In re Estate of Lorenz ( 2014 )

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compensation. We therefore find that the district court did not
err in denying Buck’s motion for summary judgment and grant-
ing summary judgment in favor of the City.
Buck’s directs our attention to Maloley v. City of Lexington,
3 Neb. Ct. App. 976, 536 N.W.2d 916 (1995), to support its posi-
tion, but we find this reliance misplaced. In Maloley, the
evidence established that the City of Lexington temporarily
closed the street directly in front of the plaintiff’s property.
Here, there is no allegation that the City closed Stony Brook
Boulevard, prohibiting access to Buck’s. Rather, the City
modified the median in the middle of Stony Brook Boulevard,
which, according to Painter v. State, 177 Neb. 905, 131
N.W.2d 587 (1964), is the lawful exercise of the police power
and is noncompensable.
CONCLUSION
We conclude that the district court properly overruled the
objections to the affidavits and received them into evidence.
In addition, we find no error with respect to the district
court’s rulings on the parties’ motions for summary judgment.
Accordingly, we affirm.
Affirmed.
In re Estate of William Lorenz, deceased.
Theresa Lorenz, Personal R epresentative of the
Estate of William Lorenz, appellee,
v. A lice Shea, appellant.
___ N.W.2d ___
Filed December 2, 2014. No. A-13-528.
1. Decedents’ Estates: Appeal and Error. An appellate court reviews probate 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 conclusion independent of
the determination reached by the court below.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law
that an appellate court independently reviews.
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4. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
5. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted and gives that party the benefit of all reasonable inferences deducible
from the evidence.
6. Appeal and Error. In appellate proceedings, the examination by the appellate
court is confined to questions which have been determined by the trial court.
7. Decedents’ Estates: Final Orders. Pursuant to Neb. Rev. Stat. § 30-2436
(Reissue 2008), subject to appeal and subject to vacation, a formal testacy
order under Neb. Rev. Stat. §§ 30-2433 to 30-2435 (Reissue 2008) is final as
to all persons with respect to all issues concerning the decedent’s estate that the
court considered or might have considered incident to its rendition relevant to
the question of whether the decedent left a valid will, and to the determination
of heirs.
8. Decedents’ Estates: Wills: Judgments: Time: Appeal and Error. Pursuant to
Neb. Rev. Stat. § 30-2437 (Reissue 2008), for good cause shown, an order in a
formal testacy proceeding may be modified or vacated within the time allowed
for appeal. Pursuant to Neb. Rev. Stat. §§ 30-1601(1) (Cum. Supp. 2014) and
25-1912(1) (Reissue 2008), notice of an appeal must be filed within 30 days after
the entry of a final order.
9. Decedents’ Estates: Executors and Administrators. A personal representative
and a special administrator can coexist; there is no requirement to petition to
suspend or remove the personal representative as a prerequisite to filing a motion
for the appointment of a special administrator.
10. Appeal and Error. Cases are heard in an appellate court on the theory upon
which they were tried.
11. Decedents’ Estates. A payable-on-death account passes outside the estate and
belongs to the surviving beneficiary and not to the estate; therefore, pursuant to
Neb. Rev. Stat § 30-2725 (Reissue 2008), such a transfer is not testamentary or
subject to estate administration.
12. Decedents’ Estates: Time. When a decedent’s payable-on-death asset has been
transferred outside his or her estate, Neb. Rev. Stat. § 30-2726 (Reissue 2008)
provides the mechanism by which such nonprobate transfer may be recovered by
the estate if the estate is not otherwise able to meet its obligations. To employ
the process set forth in § 30-2726(b) to recover nonprobate transfers, a written
demand must be made upon the personal representative and then a proceeding to
recover those nonprobate assets must be commenced within 1 year of the dece-
dent’s death.
13. Decedents’ Estates: Executors and Administrators. After a special admin-
istrator is appointed, the administrator has the same power as a personal
representative, except the power is limited to the duties prescribed in the trial
court’s order.
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14. Decedents’ Estates: Claims: Notice. Claims filed against an estate set forth suf-
ficient written demand pursuant to Neb. Rev. Stat. § 30-2726 (Reissue 2008) to
put the personal representative on notice that nonprobate transfers may need to be
collected for the estate to meet its obligations.
15. Rules of the Supreme Court: Appeal and Error. Assignments of error con-
sisting of headings or subparts of the argument section do not comply with the
mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012); an appellate court
may, at its discretion, examine the proceedings for plain error.
16. Decedents’ Estates: Courts: Costs: Attorney Fees: Appeal and Error. Pursuant
to Neb. Rev. Stat. § 30-1601(6) (Cum. Supp. 2014), if it appears to the Nebraska
Court of Appeals that an appeal of a probate matter was taken vexatiously or
for delay, the court shall adjudge that the appellant shall pay the cost thereof,
including an attorney fee, to the adverse party in an amount fixed by the Court
of Appeals.
Appeal from the County Court for Douglas County: Sheryl
L. Lohaus, Judge. Affirmed as modified.
Jeffrey A. Silver for appellant.
Richard A. DeWitt, Robert M. Gonderinger, and David
J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson &
Gonderinger, L.L.C., for appellee.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Alice Shea (Alice) is the ex-wife of decedent William
Lorenz. The county court for Douglas County granted sum-
mary judgment in favor of the personal representative of
William’s estate (Estate) on two issues: (1) Alice’s petition
for the appointment of a special administrator and (2) her
challenge to a codicil to William’s will (Second Codicil). The
county court concluded, in essence, that a request to remove a
personal representative must precede a request for appointment
of a special administrator and that Alice did not follow that
procedure. The court further held that Alice made an untimely
demand for the personal representative to compel benefici­
aries of payable-on-death (POD) transfers to pay such transfers
over to the Estate as a basis for the appointment of a special
administrator. The court also held that Alice’s challenge to the
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validity of the Second Codicil was untimely. The court did
find that Alice was entitled to claims made against the Estate,
including: (1) interest for delinquent alimony; (2) alimony
in the amount of $2,000 per month, commencing September
1, 2010, and continuing each month thereafter until she dies
or remarries, whichever occurs first; and (3) interest in the
amount of $129.78 on a late property settlement payment.
Alice appeals; we affirm as modified.
II. BACKGROUND
William passed away in Douglas County on February 20,
2010, at the age of 91. William left behind seven children.
