carla in
the amounts computed on the worksheet. 1
The County filed an objection to the inheritance tax work-
sheet. According to the County, the worksheet did not reflect
the fair market value of the assets owned by Marsh.
2. Hearing
Nearly 11⁄2 years later, the court commenced an evidentiary
hearing. The hearing was held on two dates in 2019: August 14
and September 20.
(a) Revocable Trust
Evidence was adduced concerning the trust. Marsh, identi-
fied as the settlor, created the inter vivos revocable trust on
November 4, 1988. As mentioned, he designated his daughters
as cotrustees. Sarah testified that she did not actually serve as
a trustee or cotrustee during Marsh’s lifetime, explaining that
“he managed his own affairs.”
Article II of the trust agreement addressed trust property. It
stated that trust property was listed on an attached “Schedule
‘A’” and that insurance policies were listed on an attached
“Schedule ‘B’”; however, Sarah was unable to find either doc-
ument. Marsh “reserve[d] the right to add property to the trust
or to withdraw property from the trust in the manner provided
for alteration of the trust in ARTICLE IV.”
Article IV of the trust agreement dealt with changes to the
trust. It stated that Marsh “reserve[d] the right at any time
1
See Neb. Rev. Stat. § 77-2018.07(1) (Reissue 2018).
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
. . . to amend, alter, revoke or terminate this trust . . . by an
instrument in writing signed by the Settlor and delivered to
the Trustee in the lifetime of the Settlor, or by the Settlor’s Last
Will and Testament at his death.” The trust was never amended
or revoked.
(b) Marsh Company, Limited
In 1998, Marsh created Marsh Company, Limited, a part-
nership used for ownership of his property. He transferred
all of his real estate holdings in Richardson County to Marsh
Company.
Initially, Marsh owned 100 percent of Marsh Company. In
1998 and 1999, he gave to each of the cotrustees, their spouses,
and to a grandson an undivided “65/100ths” of 1 percent lim-
ited partnership interest in Marsh Company. Marsh reported
these transfers on gift tax returns. In 2001, Marsh made sev-
eral assignments of an undivided “40/100[ths]” of 1 percent
limited interest in Marsh Company to family members. On
December 31, 2001, Marsh owned a 91.6-percent interest in
Marsh Company.
In 2002, Marsh gave Sarah and Carla each an undivided
26.63-percent limited partnership interest in Marsh Company.
He filed a gift tax return with respect to those gifts. He also
gave a .456-percent interest to the cotrustees’ spouses and to
trusts for three of his grandchildren. Marsh’s percentage of
ownership at the end of 2002 was 36.1 percent. Marsh trans-
ferred small amounts of his interest in 2003, 2004, and 2005.
On December 31, 2006, Marsh owned a 34.17-percent interest
in Marsh Company.
During the August 2019 hearing, Sarah testified that the
gifts in Marsh Company came from the trust. But during
the September hearing, Sarah testified that when her attorney
“pulled out the deeds,” she learned that Marsh’s ownership in
Marsh Company was his individually and was not placed in
the trust. She clarified that the trust never held an interest
in Marsh Company.
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307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
(c) Marcasa
In 2007, Marsh created Marcasa, a limited liability com-
pany. The operating agreement showed members of Marcasa
to be Marsh, the cotrustees, the cotrustees’ spouses, and the
­cotrustees in their capacity as trustees of qualified trusts for
their respective children. The operating agreement stated that
“any Member may transfer all or any part of his or her inter-
est in the Company by gift, in trust or otherwise, to or for the
benefit of himself or herself, his or her spouse or his or her
descendants.” Sarah was not aware of any modifications to the
Marcasa operating agreement.
On March 21, 2007, Marsh Company merged into Marcasa
and ceased to exist. The membership interests of Marsh, the
cotrustees, the cotrustees’ spouses, and the trusts for the chil-
dren of the cotrustees in Marsh Company were converted to
membership interests in Marcasa. Sarah was not aware of
any additional contributions to Marcasa other than what was
in Marsh Company. Approximately 1 month after the merger,
Marsh and his wife executed a quitclaim deed to Marcasa,
but Sarah stood by her testimony that no additional contribu-
tions to Marcasa were made after the merger. She testified that
after that transfer, there was no change in Marsh’s ownership
interest. On December 31, 2007, Marsh held approximately a
34.17-percent interest in Marcasa, just as he had held in Marsh
Company at the end of 2006.
