In re Estate of Fuchs ( 2017 )


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    11/03/2017 09:14 AM CDT
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF FUCHS
    Cite as 
    297 Neb. 667
    In re Estate of Gilbert R. Fuchs, deceased.
    Jim R. Fuchs, Copersonal R epresentative of the
    Estate of Gilbert R. Fuchs, deceased, appellant,
    and Joseph M. Fuchs, Copersonal R epresentative
    of the Estate of Gilbert R. Fuchs, deceased,
    appellee, v. Julie K. A lbin and
    Jason R. Fuchs, appellees.
    ___ N.W.2d ___
    Filed September 8, 2017.   Nos. S-16-694, S-16-849.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm 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
    those 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.	 Statutes. Statutory interpretation presents a question of law.
    4.	 Judgments: Appeal and Error. Appellate courts independently review
    questions of law decided by a lower court.
    5.	 Decedents’ Estates: Limitations of Actions. Under the Uniform Probate
    Code, the general rule is that no appointment or testacy proceeding may
    be commenced more than 3 years after the death.
    6.	 ____: ____. Under the Uniform Probate Code, the statute of limita-
    tions is self-executing and ordinarily begins to run upon the dece-
    dent’s death.
    7.	 Decedents’ Estates: Statutes: Appeal and Error. In interpreting the
    various sections of the Nebraska Probate Code, an appellate court may
    examine the comments to the code.
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    IN RE ESTATE OF FUCHS
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    8.	 Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    9.	 Statutes. It is not within the province of a court to read a meaning into
    a statute that is not warranted by the language; neither is it within the
    province of a court to read anything plain, direct, or unambiguous out of
    a statute.
    10.	 Estoppel: Words and Phrases. Equitable estoppel is a bar which pre-
    cludes a party from denying or asserting anything to the contrary of
    those matters established as the truth by his or her own deeds, acts, or
    representations.
    11.	 Estoppel: Fraud. The elements of equitable estoppel are, as to the
    party estopped: (1) conduct which amounts to a false representation or
    concealment of material facts, or at least which is calculated to convey
    the impression that the facts are otherwise than, and inconsistent with,
    those which the party subsequently attempts to assert; (2) the inten-
    tion, or at least the expectation, that such conduct shall be acted upon
    by, or influence, the other party or other persons; and (3) knowledge,
    actual or constructive, of the real facts. As to the other party, the ele-
    ments are: (1) lack of knowledge and of the means of knowledge of
    the truth as to the facts in question; (2) reliance, in good faith, upon
    the conduct or statements of the party to be estopped; and (3) action or
    inaction based thereon of such a character as to change the position or
    status of the party claiming the estoppel, to his or her injury, detriment,
    or prejudice.
    12.	 Summary Judgment: Evidence. Conclusions based on guess, specula-
    tion, conjecture, or a choice of possibilities do not create material issues
    of fact for the purposes of summary judgment; the evidence must be
    sufficient to support an inference in the nonmovant’s favor without the
    fact finder engaging in guesswork.
    13.	 Limitations of Actions. The doctrine of equitable tolling permits a
    court to excuse a party’s failure to comply with the statute of limitations
    where, because of disability, irremediable lack of information, or other
    circumstance beyond his or her control, the plaintiff cannot be expected
    to file suit on time.
    14.	 ____. Equitable tolling requires no fault on the part of the defendant.
    15.	 ____. Equitable tolling requires due diligence on the part of the claimant.
    Appeals from the District Court for Pierce County: M ark A.
    Johnson, Judge. Affirmed.
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF FUCHS
    Cite as 
    297 Neb. 667
    George H. Moyer, of Moyer & Moyer, for appellant.
    Susan J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O.,
    for appellees Julie K. Albin and Jason R. Fuchs.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    Jim R. Fuchs, a son of Gilbert R. Fuchs and a copersonal
    representative of Gilbert’s estate, appeals from the district
    court’s order that dismissed his amended application to pro-
    bate Gilbert’s will. Jim alleged that he learned about Gilbert’s
    will more than 3 years after he and his brother commenced
    an informal probate proceeding to administer Gilbert’s intes-
    tate estate. The district court granted summary judgment to
    Gilbert’s other two children, who had objected to probating
    the will, and dismissed the amended petition under Neb. Rev.
    Stat. § 30-2408 (Reissue 2016) as time barred.