Alice is not the mother of any of William’s children.
William was single at the time of his death, having been
divorced from Alice since 2006. Pursuant to their Iowa divorce
decree, and relevant to this appeal, William was ordered to
pay Alice (1) a property settlement in the amount of $113,761
and (2) alimony in the amount of $2,000 per month until Alice
dies or remarries. The decree provided, “In the event William
predeceases Alice, this alimony award shall be a lien against”
the Estate.
On May 4, 2010, Theresa Lorenz, one of William’s children,
filed a “Petition for Formal Probate of Will, Determination
of Heirs, and Appointment of Personal Representative” in the
matter of the Estate. The petition sought to admit William’s
“Last Will and Testament” dated June 6, 1989, and two codi-
cils dated February 24, 2005, and May 11, 2007, to probate.
The petition also sought to appoint Theresa as the personal rep-
resentative of the Estate. A notice of the petition was published
in the “Daily Record of Omaha” for 3 consecutive weeks in
May 2010.
On June 24, 2010, the county court entered an order admit-
ting the will and two codicils to formal probate as “valid,
unrevoked and the last Will of [William].” The court also
appointed Theresa as the personal representative of the Estate.
In her affidavit filed on July 9, Theresa stated that she mailed a
copy of the notice of the proceedings (albeit the notice was for
“informal probate”) to numerous interested parties, including
Alice, on July 2.
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On August 30, 2010, Alice filed three separate claims (all
relating back to the 2006 divorce decree) against the Estate
in the probate proceeding. The claims were for (1) future ali-
mony in the amount of $2,000 per month for Alice’s lifetime;
(2) delinquent alimony as of August 1, 2010, in the amount of
$6,000 plus interest; and (3) past due property settlement funds
in the amount of $1,189.65 plus interest.
On September 23, 2010, Theresa, as personal representa-
tive, filed a “Short Form Inventory” of the “probate property”
owned by William at the time of his death. The assets listed
were (1) a checking account ($12,007.11), (2) an investment
account ($100,163), and (3) household goods and furnish-
ings and miscellaneous tangible personal property ($500). The
total value of the probate property listed was $112,670.11.
Nonprobate transfers were not listed on the inventory.
On October 28, 2010, Theresa disallowed all three of the
claims Alice had filed on August 30.
Following the disallowance of her claims, on December
21, 2010, Alice filed a “Petition for Allowance of Claims,
Appointment of Special Administrator Pursuant to Neb. Rev.
Stat. §30-2457, and Challenge to Second Codicil” (Petition).
(Emphasis omitted.) In the Petition, Alice alleged that on
August 30, she filed three claims against the Estate in the
probate proceeding, for (1) future alimony in the amount of
$2,000 per month for Alice’s lifetime; (2) delinquent alimony
as of August 1, 2010, in the amount of $6,000 plus interest;
and (3) past-due property settlement funds in the amount of
$1,189.65 plus interest. Alice alleged that Theresa’s disallow-
ance of the claims was improper based on the clear and unam-
biguous language of the 2006 divorce decree. Alice alleged
that “[b]ased on the Divorce Decree and [Alice’s] expected
life expectancy, the amount that will be due [Alice] under the
Decree of Dissolution is $224,400.00” Alice asked the court to
allow each of her three claims, including, but not limited to, an
award of $224,400.
Alice also requested the appointment of a special admin-
istrator. She alleged that Theresa had a general power of
attorney for William since June 26, 2006, and was also the
personal representative of the Estate and that from the time
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Theresa’s power of attorney became activated through the
date of William’s death, William’s liquid assets were reduced
from approximately $1 million to $112,000, all while Theresa
had actual knowledge of the alimony award under the divorce
decree. Alice alleged that Theresa, acting as both power of
attorney and personal representative, had “a conflict of interest
to properly administer and/or preserve the [E]state, including
but not limited to collecting assets belonging to the Estate
and therefore a special administrator [was] necessary pursu-
ant to and in accordance with Neb. Rev. Stat. §30-2457.”
(Emphasis omitted.)
Additionally, Alice challenged the Second Codicil executed
by William on May 11, 2007, as being “subsequent to the
date he was declared unable to conduct and manage his busi-
ness affairs, pursuant to a Certificate of Disability.” Alice
alleged that because William was incompetent to execute the
Second Codicil, it should be declared null and void and of no
force and effect. (We note that relevant to these proceedings,
the Second Codicil effectively removed Alice from William’s
will, except that it did provide that if Alice survived him, his
executor “may” in his or her sole discretion allocate a portion
of the “rest, residue and remainder” of the Estate to Theresa,
“as Trustee of the William F. Lorenz Alimony Trust,” which
funds she may in her sole discretion use to pay Alice $2,000
per month to satisfy any obligation ordered by an Iowa court.
(Emphasis omitted.))
On January 25, 2011, Theresa, as personal representative,
filed her answer to the Petition. In her answer, Theresa affirm­
atively stated that the amounts claimed to be due in Alice’s
three statements of claim were incorrect and that therefore,
the disallowance of claims was proper. She also affirma-
tively stated:
[Theresa] has paid all amounts due to Alice . . . under
and pursuant to the “Divorce Decree” described in the
Petition other than future alimony payments and . . .
adequate provision has been made for the payment of
future alimony payments through [William’s] Last Will
and Testament and Codicils thereto that have been filed
with the Court, including particularly Item III of the
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Second Codicil which provides for establishment of the
William F. Lorenz Alimony Trust. The Divorce Decree
specifically contemplated and authorized satisfaction of
future alimony obligations through a trust funded by
[William], as specifically set forth in paragraph 12 of
the Petition.
Theresa asked the court for an order denying each of the
claims submitted by Alice, except for the claim for future
alimony in the amount of $2,000 per month until Alice’s
death or remarriage. Theresa also asked the court for a fur-
ther order authorizing and approving the satisfaction of such
claim for future alimony through the funding of the “William
F. Lorenz Alimony Trust” pursuant to the Second Codicil of
William’s will.
With regard to the appointment of a special administra-
tor, Theresa affirmatively stated that Alice “lack[ed] standing
to seek the appointment of a special administrator and [was]
improperly seeking to require the Estate to incur expenses for
the sole benefit of [Alice], which expenses should in equity be
borne by [Alice].” Theresa also affirmatively stated that the
Petition filed by Alice failed to state a cause of action for the
appointment of a special administrator. Finally, Theresa affirm­
atively stated that William made adequate provision for the
payment of future alimony payments to Alice via the alimony
trust provision in the Second Codicil.