On January 2, 2008, Marsh assigned interests of approxi-
mately .382 percent in Marcasa to each of the cotrustees, their
spouses, and their children’s trusts. On May 27, Marsh signed
a memorandum of action concerning the trust. With that instru-
ment, he assigned to the trust the ownership of various proper-
ties, including Marsh’s interest in Marcasa.
Each year from 2009 to 2013, when Marsh assigned a per-
centage ownership of Marcasa to the cotrustees, their spouses,
and their children’s trusts, he signed the document as grantor
of the trust. From January 31, 2014, to December 31, 2016, the
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
trust owned a 15.62-percent interest in Marcasa, the ­cotrustees
each owned a 27.92-percent interest, and their spouses and
children’s trusts each owned a 4.76-percent interest.
(d) Motion for Continuance
During the August 2019 hearing, the County requested a con-
tinuance. The County stated that it needed research on recently
discovered deeds. The court continued the hearing from August
14 to September 20.
On September 10, 2019, the County filed a motion to con-
tinue. According to the motion, the County needed to engage
in formal discovery because certain requested documents had
not been provided. The County asserted that it was necessary to
have the complete ledger of ownership interests for all years of
Marsh Company. The cotrustees objected to a continuance. The
court took the motion under advisement and later denied it.
(e) County’s Witnesses
The County adduced testimony from three attorneys and
a certified public accountant. One attorney testified that the
cotrustees were the only people who could transfer from the
trust and that the provisions to effectuate a gift would apply
if there were transfers being made by Marsh as grantor of his
own trust. The second attorney testified that “[t]he trust prop-
erty would be under the title or authority of the co-trustees.”
The third attorney testified that “[a]ssets that are in the trust
would be subject to the power over title of the Co-Trustees.” In
other words, the attorneys testified that the cotrustees were the
people who could transfer assets in the trust.
The certified public accountant reviewed a number of docu-
ments for Marcasa. The documents included Schedule L forms
for tax years 2007 through 2013, the complete 2014 tax return,
and two pages of bank statements from 2006. The accountant
testified that to properly determine capital contributions, she
would need the full tax returns and all bank statements.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
3. Court’s Order
The county court reasoned that although the trust was the
legal owner of Marcasa’s interests, Marsh was the beneficial
owner of those interests. It noted that Marsh retained authority to
change the terms of the trust and that trustees are bound by
duties of the Nebraska Uniform Trust Code.
After reciting the elements of a gift, the court determined
that tax filings and other documentation showed the transfers
were completed and consented to by the legal owner of the
interests—the trust. The court overruled the County’s objec-
tions to the worksheet and stated that the transfers of interests
signed by Marsh should be considered. However, the court
reduced the valuation discount on Marcasa from 30 percent
to 25 percent, thereby increasing the value of the estate by
$98,720.50 and the inheritance tax by $987.21.
The County filed a timely appeal, which we moved to
our docket. 2
III. ASSIGNMENTS OF ERROR
The County alleges, reordered, that the court erred by (1)
failing to order published notice, (2) failing to allow a con-
tinuance for the County’s expert to review the capital contribu-
tions made to Marsh Company and Marcasa, (3) determining
that certain attempted transfers of ownership shares of Marsh
Company and Marcasa were valid transfers that reduced the
taxable value of the estate for inheritance tax purposes, and (4)
failing to determine that Marsh retained possession or enjoy-
ment of the property he claimed to have transferred to Marsh
Company and Marcasa during his lifetime.
IV. STANDARD OF REVIEW
[1,2] On appeal of an inheritance tax determination, an
appellate court reviews the case for error appearing on the
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
record. 3 When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. 4
[3,4] In reviewing a judgment of the probate court in a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference
deducible from the evidence. 5 The probate court’s factual find-
ings have the effect of a verdict and will not be set aside unless
clearly erroneous. 6
[5] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusions
reached by the trial court. 7
[6] A motion for continuance is addressed to the discretion
of the trial court, whose ruling will not be disturbed on appeal
in the absence of an abuse of discretion. 8
V. ANALYSIS
1. Publication of Notice
[7,8] The County asserts that the county court failed to
order published notice of the proceeding and that the court
thus lacked jurisdiction and “any rulings by the [c]ourt are
invalid.” 9 It relies on Neb. Rev. Stat. § 77-2018.02 (Supp.