    BACKGROUND
    Factual Background
    Gilbert died on May 29, 2012. At the time of his death,
    Gilbert was unmarried and was survived by his four children:
    Jim, Joseph M. Fuchs, Julie K. Albin, and Jason R. Fuchs.
    Gilbert was living in Norfolk, Nebraska, when he died, but
    he owned two houses, one in Norfolk and the other on the fam-
    ily farm. Both homes were in a state of disarray, with papers
    strewn all about.
    Gilbert did not keep his important documents well orga-
    nized, often leaving them lying about his houses or piled in
    his cars. Some of Gilbert’s cars were sold after his death,
    and the subsequent purchasers would mail to the children
    various documents and photographs they had found inside
    the vehicles.
    Either before or after his death, each of the children had
    access to Gilbert’s homes. Jim, Julie, and Jason searched
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    IN RE ESTATE OF FUCHS
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    Gilbert’s homes for his important documents, such as a will,
    deeds, and car titles. Jim attempted to find Gilbert’s will by
    calling attorneys in the area and checking for safe deposit
    boxes at banks Gilbert had done business with. Both Jim and
    Joseph checked with surrounding courthouses for the presence
    of a will. Julie and Jason cleaned out Gilbert’s houses and
    placed papers and other items in storage totes, two of which
    Julie took back to her home in Chicago, Illinois. Despite the
    parties’ efforts, no will was found.
    On July 8, 2015, Joseph received a plain brown envelope.
    The envelope was postmarked July 6, 2015, from Omaha,
    Nebraska. Inside the envelope, Joseph found Gilbert’s last will
    and testament, dated January 26, 1987. In that will, Gilbert left
    all his property to Jim and named Jim as his personal repre-
    sentative. Joseph delivered the will to Jim.
    Lower Court Proceedings
    On June 12, 2012, Jim and Joseph filed an “Application
    for Informal Appointment of Personal Representative in
    Intestacy” in the county court for Pierce County, Nebraska.
    In their application, they alleged that after the exercise of
    reasonable diligence, they were unaware of any unrevoked
    testamentary instrument relating to property having a situs
    in the state. As a result, they were appointed as copersonal
    representatives.
    The matter was still being probated, when, on July 15, 2015,
    Jim filed a petition for the formal probate of Gilbert’s 1987
    will. Julie and Jason (hereinafter collectively the objectors)
    objected to the probate and Jim’s appointment. On August 24,
    Jim transferred his probate application from county court to
    district court.
    In September 2015, the objectors filed a supplemental
    answer to Jim’s application. They alleged that in June 2012,
    Jim and Joseph applied for informal appointment as copersonal
    representatives of Gilbert’s intestate estate and received that
    appointment on the same day; that Jim’s probate application
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    was time barred under § 30-2408 because it had been more
    than 3 years since Gilbert’s death and the informal appointment
    proceedings; that Jim was estopped from seeking a probate by
    a memorandum of understanding, which Jim had signed while
    acting as a copersonal representative of Gilbert’s intestate
    estate; and that because Jim and Joseph had already sold estate
    property and made partial distributions of the estate, Gilbert’s
    will could no longer be probated. They also objected to Jim’s
    appointment as copersonal representative, because they had
    previously petitioned to remove Jim and Joseph as informal
    copersonal representatives, which petition was still pending
    before the county court.
    The objectors moved for summary judgment. Jim then
    moved to file an amended application in which he had alleged
    for the first time that Joseph showed him Gilbert’s 1987 will
    on July 13, 2015, 2 days before Jim filed his original appli-
    cation for a formal probate. He alleged that Joseph received
    Gilbert’s will in the mail on July 8, 2015, in an envelope
    that was postmarked in Omaha but had no return address. He
    alleged that when Gilbert died, he had two residences and
    his legal documents were strewn about in both houses. He
    believed that one of the persons who had helped search for
    a will had found one and then waited to disclose it until the
    3-year statute of repose had expired. He alleged that “all par-
    ties hereto should now be estopped to claim that the will be
    denied probate.”