With regard to the Second Codicil, Theresa affirmatively
stated that “[Alice], as a creditor of the Estate, has no inter-
est or standing to assert the invalidity of the Second Codicil.”
Theresa also affirmatively stated that “the Second Codicil was
formally admitted to probate by Order of [the Douglas County]
Court after notice to interested persons, including [Alice],
and formal hearing, which Order is final and nonappealable.”
Theresa alleged that Alice’s prayer to have the Second Codicil
declared to be null and void was barred by the doctrines of res
judicata and collateral estoppel.
More than a year after the filing of the pleadings just
described, on May 10, 2012, Alice and Theresa filed a stipu-
lation regarding the life expectancy of Alice, agreeing that
for purposes of the adjudication of Alice’s claim against the
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Estate, the life expectancy of Alice would be determined pur-
suant to “the Commissioners 2001 Standard Ordinary Mortality
Table as approved by the Nebraska Department of Insurance,”
a copy of which was attached to the stipulation and incorpo-
rated by reference. However, the parties further stipulated that
the Estate objected to the relevancy of Alice’s life expectancy
with regard to the adjudication of her claim against the Estate
and that both parties reserved the right to present evidence
regarding Alice’s health or physical condition which may jus-
tify a departure from the mortality table in determining her
life expectancy.
The county court granted continuances requested by
Theresa in November 2011, August and December 2012, and
January 2013.
On March 14, 2013, Theresa filed a motion for summary
judgment as to the Petition dated December 21, 2010. Theresa
alleged that the Estate was entitled to judgment as a matter of
law on all of the claims in the Petition and asked the court to
dismiss the Petition with prejudice, with the exception of the
following claims: (1) Alice’s statement of claim for alimony
in the amount of $2,000 per month commencing September 1,
2010, and continuing each month thereafter should be allowed,
with the additional condition that such claim and obligation
terminates upon Alice’s death or remarriage, whichever shall
first occur, and (2) Alice’s statement of claim for a property
settlement in the amount of $1,189.65 plus interest should
be partially allowed in the amount of $129.78, but other-
wise disallowed.
A hearing on Theresa’s motion for summary judgment was
held on April 15, 2013. At the hearing, the county court took
judicial notice of its June 24, 2010, order admitting the will
and two codicils to formal probate as “valid, unrevoked and
the last Will of [William].” Evidence was offered and received
in support of and in opposition to the motion for summary
judgment. The contents of such evidence will be discussed as
necessary later in our analysis.
The county court’s final order was filed on May 10, 2013.
In that order, the court noted that the parties submitted briefs
in support of their respective positions at the hearing on the
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motion for summary judgment (however, those briefs do not
appear in our record on appeal). The court also stated that after
the hearing, “each party stipulated that the court consider addi-
tional argument by written correspondence dated April 17 [and]
24 and May 6, 2013” (similarly, neither the stipulation nor the
written correspondence appears in our record on appeal, and
the county court did not elaborate on what was contained in
that correspondence).
The county court found: (1) A genuine issue of material
fact existed regarding Alice’s claim for interest for delin-
quent alimony, but both parties stipulated and conceded that
the actual amount of delinquent alimony had been paid; (2)
Alice’s claim for alimony commencing September 1, 2010, in
the amount of $2,000 per month should be allowed until she
dies or remarries, whichever occurs first, and Alice’s previ-
ous request for a lump sum based upon her life expectancy
was withdrawn; (3) Alice’s claim for interest as a result of
a late property settlement payment should be allowed in the
amount of $129.78; (4) Alice’s demand for Theresa to compel
beneficiaries of POD transfers to pay such transfers over to
the Estate as a basis for the appointment of a special adminis-
trator was not timely as required by “Neb. Rev. Stat. Section
30-746” (later corrected by order nunc pro tunc to read Neb.
Rev. Stat. § 30-2726 (Reissue 2008)); (5) the Petition for a
special administrator was not warranted, because “the proce-
dure by which to suspend and remove [Theresa as] Personal
Representative and thereby [for] Appointment of a Special
Administrator was not followed as required pursuant to Neb.
Rev. Stat. Sections 30-2454 and 30-2457”; and (6) Alice’s
challenge to the validity of the Second Codicil was untimely,
the court’s order dated June 24, 2010, having validated
William’s will and both codicils, which order was final and
appealable. Accordingly, the county court granted Theresa’s
motion for summary judgment, except for (1) Alice’s claim
for interest for delinquent alimony; (2) Alice’s claim for
alimony in the amount of $2,000 per month, commencing
September 1, 2010, and continuing each month thereafter until
she dies or remarries, whichever occurs first; and (3) Alice’s
claim for interest in the amount of $129.78 on a late property
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settlement payment. The county court dismissed with preju-
dice Alice’s request for appointment of a special administrator
and challenge to the Second Codicil.
Alice timely appeals the county court’s May 10, 2013, order.
III. ASSIGNMENT OF ERROR
Alice assigns that the county court erred as a matter of law
in sustaining Theresa’s motion for summary judgment.
IV. 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 Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013). 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. Statutory interpretation pre­
sents a question of law that an appellate court independently
reviews. Id.
[4,5] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judg-
ment as a matter of law. U.S. Bank Nat. Assn. v. Peterson, 284
Neb. 820, 823 N.W.2d 460 (2012). In reviewing a summary
judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was
granted and gives that party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
V. ANALYSIS
1. Challenge to Second Codicil
[6] Alice argues that the Second Codicil was executed with-
out the proper testamentary capacity. She also argues for the
first time, on appeal, that she was not given sufficient notice
of the probate proceedings wherein the will and codicils were
admitted to formal probate (specifically arguing that the notice
by publication was insufficient). However, Alice never raised
an alleged lack of sufficient notice to the county court. And
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in appellate proceedings, the examination by the appellate
court is confined to questions which have been determined by
the trial court. Watson v. Watson, 272 Neb. 647, 724 N.W.2d
24 (2006); In re Estate of Rosso, 270 Neb. 323, 701 N.W.2d
355 (2005).
