White v. White , 31 Neb. Ct. App. 691 ( 2023 )

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Nebraska Court of Appeals Advance Sheets
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WHITE V. WHITE
Cite as 31 Neb. App. 691Yvonne M. White, formerly known as Yvonne M.
Gubser, appellee, v. Jamison Patrick White
and Ryan Howard White, Copersonal
Representatives of the Estate of Leonard
P. White, deceased, appellants.
___ N.W.2d ___
Filed March 28, 2023. No. A-22-024.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. 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.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusion.
4. ____: ____. In a bench trial of a law action, a trial court’s factual find-
ings have the effect of a jury verdict and will not be set aside on appeal
unless clearly wrong.
5. ____: ____. After a bench trial of a law action, an appellate court does
not reweigh evidence, but considers the evidence in the light most favor-
able to the successful party and resolves evidentiary conflicts in favor of
the successful party.
6. Decedents’ Estates: Claims: Time. The requirements of Neb. Rev. Stat.
§ 30-2485 (Reissue 2016) are mandatory, and where a claim is not filed
within the time provided in the statute, it is barred.
7. Decedents’ Estates. The purpose of Neb. Rev. Stat. § 30-2485 (Reissue
2016) is to facilitate and expedite proceedings to distribute a dece-
dent’s estate, including an early appraisal of the respective rights of
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WHITE V. WHITE
Cite as 31 Neb. App. 691interested persons, which include creditors, and prompt settlement of
demands against the estate.
8. Decedents’ Estates: Claims: Notice. Mere notice to a representative
of an estate regarding a possible demand or claim against the estate
does not constitute presenting or filing a claim under Neb. Rev. Stat.
§ 30-2486 (Reissue 2016).
9. Antenuptial Agreements. Premarital agreements are contracts made in
contemplation of marriage.
10. Contracts: Intent. If a contract is unambiguous, the intent of the parties
must be determined from the contents of the contract.
11. Contracts. The interpretation of a contract and whether the contract is
ambiguous are questions of law subject to independent review.
12. Appeal and Error. In order to be considered by an appellate court, an
alleged error must be both specifically assigned and specifically argued
in the brief of the party asserting the error.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Affirmed.
Perry A. Pirsch, of Pirsch Legal Services, P.C., L.L.O., for
appellants.
Brent M. Kuhn and Haley L. Cannon, of Brent Kuhn Law,
for appellee.
Moore, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Jamison Patrick White and Ryan Howard White, as coper­
sonal representatives of the estate of Leonard P. White, appeal
the order of the district court for Washington County, Nebraska,
granting summary judgment in favor of Yvonne M. White,
formerly known as Yvonne M. Gubser, based on its finding
that Yvonne was entitled to the payment of $100,000 from
Leonard’s estate, pursuant to the terms of a premarital agree-
ment between Yvonne and Leonard. Jamison and Ryan also
appeal the district court’s award of a camper to Yvonne based
on its interpretation of the premarital agreement.
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WHITE V. WHITE
Cite as 31 Neb. App. 691BACKGROUND
Yvonne and Leonard were married on October 14, 2016.
On September 30, prior to the marriage, the parties executed a
premarital agreement. The premarital agreement included pro-
visions regarding ownership of property the parties purchased
after the marriage, the parties’ intent that each would have
the right to dispose of her or his separate property without
the other acquiring an interest in that property, and a nondis-
cretionary provision that if Leonard died before Yvonne, she
would receive $100,000 from his estate.
Leonard died on October 19, 2018. On March 6, 2019,
Leonard’s two sons, Jamison and Ryan, filed an application
for informal probate of Leonard’s will and requested they be
appointed copersonal representatives of the estate. Attached to
this filing was a copy of Leonard’s will, executed on November
10, 2006, which provided for a pourover to his living trust; a
copy of the premarital agreement was also attached.