    The objectors filed an amended answer where they alleged
    Jim told the objectors that Gilbert did not leave a will and that
    Jim had scheduled a family meeting with an attorney for June
    4, 2012, 6 days after Gilbert’s death. The objectors alleged
    that in reliance on Jim’s representation, they agreed to the
    administration of Gilbert’s intestate estate by Jim and Joseph
    and subsequently incurred over $120,000 in attorney fees and
    costs related to that administration and also to protect Gilbert’s
    estate. They also alleged that before Gilbert’s death, Jim said
    he had heard that Gilbert had made a will leaving his estate
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    IN RE ESTATE OF FUCHS
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    297 Neb. 667
    to Jim, and that Jim had ample opportunity to investigate
    whether such a will existed. They also alleged the amended
    petition was frivolous and sought attorney fees.
    In June 2016, the court issued an order sustaining the objec-
    tors’ motion for summary judgment. According to the court’s
    findings, documents that were gathered up from Gilbert’s home
    after his death were placed in storage totes. Julie took two of
    these totes home with her to Chicago without the personal
    representatives reviewing the documents first, but other totes
    remained in Gilbert’s house. The court noted that Julie had
    found an old ledger in which Gilbert noted an expense for a
    “‘farm will.’” But the court found that Jim had failed to show
    evidence that anyone had taken Gilbert’s will to illegally sup-
    press it past the expiration of the statute of repose. It sustained
    the objectors’ motion for summary judgment and dismissed
    Jim’s amended application because it was filed past the dead-
    line in § 30-2408.
    ASSIGNMENT OF ERROR
    Jim assigns that the district court erred in sustaining the
    objectors’ motion for summary judgment.
    STANARD OF REVIEW
    [1,2] An appellate court will affirm 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 those
    facts and that the moving party is entitled to judgment as a
    matter of law.1 In reviewing a summary judgment, an appel-
    late 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.2
    1
    Thomas v. Board of Trustees, 
    296 Neb. 726
    , 
    895 N.W.2d 692
    (2017).
    2
    
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    IN RE ESTATE OF FUCHS
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    [3] Statutory interpretation presents a question of law.3
    [4] Appellate courts independently review questions of law
    decided by a lower court.4
    ANALYSIS
    Jim posits three arguments as to why the court erred in
    denying the formal probate of Gilbert’s will. First, he contends
    that § 30-2408’s 3-year statute of limitations is not applicable
    because the initial probate proceeding had not been fully com-
    pleted. Second, he contends that the will was deliberately sup-
    pressed by one of the heirs and that therefore equitable estop-
    pel bars the application of the 3-year statute of limitations.
    Third, he contends the 3-year statute of limitations should be
    equitably tolled.
    Section 30-2408 provides, in relevant part, the following:
    No informal probate or appointment proceeding or
    formal testacy or appointment proceeding, other than a
    proceeding to probate a will previously probated at the
    testator’s domicile and appointment proceedings relat-
    ing to an estate in which there has been a prior appoint-
    ment, may be commenced more than three years after
    the decedent’s death, except . . . (4) an informal pro-
    bate or appointment or a formal testacy or appoint-
    ment proceeding may be commenced thereafter if no
    formal or informal proceeding for probate or proceed-
    ing concerning the succession or administration has
    occurred within the three-year period, but claims other
    than expenses of administration may not be presented
    against the estate. These limitations do not apply to
    proceedings to construe probated wills or determine
    heirs of an intestate.
    
    3 Cl. Ch. v
    . First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
          (2017).
    4
    
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    IN RE ESTATE OF FUCHS
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    District Court Did Not Err in Determining
    § 30-2408 Barred A dmission of Gilbert’s
    Will to Formal Probate
    At common law, no definite time is prescribed within which
    a will is to be proved after the death of the testator, and the
    right to prove a will is not barred by the lapse of any time,
    however great.5
    [5,6] Nonetheless, under the Uniform Probate Code, the
    general rule is that no appointment or testacy proceeding may
    be commenced more than 3 years after the death.6 The statute
    of limitations is self-executing and ordinarily begins to run
    upon the decedent’s death.7
    The record is clear that Jim’s 2015 application was a peti-
    tion for formal testacy which was filed more than 3 years
    after Gilbert’s death. The record is also clear that a prior
    proceeding for informal probate was pending at the time of
    Jim’s 2015 application. The parties, however, disagree as to
    whether the prior proceeding for informal probate must have
    been fully completed or whether it was sufficient that it was
    merely commenced.