[7,8] Notice of Theresa’s “Petition for Formal Probate of
Will, Determination of Heirs, and Appointment of Personal
Representative” in the matter of the Estate, and of a hearing
thereon, was published in the “Daily Record of Omaha” for 3
consecutive weeks in May 2010. On June 24, the county court
entered an order admitting the will and two codicils to formal
probate as “valid, unrevoked and the last Will of [William].”
The court also appointed Theresa as the personal representative
of the Estate. Pursuant to Neb. Rev. Stat. § 30-2436 (Reissue
2008), the June 24 order was a final, appealable order. Section
30-2436 provides:
Subject to appeal and subject to vacation as provided
herein and in section 30-2437, a formal testacy order
under sections 30-2433 to 30-2435, including an order
that the decedent left no valid will and determining heirs,
is final as to all persons with respect to all issues con-
cerning the decedent’s estate that the court considered or
might have considered incident to its rendition relevant to
the question of whether the decedent left a valid will, and
to the determination of heirs . . . .
According to her affidavit filed on July 9, Theresa mailed a
copy of the notice of the proceedings to numerous interested
parties, including Alice, on July 2. Despite having notice of
the order, Alice neither appealed nor filed a motion to vacate
the June 24 order. See Neb. Rev. Stat. § 30-2437 (Reissue
2008) (for good cause shown, order in formal testacy pro-
ceeding may be modified or vacated within time allowed for
appeal). See, also, Neb. Rev. Stat. §§ 30-1601(1) (Cum. Supp.
2014) and 25-1912(1) (Reissue 2008) (notice of appeal must
be filed within 30 days after entry of final order). Because
there was no appeal or motion to vacate the June 24 order,
it was a final order; Alice cannot now challenge the valid-
ity of the Second Codicil. Accordingly, we affirm the county
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court’s finding that Alice’s challenge to the Second Codicil
was untimely, and we affirm its dismissal of such challenge
with prejudice.
2. Appointment of Special
Administrator
Alice argues that the appointment of a special administra-
tor was necessary to preserve the Estate or secure its proper
administration. According to Alice, “Theresa has colluded
with [William and with] her . . . siblings to deprive the Estate
of assets to settle creditor claims and is conflicted to properly
administer the Estate, since she personally benefits from the
[POD] and Individual Retirement Accounts, all of which jus-
tifies the appointment of a Special Administrator.” Brief for
appellant at 26. The county court dismissed Alice’s request
for appointment of a special administrator on two grounds:
(1) The proper procedure for such an appointment was not
followed, and (2) the demand for Theresa to compel POD
beneficiaries to pay such transfers over to the Estate was
not timely.
(a) Procedure for Appointment
of Special Administrator
The county court concluded that the Petition was not war-
ranted, because
the procedure by which to suspend and remove [Theresa
as] Personal Representative and thereby [for] Appointment
of a Special Administrator was not followed as required
pursuant to Neb. Rev. Stat. Sections 30-2454 and 30-2457
(Reissue 2008). See also, [In re Estate of Cooper], 275
Neb. 322, 746 N.W.2d 663 (2008).
The county court’s statement about not following the required
procedure and then its cite to In re Estate of Cooper, 275 Neb.
322, 746 N.W.2d 663 (2008), indicate that the court must have
read that case to mandate that a petition to suspend and remove
a personal representative be filed before a motion to appoint a
special administrator can be filed. We do not read the statutes,
or In re Estate of Cooper, to require that two-step procedure in
every circumstance.
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560 22 NEBRASKA APPELLATE REPORTS
With regard to the removal of a personal representative,
Neb. Rev. Stat. § 30-2454(a) (Reissue 2008) states:
A person interested in the estate may petition for removal
of a personal representative for cause at any time. Upon
filing of the petition, the court shall fix a time and place
for hearing. Notice shall be given by the petitioner to the
personal representative, and to other persons as the court
may order. Except as otherwise ordered as provided in
section 30-2450, after receipt of notice of removal pro-
ceedings, the personal representative shall not act except
to account, to correct maladministration or preserve the
estate. If removal is ordered, the court also shall direct by
order the disposition of the assets remaining in the name
of, or under the control of, the personal representative
being removed.
(Emphasis supplied.) Alice is an “[i]nterested person” as
defined by Neb. Rev. Stat. § 30-2209(21) (Reissue 2008).
With regard to a special administrator, Neb. Rev. Stat.
§ 30-2457 (Reissue 2008) permits a special administrator to
be appointed after notice when a personal representative can-
not or should not act and also permits the appointment of a
special administrator without notice when an emergency exists.
Section 30-2457 provides:
A special administrator may be appointed:
(1) informally by the registrar on the application of any
interested person when necessary to protect the estate of
a decedent prior to the appointment of a general personal
representative or if a prior appointment has been termi-
nated as provided in section 30-2452.
(2) in a formal proceeding by order of the court on the
petition of any interested person and finding, after notice
and hearing, that appointment is necessary 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. If it appears to
the court that an emergency exists, appointment may be
ordered without notice.
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Nothing in § 30-2457 states that a personal representative
must be suspended or removed prior to the filing of an appli-
cation to appoint a special administrator.
Both the county court and Theresa rely on In re Estate of
Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008), to say that a
personal representative must be suspended or removed prior to
the filing of an application to appoint a special administrator.
In In re Estate of Cooper, 275 Neb. at 330, 746 N.W.2d at 669,
the Nebraska Supreme Court said:
Taken together, [§§ 30-2454 and 30-2457] set forth
a procedure by which to suspend and remove a per-
sonal representative and appoint a special administrator.
Pursuant to § 30-2454, an interested person may petition
the county court for the removal of the personal repre-
sentative. The statute provides for notice of the petition
to be given to the personal representative and others. It
is important to note that under § 30-2454, once the per-
sonal representative receives such notice, he or she “shall
not act,” except in limited circumstances. Thus, notice to
the personal representative under § 30-2454 effectively
suspends the personal representative. Once a personal
representative is prohibited from acting under § 30-2454,
an interested party may thereafter move under § 30-2457
for the appointment of a special administrator, based on
the facts that the personal representative has received
notice under § 30-2454 and “cannot . . . act” and that the
appointment of a special administrator would be appropri-
ate “to preserve the estate or to secure its proper adminis-
tration.” § 30-2457.