The application included statements that Yvonne and
Leonard had been married at the time of Leonard’s death and
that the premarital agreement included a provision in which
Yvonne and Leonard “retain[ed] all rights in and with respect
to her or his own separate property” and had the absolute and
unrestricted right to dispose of such property in any manner.
The application stated that a separate section of the premarital
agreement set forth provisions Leonard had made for Yvonne’s
benefit in the event he predeceased her. It acknowledged that
“[t]he Premarital Agreement between Yvonne . . . and [Leonard]
executed on September 30, 2016 was unrevoked and remained
in force and effect as of [Leonard’s] death.” The first notice to
creditors was published March 12, 2019, and it directed claims
to be filed by May 13. On May 30, Jamison and Ryan filed
an inventory, which showed there was no jointly owned prop-
erty, and it listed a “2015 Cyclone 4000 Fifth Wheel Camper”
(Camper) as property of the estate.
On September 27, 2019, Yvonne filed a complaint in dis-
trict court against Jamison and Ryan in their capacity as
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Cite as 31 Neb. App. 691copersonal representatives of Leonard’s estate, alleging that
the estate was currently subject to probate and that the coper­
sonal representatives had claimed the estate had ownership
of the Camper; however, under the terms of the premarital
agreement, Yvonne claimed she was the rightful owner of the
Camper. She also alleged that pursuant to the premarital agree-
ment, she was to receive $100,000 from Leonard’s estate, but
that Jamison and Ryan had failed, refused, and/or neglected to
pay in accordance with the terms of the premarital agreement.
Jamison and Ryan moved to dismiss Yvonne’s complaint on
the basis that any matter arising from the premarital agree-
ment related to Leonard’s estate and that pursuant to Neb.
Rev. Stat. § 24-517(1) (Cum. Supp. 2022), the county court
had exclusive original jurisdiction of all matters related to
decedents’ estates.
No order on the motion to dismiss appears in our record,
but Jamison and Ryan subsequently filed an answer, alleg-
ing, as relevant to this appeal, that the premarital agreement
did not provide for any camper to be distributed to Yvonne
and that Yvonne did not make a timely claim under Neb.
Rev. Stat. § 30-2314(3) (Reissue 2016); the answer also
alleged that Yvonne failed to make a timely, valid claim in
the estate proceedings to enforce the premarital agreement.
They asserted the affirmative defenses of statute of limita-
tions, laches, and partial satisfaction through the conversion
of Leonard’s personal property. In her reply, Yvonne alleged
that at the time of the filing of the initial pleading for the
estate proceedings, Jamison and Ryan had attached a copy of
the premarital agreement and acknowledged its validity, which
occurred during the claim-filing time period. She asserted that
by doing so, they had made an admission as to the claims
under the premarital agreement and were therefore precluded
from denying them.
Both parties filed motions for summary judgment. Follow­
ing a hearing, the district court found Jamison and Ryan
had judicially admitted in the probate proceedings that the
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Cite as 31 Neb. App. 691premarital agreement was unrevoked and remained in full
force and effect. It found that they had waived the necessity
of Yvonne’s filing a claim and that her claim was timely filed
and not barred by any applicable statute of limitations. The
district court rendered judgment for Yvonne in the amount of
$100,000. But the district court found a genuine issue of mate-
rial fact regarding the ownership of the Camper and denied the
motion for summary judgment on that issue.
After a trial on the issue of the Camper ownership, the dis-
trict court entered an order affirming its previous ruling as it
related to the $100,000 payment; it also found that under the
four corners of the premarital agreement, the Camper was a
personal article that was deemed to be jointly owned, with full
rights of survivorship. The district court found Yvonne should
be distributed all right, title, and interest in and to the Camper.
Jamison and Ryan timely appealed.
ASSIGNMENTS OF ERROR
Jamison and Ryan assign, restated, that the district court erred
in granting summary judgment in favor of Yvonne because she
failed to comply with the time requirements of Neb. Rev. Stat.