    Jim contends that if a prior proceeding has been filed, that
    proceeding must have fully adjudicated the rights of the par-
    ties. In making that contention, he relies on the Nebraska
    comment to § 30-2408 which states that prior proceedings
    adjudicate finally the rights of the parties.8 Therefore, Jim
    contends that such prior proceedings must be fully com-
    pleted to act as a bar to the exception in subsection (4) of
    § 30-2408.
    The objectors contend that the prior proceeding must have
    been merely commenced. In making that contention, they
    rely upon § 3-106 of the Uniform Probate Code, which binds
    5
    95 C.J.S. Wills § 559 (2011).
    6
    31 Am. Jur. 2d Executors and Administrators § 230 (2012).
    7
    Id.
    8
    See § 30-2408 (Reissue 1989) (statutory comment).
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    interested parties to orders of the court, after proper notice,
    in proceedings to construe probated wills or determine heirs
    which concern estates that have not been and cannot now be
    opened for administration.9 The comment to § 3-106 sets forth
    that that language of § 3-106—coupled with the exceptions to
    the limitations provisions in § 3-108 of the Uniform Probate
    Code, from which § 30-2408 was derived, that permit pro-
    ceedings to construe wills and to determine heirs of intestates
    to be commenced more than 3 years after death—clarifies the
    purpose of the draftsmen to offer a probate proceeding to aid
    the determination of rights of inheritance of estates that were
    not opened for administration within the time permitted by
    § 3-108.10
    [7] In interpreting the various sections of the Nebraska
    Probate Code, this court may examine the comments to the
    code.11 Upon reading the comments to § 30-2408, we find
    it is clear that the enactment of § 30-2408 was intended to
    establish a basic limitation period of 3 years within which it
    may be determined whether a decedent left a will and to com-
    mence administration of his estate.12 Further, the comment to
    § 30-2408 regarding subsection (4) indicates that the time limi-
    tation is not applicable if no prior formal or informal probate
    proceeding has occurred.13
    We held in In re Estate of Nemetz14 that § 30-2408 “permits
    an informal appointment proceeding to be commenced more
    than 3 years after the decedent’s death ‘if no formal or informal
    proceeding for probate or proceeding concerning the succession
    or administration has occurred within the three-year period.’”
    However, in that case, since no prior probate proceeding had
    9
    Unif. Probate Code § 3-106, 8 (part II) U.L.A. 35 (2013).
    10
    
    Id., comment. 11
    Holdrege Co-op Assn. v. Wilson, 
    236 Neb. 541
    , 
    463 N.W.2d 312
    (1990).
    12
    See § 30-2408 (Reissue 1989) (statutory comment).
    13
    See 
    id. 14 In
    re Estate of Nemetz, 
    273 Neb. 918
    , 921, 
    735 N.W.2d 363
    , 367 (2007).
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    been commenced, we were not required to consider whether an
    informal proceeding had occurred.
    In In re Estate of Harris,15 the Montana Supreme Court also
    considered the effect of a will offered for probate more than
    3 years after the decedent’s death. Montana is a state that has
    adopted the Uniform Probate Code, and it has enacted legis-
    lation nearly identical to our § 30-2408. The Montana court
    found the admission of the late-offered will was not barred
    by the 3-year statute of limitations under the exception that
    no proceedings concerning succession or estate administra-
    tion had occurred within the 3-year period of the decedent’s
    death.16 In doing so, the court noted that this exception was
    not applicable if “there has been any other proceeding regard-
    ing succession or estate administration during the three-year
    period.”17 Later, when applying the exception, the court noted
    that “[n]o other proceedings had been opened since [dece-
    dent’s] death.”18
    [8,9] Statutory language is to be given its plain and ordi-
    nary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which
    are plain, direct, and unambiguous.19 It is not within the
    province of a court to read a meaning into a statute that is not
    warranted by the language; neither is it within the province of
    a court to read anything plain, direct, or unambiguous out of
    a statute.20
    The Legislature has not defined “occur”; thus, we look to
    the commonly understood, everyday definition of the word.
    According to Black’s Law Dictionary, “occur” means “[t]o
    happen; to meet one’s eye; to be found or met with; to present
    15
    In re Estate of Harris, 
    379 Mont. 474
    , 
    352 P.3d 20
    (2015).
    16
    
    Id. 17 Id.
    at 
    477, 352 P.3d at 23
    .
    18
    
    Id. at 480,
    352 P.3d at 25.
    19
    Clarke, supra note 3.