3
In re Estate of Hasterlik, 299 Neb. 630, 909 N.W.2d 641 (2018). See, also,
In re Estate of Baer, 273 Neb. 969, 735 N.W.2d 394 (2007).
4
In re Estate of Hasterlik, supra note 3.
5
In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).
6
Id.
7
In re Estate of Reed, 271 Neb. 653, 715 N.W.2d 496 (2006).
8
Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).
9
Brief for appellant at 19.
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
2019). The County’s argument in brief consists of only 97
words and amounts to little more than a bare recital of its
assignment of error, which would ordinarily preclude us from
considering the argument. 10 But before reaching the legal issues
presented for review, it is the duty of an appellate court to
determine whether it has jurisdiction over the matter before it. 11
If the court from which an appeal was taken lacked jurisdic-
tion, then the appellate court acquires no jurisdiction. 12 Thus,
in order to determine that we have jurisdiction of this appeal,
we must determine whether the county court had jurisdiction of
the proceeding below. We conclude that it did.
[9] Although the County does not say so, it must be arguing
that the statute requires publication to confer subject matter
jurisdiction upon the county court. Here, all of the parties were
plainly before the court. One who invokes the power of the
court on an issue other than the court’s jurisdiction over one’s
person makes a general appearance so as to confer on the court
personal jurisdiction over that person. 13 The cotrustees, who
were the petitioners, were also the sole beneficiaries of Marsh’s
trust. They clearly invoked the court’s power. The County
sought a determination that the entire value of Marcasa was
subject to inheritance tax. It thereby invoked the court’s power
on an issue other than personal jurisdiction. The County does
not identify, nor does the record disclose, any other party hav-
ing an interest in Marsh’s estate or in the property of the trust.
Because the county court clearly had personal jurisdiction of
all of the parties, only the matter of subject matter jurisdic-
tion remains.
10
See Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015)
(appellate court will not address argument that does little more than restate
assignment of error).
11
Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020).
12
State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).
13
Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
[10,11] In a general sense, the county court had subject mat-
ter jurisdiction. Subject matter jurisdiction is the power of a
tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to
deal with the general subject matter involved. 14 The statute at
issue here authorizes an “independent proceeding for the sole
purpose of determining the [inheritance] tax.” 15 It specifies
that the “independent proceeding . . . may be instituted in the
county court.” 16 We hold that § 77-2018.02(1) confers upon the
county court subject matter jurisdiction of an independent pro-
ceeding brought for the sole purpose of determining Nebraska
inheritance tax.
Here, the cotrustees initiated this type of proceeding. The
only remaining question of subject matter jurisdiction is
whether the statute requires such jurisdiction to be invoked in
a particular manner that specifically demands published notice.
We conclude that it does not. Our opinion does not address
the nature of publication required by the general notice statute
under the probate code. 17
[12] Applying the usual standard of statutory interpreta-
tion, the pertinent language dictates only the method of giving
notice of hearing. Basic principles of statutory interpretation
require a court to give statutory language its plain and ordinary
meaning. 18 Upon the filing of a petition to initiate this type of
independent proceeding, the statute requires the court to “order
the petition set for hearing” and to “cause notice thereof to be
given to all persons interested in the estate of the deceased
and the property described in the petition . . . in the man-
ner provided for in subsection (3).” 19 Subsection (3), in turn,
14
Benjamin M. v. Jeri S., ante p. 733, ___ N.W.2d ___ (2020).
15
§ 77-2018.02(1).
16
Id.
17
See Neb. Rev. Stat. § 30-2220 (Reissue 2016).
18
State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
19
§ 77-2018.02(2).
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
requires the notice “provided for by subsection (2)” to be given
by “one publication in a legal newspaper of the county.” 20
In subsection (2), “notice thereof ” refers to the “hearing.”
Properly understood, publication under this statute is required
only to give notice of the hearing.