§ 30-2485 (Reissue 2016) and that their application for infor-
mal probate did not relieve her from doing so. They also assign
the court erred in awarding Yvonne the Camper.
STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d
104 (2022). 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. Id.- 696 -
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Cite as 31 Neb. App. 691[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusion. Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d
174 (2022).
[4,5] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. McGill Restoration v.
Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251(2021). After a bench trial of a law action, an appellate court
does not reweigh evidence, but considers the evidence in the
light most favorable to the successful party and resolves evi-
dentiary conflicts in favor of the successful party. Id.ANALYSIS
Before addressing the assigned errors, we note that both
parties proceeded in the district court under the assumption
that Yvonne was asserting a claim, as that term is defined in
Neb. Rev. Stat. § 30-2209(4) (Reissue 2016), and therefore,
it was subject to the nonclaim statute, § 30-2485. Because the
statute’s applicability was not addressed in the district court,
we assume, without deciding, that it was a claim subject to
the nonclaim statute, and we proceed to the issues raised. See,
Simons v. Simons, 312 Neb. 136, 978 N.W.2d. 121 (2022)
(appellate courts do not generally consider arguments and theo-
ries raised for first time on appeal); State v. Conn, 300 Neb.
391, 914 N.W.2d 440 (2018) (refusing to address on appeal
applicability of statute not raised in trial court).
Yvonne’s Entitlement to $100,000 Payment.
On appeal, Jamison and Ryan argue that the district court
erred in granting summary judgment in favor of Yvonne
because she failed to timely file a claim in the probate pro-
ceeding. Yvonne asserts that the copersonal representatives’
acknowledgment of a valid premarital agreement in their veri-
fied application of informal probate constituted a judicial
admission that relieved her of the obligation to file a claim.
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Cite as 31 Neb. App. 691The district court agreed with Yvonne’s assertions, finding that
Jamison and Ryan waived the necessity of Yvonne’s filing of a
claim, finding instead that Yvonne’s claim was timely filed due
to the copersonal representatives’ judicial admission.
The premarital agreement provides, in part, that if Yvonne
survives Leonard, “Yvonne shall receive One Hundred
Thousand Dollars ($100,000.00) from [Leonard’s] estate (and
this provision shall be treated as a contract to make a Will
as described in Neb. Rev. Stat. § 30-2351) . . . .” In consid-
eration, the parties waived any claim in the other spouse’s
separate property. As stated above, the copersonal representa-
tives attached a copy of the agreement to their application for
informal probate and admitted that it “remained in force and
effect” at the time of Leonard’s death. After the copersonal
representatives failed to distribute the $100,000 to Yvonne,
she filed suit in the district court to recover under the premari-
tal agreement.
Section 30-2485 requires that a claim against a decedent’s
estate which arises at or after the decedent’s death be brought
within 4 months after it arises. Yvonne did not file a claim in
the probate proceeding, but argues that the copersonal repre-
sentatives essentially filed the claim for her. She contends that
their acts of attaching the premarital agreement to the applica-
tion for informal probate and verifying that it was in force and
effect was a judicial admission of her entitlement to receive
its benefits.
[6,7] The requirements of § 30-2485 are mandatory, and
where a claim is not filed within the time provided in the
statute, it is barred. In re Estate of Giventer, 310 Neb. 39,
964 N.W.2d 234 (2021). See, also, In re Estate of Lakin, 310
Neb. 271, 965 N.W.2d 365 (2021) (copy of promissory note,
letter, and calculation of interest mailed to personal represent­
ative insufficient to constitute proper demand or presenta-
tion of claim). The purpose of § 30-2485 is to facilitate and
expedite proceedings to distribute a decedent’s estate, includ-
ing an early appraisal of the respective rights of interested
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Cite as 31 Neb. App. 691persons, which include creditors, and prompt settlement of
demands against the estate. See § 30-2209(21). As a result,
the probate court or the personal representative can readily
ascertain the nature and extent of a decedent’s debts, deter-
mine whether any sale of property is necessary to satisfy the
decedent’s debts, and project a probable time at which the
decedent’s estate will be ready for distribution. In re Estate of
Giventer, supra.[8] In re Estate of Giventer, supra, does not preclude a
determination that the copersonal representatives’ actions sat-
isfied the filing requirement. In In re Estate of Giventer, the
court stated that mere notice to a representative of an estate
regarding a possible demand or claim against the estate does
not constitute presenting or filing a claim under Neb. Rev.