However, In re Estate of Cooper is a case in which the inter-
ested person wanted to remove the personal representative and
have a special administrator appointed. That two-step process
may not always be necessary. Numerous situations could arise
wherein an interested person would want a special administra-
tor to be appointed to deal with specific issues that the personal
representative cannot or should not handle, even though the
personal representative is otherwise fully capable of handling
the rest of the estate’s administration.
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In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37
(2010), was a case in which the Nebraska Supreme Court
addressed whether a county court erred in refusing to appoint
a special administrator; there was no mention of the need
to suspend or remove the personal representative as a pre-
requisite prior to the filing of a motion to appoint a special
administrator. In In re Estate of Muncillo, the decedent’s
attorney was appointed as the personal representative of the
estate. Relevant to the issue on appeal, the decedent had three
bank accounts, listing one of her daughters either as the joint
owner or as the POD beneficiary. The decedent’s other two
children objected to the distribution of the accounts to their
sister, claiming that their mother’s signatures on the account
agreements had been obtained by undue influence. The other
two children also filed for the appointment of a special
administrator to pursue the accounts for the estate, claiming
that the appointed personal representative was not pursuing
the matter. The county court denied the application to appoint
a special administrator, finding that a special administrator
was not necessary because the personal representative could
adequately protect the assets of the estate. On appeal, the
Nebraska Supreme Court said:
A special administrator should not be appointed every
time a potential beneficiary disagrees with the personal
representative’s administration decisions, absent some
showing that the personal representative is not lawfully
fulfilling his or her duties under the [Nebraska Probate
Code]. We determine that such a showing, at minimum,
necessitates an allegation that the personal representa-
tive is perpetrating fraud, has colluded with another to
deprive the estate of a potential asset, is conflicted to
properly administer the estate, or cannot act to preserve
the estate, or the existence of some other equitable cir-
cumstance, plus some evidence of the personal represent­
ative’s alleged dereliction of duty.
In re Estate of Muncillo, 280 Neb. at 676-77, 789 N.W.2d at
43-44. The Nebraska Supreme Court then found that no such
showing had been made in that case. Accordingly, the court
“[could not] say that the county court’s decision to deny the
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application was arbitrary, capricious, or unreasonable.” Id. at
678, 789 N.W.2d at 44.
Again, we note that the Supreme Court in In re Estate of
Muncillo, supra, made no mention of the need to suspend or
remove the personal representative as a prerequisite to the fil-
ing of a motion to appoint a special administrator. The implica-
tion is that the personal representative would have been fully
capable of administering the remainder of the decedent’s estate,
even if the court would have found that a special administrator
should have been appointed to pursue the three bank accounts
for the estate.
We are further guided by discussion from other sources that
state a personal representative and a special administrator can
coexist. 31 Am. Jur. 2d Executors and Administrators § 1005
at 697-98 (2012) states:
Under certain circumstances, the probate court may
appoint a special administrator with limited powers over
the decedent’s estate. Such special administrator is also
known as an administrator ad litem or a receiver. The
special administrator is a fiduciary charged with acting in
the best interests of the successors to the estate.
A general administrator and special administrator
serve in different fiduciary capacities and are separate
and distinct parties. The appointment of an administra-
tor ad litem may precede the appointment of the general
administrator and the two administrations may subsist
together. The administrator ad litem is appointed for a
special and limited purpose. A typical situation for the
appointment is when there is a delay in the appointment
of a personal representative and a fiduciary is needed to
take charge of the estate assets.
(Emphasis supplied.) Additionally, 31 Am. Jur. 2d, supra,
§ 1005 at 698, contains an observation note which states:
A special administrator is solely responsible to the estate
for that portion of its affairs entrusted to him or her
by the court, to that extent supplanting the authority of
the general personal representative, who continues to be
responsible for the administration of all other aspects of
the estate’s business.
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See, also, 31 Am. Jur. 2d, supra, § 1006 (commenting that
appointment of special administrator enables estate to par-
ticipate in transaction which general personal representative
could not, or should not, handle because of conflict of inter-
est); 34 C.J.S. Executors and Administrators § 952 b. (1998)
(while ordinarily administrator ad litem will not be appointed
where there is general administrator, those two administrators
may subsist together; person appointed administrator ad litem
becomes solely responsible for performance of specific duties
authorized by court).
[9] Because a personal representative and a special admin-
istrator can coexist, Alice was not required to petition to sus-
pend or remove Theresa as a prerequisite to filing a motion for
the appointment of a special administrator. Accordingly, the
county court erred in its decision to dismiss the Petition with
prejudice on the basis that Alice failed to follow the proper
procedure. Ordinarily, such an error would warrant reversing
the judgment and remanding the cause for further proceedings
with regard to the county court’s decision to deny the appoint-
ment of a special administrator on this basis. However, we
must also consider the county court’s second basis for denying
appointment of a special administrator.
(b) Timeliness of Demand to
Recover POD Transfers
In its order, the county court also found that “[Alice’s]
demand for [Theresa] to compel beneficiaries of [POD] trans-
fers to pay such transfer[s] over to the [E]state as a basis for
the Appointment of a Special Administrator was not timely as
required by Neb. Rev. Stat. Section 30-[2726].” No explana-
tion is provided in the order as to why the court concluded
“[Alice’s] demand” was not timely.
Alice argues on appeal that “[t]he [POD] claim was not an
issue raised in [the] Petition,” that Theresa’s answer to the
Petition did not affirmatively raise untimeliness as a defense,
and that “[s]ince these matters were not pled as affirmative
defenses, Alice had no notice as to what she had to meet in
opposition to Theresa’s Motion for Summary Judgment and
was therefore not allowed the opportunity to present evidence
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in opposition thereto under a multitude of available theories.”
Brief for appellant at 18-19. Thus, before considering the trial
judge’s determination that “[Alice’s] demand” was not timely,
we first address Alice’s argument that the POD issue was not
properly before the court.
(i) Was POD Issue Properly Raised
Before County Court?
