In re Estate of Ackerman

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/14/2017 12:09 PM CDT
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IN RE ESTATE OF ACKERMAN
Cite as 24 Neb. App. 588In reEstate of Elsie R. Ackerman, deceased.
Sandra Underwood, appellant, v.
Judith Bolejack, Personal R epresentative
and individually, appellee.
___ N.W.2d ___
Filed March 14, 2017. No. A-15-977.
1. Decedents’ Estates: Appeal and Error. An appellate court reviews pro-
bate cases for error appearing on the record made in the county court.
2. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
3. Decedents’ Estates: Appeal and Error. The probate court’s factual
findings have the effect of a verdict, and an appellate court will not set
those findings aside unless they are clearly erroneous.
4. Decedents’ Estates: Banks and Banking: Intent. When documents to
a bank account do not meet the sample form provided for in Neb. Rev.
Stat. § 30-2719(a) (Reissue 2016), their interpretation is governed by
the provisions of Neb. Rev. Stat. §§ 30-2716 through 30-2733 (Reissue
2016) applicable to the type of account that most nearly conforms to the
depositor’s intent.
5. Decedents’ Estates: Banks and Banking: Notice. Pursuant to Neb.
Rev. Stat § 30-2724(a) (Reissue 2016), the type of bank account may be
altered by written notice given by a party to the financial institution to
change the type of account. The notice must be signed by a party and
received by the financial institution during the party’s lifetime.
6. Decedents’ Estates: Banks and Banking. A right of survivorship aris-
ing from a payable-on-death designation may not be altered by will.
7. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
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IN RE ESTATE OF ACKERMAN
Cite as 24 Neb. App. 5888. ____. An alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be considered
by an appellate court.
Appeal from the County Court for Lancaster County: Holly
J. Parsley, Judge. Affirmed.
Wayne E. Janssen for appellant.
Joel Bacon, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellee.
R iedmann and Bishop, Judges, and McCormack, Retired
Justice.
R iedmann, Judge.
INTRODUCTION
Sandra Underwood appeals from the order of the county
court for Lancaster County, which concluded that Elsie
R. Ackerman did not intend to remove Judith Bolejack as
payable-on-death (POD) beneficiary of Ackerman’s bank
­
account. We find no merit to the arguments raised on appeal
and therefore affirm.
BACKGROUND
The relevant facts of this case are largely undisputed.
Ackerman is the mother of Underwood and Bolejack.
Ackerman opened an individual checking account in 1955. In
1977, Ackerman filed a signature card with the bank, naming
Bolejack the POD beneficiary of the account. The question
is whether the POD designation was revoked by subsequent
changes made to the account.
Around 1978, Ernest Siems moved in with Ackerman and
resided with her until her death. In April 1986, Ackerman
signed and filed a card with the bank which removed “access”
to the account from Bolejack. The same day, Ackerman signed
and filed a card granting “access” to the account to Siems.
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IN RE ESTATE OF ACKERMAN
Cite as 24 Neb. App. 588In November 1994, a card was filed with the bank removing
Siems’ access to the account, but the card was not signed by
Ackerman. The same day, a card was filed granting Bolejack
access to the account. The card did not contain Ackerman’s
signature, but Bolejack testified that she signed the card at
Ackerman’s request. When Ackerman died in September 2013,
the account had a balance of $208,719.80. After Ackerman’s
death, the bank sent notice to Bolejack that the funds in the
account now solely belonged to her.
On October 21, 2013, Bolejack filed a petition for for-
mal probate of Ackerman’s will, determination of heirs, and
appointment of a personal representative, and Bolejack was
subsequently appointed personal representative. Bolejack
filed an inventory with the court and listed the subject bank
account as nonprobate property jointly owned by Ackerman
and Bolejack.
On November 17, 2014, Underwood filed a complaint
alleging that Bolejack improperly converted the funds in the
bank account to her own use after Ackerman’s death, that
the account should be inventoried as the sole property of
Ackerman, and that Bolejack should be ordered to reimburse
the estate for the funds spent from the account. Bolejack filed
an answer, claiming either that the account was held in joint
tenancy by Ackerman and Bolejack or that she was the sole
owner of the funds as the POD beneficiary of the account.
After holding a hearing, the county court entered an order
in which it determined that the account was a single-party
account and that the evidence was insufficient to prove
Ackerman intended to remove Bolejack as the POD benefi-
ciary. Underwood timely appeals to this court.
ASSIGNMENTS OF ERROR
Underwood assigns that the county court erred in (1) deter-
mining that Bolejack was a POD beneficiary of the account
at the time of Ackerman’s death, (2) failing to find that
Bolejack in her personal capacity had converted the funds in
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IN RE ESTATE OF ACKERMAN
Cite as 24 Neb. App. 588the account at the time of Ackerman’s death, (3) failing to
find that Bolejack in her personal capacity holds the funds
from the account in a resulting or constructive trust, and (4)
failing to require Bolejack to recover the funds in the account
and administer them as individually owned property of
the estate.
STANDARD OF REVIEW
[1-3] An appellate court reviews probate cases for error
appearing on the record made in the county court. In re
Estate of Greb, 288 Neb. 362, 848 N.W.2d 611 (2014). When
reviewing questions of law in a probate matter, an appellate
court reaches a conclusion independent of the determination
reached by the court below. Id. The probate court’s factual
findings have the effect of a verdict, and an appellate court
will not set those findings aside unless they are clearly erro-
neous. Id.ANALYSIS
Underwood assigns that the documents that compose the
contract of deposit contain provisions in substantially the form
provided in Neb. Rev. Stat. § 30-2719(a) (Reissue 2016) and
are therefore governed by the provisions of Neb. Rev. Stat.