Section 77-2018.02(2) specifically provides that notice may
be dispensed under certain circumstances. Notice is not neces-
sary when no assessment of inheritance tax could result. 21 Nor
is published notice required when the county attorney “has
executed a waiver of notice upon him or her to show cause, or
of the time and place of hearing, and has entered a voluntary
appearance in such proceeding in behalf of the county and the
State” and either all persons against whom an inheritance tax
may be assessed “are either a petitioner or have executed a
waiver of notice upon them to show cause, or of the time and
place of hearing, and have entered a voluntary appearance” or
a party has agreed to pay the full inheritance tax determined. 22
By adding provisions in which notice may be dispensed with,
the Legislature signaled that notice is not a jurisdictional
prerequisite.
Moreover, the statute requires that the “county attorney
of each county in which the property described in the peti-
tion is located” be given “personal service of notice of the
hearing.” 23 This reinforces our understanding of the publica-
tion requirement.
[13] In contrast, the first clause of § 77-2018.02(2) plainly
mandates “the filing of a petition to initiate such an independent
proceeding.” In other words, the proceeding is “initiate[d]” by
“the filing of a petition.” We hold that published notice is not
a prerequisite of a county court’s subject matter jurisdiction
20
§ 77-2018.02(3).
21
See § 77-2018.02(4).
22
§ 77-2018.02(5).
23
§ 77-2018.02(3).
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
of an independent proceeding for the sole purpose of deter-
mining Nebraska inheritance tax; rather, such jurisdiction is
invoked by the filing of a petition to initiate the proceeding.
Because that was precisely what happened here, the County’s
assertion that the county court lacked jurisdiction fails.
[14] Even if notice was not published, any error in failing
to do so was harmless. Error without prejudice is not a ground
for reversal. 24 Here, the county attorney and the cotrustees—
the only persons against whom an inheritance tax may be
assessed—were actively involved in this matter from the time
of filing of the petition and all appeared at the hearing. The
County suffered no prejudice by any lack of published notice
of the hearing.
2. Failure to Continue Matter
The County argues that the court should have sustained its
motion for a continuance. On September 10, 2019, the County
filed the motion, asserting that it needed to engage in formal
discovery and that “it is necessary to have the complete ­ledger
of ownership interests for all years of Marsh Company.” In
the County’s brief, it argues that a continuance was nec-
essary so that the certified public accountant could deter-
mine if the capital accounts of Marsh Company and Marcasa
were accurate.
The cotrustees objected to the motion for several reasons.
First, they had made arrangements based on the court’s sched-
uling of the second day of trial, including Sarah’s application
of leave from her employment and Carla’s purchase of a non-
refundable airline ticket. Next, they noted that for over 1 year,
the attorney representing the County had not served any formal
discovery. Finally, in urging against further delay, they pointed
out that any additional inheritance taxes assessed would draw
interest at 14 percent from April 6, 2018.
24
Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).
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IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
We find no abuse of discretion by the court in denying a
continuance. We are mindful that the petition was filed on
March 22, 2018; that such a petition should be set for hearing
within 2 to 4 weeks 25; and that the County’s motion was filed
nearly 11⁄2 years after the filing of the petition. This assignment
of error lacks merit.
3. Whether Attempted Transfers
Were Effective
The County contends that any attempted transfers of owner-
ship interest in Marsh Company and Marcasa were ineffective.
The County’s witnesses testified that for transfers to be valid,
they had to be executed by the cotrustees, as prescribed by
the terms of the trust. The County focuses on the fact that the
transfers were executed by Marsh, not the cotrustees.
The evidence established that Marsh conveyed interests in
Marsh Company to his family. It also established that the trust
never held an ownership interest in Marsh Company. Thus, the
County’s argument that assignments of ownership interests in
Marsh Company were ineffective because they were not made
by the cotrustees lacks merit.
The situation differs with respect to Marsh’s assignments of
interest in Marcasa beginning in 2009. In January 2008, Marsh
executed eight assignment forms in his individual capacity.
Then, in May, Marsh assigned his interest in Marcasa to his
trust. Thereafter, the assignment forms executed between 2009
and 2013 showed that they were signed by Marsh as grantor of
the trust.