Stat. § 30-2486 (Reissue 2016). But here, there was more than
notice; there was the affirmative act by the copersonal repre-
sentatives of filing in the probate proceeding a copy of the pre-
marital agreement and an attestation that it remained in effect.
The reason mere notice is insufficient is that “[i]f notice were
accorded the stature of a claim, the resultant state of flux and
uncertainty would frustrate and avoid the purpose and objec-
tives of the nonclaim statute.” In re Estate of Feuerhelm, 215
Neb. 872, 875, 341 N.W.2d 342, 345 (1983).
Given the facts of this case, we fail to see how the absence
of a claim filed by Yvonne after the admissions made by the
copersonal representatives created a state of flux or uncer-
tainty. The copersonal representatives filed an application for
informal probate in which they provided a copy of the pre-
marital agreement which set forth the amount owed Yvonne
and acknowledged that it remained in force and effect on the
date of Leonard’s death. This goes above and beyond notice of
a potential claim; it was an acknowledgment of a valid claim
held by Yvonne against the estate for $100,000. The district
court did not err in its finding that Yvonne was entitled to a
judgment of $100,000 against the copersonal representatives.
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Cite as 31 Neb. App. 691Yvonne’s Entitlement to Camper.
[9-11] Jamison and Ryan also argue the district court erred
in finding Yvonne and Leonard owned the Camper as a joint
asset under the premarital agreement. Premarital agreements
are contracts made in contemplation of marriage. In re Estate
of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020). In
interpreting contracts, the court as a matter of law must first
determine whether the contract is ambiguous. Id. An instru-
ment is ambiguous if a word, phrase, or provision in the
instrument has, or is susceptible of, at least two reasonable
but conflicting interpretations or meanings. Id. If a contract is
unambiguous, the intent of the parties must be determined from
the contents of the contract. Id. The interpretation of a contract
and whether the contract is ambiguous are questions of law
subject to independent review. Id.In support of their argument, Jamison and Ryan point to
two sections of the premarital agreement that relate to the
separate property that Yvonne and Leonard were bringing
into the marriage. The two sections provided that Yvonne and
Leonard retained all rights with respect to her or his separate
property, were the sole owners of her or his separate property,
and retained unlimited inter vivos and testamentary rights to
it. Another section related to the intention not to have joint
ownership of their separate property. Yvonne and Leonard
each provided an exhibit to the premarital agreement listing
their separate property. There were no vehicles itemized on
either listing of separate property; the listings were financial
accounts, life insurance policies, or real property.
Yvonne contends that the Camper falls under a different
section of the premarital agreement, specifically the section
related to personal and household articles. This section pro-
vides in part that for purposes of the agreement, “the term
personal and household articles includes all articles of per-
sonal and household use . . . wherever located, such as, by
way of illustration, . . . motor vehicles, boats, [and] sports
equipment.” The next section states that “[u]nless otherwise
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Cite as 31 Neb. App. 691specifically agreed to by the parties at the time of purchase, all
personal and household articles later acquired by Yvonne and
[Leonard] shall be deemed to be jointly owned, with full rights
of survivorship.”
We do not find the premarital agreement to be ambiguous.
The premarital agreement provides that any personal property,
such as motor vehicles, boats, and sports equipment, acquired
after the marriage would be deemed jointly owned with full
rights of survivorship, unless otherwise specifically agreed
to by the parties. At trial, Yvonne testified that when she and
Leonard married, he had a “Bighorn” camper (Bighorn), but
that later, Leonard decided he wanted to get rid of or sell it.