    20
    State v. Beitel, 
    296 Neb. 781
    , 
    895 N.W.2d 710
    (2017).
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    itself; to appear; hence, to befall in due course; to take place;
    to arise.”21 The definitions in another dictionary are: “1: to be
    found or met with: appear 2: to come into existence: happen 3:
    to come to mind.”22
    The plain and ordinary reading of § 30-2408 indicates that
    a will may be probated only if no prior formal or informal
    proceeding for probate has occurred. The plain and ordinary
    reading of § 30-2408 does not indicate that the prior proceed-
    ing must have been completed. As a result, the district court
    did not err in determining that Jim’s application to probate
    Gilbert’s will was time barred.
    District Court Did Not Err in Determining
    That Jim Failed to Prove Elements
    of Equitable Estoppel
    [10] Equitable estoppel is a bar which precludes a party
    from denying or asserting anything to the contrary of those
    matters established as the truth by his or her own deeds, acts,
    or representations.23
    [11] The elements of equitable estoppel are, as to the party
    estopped: (1) conduct which amounts to a false representation
    or concealment of material facts, or at least which is calculated
    to convey the impression that the facts are otherwise than, and
    inconsistent with, those which the party subsequently attempts
    to assert; (2) the intention, or at least the expectation, that
    such conduct shall be acted upon by, or influence, the other
    party or other persons; and (3) knowledge, actual or construc-
    tive, of the real facts.24 As to the other party, the elements are:
    (1) lack of knowledge and of the means of knowledge of the
    truth as to the facts in question; (2) reliance, in good faith,
    upon the conduct or statements of the party to be estopped;
    21
    Black’s Law Dictionary 1080 (6th ed. 1990).
    22
    Merriam Webster’s Collegiate Dictionary 802 (10th ed. 2001).
    23
    Bryan M. v. Anne B., 
    292 Neb. 725
    , 
    874 N.W.2d 824
    (2016).
    24
    
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    and (3) action or inaction based thereon of such a character
    as to change the position or status of the party claiming the
    estoppel, to his or her injury, detriment, or prejudice.25
    The district court found that there was no evidence that
    anyone intentionally concealed the will from the family. More
    specifically, it found that there was no evidence presented
    to demonstrate the person or persons who sent the will to
    Joseph had any intention of illegally suppressing the will
    beyond the 3-year statute of limitations. As a result, the court
    found that Jim failed to meet his factual burden to show equi-
    table estoppel.
    The record before us indicates that Gilbert owned the two
    homes at the time of his death. It is undisputed that all of the
    parties had access to his homes before and/or after his death
    and that each of the children, with the assistance of others,
    searched the home for important documents, such as a will,
    deeds, or car titles.
    All parties agree that Gilbert lacked an efficient filing sys-
    tem for his important documents. The evidence indicates that
    he had papers strewn about his home and that he often kept
    important documents in his vehicles.
    Assuming, without deciding, that the 3-year statute of limi-
    tations can be equitably extended, Jim presented insufficient
    evidence to invoke the doctrine of equitable estoppel. No evi-
    dence was presented that the objectors committed any action
    which would have amounted to a false representation or con-
    cealment of the existence of Gilbert’s will; that the objectors
    had any knowledge, actual or constructive, of the existence of
    Gilbert’s will; or that the objectors had the intention, or at least
    the expectation, that the suppression of Gilbert’s will would
    influence Jim.
    [12] Jim’s allegations of how the will was concealed and
    by whom are not sufficient to overcome the district court’s
    finding of summary judgment. Conclusions based on guess,
    25
    
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    speculation, conjecture, or a choice of possibilities do not cre-
    ate material issues of fact for the purposes of summary judg-
    ment; the evidence must be sufficient to support an inference
    in the nonmovant’s favor without the fact finder engaging in
    guesswork.26 As a result, the denial of Jim’s claim of equitable
    estoppel was not error.
    District Court Did Not Err in
    R ejecting Jim’s A rgument
    of Equitable Tolling
    [13-15] Jim also contends that the doctrine of equitable toll-
    ing should overcome the objectors’ motion for summary judg-
    ment. The doctrine permits a court to excuse a party’s failure
    to comply with the statute of limitations where, because
    of disability, irremediable lack of information, or other cir-
    cumstance beyond his or her control, the plaintiff cannot be
    expected to file suit on time.27 Unlike the doctrine of equitable
    estoppel, equitable tolling requires no fault on the part of the
    defend­ant.28 Equitable tolling, however, does require due dili-
    gence on the part of the claimant.29
    Jim is correct that we have considered the principle that a
    statute of limitations can be equitably tolled.30 In these cases,
    we were confronted with situations in which the claimant
    alleged that it was enjoined from bringing a claim by another
    court or governmental entity.
