In re Estate of Akerson , 309 Neb. 470 ( 2021 )


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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    In re Estate of Nelda M. Akerson, deceased.
    Ronald E. Akerson, Personal Representative of
    the Estate of Nelda M. Akerson, deceased,
    appellee, v. Hamilton County, Nebraska,
    and Hamilton Manor Board of Trustees,
    appellants, and State of Nebraska,
    intervenor-appellee.
    ___ N.W.2d ___
    Filed June 11, 2021.    No. S-20-668.
    1. Decedents’ Estates: Appeal and Error. In the absence of an equity
    question, an appellate court, reviewing probate matters, examines for
    error appearing on the record made in the county court.
    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. Wills: Trusts. The interpretation of the words in a will or a trust pre­
    sents a question of law.
    4. 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.
    5. Decedents’ Estates: Appeal and Error. The probate court’s factual
    findings have the effect of a verdict and will not be set aside unless
    clearly erroneous.
    6. Wills: Intent. The cardinal rule in construing a will is to ascertain and
    effectuate the testator’s intent if such intent is not contrary to the law.
    7. ____: ____. To arrive at a testator’s or testatrix’s intention expressed in
    a will, a court must examine the will in its entirety, consider and liber-
    ally interpret every provision in the will, employ the generally accepted
    literal and grammatical meanings of words used in the will, and assume
    that the maker of the will understood words stated in the will.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    8. Wills: Charities. Courts will view with favor donations by will for
    charitable purposes, and will endeavor to carry them into effect, where
    the same can be done consistently with the rules of law.
    9. Decedents’ Estates: Real Estate: Title. In Nebraska, title to both real
    and personal property passes immediately upon death to the decedent’s
    devisees or heirs, subject to administration, allowances, and a surviving
    spouse’s elective share.
    10. Wills: Death. The provisions of a will take effect and become operative
    at the time of the death of the testator, unless the will expressly provides
    for vesting at a later time.
    11. ____: ____. A will always speaks from the date of the testator’s death,
    because the testator could always modify the distributions prior to his or
    her death.
    12. Wills: Interest: Time: Intent. 
    Neb. Rev. Stat. § 30-24
    ,102 (Reissue
    2016) provides that general pecuniary devises bear interest at the legal
    rate beginning 1 year after the first appointment of a personal represent­
    ative until payment, unless a contrary intent is indicated by the will.
    13. Wills: Interest. A will is an instrument in writing. Therefore, when
    interest is required to be paid on a pecuniary devise pursuant to 
    Neb. Rev. Stat. § 30-24
    ,102 (Reissue 2016), the legal rate of interest called
    for is 12 percent per annum, as required by 
    Neb. Rev. Stat. § 45-104
    (Reissue 2010).
    Appeal from the County Court for Hamilton County: Frank
    J. Skorupa, Judge. Reversed and remanded with direction.
    Andre R. Barry, Jennie A. Kuehner, and John F. Zimmer,
    of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for
    appellants.
    Daniel E. Klaus and Timothy F. Clare, of Rembolt Ludtke,
    L.L.P., for appellee.
    Douglas J. Peterson, Attorney General, and Shereece Dendy-
    Sanders for intervenor-appellee.
    Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
    JJ.
    Funke, J.
    The probate court found that an $875,000 charitable bequest
    to a nursing home facility lapsed, and the court ordered the
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    funds to be distributed to the residuary of the estate. Because
    we conclude that the bequest did not lapse, we reverse, and
    remand with direction.
    BACKGROUND
    Nelda M. Akerson was a lifelong resident of Hamilton
    County, Nebraska. She died in June 2017 at age 85. Her will,
    executed in June 2011, was admitted to probate in January 2018,
    and Ronald E. Akerson (Ronald), the nephew of Akerson’s late
    husband, was appointed personal representative for the estate.
