Estate of Jeffres v. Neb. Dep't of Revenue (In re Jeffres)

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32 Neb.App. 628

In re Estate of Eugene W. Jeffres, deceased.

Michael E. Jeffres et al., appellants, v. Nebraska Department of Revenue et al., appellees.

No. A-23-197

Court of Appeals of Nebraska

February 6, 2024

1. Jurisdiction. The question of jurisdiction is a question of law.

2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

3. Decedents' Estates: Wills: Trusts: Judgments Appeal and Error. The interpretation of the words in a will or a trust presents a question of law. When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

4. Jurisdiction: Appeal and Error. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

5. Decedents' Estates: Wills: Intent. The cardinal rule concerning a decedent's will is the requirement that the intention of the testator shall be given effect, unless the maker of the will attempts to accomplish a purpose or to make a disposition contrary to some rule of law or public policy.

6. ____: ____: ____. To arrive at a testator's intention expressed in a will, a court must examine the decedent's will in its entirety, consider and liberally interpret every provision in a will, employ the generally accepted literal and grammatical meaning of words used in the will, and assume that the maker of the will understood words stated in the will.

7. Wills. When language in a will is clear and unambiguous, construction of a will is unnecessary and impermissible.

8. Wills: Words and Phrases. Ambiguity exists in an instrument, including a will, when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings.

9. Decedents' Estates: Wills: Words and Phrases. An ambiguity can be either latent or patent. A latent ambiguity exists when the testator's words are susceptible of more than one meaning, and the uncertainty arises not upon the words of the will as looked at in themselves, but upon those words when applied to the object or subject which they describe. A patent ambiguity is one which exists on the face of an instrument.

10. Wills. Only latent ambiguities can be resolved by extrinsic evidence. In contrast, patent ambiguities must be resolved from within the four corners of a will and without consideration of extrinsic evidence.

11.____ . A testator will not be held to have disinherited an heir except where that conclusion is impelled by the express provisions or by necessary implication from provisions specifically set forth.

Appeal from the County Court for Hall County: Arthur S. Wetzel Judge.

Gabreal M. Belcastro, John M. Lingelbach, James A. Tews, and Nicholas W. O'Brien, of Koley Jessen, P.C., L.L.O., for appellants.

Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen for appellees Jenna James and Thomas Brugger.

Pirtle, Chief Judge, and Welch, Judge.

PIRTLE, CHIEF JUDGE

I. INTRODUCTION

Michael E. Jeffres, Sandra L. Britton, Susan L. Jeffres, and Laura J. Jeffres Steinke (collectively appellants) are children of Eugene W. Jeffres (Jeffres). They appeal the decision of the county court for Hall County that found Jeffres' fifth child, Stephen Sumi, was a devisee under Jeffres' will. For the reasons that follow, we find the will is unambiguous and does not include Sumi as a devisee. Accordingly, we reverse, and remand with directions to enter judgment in favor of appellants.

II. BACKGROUND

This matter concerns the construction of Jeffres' will. Jeffres was married to Virginia Jeffres for approximately 30 years. Together, they had four children, who are appellants herein. Virginia died in 2009 and left a portion of her property to Jeffres.

On June 8, 2018, Jeffres executed his last will and testament. In July 2019, 13 months after executing his will, Jeffres learned that he had another biological child, Sumi. Sumi was born in California sometime around 1952 to one of Jeffres' former girlfriends. DNA testing proved that Jeffres was Sumi's biological father. Sumi traveled to Nebraska in July 2019 and stayed with Jeffres for about a week before returning home to California. Sumi never returned to Nebraska after that visit.

Jeffres died on July 23, 2020. Sumi died a year later in July 2021.

On February 16, 2022, appellants filed a petition for the formal probate of the will, for a determination of heirs, and to construe the will. In this petition, appellants acknowledged that Sumi was Jeffres' child and one of his heirs but asserted that appellants were "the sole devisees" under the will and were entitled to distribution of Jeffres' estate in equal shares.