§§ 30-2716 through 30-2733 (Reissue 2016). The county court
determined to the contrary, and we agree.
[4] The sample account form of § 30-2719(a) includes pro-
visions for designation of various features, including owner-
ship (“Single-Party Account” or “Multiple-Party Account”);
rights at death (including, inter alia, “Right of Survivorship,”
“POD (Pay on Death) Designation,” or single-party account
passing at death as part of party’s estate); and “Agency (Power
of Attorney) Designation.” Although the original signature
card Ackerman signed in 1955 designates it as an individual
account and contains a rights-at-death provision, the sub-
sequent access cards do not contain the statutorily required
information. Therefore, their interpretation is governed by the
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Cite as 24 Neb. App. 588provisions of §§ 30-2716 through 30-2733 applicable to the
type of account that most nearly conforms to the depositor’s
intent. See § 30-2719(b). See, also, In re Estate of Greb, supra
(looking to extrinsic evidence of depositor’s intent when signa-
ture card does not comply with § 30-2719(a)).
Underwood argues that if the court determines the docu-
ments are not in substantial compliance with the statutory
requirements, the evidence “clearly shows” that Ackerman had
a normal relationship with her children and intended that the
account be included in her estate. Brief for appellant at 26. She
does not dispute that Ackerman changed her original single-
party checking account to a POD account in favor of Bolejack
in 1977 and that it remained a POD account until 1986. She
claims, however, that when Ackerman removed Bolejack’s
access to the account in 1986 and granted access to Siems, she
intended to remove the POD designation, thus making it an
asset of her estate upon death. We disagree.
[5,6] Pursuant to § 30-2724(a): “The type of [bank] account
may be altered by written notice given by a party to the
financial institution to change the type of account . . . . The
notice must be signed by a party and received by the financial
institution during the party’s lifetime.” A right of survivorship
arising from a POD designation may not be altered by will.
§ 30-2724(b). See, also, In re Trust of Rosenberg, 273 Neb.
59, 727 N.W.2d 430 (2007).
The question in the present case is whether the documents
Ackerman executed in 1986 constitute written notice of her
intent to alter the type of account she possessed. In other
words, Does the evidence establish that in 1986 Ackerman
intended to remove Bolejack as POD beneficiary?
At the same time Ackerman removed Bolejack’s “access”
to the account, she granted “access” to Siems. Siems testified
that Ackerman never intended to grant him any rights to the
money contained in the account; he explained that during the
35 years the couple cohabited, he and Ackerman maintained
separate finances and “never got into each other[’s accounts].”
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IN RE ESTATE OF ACKERMAN
Cite as 24 Neb. App. 588According to Siems, by granting him access to her account,
Ackerman merely wanted to allow him to write or cash checks
for her. On occasion, she would write a check out to cash,
and he would cash it and bring the money back to her. Siems
explained that Ackerman decided it would be best to revoke
his access to her account in 1994, when he was diagnosed
with cancer. At that time, Ackerman then granted access back
to Bolejack.
The county court determined that when granting and revok-
ing “access” to the account, Ackerman did not intend to
change the disposition of the account upon her death; rather,
she wanted to allow another person the ability to write or cash
checks for her, whether that person was Siems or Bolejack.
We recognize, as did the county court, that the only “access”
Bolejack had to the account after 1977 was as the POD benefi-
ciary and that she had no access or right to the account during
Ackerman’s lifetime. Therefore, Bolejack had no “access” to
remove when Ackerman signed the documents in 1986. This
does not change our result, however, because, as the county
court observed, looking at the fact that both cards were filed
simultaneously in 1986, “it only makes sense that any access
[Ackerman] believed she was removing from Bolejack at that
time was the same form of access that she was granting to
Siems.” And the court found that the only conclusion sup-
ported by the evidence was that Ackerman intended to make
Siems a signer or agent on her account by granting him access
to the account.
The county court also recognized that a POD account, a
multiple party account, and an account with an authorized
signer or agent are not mutually exclusive. And in the present
case, there was no evidence of an express request to change
the type of account from a POD account. Accordingly, the
county court held that the purported removal of access of
Bolejack in 1986 did not affect the POD designation. We con-
clude that this factual finding was not clear error and that thus,
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Cite as 24 Neb. App. 588the county court did not err in determining that the account
belonged to Bolejack as POD beneficiary.
[7,8] Based on our disposition of Underwood’s first assign-
ment of error, we need not address the remaining assigned
errors. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and
controversy before it. D.I. v. Gibson, 291 Neb. 554, 867
N.W.2d 284 (2015). We also note there are arguments raised
in Underwood’s brief which were not assigned as error.
Specifically, she argues that various parts of the record are not
properly before this court and that the county court was not
previously asked to determine ownership of the account. An
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be
considered by an appellate court. Cain v. Custer Cty. Bd. of
Equal., 291 Neb. 730, 868 N.W.2d 334 (2015). We therefore
do not address these arguments.
CONCLUSION
We find that the county court did not err in determining that
Ackerman did not intend to remove Bolejack as POD benefi-
ciary of her bank account. We therefore affirm.
A ffirmed.