IN 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.
No. S-21-864
Nebraska Supreme Court
June 10, 2022
311 Neb. 758
N.W.2d
Jurisdiction: Appeal and Error. A jurisdiсtional question which does not involve a factual dispute is determined by an appellate court as a matter of law. - Statutes. Statutory interpretation is a question of law.
- Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court‘s conclusions.
- 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. - Decedents’ Estates. A proceeding under the Nebraska Probate Code is a special proceeding.
- Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.
- 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.
- 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. - Final Orders: Appeal and Error. 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. - Decedents’ Estates: Final Orders: Appeal and Error. An order denying 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. - 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 thе county court of its original jurisdiction 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 procеedings.
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 approximately $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 appointment. 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
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 mаtter, 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 supporting 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
Relying on In re Estate of Miller,1 the court reasoned that when a will contest is transferred pursuant to
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 jurisdiction from a final order or judgment. If we have appellate jurisdiction, then we must address whether the county court was correct that the transfеr of the will contest to district court divested it of jurisdiction to determine the petition requesting the appointment of a special administrator and an order restraining Collins. Both of these jurisdictional
STATUTORY SCHEME
The parties do not contest the county court‘s determination that Anderson and Noble commenced a formal testacy proceeding. Formal testacy proceedings are governed by
Section 30-2425 describes that a formal testacy proceeding is litigation to determine whether a decedent left a valid will and is commenced by filing a petition as described by
Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the cоmmencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. 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 rеquesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative 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 proceeding fоr adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative or of one who previously has been appointed
Subsection (a) of
Special administrators are governed by
Transfer of the will contest to district court is described in
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 substantial right and was a final order pursuant to
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 representative cannot or should not act.”18 The statutory prohibition on distributing the estate during the pendency of the petition in a formal testacy is expressly contemplated by
We held in In re Estate of Muncillo20 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-upon-death accounts were part of the estate. We explained that if a probate court wrongfully denies the application to appoint a special administrator, the petitioner‘s right to havе 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 application has been denied.21
[10] A request for an order restraining the personal representative is intertwined with a request for a special administrator, 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 suspension, removal, and surcharge of the personal representatives
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 Beltran24 to argue that the county court‘s order did nоt affect a substantial 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 vindicаted 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 рroceedings, which is but one consideration in determining whether it is final under
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 during the pendency of that contest. We hold that the county court erred.
Recently, in Bohling v. Bohling,26 we explained that thе matter over which the district court has jurisdiction in a transfer under
Previously, in In re Estate of Sehi,29 the Nebraska Court of Appeals, in holding that the supersedeas bond requirement was mandatory whether the will contest was heard in county court or in district court, reasoned that the matter is
[11] Accordingly, the fact that a district court has obtained, via the transfer of the will contest under
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 further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.