On March 4, 2022, the trustee of Sumi's living trust (Sumi's estate) filed an objection with the county court. Sumi's estate objected to appellants' petition to the extent that it sought a construction of the will that disinherited Sumi. In this objection, Sumi's estate asserted that the will did not expressly disinherit Sumi, nor did it disinherit him by necessary implication.

The relevant portions of the will are as follows:

ARTICLE II.

I declare that I am currently unmarried and that I have four (4) children now living, namely: Michael E. Jeffres Sandra [L.] Britton; Susan L. Jeffres; and Laura J. Jeffres. My Personal Representative and Trustee may rely conclusively on these statements in administering and distributing my estate. All references in this Will to my child or children are to my named children and to any child or children born to or adopted by me after the execution of this Will, and all children of mine shall share equally under the provisions of this Will as though they had been named above.

ARTICLE III.

I devise all my personal and household effects, such as jewelry, clothing, automobiles, boats, furniture, furnishings, china, silver and pictures, in accordance with a written statement or list which I intend to leave at my death. If for any reason no such written statement is in existence at my death, or if in existence but it fails to dispose of all such property effectively, then I devise such property, or the portion of it not effectively disposed of, to my children who survive me in such manner as may be agreed upon by my children, and in making such division my children may authorize my Personal Representative to abandon, destroy or sell any of the property.... In the event my surviving children are unable to agree upon a division within six months after my death, then such property shall be distributed to my surviving children in substantially equal shares as my Personal Representative shall determine, and should my Personal Representative determine, in its sole and absolute discretion, that it would not be in the best interests of my surviving children to receive possession of all or part of such property or that an equitable distribution would be impractical or that part of it is of no value and should be abandoned or destroyed, my Personal Representative may distribute such part as it determines, abandon or destroy that of no value, and sell the balance of the items and distribute the proceeds as part of the residue of my estate. .... ARTICLE IV.

All of the residue of my estate I devise to my children, Michael E. Jeffres; Sandra [L.] Britton; Susan L. Jeffres; and Laura J. Jeffres, equally, share and share alike.... ....

ARTICLE VII.

Whenever the terms "child", "children", "issue" or "descendants" are used in this Will, such terms shall include lineal descendants of all generations.

A hearing was held on December 15, 2022, and Jeffres' will was admitted to formal probate as his valid, unrevoked last will and testament. On January 3, 2023, the county court issued an order that determined that Sumi and appellants were Jeffres' "heirs."

On January 27, 2023, a hearing was held on appellants' petition to construe the will. On February 16, the court entered a journal entry and order that provided "the following individual[s] are the heirs under this will; Michael Jeffres, Susan Jeffres, Laura Jeffres, Sandra Britton, and the Estate of Stephen Sumi," and "Stephen Sumi is to share as an equal heir in all the property of the deceased."

On March 10, 2023, appellants filed their notice of appeal. On March 23, this court entered an order to show cause as to whether the appeal should be dismissed for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(1) (rev. 2022). In the order to show cause, we stated:

On January 3, 2023, the county court entered an order admitting will to formal probate and determining heirs. The court declared the 2018 will valid and admitted it to formal probate, and listed the petitioners and Stephen Sumi as the heirs. No appeal was taken from this order, and no tolling motion appears to have been filed, nor any effort made to vacate this order. Nonetheless, on January 27, 2023, there was a "hearing held on Determination of Heirs/Construction of Will," at which time the court ordered the parties to submit briefs on February 10. Following the subsequent hearing "on briefs" on February 16, the court again determined that the heirs were the four petitioners and Sumi. The petitioners appealed on March 10.

There is a question whether appellants should have appealed within 30 days of the January 3, 2023 order, and that there was nothing in the record that served to extend the time for appeal.

On March 29, 2023, appellants filed a response that cited the general definitions utilized in the Nebraska Probate Code, Neb. Rev. Stat. § 30-2209 (Reissue 2016), to explain the distinction between the county court's ...