Estate of Snover, In re

• Decision Date: 11 August 1989
• Docket Number: No. 87-1058,87-1058
• Citation: 233 Neb. 198,443 N.W.2d 894
• Parties: In re ESTATE OF Walter SNOVER, Deceased. William G. LINE, Personal Representative of the Estate of Walter Snover, Deceased, Appellant, v. Merrill SNOVER et al., Appellees.
• Court: Nebraska Supreme Court

Page 894

443 N.W.2d 894

233 Neb. 198

In re ESTATE OF Walter SNOVER, Deceased.

William G. LINE, Personal Representative of the Estate of Walter Snover, Deceased, Appellant, v. Merrill SNOVER et al., Appellees.

No. 87-1058.

Supreme Court of Nebraska.

Aug. 11, 1989.

Syllabus by the Court

1. Trial: Final Orders: Appeal and Error. An order affecting a substantial right, when made in a special proceeding, is a final order and is appealable, even though it does not terminate the action nor constitute a final disposition of the case.

2. Decedents' Estates: Words and Phrases. A proceeding under Neb.Rev.Stat. § 30-2454 (Reissue 1985) to remove a personal representative for cause is a special proceeding within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 1985).

3. Words and Phrases. A substantial right is an essential legal right as distinguished from a mere technical one.

4. Decedents' Estates: Pleadings. Given the scope of the personal representative's power over the beneficiaries' and other interested parties' interests in an estate, the right conferred by Neb.Rev.Stat. § 30-2454 (Reissue 1985) to petition the county court to remove the personal representative for cause is a substantial right.

5. Decedents' Estates: Appeal and Error. The Supreme Court reviews probate cases for error appearing on the record.

William G. Line, of Kerrigan, Line & Martin, pro se.

Charles H. Wagner, of Edstrom, Bromm, Lindahl & Wagner, Wahoo, for appellees.

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

GRANT, Justice.

This is an appeal from the district court for Dodge County order reversing the order of the county court for Dodge County and removing appellant, William G. Line, as personal representative of the Walter Snover estate.

On January 10, 1986, Line was appointed personal representative of the Walter Snover estate. On March 11, 1986, appellees beneficiaries Merrill Snover and Dorothy Willnerd filed a petition for supervised administration of the estate. Although the transcript contains no written order, the record shows that supervised administration of the estate was ordered by the county court during a hearing on April 4, 1986. On May 12, 1987, appellees filed a motion to remove Line as personal representative and for the return of estate assets.

After a hearing, appellees' motion was overruled by the county court because "[t]he beneficiaries have failed to prove the delay in the administration of this estate is the fault of the personal representative." Appellees timely appealed to the district court. Line moved to dismiss the appeal for lack of a final order.

On October 2, 1987, the district judge found (1) that the decision of the county court overruling the beneficiaries' motion to remove Line as personal representative was a final appealable order; (2) that there was a valid order entered by the county court on January 23, 1987, with the consent and concurrence of Line, that Line would within 45 days resolve any problems concerning the estate, complete the federal estate tax return, and submit a proposed plan and proposed order of distribution or advise the county court and counsel of any adjustments necessary; (3) that Line failed totally to comply with the January 23 progression order; (4) that Line "failed to file a Federal Estate Tax Return and has failed to pay any tax due, which tax liability now continues to draw interest and penalties"; (5) that Line paid, without prior court approval, attorney fees and personal representative fees, contrary to the order for supervised administration; and (6) that Line breached his duty to the court and to the estate and should be removed. The district court reversed the county court ruling and remanded the cause to the county court with directions to remove Line as personal representative. Line timely appealed to this court.

In this court, Line assigns seven errors, which may be summarized as the district court's errors: (1) in finding that the order of the county court overruling appellees' motion to remove Line as personal representative was a final order which could properly be appealed to the district court; (2) in finding that court approval was necessary to pay attorney fees or personal representative fees or that payment of such fees was contrary to an order for supervised administration; and (3) in removing Line as personal representative absent any error on the record made in the county court. We affirm the action of the district court.

Line first contends that the order of the county court overruling appellees' motion to remove him as personal representative was not a final order appealable to the district court. This question is determinative of the district court's and our jurisdiction over this matter. See, Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989); In re Interest of C.D.A., 231 Neb. 267, 435 N.W.2d 681 (1989); Neb.Rev.Stat. § 24-541.01(2) (Cum.Supp.1988).

