In re Estate of Brinkman , 308 Neb. 117 ( 2021 )


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    04/01/2021 12:13 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    In re Estate of Michael R.
    Brinkman, deceased.
    Nicole Brinkman, appellee, v. Seth Michael
    Brinkman and Kimberly Milius, Personal
    Representative of the Estate of Michael
    R. Brinkman and as parent and next
    friend of Seth Michael Brinkman,
    a minor, appellants.
    ___ N.W.2d ___
    Filed January 8, 2021.   No. S-20-235.
    1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
    pretation present questions of law.
    2. 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.
    3. Judgments: Appeal and Error. An appellate court independently
    reviews questions of law decided by a lower court.
    4. Wills: Trusts. The interpretation of the words in a will or a trust pre­
    sents a question of law.
    5. 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.
    6. 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.
    7. Decedents’ Estates: Appeal and Error. Nebraska’s statutory grant of
    the right to appeal under 
    Neb. Rev. Stat. § 30-1601
    (2) (Cum. Supp.
    2018) is generous.
    8. Decedents’ Estates: Wills: Intent. The cardinal rule concerning a
    decedent’s will is the requirement that the intention of the testator shall
    be given effect, unless the maker of the will attempts to accomplish
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    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    a purpose or to make a disposition contrary to some rule of law or
    public policy.
    9.   Wills. When language in a will is clear and unambiguous, construction
    of a will is unnecessary and impermissible.
    10.   Decedents’ Estates: Wills. A latent ambiguity exists when the testa-
    tor’s words are susceptible of more than one meaning, and the uncer-
    tainty arises not upon the words of the will as looked at in themselves,
    but upon those words when applied to the object or subject which
    they describe.
    11.   Wills: Intent: Words and Phrases. A patent ambiguity is one which
    exists on the face of an instrument and must be removed by interpreta-
    tion according to legal principles, and the intention of the testator must
    be found in the will.
    12.   Words and Phrases. The word “include” means to contain, embrace, or
    comprise, as a whole does parts or any part or element; to place in an
    aggregate, class, category, or the like; and to contain as a subordinate
    element or involve as a factor.
    13.   Decedents’ Estates: Wills. A testator will not be held to have disin-
    herited an heir except where that conclusion is impelled by the express
    provisions or by necessary implication from provisions specifically
    set forth.
    Appeal from the County Court for Douglas County: Grant
    A. Forsberg, Judge. Affirmed.
    Joseph D. Thornton, of Smith Peterson Law Firm, L.L.P.,
    for appellants.
    Ryan P. Watson and Jeffrey A. Wagner, of Wagner, Meehan
    & Watson, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Nicole Brinkman, the daughter of testator Michael R.
    Brinkman, claimed to be entitled to one-half of the residual
    share of her father’s testamentary estate and sought a declara-
    tion of her rights under her father’s will in the county court
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    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    for Douglas County. The personal representative for the
    estate, Kimberly Milius, and the decedent’s son, Seth Michael
    Brinkman, through Milius’ appearing as his next friend,
    claimed that the decedent had disinherited Nicole. The county
    court agreed with Nicole and determined as a matter of law
    that the will is ambiguous with regard to Nicole’s status under
    the will; that Nicole is not clearly disinherited; and that Nicole
    should receive as a child, an issue, and an heir of the decedent
    pursuant to the terms of the will. This appeal filed by Milius
    and Seth followed. We affirm.
    STATEMENT OF FACTS
    Michael died on December 23, 2016, leaving two children,
    Nicole and Seth. Michael’s will was admitted for probate,
    naming Milius as personal representative. Milius is Seth’s
    mother, but not Nicole’s mother. Nicole is the older of the
    two children. Nicole objected to the probate of the will and
    claimed that she was entitled to an undivided one-half interest
    in the estate, less personal effects. Milius appeared for Seth as
    next friend.
    Previously, we considered a jurisdictional issue in this mat-
    ter. Brinkman v. Brinkman, 
    302 Neb. 315
    , 
    923 N.W.2d 380
    (2019). In that opinion, we determined that for purposes of
    construing the will in this case, the county court had juris-
    dictional priority over the district court. 
    Id.
     The matter was
    remanded to the county court, resulting in the order from
    which this appeal was taken.
    The relevant portions of the will for purposes of this appeal
    are as follows:
    ARTICLE I.
    The references in this Will to my “son” refer to my
    son, SETH MICHAEL BRINKMAN. The references in
    this Will to my “children” and/or my “issue” shall include
    my son, SETH MICHAEL BRINKMAN, and all children
    of mine born or adopted after the execution hereof.”
    ....
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    IN RE ESTATE OF BRINKMAN
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    308 Neb. 117
    ARTICLE V.