    The residuary of Akerson’s estate was divided one half to
    Ronald and one half to various other relatives. The relevant
    article of Akerson’s will stated:
    I give the sum of Eight Hundred Seventy-five Thousand
    and no/100 Dollars ($875,000.00) to HAMILTON
    MANOR, Aurora, Nebraska, for its unrestricted use, as
    determined by its Board of Directors.
    The charitable bequests in this paragraph shall bear no
    portion of the costs of administration nor estate or inher­
    itance tax.
    Hamilton Manor was a nursing home facility in Aurora,
    Nebraska, owned by Hamilton County and operated through
    the Hamilton Manor Board of Trustees (board of trustees),
    under 
    Neb. Rev. Stat. § 23-3501
     et seq. (Reissue 2012 & Cum.
    Supp. 2020). In 1963, the voters of Hamilton County approved
    a bond issue for the construction of the nursing home. The
    facility opened in 1965. According to an affidavit submitted
    by Ronald, Akerson wanted to gift money to Hamilton Manor,
    because she appreciated the rehabilitation services she and her
    sister received there.
    In 2009, Hamilton Manor experienced financial difficul-
    ties. The board of trustees explored the possibility of changing
    Hamilton Manor’s operating structure to a “501(c)(3) non-
    profit” corporation in an effort to raise additional funds for the
    facility. In August 2009, articles of incorporation for an entity
    named “Hamilton Manor Rehabilitation & Care Center” (the
    corporation) were filed with the Nebraska Secretary of State.
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    IN RE ESTATE OF AKERSON
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    309 Neb. 470
    The purpose of the corporation was to “construct, maintain[,]
    and promote a nursing home and elderly care facility in Aurora
    . . . and to promote services for senior citizens in Hamilton
    County.” The board of trustees ultimately decided not to con-
    vert Hamilton Manor to a nonprofit corporation, and as such,
    Hamilton Manor remained owned by Hamilton County.
    Around 2012, Hamilton County began loaning money to
    Hamilton Manor to aid in its operation. By July 2016, Hamilton
    County had loaned Hamilton Manor a total of $925,500. On
    July 22, 2016, Hamilton County executed loan extension agree-
    ments with “Hamilton Manor Rehabilitation and Care Center,”
    “a County owned Nursing Home Facility, located in Aurora,
    Hamilton County, Nebraska.” Per the agreements, the loans
    were due on July 22, 2021.
    Due to Hamilton Manor’s continued financial difficulties,
    Hamilton County and the board of trustees sought alternative
    solutions. In December 2016, Hamilton County and Hamilton
    Manor, through its board of trustees, entered into a “Consulting
    and Bed Transfer Agreement” (the Agreement) with Quality
    Care Solutions, LLC (QCS), a Nebraska for-profit company
    principally located in Aurora. Under the Agreement, QCS
    was to construct a new nursing home in Aurora by March 1,
    2018. The initial consulting phase of the project in which QCS
    agreed to consult with Hamilton Manor on the day-to-day
    operations of the facility was to continue until the new facil-
    ity became operational, at which point Hamilton Manor would
    transfer its licenses to operate 60 nursing home beds to QCS.
    The Agreement stated that the board of trustees “intend[ed] to
    continue to operate and manage the [nursing facility] until such
    time as [QCS] has constructed a new 60-bed nursing home”
    and that “Hamilton Manor shall continue to be licensed as a
    nursing facility and certified for participation in the Medicare
    and Medicaid programs in the name of and under the author-
    ity of Hamilton Manor and the [board of trustees].” The board
    of trustees agreed to close its facility and cease all operations
    upon the opening of the new facility. Hamilton County agreed
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    IN RE ESTATE OF AKERSON
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    309 Neb. 470
    to demolish the old nursing home building within a reason-
    able time following the opening of the new facility and to not
    operate a senior care facility on the property for 20 years. The
    Agreement would terminate upon mutual agreement of the
    parties, a material breach of the agreement by either party, or
    QCS’ inability to obtain the necessary regulatory approval or
    declaration of bankruptcy.