Leonard wanted to have the capability to carry his motorcycle
without using a trailer behind the Bighorn, and he found a
camper in Kansas; Yvonne was unable to go with him, so
Leonard went to Kansas with the Bighorn. Leonard returned
from Kansas with the Camper at issue in this appeal, hav-
ing traded in the Bighorn for the Camper. Yvonne identified
the title to the Camper, which listed Leonard as the owner.
Yvonne testified that as far as she knew, Leonard purchased the
Camper in full when he went to Kansas. She also confirmed
that as far as she knew, there was no agreement between them
at the time Leonard purchased the Camper that it would be his
separate property under the premarital agreement, and that they
never executed any document after the premarital agreement
that said anything like that.
Yvonne established that the Camper was acquired after
she and Leonard married and that there was no agreement
that it would be Leonard’s separate property. The Camper is
similar to items Yvonne and Leonard identified in the premari-
tal agreement as personal and household articles, like motor
vehicles, boats, and sports equipment. Yvonne established
that under the terms of the premarital agreement, she and
Leonard jointly owned the Camper with full rights of survivor-
ship. The district court did not err in determining she should be
awarded the right, title, and interest in the Camper.
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Cite as 31 Neb. App. 691Jamison and Ryan argue that to prevent unjust enrichment,
even if the district court did not err in awarding Yvonne the
Camper, the district court did err in failing to order her to
reimburse them for the amounts incurred as storage fees for
the Camper, the insurance paid, and the payoff of the home
equity loan Leonard used to finance the Camper, for a total
of $36,578. However, on appeal, Jamison and Ryan assigned
that the district court “committed reversible error in awarding
a camper titled in [Leonard’s] name to [Yvonne] pursuant to
its interpretation of a prenuptial agreement that established the
camper as [Leonard’s] separate property as a matter of law.”
[12] Jamison and Ryan assigned that the district court erred
in awarding Yvonne the Camper based on its interpretation of
the premarital agreement. They did not assign that the district
court erred in failing to order Yvonne to reimburse them for
expenses related to the Camper. In order to be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. Scalise v. Davis, 312 Neb. 518, 980 N.W.2d
27 (2022). We will not address this argued, but unassigned,
alleged error.
CONCLUSION
We find the district court did not err in awarding Yvonne
a judgment of $100,000 against Jamison and Ryan as coper­
sonal representatives of Leonard’s estate, nor did it err in
awarding Yvonne the Camper. We affirm the judgment of the
district court.
Affirmed.
Bishop, Judge, concurring.
I concur with the majority’s decision to affirm the district
court’s awards to Yvonne.
I write separately because I am not persuaded that attach-
ing the premarital agreement to the copersonal representatives’
application for informal probate and their acknowledgment
that the premarital agreement was unrevoked and remained
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Cite as 31 Neb. App. 691in full force and effect at the time of Leonard’s death satisfied
the filing requirement for a claim under the nonclaim statute,
Neb. Rev. Stat. § 30-2485 (Reissue 2016). See, In re Estate of
Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021) (judicial admis-
sions must be deliberate, clear, and unequivocal; administrator
cannot waive defense of nonclaim to prejudice of estate); In re
Estate of Giventer, 310 Neb. 39, 56, 964 N.W.2d 234, 245-46
(2021) (“mere notice to a representative of an estate regard-
ing a possible demand or claim against the estate does not
constitute presenting or filing a claim under § 30-2486”); In re
Estate of Feuerhelm, 215 Neb. 872, 875, 341 N.W.2d 342, 344
(1983) (emphasis in original) (mere notice to representative of
estate regarding possible demand or claim against estate does
not constitute presenting or filing claim under Neb. Rev. Stat.
