Estate of Seidler, In re, s. S-89-1180

• Decision Date: 04 September 1992
• Docket Number: S-89-1181,Nos. S-89-1180,s. S-89-1180
• Citation: 490 N.W.2d 453,241 Neb. 402
• Parties: In re ESTATE of Herman J. SEIDLER, Deceased. James E. ACKERMAN, Appellant, v. Gloria J. TOEDTLI, Personal Representative of the Estate of Herman J. SEIDLER, Deceased, Appellee.
• Court: Nebraska Supreme Court

Page 453

490 N.W.2d 453

241 Neb. 402

In re ESTATE of Herman J. SEIDLER, Deceased.

James E. ACKERMAN, Appellant, v. Gloria J. TOEDTLI, Personal Representative of the Estate of Herman J. SEIDLER, Deceased, Appellee.

Nos. S-89-1180, S-89-1181.

Supreme Court of Nebraska.

Sept. 4, 1992.

Syllabus by the Court

1. Jurisdiction: Final Orders: Appeal and Error. Generally, appellate jurisdiction is limited to a review of final orders.

2. Courts: Jurisdiction: Appeal and Error. A higher appellate court cannot obtain jurisdiction of an appeal when a district court, acting in its appellate capacity, fails to obtain jurisdiction of an appeal from a trial court.

3. Wills: Words and Phrases. By statutory definition, a will means any instrument, including any codicil or other testamentary instrument complying with Neb.Rev.Stat. §§ 30-2326 to 30-2338 (Reissue 1989), which disposes of personal or real property, appoints a personal representative, conservator, guardian, or trustee, revokes or revises an earlier executed testamentary instrument, or encompasses any one or more of such objects or purposes.

4. Constitutional Law: Due Process: Notice: Time. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if, with due regard for the practicalities and peculiarities of the case, these conditions are reasonably met, the constitutional requirements are satisfied.

5. Notice. Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained.

6. Plea in Abatement: Actions. A plea in abatement may be filed when there is another action pending between the same parties, involving the same or substantially the same subject matter, cause of action, and relief.

7. Decedents' Estates: Final Orders: Appeal and Error. A proceeding under Neb.Rev.Stat. § 30-2454 (Reissue 1989) to remove a personal representative for cause is a special proceeding within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 1989) and therefore is a final order and is appealable, even though it may not terminate the action or constitute a final disposition of the case.

8. Trial: Appeal and Error. Issues not properly presented to and passed upon by a trial court may not be raised on appeal.

9. Decedents' Estates: Appeal and Error. Cause for removal of a personal representative exists when removal would be in the best interests of the estate, or if it is shown that a personal representative intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.

10. Decedents' Estates: Claims: Time. The failure to pay claims within the time limited by the court is not cause for removal of a personal representative when there are no funds with which to pay the claims, unless it appears that absent neglect on the part of the personal representative, funds would have been available.

11. Decedents' Estates. Cause for removal of a personal representative exists when the personal representative fails to follow the court's progression order, fails to pay federal taxes, and fails to provide a proposed distribution plan.

Robert M. Harris and Randall L. Lippstreu of Harris & Lippstreu, Scottsbluff, for appellant.

Alan Curtiss, Alliance and, on brief, Harry R. Meister of Meister & Segrist, Scottsbluff, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

This opinion involves two appeals which were consolidated for argument in this court. A notice of appeal in each case was filed on September 11, 1989.

In case No. S-89-1181, James E. Ackerman, a grandson of the decedent herein, in sum, appeals the affirmation by the district court for Box Butte County of the county court's (1) nunc pro tunc ruling admitting to probate a March 14, 1980, will and a January 12, 1985, codicil to that will, both of which undisputedly had been executed by the decedent, Herman J. Seidler, and (2) dismissal of the grandson's 1988 petition for formal probate of Seidler's 1980 will without the 1985 codicil.

In case No. S-89-1180, Ackerman, in sum, appeals the district court's affirmation of the Box Butte County Court's (1) denial of the grandson's motion to vacate the county court's order admitting to probate Seidler's 1985 codicil, (2) denial of the grandson's motion to vacate its order admitting to probate Seidler's 1985 codicil, and (3) denial of the grandson's motion to remove his mother, Gloria J. Toedtli, as personal representative of Seidler's estate.