    As of June 6, 2017, Hamilton Manor continued to operate as
    a skilled nursing facility. Thereafter, QCS completed construc-
    tion of the new facility, consistent with the March 2018 time-
    line provided under the Agreement. By April 2018, Hamilton
    County ceased operating Hamilton Manor and transferred its
    bed licenses to QCS. Hamilton County demolished Hamilton
    Manor, and on June 27, 2019, sold the real property on which
    Hamilton Manor sat for $275,000. The board of trustees con-
    tinues to exist and operates a separate checking account in the
    name of Hamilton Manor for the purpose of winding up the
    nursing home business.
    As noted, Akerson died in June 2017. Her will was admit-
    ted to probate in January 2018. In the fall of 2018, Ronald,
    as personal representative, recognized the $875,000 charitable
    bequest to Hamilton Manor in the estate’s federal estate tax
    and Nebraska inheritance tax filings. On the federal estate
    tax return, Ronald asserted that there were no plans to contest
    or have interpreted any of the charitable devises made under
    the will. In the inheritance tax filing, Ronald listed Hamilton
    Manor as a charitable beneficiary of Akerson’s estate in the
    amount of $875,000. But in September 2019, Ronald peti-
    tioned the probate court of Hamilton County for construction
    of Akerson’s will, asking that the court find the charitable
    bequest to Hamilton Manor had failed and order the proceeds
    to be administered as part of the residue of the estate. Ronald’s
    petition incorrectly stated that Hamilton Manor was a nonprofit
    corporation. Hamilton County and the board of trustees filed a
    response stating that they owned and operated Hamilton Manor
    and claiming that the bequest vested upon Akerson’s death.
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    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    Pursuant to 
    Neb. Rev. Stat. § 30-2342.01
     (Reissue 2016), the
    State of Nebraska intervened on the side of Hamilton County
    and the board of trustees.
    The matter was tried to the county court on stipulated facts.
    On August 14, 2020, the court issued its written order finding
    that the bequest to Hamilton Manor lapsed. The court found
    that on December 1, 2016, approximately 6 months prior to
    Akerson’s death, Hamilton County and the board of trustees
    entered into the Agreement with QCS. The court found that
    in April 2018, Hamilton Manor ceased operating as a nurs-
    ing home facility. The court found that “the bequest was not
    to the [c]orporation,” because Akerson “did not specifically
    identify any corporation in the bequest to Hamilton Manor.”
    But then, the court found that the purpose of the corporation
    was to “‘construct, maintain and promote a nursing home and
    elderly care facility in Aurora, Hamilton County, Nebraska,’”
    and that “[w]hen the [c]orporation entered into the Agreement,
    that specific purpose no longer existed.” The court quoted
    language from In re Estate of Harrington, 1 stating that “‘the
    bequest at bar was in effect a gift to the objects and purposes
    of plaintiff corporation, and not to the corporation itself.’”
    The court found that “prior to [Akerson’s] death, Hamilton
    Manor ceased to exist.” The court ordered the $875,000 to be
    distributed to Akerson’s heirs in accordance with the will’s
    residuary clause.
    Hamilton County and the board of trustees filed this timely
    appeal. We moved this case to our docket on our motion.
    ASSIGNMENTS OF ERROR
    Hamilton County and the board of trustees assign, restated,
    that the probate court erred in (1) finding that the bequest
    lapsed when Hamilton Manor was operating on the date of
    death, although there was an agreement in place under which
    the facility would close at a future date; (2) distributing the
    1
    In re Estate of Harrington, 
    151 Neb. 81
    , 
    36 N.W.2d 577
     (1949).
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    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    bequest under the will’s residuary clause, in contravention
    of § 30-2342.01; and (3) failing to distribute the bequest to
    Hamilton County and the board of trustees with interest under
    
    Neb. Rev. Stat. § 30-24
    ,102 (Reissue 2016).