§ 30-2486 (Reissue 2016); implicit in language of § 30-2486,
which states that “‘[t]he claimant may file a written statement
of the claim,’” is the “requirement that the creditor to whom
the decedent is obligated is the claimant who can present a
demand against the estate”). In my opinion, the copersonal
representatives’ acknowledgment that the premarital agreement
was unrevoked and remained in full force and effect served
only to give interested parties notice of its existence and valid-
ity, nothing more.
That said, I am also not persuaded that the nonclaim statute,
§ 30-2485, applies to the underlying proceedings.
At the onset of the analysis in the majority opinion, it
assumes, without deciding, that Yvonne was asserting a claim
subject to the nonclaim statute, § 30-2485, because the par-
ties proceeded in the district court under that assumption and
the statute’s applicability was not addressed in the district
court. However, even though not raised, the issue of whether
§ 30-2485 should have applied to Yvonne’s action presents a
question of law, which an appellate court has an obligation
to reach independently, irrespective of the decision made by
the trial court. See Moser v. State, 307 Neb. 18, 948 N.W.2d
194 (2020). In my opinion, Yvonne was a beneficiary of
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Cite as 31 Neb. App. 691Leonard’s estate under the terms of the premarital agreement,
which specifically expressed Yvonne’s and Leonard’s intent
that certain provisions be treated as a contract to make a will;
Yvonne was not a creditor, so her action to obtain certain assets
under the premarital agreement did not constitute a claim
against the estate, thus making the time limitations to file a
claim set forth in § 30-2485 inapplicable.
Neb. Rev. Stat. § 30-2209 (Reissue 2016) sets forth general
definitions for the Nebraska Probate Code and, as relevant
here, provides:
(4) Claim, in respect to estates of decedents and pro-
tected persons, includes liabilities of the decedent or
protected person whether arising in contract, in tort or
otherwise, and liabilities of the estate which arise at
or after the death of the decedent or after the appointment
of a conservator, including funeral expenses and expenses
of administration. The term does not include estate or
inheritance taxes, demands or disputes regarding title of a
decedent or protected person to specific assets alleged to
be included in the estate.
A claim includes liabilities of the decedent and liabilities of the
estate; a beneficiary’s entitlement to a decedent’s assets pursu-
ant to a will or a contract to make a will is not a liability of the
decedent or the estate, and any action seeking a right of distri-
bution under such circumstances is therefore not a claim sub-
ject to the nonclaim statute. “‘“A claim for specific property
in the hands of the [executor] is deemed to be a claim ‘against
the [executor]’ but not ‘against the estate’; for such property,
though in the hands of the [executor], is not part of the estate
and the claim for it is not a ‘debt’ of the estate.”’” Saradjian v.
Saradjian, 25 Conn. App. 411, 418, 595 A.2d 890, 894 (1991).
“As such, a claim for the recovery of specific property is not
within the statute of nonclaim.” Id.Yvonne was entitled to receive $100,000 pursuant to the
terms of the premarital agreement. Article 4, section 4.2, of
the premarital agreement provides in part that “[i]n the event
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Cite as 31 Neb. App. 691of [Leonard’s] death, and if Yvonne survives him: (a) Yvonne
shall receive One Hundred Thousand Dollars ($100,000)
from [Leonard’s] estate (and this provision shall be treated
as a contract to make a Will as described in Neb. Rev. Stat.
§ 30-2351).” Neb. Rev. Stat. § 30-2351 (Reissue 2016) pro-
vides three ways that a contract to make a will or devise, if
executed after January 1, 1977, can be established. As relevant
here, it can be established by “a writing signed by the decedent
evidencing the contract.” § 30-2351(3). The premarital agree-
ment is a writing signed by Leonard evidencing the contract,
and this meets the requirement of § 30-2351 for a valid con-
tract to make a will.
