Corbett's Estate, In re

• Citation: 279 N.W.2d 89,203 Neb. 392
• Decision Date: 15 May 1979
• Docket Number: No. 42015,42015
• Parties: In re Estate of Florence Miller CORBETT. William DeVRIES, Appellant, v. Elmer RIX et al., Appellees, Lee Grimes et al., Intervenors-Appellants.
• Court: Nebraska Supreme Court

Page 89

279 N.W.2d 89

203 Neb. 392

In re Estate of Florence Miller CORBETT.

William DeVRIES, Appellant, v. Elmer RIX et al., Appellees, Lee Grimes et al., Intervenors-Appellants.

No. 42015.

Supreme Court of Nebraska.

May 15, 1979.

Syllabus by the Court

1. Courts: Judgments: New Trial. A trial court has always had inherent power over its judgments to correct errors and mistakes therein, even to the extent of granting a new trial whether requested or not, as long as such action is taken within the same term of court at which the judgment was entered.

2. Courts: Public Policy. It is the policy of the law to give a litigant full opportunity to present his contention in court and for this purpose to give full relief against slight and technical omissions. On the other hand, it is the duty of the courts to prevent an abuse of process, unnecessary delays, and dilatory and frivolous proceedings in the administration of justice.

3. Probate and Administration: Property: Intent. The Nebraska Probate Code should be liberally construed to discover and make effective the intent of a decedent in distribution of his property.

4. Statutes: Words and Phrases. "Good cause shown" as used in section 30-2437, R.R.S.1943, means to demonstrate a logical reason or legal ground, based on fact or law, why an otherwise final order of the county court should be vacated or modified.

5. Statutes: Motions, Rules, and Orders: Appeal and Error: Time. A motion to vacate or modify which is filed within the time limitation contemplated by section 30-2437, R.R.S.1943, is similar in nature to a motion for a new trial in District Court, and the overruling of such motion is a final order itself which extends the 30-day appeal time from the entry of the original order complained of to the date upon which the motion to vacate or modify is overruled.

Ginsburg, Rosenberg, Ginsburg & Krivosha, Lincoln, for appellant.

M. Brian Schmid of Schmid, Ford, Mooney, Frederick & Caporale, Omaha, for appellee Rix.

Ray C. Simmons, Fremont, for appellees Hammang and Belanos.

Heard before BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ., and KUNS, Retired District Judge.

HASTINGS, Justice.

This is an appeal from the order of the District Court sustaining a demurrer to the petition on appeal and dismissing contestant's appeal from the order of the county court of Dodge County which overruled contestant's motion filed under the provisions of section 30-2437, R.R.S.1943.

The decedent, Florence Miller Corbett, an elderly widow and a resident of Dodge County, Nebraska, died on July 21, 1977, leaving as her only next of kin two sisters, five nephews, and one grandnephew. Pursuant to the Nebraska Probate Code, a petition for the formal probate of a purported last will and testament dated March 31, 1975, and a purported codicil dated December 22, 1976, was filed in Dodge County court on July 26, 1977, by Alice DeVries, the executrix and now denominated personal representative named in said instruments, and a sister of the decedent. The testamentary instruments left small amounts to the various next of kin but the bulk of the estate was left to a tenant farmer by the name of Elmer Rix and a housekeeper and companion of the decedent, Rita Belanos Canino, and to the housekeeper's sister, Maria Teresa Hammang.

