Hodge v. Webster Cnty. (In re Hutton)
| Decision Date | 24 July 2020 |
| Docket Number | No. S-19-875.,S-19-875. |
| Citation | 946 N.W.2d 669,306 Neb. 579 |
| Parties | IN RE ESTATE OF William Daniel HUTTON, deceased. John Hodge, Successor Personal Representative of the Estate of William Daniel Hutton, deceased, appellee, v. Webster County, Nebraska, appellant. |
| Court | Nebraska Supreme Court |
Sara J. Bockstadter, Webster County Attorney, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Webster County, Nebraska (County), appeals from an order of the county court requiring the County to pay fees and expenses to a court-appointed successor personal representative. Because the court lacked the authority to order the County to pay the successor personal representative fees, we vacate the order.
William Daniel Hutton died intestate without a surviving spouse in February 2015. The county court granted an application filed by Hutton's only children, John Hutton and Alexis Elledge, for informal appointment of copersonal representatives of the estate. In July 2015, counsel for the copersonal representatives withdrew from the case. Thereafter, each copersonal representative retained independent counsel.
In January 2016, John filed a "Motion to Distribute Estate Assets," requesting that the court order Elledge to pay him half the value of E.W. Seals, a business owned and operated by William at the time of his death. John alleged that the business had a value of $250,000. The court ordered the business to be liquidated or sold with the proceeds to be paid to the estate. The copersonal representatives filed an inventory that included valuations for all estate assets except E.W. Seals.
In January 2017, in response to an order to show cause, Elledge filed a motion seeking the appointment of a new personal representative who was not a family relative. The motion alleged that there was a breakdown in communication between the copersonal representatives due to disagreement over the valuation and distribution of the E.W. Seals assets. At the show cause hearing, the copersonal representatives informed the court it was unlikely they would be able to complete the administration of the estate. On February 14, the court discharged John and Elledge as copersonal representatives and appointed attorney John Hodge as successor personal representative.
In October 2018, Hodge filed an amended inventory which valued the estate at approximately $420,000. Hodge filed a statement of distributions of the prior copersonal representatives showing that John had taken $210,455.62 and Elledge had taken $147,908.43. Although the assets of the estate were to be divided equally between the surviving children, John had received $62,547.19 more than Elledge.
The estate owed $60,346.23 in federal income taxes and $8,429.29 in state income taxes. The court ordered John and Elledge to return liquid funds to Hodge for payment of estate taxes, and then it granted Elledge's motion for reconsideration and ordered John to return the value of an investment account and the value of a 2013 Toyota pickup.
Hodge filed a "Petition for Order to Pay Debts of the Estate and Equalization of Assets Among Beneficiaries" and a "Petition for Determination of Inheritance Tax and Reimbursement of Prior Paid Tentative Inheritance Tax." Around this same time, Hodge filed an application for payment of his fees and expenses. In December 2018, following a hearing, the court ordered John to immediately return $62,547.19, of which John returned $30,000. The court ordered Hodge to pay court costs and outstanding federal and state taxes. The court continued to a later date the final settlement and Hodge's application for fees and expenses. Hodge used the remaining funds in the estate's account to pay $478 in court costs and $42,545.89 in federal taxes.
Hodge completed administration of the estate and renewed his application for fees and expenses. Per order of the court, Hodge served the Webster County Attorney with a notice of hearing for August 2, 2019. At the hearing, the court informed the County that the estate was insolvent and that Hodge would submit his request for payment to the County. The County objected to being responsible for Hodge's fees and expenses, and it stated that Hodge's application had not requested that the County pay his fees and expenses. The County argued that the estate at one point had substantial assets and that the heirs of the estate should be held responsible for Hodge's fees. Hodge admitted he knew of no statutory authority to require the County to pay his fees.
In its order dated August 13, 2019, the court found that Hodge had served as a court-appointed successor personal representative for 2½ years and that his fees were fair and reasonable given the amount of work involved. The court found that the estate was insolvent and that the amount owed by the heirs to the Internal Revenue Service and the Nebraska Department of Revenue was likely uncollectible. The court found that "the County ... shall pay the amount of $6,455.63 to ... Hodge."
The County appealed and is the only party to participate in this matter. We moved this case to our docket on our own motion.
The County assigns, restated, that the court lacked authority to order the County to pay the fees and expenses of the court-appointed successor personal representative. The County further contends that had the distributions taken by the original copersonal representatives not occurred, there would have been sufficient assets for the estate to pay Hodge.
Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error on the record.1 When reviewing a judgment for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.2
Ordinarily, the fixing of reasonable compensation, fees, and expenses, pursuant to § 30-2480, governing compensation of personal representatives; § 30-2481, governing expenses in estate litigation; and § 30-2482, governing compensation of personal representatives and employees of the estate, is within the sound discretion of the county court.3
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.4
The issue presented to us is whether the county court was authorized to order the County to pay the reasonable fees and expenses of the court-appointed successor personal representative. We have long held that costs of litigation and expenses incident to litigation may not be recovered unless provided for by statute or a uniform course of procedure.5 Whether costs and expenses are authorized by statute or by the court's recognition of a uniform course of procedure presents a question of law.6
In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.7 It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.8
In In re Guardianship of Suezanne P. ,9 the Nebraska Court of Appeals addressed whether, in a guardianship proceeding, a county may be ordered to pay the fees of an attorney appointed to represent the minor child's mother. Although the county was not involved in the case, the trial court ordered the county to pay the attorney fees. When the county appealed, the appellate court found that the attorney pled no authority for requiring the county to pay his fees and that no authority was cited in the trial court's order. In vacating the order, the Court of Appeals found that although various other statutes authorize a court to order a county to pay attorney fees, there was no authority for the trial court to order the county to pay the fees of the parent's court-appointed attorney in a civil guardianship case in which the county was no way involved.10
In In re Adoption of Kailynn D. ,11 this court considered whether a county could be required to pay the fee of a guardian ad litem in a private adoption. Our interpretation of the statutes at issue focused on the rule that the intent of the Legislature is expressed by omission as well as by inclusion.12 The statutory provision at issue in that case, Neb. Rev. Stat. § 43-104.18 (Reissue 2016), addressed the court's authority to appoint a guardian ad litem to represent the interests of the biological father. We reasoned that because the Legislature expressly obligated a county to pay guardian ad litem or attorney fees in other statutes, such as Neb. Rev. Stat. § 43-292.01 (Reissue 2016), but not in the statute at issue, the Legislature did not intend to grant a court the authority to order a county to pay the fees of a guardian ad litem appointed for a biological father in a private adoption case.13 We cited with approval In re Guardianship of Suezanne P. , noting that in both cases the county was not involved in the case until the court ordered it to pay fees.14
In this matter, we must examine the statutory provisions under the Nebraska Probate Code that address personal representatives. A personal representative "includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status."15 A successor personal representative is "a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative."16 A personal representative is entitled to reasonable compensation.17 We have held that the fixing of reasonable compensation is within the sound discretion of the county court.18
This court has not been presented with...
To continue reading
Request your trial
-
Fogarty v. Lebowitz (In re Estate)
...§§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error on the record. In re Estate of Hutton , 306 Neb. 579, 946 N.W.2d 669 (2020). But we apply a different standard of review to appeals regarding claims against the probate estate. An appeal from the......
-
Svoboda v. Larson
...law. AFFIRMED IN PART , AND IN PART REVERSED AND REMANDED WITH DIRECTIONS. Heavican, C.J., not participating.1 In re Estate of Hutton , 306 Neb. 579, 946 N.W.2d 669 (2020).2 Id.3 Id. ; In re Estate of Graham , 301 Neb. 594, 919 N.W.2d 714 (2018) ; In re Estate of Odineal , 220 Neb. 168, 368......
-
Gerald F. v. Misty B. (In re J.F.)
....1 In re Guardianship & Conservatorship of Karin P. , 271 Neb. 917, 716 N.W.2d 681 (2006).2 Id.3 Id.4 Id.5 In re Estate of Hutton , 306 Neb. 579, 946 N.W.2d 669 (2020).6 Id.7 Id.8 Id.9 Id.10 In re Adoption of Kailynn D. , 273 Neb. 849, 733 N.W.2d 856 (2007).11 In re Estate of Hutton , supra......
-
Bohac v. Benes Serv. Co.
...at 38.26 Detter v. Miracle Hills Animal Hosp., supra note 23.27 § 21-20,166(5)(b) (Reissue 2012).28 § 21-2,201.29 In re Estate of Hutton , 306 Neb. 579, 946 N.W.2d 669 (2020).30 See Wayne L. Ryan Revocable Trust v. Ryan, supra note ...