    I give the residue of my estate to my issue, per stirpes.
    ....
    ARTICLE VII.
    If at any time before final distribution there shall not
    be in existence anyone who is, or might become, entitled
    to receive benefits under the foregoing provisions of this
    Will, any portion remaining shall be distributed to the
    persons to whom and in the proportions in which the
    same would have been distributed had I died intestate,
    domiciled in the State of Nebraska, owning such assets
    immediately following the death of the last survivor of
    the class composed of my issue and myself.
    (Emphasis supplied.) Nicole is not mentioned by name in
    the will.
    On remand, Nicole filed a motion to construe the will
    and contended that an ambiguity exists in the term “issue”
    and asserted that a proper construction of “issue” included
    both Nicole and Seth. Milius contended that the will was not
    ambiguous and that its terms disinherited Nicole. Following
    a hearing, the county court found, inter alia, that the will is
    patently ambiguous with regard to whether Michael specifi-
    cally intended to disinherit Nicole. The court interpreted the
    will and found that its language does not serve to disinherit
    Nicole. The court reasoned that the portion of the will defining
    “children” and/or “issue” states they “shall include my son,
    SETH MICHAEL BRINKMAN” and such terms do not clearly
    disinherit Nicole. The county court examined definitions of
    “include” and reasoned:
    The Court notes that the inclusion of a named individ-
    ual that was born out of wedlock clearly adds that individ-
    ual to an otherwise identified group of heirs. Potentially
    to avoid an attack that he should be excluded. The word
    include does not mean it’s [sic] opposite. Simply put, to
    include is not to exclude. To include the named individual
    merely adds him to the otherwise definition of “children”
    and “issue.”
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    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    Thus, the county court determined that Nicole, as the dece-
    dent’s daughter, is included under the will as a child, an issue,
    and an heir of Michael.
    Milius and Seth filed a motion to alter or amend the order,
    which was denied.
    An appeal was taken by Seth, individually, and Milius, rep-
    resenting the estate and also purporting to act as next friend to
    Seth. During the pendency of the case, the parties agree that
    Seth turned 19 years old and reached the age of majority as
    defined under 
    Neb. Rev. Stat. § 43-2101
     (Supp. 2019).
    ASSIGNMENTS OF ERROR
    Seth and Milius assign, summarized and restated, that the
    county court erred when it (1) determined that the will is
    patently ambiguous with respect to Nicole’s status and (2)
    found that Nicole is not excluded from the definition of “chil-
    dren” and “issue” as defined by the will, which they claim
    served to expressly disinherit Nicole.
    STANDARDS OF REVIEW
    [1-3] Subject matter jurisdiction and statutory interpretation
    present questions of law. In re Estate of Adelung, 
    306 Neb. 646
    , 
    947 N.W.2d 269
     (2020). A jurisdictional question which
    does not involve a factual dispute is determined by an appellate
    court as a matter of law. 
    Id.
     An appellate court independently
    reviews questions of law decided by a lower court. 
    Id.
    [4,5] The interpretation of the words in a will or a trust
    presents a question of law. In re Estate of Barger, 
    303 Neb. 817
    , 
    931 N.W.2d 660
     (2019). 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. 
    Id.
    ANALYSIS
    Subject Matter Jurisdiction.
    As an initial matter, we note that during the pendency of
    this appeal, Nicole challenged our subject matter jurisdiction
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    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    over this case based on the statuses of Seth and Milius. As we
    explain below, we conclude we have jurisdiction.
    [6] 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. In re Estate of Adelung, 
    supra.
    Lack of subject matter jurisdiction may be raised at any time
    by any party or by the court sua sponte. 
    Id.
     Appellate juris-
    diction must be specifically provided by the Legislature for
    this court to have jurisdiction over an appeal. See Heckman v.
    Marchio, 
    296 Neb. 458
    , 
    894 N.W.2d 296
     (2017). “[U]nless a
    statute provides for an appeal, such right does not exist.” 
    Id. at 461
    , 894 N.W.2d at 299.
    [7] In probate cases, 
    Neb. Rev. Stat. § 30-1601
    (2) (Cum.
    Supp. 2018) provides 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.” (Emphasis supplied.) We have described
    Nebraska’s statutory grant of the right to appeal in these cases
    as “generous.” See In re Conservatorship of Franke, 
    292 Neb. 912
    , 923, 
    875 N.W.2d 408
    , 417 (2016). Compare Unif. Probate
    Code § 1-308, 8 (part I) U.L.A. 70 (2013).
    We have previously explained that the distribution of assets
    from an estate is a proceeding in rem and that every person
    interested in the distribution is entitled to appear on appeal.