    STANDARD OF REVIEW
    [1,2] In the absence of an equity question, an appellate
    court, reviewing probate matters, examines for error appear-
    ing on the record made in the county court. 2 When reviewing
    a judgment for errors appearing on the record, the inquiry is
    whether the decision conforms to the law, is supported by com-
    petent evidence, and is neither arbitrary, capricious, nor unrea-­
    sonable. 3
    [3,4] The interpretation of the words in a will or a trust
    presents a question of law. 4 When reviewing questions of law
    in a probate matter, an appellate court reaches a conclusion
    independent of the determination reached by the court below. 5
    [5] The probate court’s factual findings have the effect of a
    verdict and will not be set aside unless clearly erroneous. 6
    ANALYSIS
    Devise Did Not Lapse
    The issues for disposition are whether the probate court
    erred in finding that the charitable bequest to Hamilton Manor
    lapsed and, if so, whether Hamilton County and the board of
    trustees, as the political subdivisions that own and operate
    Hamilton Manor, are entitled to interest.
    Initially, we note that Akerson’s will bequeathed the monies
    to “HAMILTON MANOR . . . for its unrestricted use, as deter-
    mined by its Board of Directors.” However, the record is clear
    2
    In re Estate of Barger, 
    303 Neb. 817
    , 
    931 N.W.2d 660
     (2019).
    3
    
    Id.
    4
    
    Id.
    5
    
    Id.
    6
    
    Id.
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    IN RE ESTATE OF AKERSON
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    that Hamilton Manor is operated by a board of trustees as is
    required by statute. Despite this misnomer, none of the parties
    dispute that Hamilton Manor is the beneficiary identified by
    Akerson under the relevant will provision. Additionally, though
    the probate court indicated in its order that the corporation
    entered into the Agreement with QCS, the record clearly shows
    that Hamilton Manor through its board of trustees was party to
    the Agreement, and not the corporation.
    The predominating issue for resolution is whether the
    Agreement caused the bequest to Hamilton Manor to lapse
    prior to Akerson’s death. If a beneficiary organization has
    ceased to exist at the time the will goes into effect, the legacy
    lapses. 7
    Hamilton County and the board of trustees argue that
    because Hamilton Manor was actively operating as a nurs-
    ing home on the date of Akerson’s death, the devise vested
    on that date, and that such vesting was not invalidated by the
    terms of the Agreement that Hamilton Manor would close at
    a future date. The State agrees with Hamilton County and the
    board of trustees and argues that pursuant to the provisions
    of Akerson’s will, Akerson intended Hamilton Manor, by and
    through Hamilton County and the board of trustees, to receive
    the $875,000. Hamilton County, the board of trustees, and the
    State argued in the alternative that if the bequest did lapse,
    then the court should apply the doctrine of cy pres and award
    the funds to a similar charity in Hamilton County rather than
    to Akerson’s heirs.
    Ronald argues that the court correctly found that the
    Agreement rendered the bequest to Hamilton Manor inef-
    fectual. Ronald contends that on the date of Akerson’s death,
    Hamilton Manor was no longer carrying out the charitable
    objectives and purposes for which the bequest was given, and
    that the bequest’s failure is akin to the failure of a condition
    subsequent.
    7
    In re Estate of Joseph, 
    62 N.Y.S.2d 197
     (1946); In re Matter of Walker,
    
    185 Misc. 1046
    , 
    53 N.Y.S.2d 106
     (1944).