Although Alice is correct that a specific request for recov-
ery of nonprobate transfers is not pled in the Petition, which
is dated December 21, 2010, we note that in the section of
the Petition pertaining to her request for the appointment of
a special administrator, Alice alleges that Theresa had knowl-
edge of the alimony award; that there was a “significant dis-
sipation of assets of [William] from the date of the Divorce
Decree”; that Theresa, “acting as both Power of Attorney and
Personal Representative, . . . has a conflict of interest to prop-
erly administer and/or preserve the [E]state, including but not
limited to collecting assets belonging to the Estate”; and that
therefore, “a special administrator is necessary.” Additionally,
included in the evidence offered and received in opposition to
the summary judgment motion was an affidavit from Alice’s
son, to which he attached pleadings from a pending Iowa case
wherein Alice was suing Theresa and other beneficiaries of
the Estate for assets transferred outside the Estate. Further,
Alice’s attorney argued at the hearing on the summary judg-
ment motion that “there’s nothing in the [E]state,” that the
Iowa lawsuit alleges “a conspiracy to dissipate the [E]state,”
that a special administrator is needed to recover assets, and
that Theresa “refuses to join [the lawsuit] and has refused to
go out and do anything to recover those assets to make provi-
sion for [Alice’s] $2000 a month alimony award.” He contin-
ued, “All we are asking for is that there be sufficient assets
put back into the [E]state so that that $2000 a month alimony
award can be satisfied. And [Theresa] has failed and refused
to do that.”
Theresa states in her brief:
The probate court also properly rejected [Alice’s] argu-
ment that a special administrator should be appointed
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to recover [POD] transfers from [William’s] accounts,
because a special administrator would be prohibited from
making such demands and recovery just as much as
[Theresa] is prohibited, because [Alice] failed to make a
written demand upon [Theresa] to recover those amounts
within one year of [William’s] death. Neb. Rev. Stat.
§ 30-2726(b).
Brief for appellee at 21-22.
[10] Based on our review of the record, the assertions of the
parties at the hearing on the motion for summary judgment,
and the county court’s determination on the issue, it is clear
that the issue of recovering POD transfers was raised as a jus-
tification for the appointment of a special administrator. Cases
are heard in an appellate court on the theory upon which they
were tried. See Sunrise Country Manor v. Neb. Dept. of Soc.
Servs., 246 Neb. 726, 523 N.W.2d 499 (1994). Accordingly,
we find that the issue was properly before the county court
for determination. Alice asserts that if this court determines
that the POD issue was properly before the county court, the
court nevertheless “erred in finding that the claim was barred
by the one year period in Neb. Rev. Stat. §30-2726(b).” Brief
for appellant at 20 (emphasis omitted). We now consider
that argument.
(ii) Recovery of POD Transfers
Requires Both Written and
Timely Demand
To determine if a “demand” was timely, we first have to
determine if there was a “demand.” Therefore, we start by
looking at the operative statute to see if the statute itself sheds
any light on what constitutes a “written demand.” Section
30-2726 provides a mechanism by which some nonprobate
transfers, like those from a POD account, may be recovered
if the estate is insufficient to pay certain obligations. Section
30-2726 provides in relevant part:
(a) If other assets of the estate are insufficient, a trans-
fer resulting from a right of survivorship or POD designa-
tion under sections 30-2716 to 30-2733 is not effective
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against the estate of a deceased party to the extent needed
to pay claims against the estate . . . .
(b) A surviving party or beneficiary who receives
payment from an account after death of a party is liable
to account to the personal representative of the dece-
dent for a proportionate share of the amount received
to which the decedent, immediately before death, was
beneficially entitled under section 30-2722, to the extent
necessary to discharge the amounts described in subsec-
tion (a) of this section remaining unpaid after applica-
tion of the decedent’s estate. A proceeding to assert
the liability for claims against the estate . . . may not
be commenced unless the personal representative has
received a written demand by . . . a creditor . . . . The
proceeding must be commenced within one year after
death of the decedent.
....
(d) Sums recovered by the personal representative must
be administered as part of the decedent’s estate.
(Emphasis supplied.)
[11] Although the statute does not provide clarity on what
might suffice as a “written demand,” it is clear that the POD
accounts at issue in the case before us are of the types of
accounts contemplated by the statute. In Newman v. Thomas,
264 Neb. 801, 805, 652 N.W.2d 565, 570 (2002), the Nebraska
Supreme Court specifically addressed the distinction between
POD (nonprobate) and non-POD (probate) accounts, stating:
Article 27 of the Nebraska Probate Code governs
nonprobate transfers, including POD accounts. See Neb.
Rev. Stat. §§ 30-2715 through 30-2746 (Reissue 1995).
In 1993, the Legislature repealed the previous version
of article 27 and replaced it with a version based on the
revised article VI of the Uniform Probate Code. . . .
Under the revised article 27, when the owner of a
POD, single-party account dies, the sums on deposit
belong to the surviving beneficiary or beneficiaries.
§ 30-2723(b)(2). A non-POD, single-party account,
however, is not affected by the death of the owner.
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Instead, the amount the owner was beneficially entitled
to immediately before death is transferred to the estate.
§ 30-2723(c).
As noted, a POD account passes outside the estate and belongs
to the surviving beneficiary and not to the estate; therefore,
such a transfer “is not testamentary or subject to sections
30-2201 to 30-2512 (estate administration).” Neb. Rev. Stat.
§ 30-2725 (Reissue 2008).
[12] When a decedent’s POD asset has been transferred
outside his or her estate, § 30-2726 provides the mechanism
by which such nonprobate transfer may be recovered by the
estate if the estate is not otherwise able to meet its obligations.
To employ the process set forth in § 30-2726(b) to recover
nonprobate transfers, a “written demand” must be made upon
the personal representative and then a proceeding to recover
those nonprobate assets must be commenced within 1 year of
the decedent’s death. Accordingly, it follows that a “written
demand” must be made within 1 year of the decedent’s death
in order for a proceeding to be commenced to recover those
nonprobate assets within that same 1-year timeframe.
[13] Theresa argues that Alice failed to make a written
demand upon Theresa (as personal representative) to recover
any POD transfers within 1 year of William’s death as
required by the statute. William died on February 20, 2010.
Therefore, based on § 30-2726, a written demand on Theresa
had to occur in advance of February 20, 2011, and presum-
ably with sufficient time left to permit the commencement
of a proceeding to recover any nonprobate transfers before
that 1-year deadline. Thus, if Alice did not make a “written
demand” on Theresa within 1 year after William’s death, it
would be too late for Theresa (or an appointed special admin-
istrator) to pursue any of the POD transfers in this case.