    See Clutter v. Merrick, 
    162 Neb. 825
    , 
    77 N.W.2d 572
     (1956).
    Heirs of the decedent are interested persons. See 
    id.
     Under
    § 30-1601(2), Seth, individually, as an heir to Michael, was
    directly “affected” by the county court’s “final order” ruling
    that Nicole is also an heir under the decedent’s will, and there-
    fore, Seth was enabled by statute to appeal, even if he had not
    appeared below.
    Section 30-1601(2) also enables “any party” to take an
    appeal. Milius, as personal representative of the estate, was
    a party in the county court. Nicole’s contention that Milius,
    as personal representative, lacks standing on appeal is with-
    out merit.
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    IN RE ESTATE OF BRINKMAN
    Cite as 
    308 Neb. 117
    Finally, we note that in addition to her status as personal rep-
    resentative, Milius also identified herself as next friend to Seth
    in the notice of appeal. However, because Seth is no ­longer
    a minor and instead is appearing individually in this appeal,
    Milius’ previous next friend status is irrelevant. Accordingly,
    we have jurisdiction and overrule Nicole’s motion to dismiss.
    Construction of Will.
    We next turn to Seth and Milius’ assignments of error
    regarding the county court’s construction of the will. They
    generally object to Nicole’s taking under the will. They spe-
    cifically contend that the will is not ambiguous or that if it is
    ambiguous, such ambiguity is latent, and under the terms of the
    will, Nicole was expressly disinherited by her exclusion from
    the definition of “children” and “issue.” These assignments are
    without merit.
    [8] The cardinal rule concerning a decedent’s will is the
    requirement that the intention of the testator shall be given
    effect, unless the maker of the will attempts to accomplish
    a purpose or to make a disposition contrary to some rule of
    law or public policy. In re Estate of Etmund, 
    297 Neb. 455
    ,
    
    900 N.W.2d 536
     (2017). To arrive at a testator’s intention
    expressed in a will, a court must examine the decedent’s will in
    its entirety, consider and liberally interpret every provision in
    a will, employ the generally accepted literal and grammatical
    meaning of words used in the will, and assume that the maker
    of the will understood words stated in the will. 
    Id.
    [9,10] When language in a will is clear and unambiguous,
    construction of a will is unnecessary and impermissible. 
    Id.
    Ambiguity exists in an instrument, including a will, when a
    word, phrase, or provision in the instrument has, or is suscep-
    tible of, at least two reasonable interpretations or meanings.
    
    Id.
     Parol evidence is inadmissible to determine the intent
    of a testator as expressed in his or her will, unless there is
    a latent ambiguity therein which makes his or her intention
    obscure or uncertain. In re Estate of Mousel, 
    271 Neb. 628
    ,
    
    715 N.W.2d 490
     (2006). A latent ambiguity exists when the
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    IN RE ESTATE OF BRINKMAN
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    308 Neb. 117
    testator’s words are susceptible of more than one meaning, and
    the uncertainty arises not upon the words of the will as looked
    at in themselves, but upon those words when applied to the
    object or subject which they describe. 
    Id.
    [11] In contrast, a patent ambiguity is one which exists
    on the face of an instrument. 
    Id.
     A patent ambiguity must be
    removed by interpretation according to legal principles, and the
    intention of the testator must be found in the will. 
    Id.
    The dispute regarding construction of the will focuses on
    articles I and V, which we set forth below:
    ARTICLE I.
    The references in this Will to my “son” refer to my
    son, SETH MICHAEL BRINKMAN. The references in
    this Will to my “children” and/or my “issue” shall include
    my son, SETH MICHAEL BRINKMAN, and all children
    of mine born or adopted after the execution hereof.
    ....
    ARTICLE V.
    I give the residue of my estate to my issue, per stirpes.
    (Emphasis supplied.)
    Contrary to the assertions of Seth and Milius, we agree
    with the county court and conclude that by using the word
    “include,” article I contains a patent ambiguity which must
    be removed by harmonizing the expression therein with the
    intention of the testator as it may be ascertained from the plain
    provisions of the will. See Marsh v. Marsh, 
    92 Neb. 189
    , 
    137 N.W. 1122
     (1912). As indicated above, in searching for the
    intention of the testator, the court must examine the entire
    will, consider each of its provisions, give words their generally
    accepted literal and grammatical meaning, and indulge the pre-
    sumption that the testator understood the meaning of the words
    used. Gretchen Swanson Family Foundation, Inc. v. Johnson,
    
    193 Neb. 641
    , 
    228 N.W.2d 608
     (1975).