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    IN RE ESTATE OF AKERSON
    Cite as 
    309 Neb. 470
    [6-8] Resolution of this matter is dictated by the intent of
    Akerson under her will, as well as provisions of the Nebraska
    Probate Code. 8 The cardinal rule in construing a will is to
    ascertain and effectuate the testator’s intent if such intent is not
    contrary to the law. 9 Section 30-2341 states: “The intention of
    a testator as expressed in [her] will controls the legal effect of
    [her] dispositions.” To arrive at a testator’s or testatrix’s inten-
    tion expressed in a will, a court must examine the will in its
    entirety, consider and liberally interpret every provision in the
    will, employ the generally accepted literal and grammatical
    meanings of words used in the will, and assume that the maker
    of the will understood words stated in the will. 10 Courts will
    view with favor donations by will for charitable purposes, and
    will endeavor to carry them into effect, where the same can be
    done consistently with the rules of law. 11
    Initially, we establish that Akerson’s will created a gift, or
    devise, to Hamilton Manor that is charitable in nature. Under
    the relevant provision, Akerson gave $875,000 to Hamilton
    Manor, “for its unrestricted use.” Immediately thereafter,
    Akerson referred to the devise to Hamilton Manor, and other
    devises contained in the same article, as “charitable bequests.”
    Additionally, under Nebraska law, nonprofit nursing homes are
    classified as charitable institutions. 12 Thus, Akerson intended to
    leave $875,000 to Hamilton Manor as a charitable gift.
    8
    
    Neb. Rev. Stat. §§ 30-401
     to 30-406, 30-701 to 30-713, 30-2201 to
    30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, and 30-4201 to
    30-4210 (Reissue 2016 & Cum. Supp. 2020).
    9
    In re Estate of Barger, 
    supra note 2
    ; In re Estate of Johnson, 
    260 Neb. 91
    ,
    
    615 N.W.2d 98
     (2000).
    10
    
    Id.
    11
    Allebach v. City of Friend, 
    118 Neb. 781
    , 
    226 N.W. 440
     (1929); Gould v.
    Board of Home Missions, 
    102 Neb. 526
    , 
    167 N.W. 776
     (1918); St. James
    Orphan Asylum v. Shelby, 
    60 Neb. 796
    , 
    84 N.W. 273
     (1900). See Garwood
    v. Drake University, 
    188 Neb. 605
    , 
    198 N.W.2d 336
     (1972).
    12
    Bethesda Foundation v. County of Saunders, 
    200 Neb. 574
    , 
    264 N.W.2d 664
     (1978); Evangelical Lutheran Good Samaritan Soc. v. County of
    Gage, 
    181 Neb. 831
    , 
    151 N.W.2d 446
     (1967).
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    IN RE ESTATE OF AKERSON
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    309 Neb. 470
    We next determine whether the charitable gift lapsed. The
    undisputed timeline is that Hamilton County and the board of
    trustees entered into the Agreement on December 1, 2016. The
    Agreement provided for consultation services, the construc-
    tion of a new nursing facility, and the closing of Hamilton
    Manor, all by March 2018. Akerson died on June 6, 2017.
    The Agreement came to fruition in April 2018, at which time
    Hamilton Manor closed and transferred its bed licenses to
    QCS. Under this set of facts, in accordance with well-settled
    Nebraska law, we conclude that Akerson’s gift to Hamilton
    Manor vested on the date of her death.
    [9-11] In Nebraska, title to both real and personal property
    passes immediately upon death to the decedent’s devisees or
    heirs, subject to administration, allowances, and a surviving
    spouse’s elective share. 13 The provisions of a will take effect
    and become operative at the time of the death of the testator,
    unless the will expressly provides for vesting at a later time. 14
    “‘[T]he prevailing rule is that the fact that a [charitable]
    organization named as a beneficiary in a will discontinues
    its active functions after the execution of the will does
    not impair its right to take the gift so long as its identity,
    whether corporate or associative, continues without dis-
    solution until the death of the testator.’” 15
    A will always speaks from the date of the testator’s death,
    because the testator could always modify the distributions prior
    to his or her death. 16
    13
    § 30-2401; Wilson v. Fieldgrove, 
    280 Neb. 548
    , 
    787 N.W.2d 707
     (2010).
    14
    See, In re Estate of Barger, 
    supra note 2
    ; Carr v. Carr, 
    173 Neb. 189
    , 
    112 N.W.2d 786
     (1962); Covenant Presbytery v. First Baptist Church, 
    2016 Ark. 138
    , 
    489 S.W.3d 153
     (2016).