    In Macke v. Jungels,31 we held that it would be inequitable to
    allow the statute of limitations to run on a claim for damages
    26
    Sulu v. Magana, 
    293 Neb. 148
    , 
    879 N.W.2d 674
    (2016).
    27
    Miller v. Runyon, 
    77 F.3d 189
    (7th Cir. 1996).
    28
    
    Id. 29 Id.
    30
    See Macke v. Jungels, 
    102 Neb. 123
    , 
    166 N.W. 191
    (1918); Lincoln Joint
    Stock Land Bank v. Barnes, 
    143 Neb. 58
    , 
    8 N.W.2d 545
    (1943); and
    Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 
    276 Neb. 640
    , 
    756 N.W.2d 280
    (2008).
    31
    Macke, supra note 30.
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    during the pendency of an action enjoining the defendant from
    bringing suit on that claim.
    In Lincoln Joint Stock Land Bank v. Barnes,32 defendants
    in a mortgage foreclosure appealed a decree of foreclosure in
    favor of the plaintiff. The foreclosure was commenced June
    7, 1928, and on December 17, 1930, the case was removed
    from the docket but remained pending with leave to reinstate
    pursuant to a federal court order restraining the plaintiff from
    proceeding further. The action was subsequently reinstated,
    and the defendants contended that the plaintiff was barred by
    the applicable statute of limitations. We concluded that the
    plaintiff having been restrained from proceeding further by a
    paramount authority, the period thereof should not be consid-
    ered in computing the time for the statute of limitations to run
    and the plaintiff was not so barred.
    In National Bank of Commerce v. Ham,33 a bank filed an
    action against a defaulting borrower beyond the applicable
    statute of limitations. The bank argued that the statute of
    limitations had been tolled because the borrower had been
    subject to an automatic bankruptcy stay. We determined that
    equitable principles did not apply, because the bankruptcy
    code provided an extra 30 days to file an action if the claim
    expired before the automatic stay was lifted or the bankruptcy
    was dismissed. We found no inequity in requiring the bank to
    commence its action within 30 days following the termination
    or dismissal of the bankruptcy.
    In Brodine v. Blue Cross Blue Shield,34 an insured sued her
    insurance provider in federal court for benefits the provider
    had denied. While the federal case was pending, the 3-year
    statute of limitations in the contract expired. The federal
    action was ultimately dismissed by agreement of the parties.
    32
    Barnes, supra note 30.
    33
    National Bank of Commerce v. Ham, 
    256 Neb. 679
    , 
    592 N.W.2d 477
          (1999).
    34
    Brodine v. Blue Cross Blue Shield, 
    272 Neb. 713
    , 
    724 N.W.2d 321
    (2006).
    - 681 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    IN RE ESTATE OF FUCHS
    Cite as 
    297 Neb. 667
    After the federal case was dismissed, the insured sued the
    insurer in state court. We concluded that that the applicable
    limitations period was not tolled during the pendency of the
    federal action.
    In the instant case, Jim commenced the running of the
    statute of limitations by bringing the application for informal
    intestacy proceedings. In doing so, he alleged that after dili-
    gent search, no will was found, despite indications that he was
    aware Gilbert had a will. Further, he brought the application
    within 1 week of Gilbert’s death. It is difficult to believe that
    under the state of disarray of Gilbert’s homes and his lack of
    a filing system, any diligent search could have been completed
    within 1 week of his death. The record also shows that the
    objectors did not complete their efforts to clean out the house
    until well after the initial probate proceeding was implemented.
    Nothing in the record indicates that Jim was prevented from
    completing a more diligent search or awaiting the passage of
    additional time before he commenced his initial probate pro-
    ceedings. Further, Jim was not prevented from bringing his
    subsequent claim by any paramount governmental authority. As
    a result, Jim is not entitled to an equitable tolling of the 3-year
    statute of limitations.
    CONCLUSION
    The trial court did not err by granting summary judgment in
    favor of the objectors.
    A ffirmed.