These appeals come to us in a procedural morass. Nevertheless, we will review the probate proceedings for error appearing on the record. See In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).

When he died, Seidler owned land in Sheridan County, Nebraska, of which 640 acres were meadowland and 2,140 acres were rangeland.

It is undisputed that Seidler executed a will on March 14, 1980. He left all of his estate in equal shares to his daughter, Gloria Toedtli, and to his five grandchildren: the appellant, James Ackerman; Herman Ackerman; Polly Ackerman; Jeremy Toedtli; and Hank Toedtli.

On January 12, 1985, Seidler executed a codicil to his 1980 will. In the codicil he provided that his daughter would receive a life interest in the estate pursuant to a testamentary trust and that his five grandchildren would each receive an equal interest in the remainder.

Seidler died February 13, 1986, at the age of 89. It developed that he left an estate valued at $266,647.24. On November 19, 1986, Gloria Toedtli filed a petition in the Box Butte county court to admit Seidler's 1980 will and his 1985 codicil to probate and to appoint her as personal representative of Seidler's estate. Attached to the petition was a copy of Seidler's 1980 will and the original of the 1985 codicil. The petition alleged that the original will had been lost. According to an affidavit of Toedtli's attorney, filed with the county court on December 11, 1986, notice of the probate hearing scheduled to be held on December 15, 1986, was sent on December 1, 1986, to all interested parties, including Seidler's five grandchildren and specifically including the appellant. The notice of probate was published in The Alliance Daily Times-Herald, a legal daily newspaper, on November 26, December 6, and December 10, 1986. The record reflects that at the time the notice was mailed to Ackerman, he lived at Long Lake Route, Alliance, Nebraska 69301.

The notice stated:

"Estate of Herman J. Seidler, deceased. Notice is hereby given that a Petition for Formal Probate of Will of said deceased, Determination of Heirs, and Appointment of Gloria J. Toedtli as Personal Representative has been filed and is set for hearing in the Box Butte County, Nebraska Court on December 15, 1986 at 10:00 o'clock a.m."

(Emphasis supplied.)

At the December 15 hearing in county court, it was determined that the original of the 1980 will could not be found. One of the signatory witnesses to the original will identified a copy as being the will executed by Seidler in 1980.

There was no opposition to the petition at the December 15, 1986, hearing. The county court admitted to probate the copy of the 1980 will as Seidler's will and the 1985 codicil to the 1980 will. Toedtli was appointed personal representative. Letters naming Toedtli as personal representative were issued January 12, 1987. The letters recited, in part, that

on December 15, 1986, Gloria J. Toedtli was appointed and qualified as Personal Representative of the above named Decedent [Seidler] by this Court or its Registrar, with all the authority granted to a personal representative by law;

NOW THEREFORE, these Letters are issued as evidence of such appointment and qualifications and authority of Gloria J. Toedtli to do and perform all acts which may be required by law.

The letters were signed by the Box Butte county judge and filed with the clerk of thecounty court on January 12, 1987. On November 8, 1988, nearly 2 years later, the appellant filed a petition in the Box Butte County Court for formal probate of Seidler's 1980 will, but not his 1985 codicil. Ackerman claimed that he had never received a notice of probate concerning the decedent except for the petition for formal probate of the will filed by Toedtli and that no hearing was ever held, no findings ever made, and no order ever entered pursuant to the previously filed petition of Toedtli. The appellant claimed that the personal representative letters issued on January 12, 1987, were void because no order was ever entered appointing Toedtli as personal representative. Ackerman also claimed that the codicil dated January 12, 1985, was not valid because it was executed when Seidler was not of sound mind and memory and was under the undue influence of his daughter, Toedtli.

In his petition for the probate of Seidler's will, the appellant nominated himself as personal representative and claimed that the will executed on March 14, 1980, was the last will of Seidler.

Toedtli objected to the appellant's petition and alleged in her answer that the 1980 will and 1985 codicil were admitted into probate on December 15, 1986, but that the formal order of the court entered that day was inadvertently not journalized or...