    [12] We previously considered the generally understood
    meaning of the word “include” in a contract case in which
    we were presented with the question of whether the word
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    “include,” on its own, was expansive or restrictive. Turning to
    dictionary and legal definitions, we explained:
    The word “include” means “1. To contain, embrace, or
    comprise, as a whole does parts or any part or element
    . . . 2. to place in an aggregate, class, category, or the
    like. 3. To contain as a subordinate element; involve as
    a factor.” . . . [T]hese definitions support the conclusion
    that enumerated items in a list preceded by the word
    “include” are normally a part of the whole—not that the
    parts restrict the whole. Particularly in legal contexts, the
    “participle including typically indicates a partial list,”
    and this meaning holds true whether or not the drafter(s)
    added emphatic language such as “including but not lim-
    ited to.” Obviously, interpretative aids cannot override
    the parties’ clear intent when a contract is considered as
    a whole. But the word “include” preceding a list does not
    indicate an exclusive list absent other language showing
    a contrary intent.
    Timberlake v. Douglas County, 
    291 Neb. 387
    , 398, 
    865 N.W.2d 788
    , 797 (2015).
    We find the foregoing explanation of the word “include”
    applicable to the construction of the will in this case. The word
    “include” in article I precedes a “list” of persons who are to be
    added to the previously identified “children” and “issue.” The
    definition of “issue” thus includes the “list” composed of Seth
    and the decedent’s children born or adopted after the execution
    of the will.
    Article V bequeaths the residue of the estate to the dece-
    dent’s “issue,” per stirpes. Under the default definition pro-
    vided of “issue of a person” in the Nebraska Probate Code,
    Nicole is a linear descendant and thus a child or issue of
    Michael. 
    Neb. Rev. Stat. § 30-2209
    (23) (Reissue 2016) pro-
    vides that “[i]ssue of a person means all his or her lineal
    descendants of all generations, with the relationship of parent
    and child at each generation being determined by the defini-
    tions of child and parent contained in the Nebraska Probate
    Code.” Consistent with the statutory provision, Nicole is not
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    IN RE ESTATE OF BRINKMAN
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    308 Neb. 117
    excluded from Michael’s use of “issue” simply because he
    wished to note that Seth and other children born or adopted
    later should be included. To include is not to exclude in this
    context. And, article I’s reference to “issue” is consistent with
    our conclusion under article I that both Seth and Nicole take
    under the will.
    [13] In order to complete our analysis, we must review
    the will to determine whether Michael intended to disinherit
    Nicole from the definition of “children” or “issue” based on
    any other provisions of the will read in harmony with the pro-
    visions discussed above. “‘[A] testator will not be held to have
    disinherited an heir except where that conclusion is impelled
    by the express provisions or by necessary implication from
    provisions specifically set forth.’ . . .” Jacobsen v. Farnham,
    
    155 Neb. 776
    , 784, 
    53 N.W.2d 917
    , 922 (1952). We have
    explained that an heir may not be disinherited upon conjec-
    ture and that the heir “‘“is favored by . . . policy; and though
    the testator may disinherit [the heir], yet the law will execute
    that intention only when it is put in a clear and unambiguous
    shape.” . . .’” Lowry v. Murren, 
    195 Neb. 42
    , 45, 
    236 N.W.2d 627
    , 630 (1975).
    No express statement disinherits Nicole or otherwise pro-
    vides that she not receive from the estate, and we will not
    speculate as to Michael’s intentions not contained in his will.
    A close examination of the entirety of the will is contrary to
    the suggestion of Seth and Milius to the effect that Nicole was
    disinherited. For example, article VII states:
    If at any time before final distribution there shall not
    be in existence anyone who is, or might become, entitled
    to receive benefits under the foregoing provisions of this
    Will, any portion remaining shall be distributed to the
    persons to whom and in the proportions in which the
    same would have been distributed had I died intestate,
    domiciled in the State of Nebraska, owning such assets
    immediately following the death of the last survivor of
    the class composed of my issue and myself.
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    IN RE ESTATE OF BRINKMAN
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    308 Neb. 117
    Under this provision, Michael acknowledges that if Seth (and
    any issue of Seth) predecease Michael, Nicole will inherit by
    operation of law as though the estate had passed intestate. This
    provision was an opportunity to disinherit Nicole had Michael
    chosen to do so; he did not. We reject the contention of Seth
    and Milius that Michael intended to disinherit Nicole in his
    will and did so expressly. Milius and Seth’s assignments of
    error are without merit.
    CONCLUSION
    Giving full effect to the intentions of Michael as expressed
    in the language of his will, we find no error by the county court
    which concluded that Nicole was not disinherited and, to the
    contrary, that Nicole was entitled to inherit under the provi-
    sions of the will.
    Affirmed.