    15
    In re Estate of Lind, 
    314 Ill. App. 3d 1055
    , 1058, 
    734 N.E.2d 47
    , 49, 
    248 Ill. Dec. 339
    , 341 (2000). See, also, In re Boston Regional Medical Center,
    Inc., 
    410 F.3d 100
     (2005) (applying Massachusetts law); In re Estate of
    MacPherson, 
    14 Cal. App. 3d 450
    , 
    92 Cal. Rptr. 574
     (1970); Old Colony
    Trust Co. v. Winchester Home, 
    324 Mass. 258
    , 
    85 N.E.2d 622
     (1949).
    16
    In re Estate of Barger, 
    supra note 2
    .
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    At the time of Akerson’s death, Hamilton Manor still oper-
    ated as a skilled nursing facility and was capable of receiving
    the gift. Section 23-3504(2) states that a board of trustees
    appointed by a county board “[m]ay accept property by gift,
    devise, bequest, or otherwise and may carry out any condi-
    tions connected to the receipt of any gift, devise, or bequest.”
    However, the fact that Hamilton Manor was capable of receiv-
    ing the gift does not end our analysis. An organization must
    also be capable of using the charitable gift for its intended
    purpose and be willing to do so. 17
    The language used by Akerson in her will leads us to con-
    clude that she made the gift with a general charitable purpose
    to benefit Hamilton Manor. In ascertaining Akerson’s intent,
    we note that Akerson gifted Hamilton Manor the funds “for
    its unrestricted use, as determined by its [board of trustees].”
    In doing so, Akerson used no words of qualification or limita-
    tion, nor did she provide for an alternative disposition of the
    gift should Hamilton Manor cease to exist. These absences
    qualify as evidence of a general charitable intent. 18 Further, the
    Restatement (Third) of Trusts states that charitable purposes
    include the promotion of health, governmental or municipal
    purposes, and other purposes that are beneficial to the commu-
    nity. 19 Nonprofit nursing homes and hospitals classify as chari-
    table institutions. 20 Therefore, so long as Hamilton Manor was
    willing and able, at the time of Akerson’s death, to use the char-
    itable gift for the general promotion of health and governmental
    services in Hamilton County, then the gift would not lapse.
    Here, as of the date of Akerson’s death, even though Hamilton
    Manor was scheduled to close approximately 9 months later, it
    is uncontested that Hamilton Manor still provided the services
    17
    In re Boston Regional Medical Center, Inc., supra note 15.
    18
    Wood v. Lincoln General Hospital Assn., 
    205 Neb. 576
    , 
    288 N.W.2d 735
    (1980).
    19
    Restatement (Third) of Trusts § 28 (2003).
    20
    See, Bethesda Foundation, 
    supra note 12
    ; Evangelical Lutheran Good
    Samaritan Soc., supra note 12; Allebach, supra note 11.
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    of a skilled nursing facility. As such, the Agreement did not
    prevent Hamilton Manor from carrying out the general chari-
    table objectives and purposes of the gift. As Hamilton County
    and the board of trustees point out, the Agreement established
    that Hamilton Manor intended to continue its normal opera-
    tions until construction of a new 60-bed nursing facility was
    completed. The Agreement contemplated the possibility that
    construction of the new facility could not be completed and
    that the Agreement could be terminated.
    Even if we assume for purposes of argument that termination
    was unlikely, and the facts regarding the Agreement supported
    the probate court’s conclusion that the charitable purposes
    of the gift became impossible to achieve, the Legislature has
    determined that a charitable gift will not fail under such cir-
    cumstances. Section 30-2342.01(a) states that “no gift, devise
    . . . for . . . charitable, or benevolent purposes, which in other
    respects is valid under the laws of this state, shall be invalid
    or fail . . . by reason that it is . . . impossible to achieve.” In
    the words of § 30-2342.01(b), this court should “determine
    and order an administration or distribution of the gift [or]
    devise . . . in a manner as consistent as possible with the intent
    expressed in the document creating the gift [or] devise.”