[15,16] To make a valid inter vivos gift, there must be an
intention to transfer title to property, delivery by the donor,
and acceptance by the donee. 26 The first two elements relate
to intent and actions of the donor. The donor must have a
present donative intent and a clear and unmistakable intent to
25
See § 77-2018.02(2).
26
Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018).
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IN RE ESTATE OF MARSH
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make a gift. 27 Ordinarily, actual delivery is necessary where
the subject of the gift is capable of manual delivery, but where
actual manual delivery cannot be made, the donor may do that
which, under the circumstances, will in reason be considered
equivalent to actual delivery. 28 The Ninth Circuit explained that
interests in a limited liability company “do not lend themselves
to manual delivery. Instead, they are delivered through the
execution of papers. As a result, . . . it is somewhat artificial
to separate the ‘delivery’ of [a limited liability company] inter-
est from the intention to donate it.” 29 Here, intent and delivery
are demonstrated by Marsh’s history of assigning interests to
his daughters and their family members, his execution of the
assignments, and his cessation of acting as the owner of those
interests after execution of the assignments.
[17] The final element of a gift calls for action by the donee.
The exercise by the donee of dominion over the property which
is the subject of a gift, or an assertion of a right to the property
by the donee, generally will constitute an acceptance. 30 The
donees accepted the gifts by acting as the rightful owner of the
interests in Marcasa, and their ownership took effect immedi-
ately. Their interests were reported on Schedule K-1 tax forms,
thereby subjecting them to payment of income taxes attribut-
able to their ownership interests.
[18] The County contends that no transfer of ownership
interests occurred, because the cotrustees never executed any
of the transfer documents. But under the trust agreement,
Marsh retained authority “to withdraw property from the trust.”
The trust agreement provided the manner to do so—“by an
instrument in writing signed by the Settlor and delivered to
the Trustee in the lifetime of the Settlor.” Here, the assign-
ments at issue were all in writing. And the cotrustees, as
27
Id.
28
Id.
29
Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011).
30
See Zelenka v. Pratte, supra note 26.
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IN RE ESTATE OF MARSH
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either the recipients or the spouses or parents of the recipients,
were aware of the assignments. Further, we have stated that
whether a deed or other instrument conveying an interest in
property has been delivered is largely a question of intent to
be determined by the facts and circumstances of the particular
case. 31 Marsh’s parting with the ownership interests given as
gifts and the cotrustees and other donees acting as owners of
those respective interests manifest evidence of delivery. The
court’s decision conforms to the law, is supported by compe-
tent evidence, and is not unreasonable.
4. Possession and Enjoyment
Post-Transfer
The County asserts that Marsh continued to retain an own-
ership interest in the claimed transfers and that thus, the
total value of Marcasa should be subject to inheritance tax.
We disagree.
The County relies upon In re Estate of Fries, 32 but that
case provides little guidance. In re Estate of Fries concerned
whether the value of real property should be part of the dece-
dent’s augmented estate in calculating his widow’s elective
share. In the decedent’s lifetime, he transferred his entire inter-
est in real estate to his children, but he continued to perform
management functions for, receive income from, and pay taxes
on the properties. We noted that “in the case of real property,
the terms ‘possession’ and ‘enjoyment’ have been interpreted to
mean ‘the lifetime use of the property.’” 33
Here, Marsh engaged in a pattern of transferring owner-
ship interests to his family for nearly 20 years. He, and then
his trust, retained an interest in Marcasa. Although Marsh was
the manager of Marcasa, neither he nor the trust ever owned a
majority interest in the limited liability company. And as his
31
Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002).
32
In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
33
Id. at 894-95, 782 N.W.2d at 603.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE ESTATE OF MARSH
Cite as 307 Neb. 893
ownership interest decreased, so too did his share of Marcasa’s
income. Tax records show that the cotrustees, their spouses,
and their children were subject to federal income taxes based
upon their interests in Marcasa. Competent evidence supports
the court’s decision to not subject 100 percent of Marcasa to
inheritance tax.
VI. CONCLUSION
We conclude that published notice of the hearing was not
a prerequisite of the county court’s subject matter jurisdiction
and that even if notice was not published, the County suffered
no prejudice. We find no abuse of discretion in the overruling
of the County’s motion for a continuance. Finally, we con-
clude that the court’s determination that ownership interests
in Marcasa were validly transferred from the trust conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Affirmed.