Eggers v. Rittscher

• Decision Date: 31 March 1995
• Docket Number: No. S-92-951,S-92-951
• Citation: 529 N.W.2d 741,247 Neb. 648
• Parties: Ruth M. EGGERS, Individually and as Personal Representative of the Estate of Arnold M. Eggers, Deceased, Appellant, v. David RITTSCHER, Personal Representative of the Estate of Isabelle L. Barkdoll, Deceased, et al., Appellees.
• Court: Nebraska Supreme Court

Page 741

529 N.W.2d 741

247 Neb. 648

Ruth M. EGGERS, Individually and as Personal Representative of the Estate of Arnold M. Eggers, Deceased, Appellant, v. David RITTSCHER, Personal Representative of the Estate of Isabelle L. Barkdoll, Deceased, et al., Appellees.

No. S-92-951.

Supreme Court of Nebraska.

March 31, 1995.

Syllabus by the Court

1. Equity: Contracts: Specific Performance: Decedents' Estates: Appeal and Error. An action to compel specific performance of an oral contract to devise real property by will is equitable in nature and is reviewed by an appellate court de novo on the record.

2. Appeal and Error. In a de novo review, an appellate court reaches a conclusion independent of the trial court; however, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

3. Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

4. Real Estate: Title: Vendor and Vendee. Under an executory contract for the sale of real estate, equitable title to the premises is conveyed to the vendee.

5. Decedents' Estates: Claims: Words and Phrases. Neb.Rev.Stat. § 30-2209(4) (Reissue 1989) exempts from the definition of the term "claims" disputes regarding equitable title.

6. Contracts: Decedents' Estates. Nebraska courts regard with grave suspicion any claim of an oral contract to convey property at death.

7. Contracts: Specific Performance: Decedents' Estates: Proof. One trying to enforce an oral contract to convey property at death must prove by clear and convincing evidence (1) an oral contract the terms of which are clear, satisfactory, and unequivocal and (2) that the thing done constituting performance is such as is referable solely to the contract sought to be enforced, and not such as might be referable to some other or different contract.

Jeffrey L. Stoehr, of Stoehr & Searson, Omaha, and C.J. Gatz, of Jewell, Gatz, Collins, Fitzgerald & Delay, Norfolk, for appellant.

Douglas J. Stratton, of Gerrard, Stratton & Mapes, P.C., Richard E. Mueting, of Mueting & Stoffer, Norfolk, Donn K. Bieber, of Otradovsky, Bieber & Westadt, Schuyler, and William G. Dittrick, Carol C. Knoepfler, and Cynthia A. Rismiller, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellees.

HASTINGS, C.J., WHITE, LANPHIER, and WRIGHT, JJ.

LANPHIER, Justice.

Ruth M. Eggers, appellant, sought an injunction and specific performance of an oral contract in the district court for Antelope County. Eggers alleged an oral contract whereby Roy and Isabelle Barkdoll promised to convey a parcel of land to Eggers upon their death. After the Barkdolls died, Eggers initiated this action naming as defendants the personal representative of the estate of Isabelle Barkdoll and certain charitable organizations named in Barkdoll's will as residuary beneficiaries. Eggers sought (1) to enjoin the personal representative from leasing or selling the property, (2) to enjoin the residuary beneficiaries from taking possession of the property, and (3) to have the defendants deed the parcel to her and have the title quieted in her name. Following a bench trial, the district court denied Eggers the relief she sought. Eggers then appealed to the Nebraska Court of Appeals, which affirmed the judgment of the district court on other grounds. The Court of Appeals affirmed the lower court's judgment for the reason that Eggers' action was a "claim" under the probate code which had not been filed and was now time barred by Neb.Rev.Stat. § 30-2485 (Reissue 1989). Eggers v. Rittscher, 94 NCA No. 20, case No. A-92-951, 1994 WL 191709 (not designated for

permanent publication). Eggers' motion for rehearing was denied, and she petitioned for further review. Contrary to the holding of the Court of Appeals, Eggers' action did not constitute a claim under the probate code and was consequently not time barred. However, because Eggers failed to adduce clear and convincing evidence of the underlying oral contract, the judgment of the Court of Appeals is affirmed.

BACKGROUND

Eggers alleged an oral contract made in 1952 which provided that in exchange for personal services rendered to Roy and Isabelle Barkdoll during their lifetime, the Barkdolls would transfer ownership of 160 acres of farm ground to the Eggerses at death. Roy Barkdoll died before Isabelle, and the land passed to Isabelle by right of survivorship. Upon Isabelle Barkdoll's death, the land, barring the success of Eggers' claim/cause of action, would transfer by the residuary clause of her will. The residuary beneficiaries in Barkdoll's will are the Masonic Children's Home, the Masonic Home for the Elderly, and Tilden Community Hospital.

Evidence of the terms of the oral contract was provided by the testimony of Eggers and her son. Other independent parties testified about conversations with the Barkdolls in which these parties were led to believe that after the Barkdolls' deaths, title to the land would pass to the Eggerses.

Also in support of her claim/cause of action, Eggers adduced evidence that she and her husband constructed terraces on the property, seeded two sections of the property, built two earthen dams on the property, removed some fences and maintained others, and kept all proceeds from the government idle acres program in which they enrolled the property. The Eggerses also branded, dehorned, castrated, weaned, and fattened the Barkdolls' calves on the property along with their own.

There was evidence that the Eggerses paid the Barkdolls, on the average, $1,200 to $1,500 each year after the Barkdolls quit raising cattle on the property. The Barkdolls claimed this money as farm or rental income on their tax returns.

ASSIGNMENT OF ERROR

As summarized, Eggers claims that the Court of Appeals erred in ruling that her cause of action seeking specific performance of an oral contract to convey title to real estate was in fact a "claim" against a decedent's estate and barred by the provisions of § 30-2485.

STANDARD OF REVIEW

An action to compel specific performance of an oral contract to devise real property by will is equitable in nature and is reviewed by an appellate court de novo on the record. Matthews v. Matthews, 215 Neb. 744, 341 N.W.2d 584 (1983); In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982). In a de novo review, an appellate court reaches a conclusion independent of the trial court; however, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Blue Tee Corp. v. CDI Contractors, Inc., 247 Neb. 397, 529 N.W.2d 16 (1995).

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995).

"NONCLAIM" STATUTE

The Court of Appeals held that Eggers failed to show that title was in dispute and that therefore, the action was a "claim" against Isabelle Barkdoll's estate as that term is defined in the probate code at Neb.Rev.Stat. § 30-2209(4) (Reissue 1989). The Court of Appeals also determined that as a claim based on a contract, Eggers had 4 months from the date she received notice that the will was being offered for probate to file her claim pursuant to § 30-2485. The Court of Appeals dismissed the action as time barred, having determined that Eggers did not file a claim within 4 months of the Eggers contends that the Court of Appeals initially erred in determining that her action was a claim. Eggers argues that contrary to the Court of Appeals' holding, her action was not a claim because it involved a dispute over title. Underlying Eggers' assertion is the notion that if title to property alleged to be a decedent's is in dispute, then such action raising the dispute is not a claim. The probate code's definition of the term "claims" supports this contention. Section 30-2209(4) of the probate code defines the term "claims" as follows:

date she received notice that the will was being offered for probate.

Claims, in respect to estates of decedents and protected 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.

(Emphasis supplied.)

With respect to this issue, the Court of Appeals stated: "Ruth [Eggers] does not claim that Isabelle did not have title at the...