See In re Estate of Robb, 21 Neb. Ct. App. 429, 839 N.W.2d
368 (2013) (after special administrator is appointed, admin-
istrator has same power as personal representative, except
power is limited to duties prescribed in trial court’s order).
See, also, Neb. Rev. Stat. § 30-2460 (Reissue 2008). So, if
Alice’s only basis for requesting the appointment of a special
administrator was so that he or she could retrieve William’s
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Cite as 22 Neb. Ct. App. 548
nonprobate transfers, and if it was too late to do that, then the
county court was correct to deny the appointment of a special
administrator for that purpose. We now consider whether any
such “written demand” was made by Alice on Theresa, and
if there was such a demand, we will then examine whether it
was timely.
(iii) Did Alice Make Timely,
Written Demand?
Alice argues that sufficient written demand was made
upon Theresa. She specifically argues that in addition to a
letter sent by her son to Theresa (among others) on April 19,
2010, which inquired about William’s family’s intentions with
regard to Alice’s alimony, Alice also timely filed her claims
against the Estate, and that when they were disallowed, she
timely filed a proceeding to establish the claims. Alice states,
“In this case[,] demands in the form of correspondence from
[Alice’s son] and Alice’s written claims described above were
made well within the four month claims period and were
served on [Theresa] well within the one year time frame.”
Brief for appellant at 21. Alice then suggests that “[o]nce
Alice filed her claims[,] Theresa knew the Estate’s assets
would be insufficient to pay Alice’s alimony claim, a fact evi-
denced by the present insolvent condition of the Estate.” Id.
Alice further stated:
Once that demand has been received, the last sentence
of Neb. Rev. Stat. §30-2726 provides that the proceed-
ing must be commenced, by the Personal Representative,
within one year after death of the decedent by the
Personal Representative, not by the creditor. After all,
it is the Personal Representative’s duty, not a credi-
tor’s duty, to collect all assets of the Estate. Neb. Rev.
Stat. §30-2464.
Brief for appellant at 21 (emphasis omitted). While we agree
with Alice’s position that it is the personal representative’s role
to commence a proceeding pursuant to § 30-2726, as discussed
below, we must first determine whether the documents filed by
Alice within a year of William’s death suffice as an appropri-
ate “written demand” pursuant to § 30-2726(b).
Decisions of the Nebraska Court of Appeals
570 22 NEBRASKA APPELLATE REPORTS
Alice filed a separate “Statement of Claim” for each of
the following obligations alleged to be owed to her from the
Estate: (1) property settlement funds of $1,189.65 plus inter-
est, (2) delinquent alimony of $6,000 plus interest, and (3)
future alimony of $2,000 per month for life. All three claims
were filed on August 30, 2010, within 6 months of William’s
February 20 death, so they meet the 1-year requirement under
§ 30-2726. The claims, by themselves, make no reference
to § 30-2726; nor do they make any reference to recovering
nonprobate assets. However, in addition to the three separate
claims filed against the Estate, putting Theresa on notice of
the obligations allegedly due to Alice, Alice also filed the
Petition, seeking allowance of her claims. Further, in that
same Petition, which was also filed within a year of William’s
death, Alice sought the appointment of a special administrator
because of the “significant dissipation of assets” and Theresa’s
“conflict of interest to properly administer and/or preserve the
[E]state, including but not limited to collecting assets belong-
ing to the Estate.”
[14] We conclude that Alice’s filing of her claims, particu-
larly when considered along with the filing of the Petition, set
forth sufficient “written demand” to have put Theresa on notice
that nonprobate transfers may need to be collected for the
Estate to meet its obligations to Alice. See, also, In re Estate
of Reinek, No. A-95-1195, 1997 WL 618740 (Neb. App. Sept.
30, 1997) (not designated for permanent publication) (writ-
ten demand requirement of § 30-2726(b) was met based upon
claims being filed against estate).
Accordingly, since the three claims and the Petition were
filed within a year of William’s death, the county court
erred in concluding that Alice’s written demand was not
timely. However, § 30-2726(b) involves another step once a
timely written demand has been made. We now consider that
next step.
Following a written demand made upon a personal repre-
sentative, a proceeding must be brought to assert the liability
for claims against the estate and such a proceeding “must be
commenced within one year after death of decedent.” Id. The
statute does not state specifically who can or must bring such
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Cite as 22 Neb. Ct. App. 548
a proceeding; however, the statutory language does indicate
that the beneficiary of such nonprobate transfers “is liable to
account to the personal representative of the decedent for a
proportionate share of the amount received . . . to the extent
necessary to discharge the amounts described in subsection
(a) of this section remaining unpaid after application of the
decedent’s estate.” § 30-2726(b). Additionally, § 30-2726(d)
states in part that “[s]ums recovered by the personal rep-
resentative must be administered as part of the decedent’s
estate.” Based on this statutory language, particularly the
language stating that the beneficiaries of such nonprobate
transfers have to account only to the personal representative,
we conclude that only a personal representative has standing
to bring such an action against those beneficiaries. As such,
it is the duty of the personal representative to bring an action
to recover nonprobate transfers pursuant to § 30-2726 when a
timely written demand has been made. See, also, In re Estate
of Reinek, supra (duty of personal representative to bring
proceedings pursuant to § 30-2726; breach of fiduciary duty
upon failure to do so was not decided). The ramifications of
Theresa’s failure to bring a proceeding pursuant to § 30-2726
in the instant case are not before us. Rather, the issue before
us is whether the county court erred in concluding that
“[Alice’s] demand for [Theresa] to compel beneficiaries of
[POD] transfers to pay such transfer[s] over to the [E]state as
a basis for the Appointment of a Special Administrator was
not timely as required by Neb. Rev. Stat. Section 30-[2726].”
As noted above, we conclude that the county court did err
in finding that Alice’s “demand” was not timely. That error,
however, does not change the fact that by the time the matter
was heard before the county court, it was too late for either a
personal representative or an appointed special administrator
to commence an action pursuant to § 30-2726, because more
than 1 year had passed since William’s death. Therefore,
although for the wrong reason, it was not error for the county
court to conclude that there was no basis to appoint a special
administrator for purposes of § 30-2726. We do, however,
reverse the county court’s dismissal “with prejudice,” inso-
far as that may have precluded any future effort to appoint
Decisions of the Nebraska Court of Appeals
572 22 NEBRASKA APPELLATE REPORTS
a special administrator for reasons other than commencing
an action under § 30-2726. The order is therefore modi-
fied accordingly.