On the same day the petition for probate was filed, an order was entered by the county judge directing that a hearing be held on the petition on August 22, 1977, at 10 o'clock a. m., and that notice be given to all interested persons. Accordingly, such a notice was published as required by law stating that "a petition for formal probate of will of said deceased, determination of heirs, and appointment of Alice M. Devries [sic] as personal representative has been filed and is set for hearing in the Dodge County Court on August 22, 1977 at 10:00 o'clock a. m. * * *." According to an "Affidavit of Mailing Notice" filed by the attorney for the executrix, a copy of said notice was mailed to, among others, William DeVries, contestant-appellant here, who is a nephew of the decedent and a son of the executrix. No objections to the probate as provided for by section 30-2428, R.R.S.1943, were filed by anyone, including the contestant. On August 22, 1977, upon consideration of the petition for formal probate and without any evidence being offered as to the due execution of the will, the same was admitted to probate by order of the county court of Dodge County. The determination of the validity of the codicil was continued. On the same date the executrix filed her acceptance of appointment and bond in the amount of "0" dollars, and letters of personal representative were issued by the court. Notice of the foregoing was mailed to all interested parties, including the contestant, by U. S. mail on August 25, 1977. On September 20, 1977, a "Demand for Notice" of inventory, all filing of petitions, motions, and deeds of distribution was filed by the contestant, and on the same date, some 28 days following the order admitting the will to probate, contestant filed a "Motion to Vacate Order Admitting Will to Probate." The motion alleged, among other things, the foregoing facts and that contestant knew he was a devisee under a will of the decedent dated September 9, 1968; that after the order of August 22, 1977, admitting the 1975 will to probate, he learned for the first time that he had been disinherited; that decedent lacked testamentary capacity when she executed the 1975 will; and that the same was the result of undue influence exercised upon her by Rita Belanos Canino and Maria Teresa Hammang. On the same date, an application for admission of the codicil to probate was filed by the executrix and, by order of the county court of September 22, 1977, was so admitted.

Contestant's motion to vacate the order admitting the will to probate was heard on October 20, 1977. In addition to the foregoing information, that hearing brought out the facts that the attorney for the estate read the will to several members of the family a day or two after the funeral; that contestant was not present at that reading, and that he first learned the will had been changed so that he no longer was a principal heir during the course of a long-distance telephone conversation with his mother, the executrix, a day or so after "the reading of the will;" that contestant first received a copy of the will in mid to late August or early September, he wasn't certain; that contestant heard sometime in mid-August that some of the other disinherited next of kin contemplated some action opposing probate of the will; that he was on the road through most of August; that the first opportunity he had to consult legal counsel was in September when he returned to his home in Washington, D. C., and the attorney advised him to talk to the attorney for the estate which he did. He then learned the will had already been admitted to probate.

The county court then denied the contestant the right to introduce evidence as to want of capacity or undue influence, refused an offer of proof in this regard, and found that proper notice of the initial hearing for probate of the will had been given, that the proceeding had been unopposed, and that the will and later the codicil were duly admitted to probate upon the strength of the pleadings as provided for by section 30-2429, R.R.S.1943. Finally, the court found that contestant "Failed to proceed with due diligence and timeliness to raise objection to will and codicil prior to admission." (Emphasis supplied.)

A notice of appeal from the order denying the motion to vacate the order of August 22, 1977, admitting the will and the order of September 22, 1977, admitting the codicil, was filed in county court on October 28, 1977, and an appeal bond was filed on November 4, 1977. A petition on appeal was filed in District Court on November 14, 1977, repeating the allegations of the motion to vacate, but instead of mentioning a will of September 9, 1968, he asked that a will of October 17, 1969, together with a codicil of May 1, 1974, be admitted to probate. Lee Grimes and others, being nephews and a grandnephew of decedent, filed a petition to intervene, adopting the allegations of contestant's petition on appeal. Proponents Rix, Canino, and Hammang, appellees here, filed motions to strike, to dismiss the petition in intervention, and a demurrer to contestant's petition, all of which were sustained. Contestant elected to stand on his petition and the same was dismissed. Contestant and intervenors appeal.

The critical question in this case is the meaning of section 30-2437, R.R.S.1943: "Formal testacy proceedings; vacation of order for other cause. For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal." The proponents contend that "good cause" means the same thing that it did in the statute of nonclaim, formerly section 30-605, R.R.S.1943, and still does in the modern version, section 30-2485, R.R.S.1943, which states that a "creditor may apply to the court within sixty days after the expiration date provided in this subdivision for additional time and the court, Upon good cause shown, may allow further time not to exceed thirty days; * * *." (Emphasis supplied.) This court in applying the original section seemed to consistently require a showing of "diligence and of unavoidable mistake or accident, or of fraud * * *." Nebraska Wesleyan University v. Bowen, 73 Neb. 598, 103 N.W. 275 (1905). Thus the proponents urge the rule adopted by the lower courts that "good cause" requires one to show that although he acted with due diligence, through no fault of his own he was prevented from acting within time. Contestant, on the other hand, although stating in his brief that "good cause" simply requires him to show a substantial reason for not appearing at the original hearing, which the proponents are...