As to contracts to make a will, the Nebraska Supreme Court
has stated that “[t]he effect of a valid contract for wills is not
to create a cause of action against the decedent’s estate, but
instead to create a cause of action for breach of contract.” In
re Estate of Stuchlik, 289 Neb. 673, 684-85, 857 N.W.2d 57,
67 (2014), opinion modified on denial of rehearing, 290 Neb.
392, 861 N.W.2d 682 (2015). In In re Estate of Stuchlik, the
Nebraska Supreme Court cited to Pruss v. Pruss, 245 Neb.
521, 514 N.W.2d 335 (1994), which involved two spouses
entering into an agreement pursuant to § 30-2351 not to
change their wills. After the husband died, the wife rewrote
her will. Pruss, supra. The beneficiaries who were affected
by the change filed an action in the district court seeking a
constructive trust on the wife’s estate pursuant to the terms of
the original will. Id. The court granted that relief and ordered
a constructive trust be imposed on her estate pursuant to the
terms of the original will. Id. Prior to Pruss, the Nebraska
Supreme Court stated:
Nebraska has long recognized a cause of action based
on a contract to make a will. Strictly speaking, there
cannot be a decree for the specific performance of a
contract to make a will, since such an instrument is, by
its nature, revocable by the promisor during his life and
cannot be made by him after his death. It has long been
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31 Nebraska Appellate Reports
WHITE V. WHITE
Cite as 31 Neb. App. 691recognized that courts of equity may grant relief in a
form that is usually equivalent to a decree of specific
performance of a contract to leave property by will, after
the death of the defaulting promisor, by fastening a trust
upon his estate in the hands of those taking it with notice
of such contract or by devise or descent.
Philp v. First Nat. Bank & Trust Co., 212 Neb. 791, 796-97,
326 N.W.2d 48, 51-52 (1982). See, also, In re Estate of Welch,
167 Kan. 97, 204 P.2d 714 (1949) (marriage contract deter-
mines only which of heirs will receive assets of estate and does
not constitute claim or demand against the estate).
Accordingly, Yvonne’s action seeking the $100,000 payment
from Leonard’s estate pursuant to the terms of the premarital
agreement was for breach of contract and was not a “claim” as
that term is defined by § 30-2209(4). She did not need to file
a claim against the estate, and her failure to do so does not bar
her from receiving the payment provided for in the premarital
agreement, which the copersonal representatives acknowledged
was unrevoked and remained in full force and effect as of
Leonard’s death.
Also, Yvonne’s action regarding the Camper likewise does
not constitute a claim subject to the nonclaim statute, because
it involves a dispute “regarding title of a decedent . . . to spe-
cific assets alleged to be included in the estate.” § 30-2209(4).
The Nebraska Supreme Court has held that an action involv-
ing a dispute regarding title of property allegedly belonging
to a decedent and included in the decedent’s estate is not a
claim. See In re Estate of Severns, 217 Neb. 803, 805, 352
N.W.2d 865, 868 (1984) (document entitled “‘STATEMENT
OF CLAIM’” asserted grandfather’s clock shown as asset
of decedent’s estate belonged to claimant; referring to the
definition of claim found in § 30-2209(4), court stated, “It is
clear beyond question that the action here involved a dispute
regarding title of property allegedly belonging to the dece-
dent and included in her estate, and was not a claim”). See,
also, Eggers v. Rittscher, 247 Neb. 648, 653, 529 N.W.2d
- 706 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WHITE V. WHITE
Cite as 31 Neb. App. 691741, 744 (1995) (plaintiff’s action raised dispute as to dece-
dent’s title based on oral contract to convey parcel of land
and was not claim as defined by § 30-2209(4) and was there-
fore not barred by nonclaim statute; “we read § 30-2209(4)
to exempt from the definition of ‘claims’ disputes regarding
equitable title”). Accordingly, the issue of ownership of the
Camper under the terms of the premarital agreement raised
a dispute as to title of that specific asset, thus excluding it
as a claim as defined under § 30-2209(4). I agree with the
majority’s analysis supporting the district court’s award of
the Camper to Yvonne.