(iv) Procedural and Timeliness
Problems With § 30-2726(b)
For the sake of completeness, and as apparent from what
took place in the proceedings below, we note that § 30-2726(b)
in its current form presents procedural and timeliness issues by
first placing a burden on a creditor to make a timely demand
to the personal representative to pursue nonprobate transfers
and then shifting the burden to the personal representative
to commence a proceeding against nonprobate beneficiaries
within 1 year of the decedent’s death. This “recovery” proc­
ess may first be frustrated by the fact that a creditor may not
even know whether nonprobate assets exist, because they are
nontestamentary and not subject to estate administration. See
§ 30-2725. Additionally, § 30-2726(b) can create a conflict
of interest when, as in this case, a personal representative is
also a nonprobate transfer beneficiary, potentially leading to
increased litigation, costs, and delays.
We observe that although the Uniform Probate Code has
been amended since Nebraska adopted “[Uniform Probate
Code] Article VI, Nonprobate Transfers on Death (1989),”
in 1993, Nebraska has not yet adopted any of the new pro-
posed uniform provisions dealing with nonprobate transfers.
See Introducer’s Statement of Intent, L.B. 250, Committee
on Judiciary, 93d Leg., 1st Sess. (Mar. 10, 1993). Accord
Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).
Relevant to this case, the new proposed uniform provisions
give creditors a more direct option to pursue nonprobate trans-
fers. See Unif. Multiple-Person Accounts Act § 15, 8B U.L.A.
25 (2001) (noting that Uniform Probate Code was amended
in 1998).
In line with the discussion above related to nonprobate
transfers and the difficulty they can create for creditors, we
briefly touch on Alice’s final argument with regard to the
nonprobate transfers in this case and the timeliness of her
demand. Alice contends that nonprobate assets (e.g., William’s
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individual retirement and POD accounts) should have been
listed on the Estate’s inventory but were not. Alice argues that
to the extent she failed to make a timely demand, it would
be “unconscionable” to bar her claim, because Theresa never
disclosed the existence of nonprobate assets in the inventory
filed with the court. Brief for appellant at 22. However, as dis-
cussed earlier, nonprobate assets pass outside the estate. And
while the listing of such transfers on a probate inventory may
be preferred in practice for administrative and tax purposes, we
are unable to find any Nebraska authority to indicate such a
practice is mandatory. We note that a commonly used resource
for probate practitioners, the Nebraska Probate System V,
Administration Series, Notes and Instructions to Nebraska
Continuing Legal Education Forms 330 and 331 (Nebraska
State Bar Association 2006), states, “Items marked by asterisk
[including ‘Non-Probate Property subject to Nebraska inher­
itance tax’] on Forms 330 [‘Inventory’] and 331 [‘Short Form
Inventory’] are not required in the Inventory under Nebraska
Probate Code § 30-2467, but may be included for convenience
for Determination of Inheritance Tax.” Further, § 30-2725
states that “a transfer resulting from the application of section
30-2723 [which includes POD accounts]” becomes effective by
reason of the nonprobate statutes “and is not testamentary or
subject to” the estate administration statutes. Also, in this case,
Alice was aware of the possibility of significant nonprobate
transfers in light of information available to her about marital
assets distributed to William at the time of their divorce in
2006. Finally, in light of this court’s conclusion that a writ-
ten demand was timely made, the inventory issue becomes
irrelevant in this appeal, other than to incorporate the idea of
the adequacy of estate inventories into our discussion on prob-
lematic issues facing creditors, like Alice in this instance, in
obtaining satisfaction of their claims against otherwise insuf-
ficient estates.
3. P etition
for A llowance
Claims
of
[15] The county court did not dismiss the Petition Alice
filed for allowance of claims pursuant to summary judgment.
Decisions of the Nebraska Court of Appeals
574 22 NEBRASKA APPELLATE REPORTS
The county court granted Theresa’s motion for summary
judgment, except for (1) Alice’s claim for interest for delin-
quent alimony; (2) Alice’s claim for alimony in the amount
of $2,000 per month, commencing September 1, 2010, and
continuing each month thereafter until she dies or remarries,
whichever occurs first; and (3) Alice’s claim for interest in
the amount of $129.78 on a late property settlement pay-
ment. Therefore, these three matters were not included in
the court’s summary judgment determination. Alice’s assign-
ment of error states only, “The county court erred as a mat-
ter of law in sustaining [Theresa’s] Motion for Summary
Judgment,” so although she discusses these three issues
briefly in subparts of her brief, she does not specifically
assign them as errors. Accordingly, we decline to address
those matters here. See Steffy v. Steffy, 287 Neb. 529, 843
N.W.2d 655 (2014) (assignments of error consisting of head-
ings or subparts of argument section do not comply with
mandate of Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012);
appellate court may, at its discretion, examine proceedings
for plain error). The county court’s handling of these three
issues has been detailed previously, and we find no plain
error in the determinations made by the county court with
regard to the Petition.
4. Attorney Fees on Appeal
[16] In her brief, Theresa asks this court to award her attor-
ney fees because Alice prosecuted this appeal for delay or
vexation, in violation of § 30-1601. Pursuant to § 30-1601(6),
if it appears to the Nebraska Court of Appeals that an appeal
of a probate matter was taken vexatiously or for delay, the
court shall adjudge that the appellant shall pay the cost thereof,
including an attorney fee, to the adverse party in an amount
fixed by the Court of Appeals.
Theresa specifically states, “As the Court can observe none
of [Alice’s] appeal is supported by the law, and to a great
extent is even newly founded.” Brief for appellee at 26.
Given our conclusions that the county court erred in some
aspects of its determinations, and given the lack of author-
ity on § 30-2726, we cannot say that this appeal was taken
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Cite as 22 Neb. Ct. App. 548
vexatiously or for delay. We therefore deny Theresa’s request
for attorney fees on appeal.
VI. CONCLUSION
For the reasons stated above, we affirm the county court’s
order as to the Second Codicil. However, we affirm as modi-
fied the court’s order with respect to the appointment of a
special administrator to reflect that Alice’s request should have
been dismissed without prejudice.
Affirmed as modified.