Estate of Hannan, In re
| Decision Date | 08 March 1994 |
| Docket Number | No. A-92-534,A-92-534 |
| Citation | 2 Neb.App. 636,513 N.W.2d 339 |
| Parties | In re ESTATE OF Janet McClymont HANNAN, Deceased. Elizabeth H. HYMAN, Personal Representative of the Estate of Janet McClymont Hannan, Deceased, Appellant, v. Mary Elizabeth GLOVER, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Decedents' Estates: Words and Phrases. Under Nebraska law, the word "issue" includes adopted children for probate purposes.
2. Decedents' Estates: Wills: Real Estate: States. The law of the state in which land is situated governs the transmission of that land by will or intestacy.
3. Decedents' Estates: Real Estate: States: Jurisdiction. The courts of the domicile of a decedent do not have jurisdiction to control the devolution of real property held in another state; therefore, a state in which real property is located is not required to give full faith and credit to a decision of another state regarding the probate of such real property.
4. Decedents' Estates: Wills: Real Estate: States. The law of the state where real property is situated governs exclusively the right of parties to real property and the methods of its transfer, including devise by will.
5. Decedents' Estates: Wills: States. The clear directive of Neb.Rev.Stat. § 30-2432 (Reissue 1989) is that an order of another state shall be adopted by Nebraska only if the other state has a similar law for providing reciprocity of decisions made in Nebraska courts in probate proceedings.
6. 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.
7. Decedents' Estates: Wills: Words and Phrases. Generally, a term of art used in reference to a devise or other testamentary disposition or provision has a technical but, nonetheless, clear meaning used in a decedent's will.
8. Decedents' Estates: Wills: Intent. The object and purpose of the court is to carry out and enforce the true intention of a 9. Decedents' Estates: Wills: Intent: Property. When the sole question is the ascertainment of a testator's intention from language used in a will, or the sense in which certain words or phrases are used, and not their legal effect, they will be construed according to the lex domicilii in the case of real as well as personal property.
testator as shown by the will itself, in the light of attendant circumstances under which it is made.
10. Decedents' Estates: Intent. Where a bequest or devise is made to a class--as, for instance, heirs at law, next of kin, or issue--the membership of which varies with the laws of different jurisdictions, it is often necessary to resort to an extrinsic law in order to complete and render specific the testator's partially expressed intention.
11. Public Policy: Words and Phrases. Public policy is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good.
Larry R. Baumann of Kelley, Scritsmier & Byrne, P.C., North Platte, for appellant.
Patricia E. Dodson of Dodson & Dodson, Attys., Beaver City, for appellee.
Janet McClymont Hannan died on April 2, 1982, domiciled in Virginia. An ancillary probate proceeding was conducted in Phelps County for the real estate Hannan held in that county. In her will, Hannan devised the residuary of her estate to her children surviving her and to the "issue" of her deceased children per stirpes. The Nebraska real property was residual property. One of her children, a son, predeceased her. His only surviving descendant was an adopted daughter. Litigation in Virginia resulted in a determination that an adopted child was not issue of an adoptive parent under Virginia law. The Phelps County Court determined that Nebraska law controlled the definition of the term "issue" and that an adopted child is the issue of his or her adoptive parent. Therefore, the court held that the adopted child was entitled to receive the share of Nebraska real property that her adoptive father would have received had he been alive on the date of his mother's death. Hannan's estate, through its personal representative, appeals this decision.
We conclude the following: (1) Nebraska law does control the devise of all real property situated in Nebraska; (2) a cardinal principle of Nebraska law in interpreting wills is that the intent of the testator be obtained and followed; and (3) in making a will, a testator is more likely to subscribe to the domiciliary state's statutory or case law definition of a word, rather than to the definition provided under the law of the situs of the real property. As a result, and because there is no other evidence of Hannan's intent in the record provided to us, her intent should be determined by the law in Virginia which existed at the time she made the will and at the time of her death. Accordingly, we reverse, and remand.
This matter came before the county court upon an application to distribute funds from the sale of the real property, funds which were placed in escrow pending an outcome of the litigation. The court found that the real property was sold in 1983 by an agreement among the parties and with court authority. The court found that Hannan's will was admitted to probate in the State of Virginia. The court also noted that she had five children and that one child, James M. Hannan, predeceased his mother and left only his adopted daughter, Mary Elizabeth Glover, as possible issue. Under the parties' agreement, one-fifth of the cash realized from the sale of the disputed real property was to be held in escrow until the litigation in Virginia was completed.