    “Legacies and devises to the uses of charity are entitled
    to peculiar favor and are regarded as privileged testa-
    ments, and will not be declared void if they can by any
    possibility, consistent with law, be considered as good. So
    courts of equity go to the length of their judicial power
    rather than that such a trust should fail.” 21
    Favorably viewing Akerson’s charitable gift and endeavoring
    to carry it into effect, we conclude that under the undisputed
    facts, the gift did not fail, nor did it become impossible to
    execute in strict accordance with the charitable purposes and
    objectives of Akerson’s will. 22
    21
    Allebach, supra note 11, 118 Neb. at 787, 226 N.W. at 442.
    22
    See Wood, supra note 18, citing Trustees of Dartmouth College v. Quincy,
    
    357 Mass. 521
    , 
    258 N.E.2d 745
     (1970). See, also, Garwood, 
    supra note 11
    .
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    In finding that the gift lapsed, the probate court relied upon
    In re Estate of Harrington, 23 but the case is distinguishable
    due to the language used in that will. In that case, the question
    before the court was whether a seminary was in existence on
    the date of the death of the testatrix within the meaning of the
    provisions of her will. In the part of the will in controversy,
    the testator devised property to the seminary “‘if in existence;
    but if not in existence at the death of the survivor of said
    testators,’” then to a church. 24 The seminary discontinued all
    theological education 3 years prior to the testatrix’s death, but
    remained an existing legal entity at the time of her death. The
    court held that the seminary was nonfunctioning at the time
    of the testatrix’s death and could not carry out the objects and
    purposes of the gift. But the court stated that the issue was not
    whether the gift had lapsed, because the testatrix provided for
    a contingency by giving the gift to a church.
    In the present case, there is no language in Akerson’s will
    requiring that Hamilton Manor still be in existence at the time
    of her death. Even if there were such a provision, it would be
    satisfied because Hamilton Manor was in existence and opera-
    tional on the date of Akerson’s death. Further, the recipients of
    the gift are “political subdivision[s] of the state of Nebraska,
    and the end of [their] existence cannot be safely asserted or
    even foreseen.” 25 Therefore, we disagree with the probate
    court’s conclusion that Hamilton Manor ceased to exist as of
    Akerson’s death. In fact, Hamilton Manor, as Akerson knew it,
    did exist at her death. And the board of trustees still maintains
    an active account for Hamilton Manor.
    Ronald argues that the closing of Hamilton Manor a short
    time after Akerson’s death is similar to a breach of a condition
    subsequent, which was an argument at issue in Allebach v.
    City of Friend. 26 However, Ronald’s argument is inapplicable
    23
    In re Estate of Harrington, supra note 1.
    24
    Id. at 91, 36 N.W.2d at 582.
    25
    Allebach, supra note 11, 118 Neb. at 789-90, 226 N.W. at 443.
    26
    Allebach, supra note 11.
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    based on the language of the will at issue in Allebach. In that
    case, the testator gifted $10,000 to the city of Friend “‘to be
    used for the erection of a hospital.’” 27 The money was placed
    in a separate fund and was not used for the erection of a hos-
    pital within 4 years of receipt. The residuary beneficiary filed
    a petition contending that the city had forfeited the gift. In
    construing the will, the court found that the instruction to use
    the money to erect a hospital amounted to a condition subse-
    quent, which must be carried out within a reasonable period of
    time. The court noted that a protracted delay in carrying out
    the purposes of the gift could amount to a refusal and cause
    the gift to revert. Ultimately, the court affirmed dismissal
    of the petition, finding that consummation of the purpose of
    the gift had not been delayed for an unreasonable amount
    of time.