The Nebraska Probate Code is set out in Neb.Rev.Stat. §§ 30-2201 to 30-2902 (Reissue 1985). Section 30-2217 provides that appellate review under the code is governed by Neb.Rev.Stat. § 30-1601 (Reissue 1985), which, in turn, provides that "[i]n all matters arising under the Nebraska Probate Code, appeals shall be allowed as provided in sections 24-541.01 to 24-541.10 and 24-551." Section 24-541.01(2) provides, "In cases of appeals from ... proceedings under the Nebraska Probate Code, an appeal may also be taken by any person against whom the final judgment or final order may be made or who may be affected thereby." Neb.Rev.Stat. § 25-1902 (Reissue 1985) defines a final order as "an order affecting a substantial right made in a special proceeding...."

The issue presented in Line's first assignment of error is whether the order of the county court dismissing appellees' motion to remove the personal representative was made in a special proceeding and affected a substantial right.

We have held:

An order affecting a substantial right, when made in a special proceeding is a final order and is appealable, even though it does not terminate the action, nor constitute a final disposition of the case. A special proceeding may be said to include every special statutory remedy which is not in itself an action.

Sullivan v. Storz, 156 Neb. 177, 180, 55 N.W.2d 499, 502 (1952). See, also, State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980); Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477, 35 N.W.2d 116 (1948); Turpin v. Coates, 12 Neb. 321, 11 N.W. 300 (1882).

Neb.Rev.Stat. § 25-101 (Reissue 1985) provides that there is "but one form of action, which shall be called a civil action."

The code [of civil procedure] does not contain a definition of an action or a special proceeding but it does declare that there is but one form of action to be called a civil action, and the procedure for commencing and pursuing it to a final conclusion is prescribed....

Any proceeding in a court by which a party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong involving and requiring the pleadings, process, and procedure provided by the code and ending in a final judgment is an action. Every other legal proceeding by which a remedy is sought by original application to a court is a special proceeding. A special proceeding within the meaning of the statute defining a final order must be one that is not an action and is not and cannot be legally a step in an action as a part of it. None of the many steps or proceedings necessary or permitted to be taken in an action to commence it, to join issues in it, and conduct it to a final hearing and judgment can be a special proceeding within the terms of the statute. A special proceeding may be connected with an action in the sense that the application for the benefit of it and the other papers and orders concerning it may be filed in the case where the record of the filings in the action are [sic] made--as for instance garnishment or attachment--but it is not an integral part of or a step in the action or as it is sometimes referred to in such a situation a part of the "main case."

Rehn v. Bingaman, 157 Neb. 467, 478-79, 59 N.W.2d 614, 620-21 (1953) (Boslaugh, J., concurring).

The Nebraska Probate Code applies to the affairs and estates of decedents. Section 30-2454 confers upon persons interested in an estate the specific right to petition the county court to remove the personal representative for cause at any time. We hold that a proceeding under § 30-2454 to remove a personal representative for cause is a special proceeding within the meaning of § 25-1902.

This court also has stated that "[a] substantial right is an essential legal right as distinguished from a mere technical one." Sullivan v. Storz, supra 156 Neb. at 180, 55 N.W.2d at 502; Western Smelting & Refining Co. v. First Nat. Bank, supra; Egan v. Bunner, 155 Neb. 611, 52 N.W.2d 820 (1952). Sections 30-2462 to 30-2482 confer upon the personal representative broad powers to administer and distribute a decedent's estate. Section 30-2465 provides that the personal representative may, in most cases, proceed without adjudication, order, or direction of the county court. Section 30-2464 provides that the personal representative has a duty to settle and distribute the estate as expeditiously and efficiently as is consistent with the best interests of the estate and must use his authority for the best interests of successors to the estate.

Given the scope of the personal representative's power over the interests of the beneficiaries and other interested parties in an estate, the right conferred by § 30-2454 to petition the county court to remove the personal representative for cause is a substantial right.

In this case, after a hearing on the merits, appellees' motion to remove Line as personal representative was denied by the county court. The order of the county court was...