The county court observed that the Virginia Supreme Court had determined that the word "issue" in the last will and testament of the decedent did not include Glover because that term is limited to bloodline relationships. The county court then determined that Nebraska law controls and that Nebraska law provides that an adopted child is the issue of his or her adoptive parents. The
court ordered the escrow funds distributed to Glover as a beneficiary under the will. The estate appealed to the district court, which affirmed the county court's judgment.
On its appeal to this court, the estate alleges that the county court erred (1) in finding that the Full Faith and Credit Clause of the U.S. Constitution does not apply absent statutory requirement, (2) in finding that the determination by the Virginia Supreme Court of the meaning of "issue" as used in the will of the decedent is not res judicata in Nebraska courts, (3) in finding that the intent of the testator did not control distribution of the proceeds of the sale of the real property, and (4) in finding that the adopted grandchild should receive a share of the estate contrary to the clear intent of the will. The central question presented by this appeal is, What law controls in determining Hannan's intention? We will begin our discussion by reviewing the law of both Nebraska and Virginia on the subject of whether adopted persons are included within the meaning of the word "issue."
Nebraska law regarding the rights of adopted children is provided under Neb.Rev.Stat. § 43-110 (Reissue 1988):
After a decree of adoption is entered, the usual relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the person or persons adopting such child and his, her or their kindred.
Neb.Rev.Stat. § 30-2209(23) (Cum.Supp.1993) provides:
"Issue of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in the Nebraska Probate Code." Additionally, § 30-2209(3) states: "Child includes any individual entitled to take as a child under the code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, or a grandchild or any more remote descendant." While the statute has been amended for other purposes, these definitions have remained essentially the same since at least 1978. Neb.Rev.Stat. § 30-2309 (Reissue 1989) provides, in significant part: "If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, (1) an adopted person is the child of an adopting parent...." Under this statute, an adopted child is therefore an individual entitled to take as a child, and therefore an adopted child is included as a lineal descendant of its adoptive parent under the statutory definition of "issue."
All of the several Nebraska cases considering the rights of adopted persons to inherit have reaffirmed Nebraska's public policy of recognizing that adopted children are entitled to every benefit that natural children realize in probate proceedings. Satterfield v. Bonyhady, 233 Neb. 513, 446 N.W.2d 214 (1989); In re Trust Estate of Darling, 219 Neb. 705, 365 N.W.2d 821 (1985); Neil v. Masterson, 187 Neb. 364, 191 N.W.2d 448 (1971). In In re Estate of Taylor, 136 Neb. 227, 233-35, 285 N.W. 538, 541 (1939), the Supreme Court stated Nebraska's policy on this matter as follows:
The thought back of the Nebraska decisions has been to give exactly the same rights and privileges to an adopted child which a natural child has. One of the rights of a natural child is to inherit from a grandparent through his parent. If the adopted child does not have that right, then it has been denied a right or privilege which the natural child has....
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IN RES ESTATE OF ELLIS
... ... Nor are we swayed by Wade's suggestion that Ellis should be presumed to lack testamentary capacity merely because she chose to disinherit him. Nebraska has no public policy against disinheriting any descendant. In re Estate of Hannan, 2 Neb.App. 636, 513 N.W.2d 339 (1994), reversed on other grounds 246 Neb. 828, 523 N.W.2d 672. As explained in In re Estate of Wahl, 151 Neb. 812, 823, 39 N.W.2d 783, 790 (1949): ... [N]o right of a citizen is more valued and more assured by law than the power to dispose of his property by will ... ...
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Estate of Hannan, In re
...judgments of a district and a county court awarding her a share in Nebraska real estate under her grandmother's Virginia will, 2 Neb.App. 636, 513 N.W.2d 339. We reverse the Court of Appeals' decision and remand the cause with direction to affirm the judgment of the district court for Phelp......
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Nebraska Choice of Law: an Updated Synthesis
...3204. [81]Id. §25-3203(2). [82]See Borchers, supra note 1, at 21. [83] 246 Neb. 828, 523 N.W.2d 672 (1994). [84] In re Estate of Hannan, 2 Neb. App. 636, 513 N.W.2d 339, rev'd 246 Neb. 828, 523 N.W.2d 672 [85]See Borchers, supra note 1, at 22. [86]Id. at 22-23. [87]Id. at 23. [88]Id. at 23-......