    In the present case, however, Akerson’s gift to Hamilton
    Manor was unconditional, save for the requirement that the
    money be used for the facility’s general charitable purposes.
    The Agreement did not make it impossible for Hamilton Manor
    to carry out Akerson’s intent. Therefore, there is merit to
    Hamilton County and the board of trustees’ argument that the
    probate court erred in finding that the gift to Hamilton Manor
    lapsed. Because the gift can be carried out in accordance with
    Akerson’s intent, we do not need to consider the application of
    the doctrine of cy pres. 28
    Interest
    [12,13] Section 30-24,102 provides that general pecuniary
    devises bear interest at the legal rate beginning 1 year after the
    first appointment of a personal representative until payment,
    unless a contrary intent is indicated by the will. A will is an
    instrument in writing. Therefore, when interest is required to
    be paid on a pecuniary devise pursuant to this section, the legal
    rate of interest called for is 12 percent per annum, as required
    27
    Id. at 783, 226 N.W. at 440.
    28
    See Allebach, supra note 11.
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    by 
    Neb. Rev. Stat. § 45-104
     (Reissue 2010). 29 In this case,
    Ronald was appointed personal representative on January 5,
    2018. As personal representative, Ronald recognized Hamilton
    Manor as a charitable beneficiary in the estate’s federal estate
    tax and Nebraska inheritance tax filings in the fall of 2018. The
    bequest to Hamilton Manor began bearing interest on January
    5, 2019. Ronald filed a petition for construction of will on
    September 27, 2019.
    Ronald argues that a beneficiary’s right to interest is quali-
    fied. We have stated that charging a personal representative
    with interest would be inequitable when the delay in payment
    is caused by a will contest or through other litigation which
    prevents speedy distribution of the estate. 30 A personal rep-
    resentative is not ordinarily chargeable with interest, at least
    until a reasonable time has elapsed after the will contest or
    other litigation has been completed. 31 Hamilton County and
    the board of trustees argue that this exception is judicially cre-
    ated. However, they have not asked this court to overrule any
    precedent.
    We agree with Hamilton County and the board of trustees
    that pursuant to the ordinary operation of § 30-24,102, an
    award of interest is appropriate in this case. The only evidence
    of delay in our record was caused by Ronald’s petition for
    construction of the will. Ronald had previously asserted in tax
    filings that the charitable bequest to Hamilton Manor would
    be unchallenged. In his petition, Ronald requested the court
    to find that the distribution to Hamilton Manor had failed
    and to order that the proceeds be administered as part of the
    residuary of the estate, of which Ronald held a one-half inter-
    est. Ronald alleged that this would be most consistent with
    Akerson’s intent, even though it is clear that Akerson intended
    to make this gift to charity and did not provide a provision for
    29
    In re Estate of Peterson, 
    230 Neb. 744
    , 
    433 N.W.2d 500
     (1988).
    30
    In re Estate of Kierstead, 
    128 Neb. 654
    , 
    259 N.W. 740
     (1935).
    31
    In re Estate of Miller, 
    231 Neb. 723
    , 
    437 N.W.2d 793
     (1989).
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    an alternative disposition. Furthermore, we are observant of the
    provision in Akerson’s will in which she stated that she did not
    desire “any person whomsoever” to “in any way, directly or
    indirectly, [to] contest . . . the distribution of my estate for any
    reason.” Therefore, even if Ronald’s contention that the gift
    had lapsed was of pure intent, the law and the facts direct us to
    hold Ronald responsible to Hamilton County and the board of
    trustees for interest.
    CONCLUSION
    For the foregoing reasons, the decision of the probate court
    should be and is hereby reversed and the cause is remanded
    with direction to order that Akerson’s $875,000 charitable
    bequest be distributed to Hamilton County and the board of
    trustees, with interest accruing at 12 percent per annum com-
    mencing January 5, 2019.
    Reversed and remanded with direction.
    Miller-Lerman, J., participating on briefs.
    Papik, J., not participating.