Estate of Stephenson, In re

• Decision Date: 30 July 1993
• Docket Number: S-90-920,Nos. S-90-919,s. S-90-919
• Citation: 243 Neb. 890,503 N.W.2d 540
• Parties: In re Estate of A.M. STEPHENSON, Deceased. Michael N. MULLIGAN, Personal Representative of the Estate of Helen Stephenson, Deceased, Appellant, v. M.L. STEPHENSON et al., Copersonal Representatives of the Estate of A.M. Stephenson, Deceased, Appellees.
• Court: Nebraska Supreme Court

Page 540

503 N.W.2d 540

243 Neb. 890

In re Estate of A.M. STEPHENSON, Deceased.

Michael N. MULLIGAN, Personal Representative of the Estate of Helen Stephenson, Deceased, Appellant, v. M.L. STEPHENSON et al., Copersonal Representatives of the Estate of A.M. Stephenson, Deceased, Appellees.

Nos. S-90-919, S-90-920.

Supreme Court of Nebraska.

July 30, 1993.

Syllabus by the Court

1. Decedents' Estates: Pleadings: Executors and Administrators. As a result of Neb.Rev.Stat. §§ 30-2315 and 30-2317 (Reissue 1989), a surviving spouse elects to take a share in the augmented estate when a petition for the elective share is filed in the county court that has probate jurisdiction and is served on the estate's personal representative, if any.

2. Decedents' Estates: Abatement, Survival, and Revival: Executors and Administrators. When a surviving spouse has petitioned for an elective share of a decedent's estate, the right to pursue an elective share is no longer a surviving spouse's potential personal right subject to abatement, but has become a right vested in the surviving spouse. Therefore, if a surviving spouse dies after filing a petition for an elective share pursuant to Neb.Rev.Stat. §§ 30-2315 and 30-2317 (Reissue 1989), the proceeding to enforce the spouse's election as a vested right may be revived by the personal representative of the estate of the spouse who has made the election but who has died before distribution of property pursuant to the elective share.

3. Decedents' Estates: Claims: Abatement, Survival, and Revival. Under Neb.Rev.Stat. §§ 30-2324 and 30-2325 (Reissue 1989), a right to allowances for homestead, exempt property, and unpaid spousal support survives the claimant's death to the extent of unpaid support.

4. Antenuptial Agreements. An antenuptial agreement is statutorily authorized by Neb.Rev.Stat. § 30-2316 (Reissue 1989) of the Nebraska Probate Code.

5. Antenuptial Agreements: Statutes: Time. An antenuptial agreement is governed by the statute in effect at the date of a deceased spouse's death.

6. Antenuptial Agreements. As a contract, an antenuptial agreement is governed by the same principles that are applicable to other contracts, but is subject to the particular statutory requirement that an antenuptial agreement must be based on fair disclosure.

7. Antenuptial Agreements: Proof. A party asserting the invalidity of an antenuptial agreement has the burden of proving invalidity.

8. Antenuptial Agreements: Words and Phrases. As used in Neb.Rev.Stat. § 30-2316 (Reissue 1989) concerning an antenuptial agreement, "fair disclosure" means that before signing an antenuptial agreement, each party must disclose to the other the facts that exist at the time of the agreement and which, in the absence of the antenuptial agreement, affect or determine 9. Antenuptial Agreements. Neb.Rev.Stat. § 30-2316 (Reissue 1989) imposes a statutory duty that the parties to an antenuptial agreement make fair disclosure before signing the antenuptial agreement.

the prospective intestate share of a surviving spouse in the disclosing party's estate or which otherwise affect or determine distribution of property at the disclosing party's death.

10. Fraud: Proof. To prove fraudulent concealment, a plaintiff must show that (1) the defendant had a duty to disclose a material fact; (2) the defendant, with knowledge of the material fact, concealed the fact; (3) the material fact was not within the plaintiff's reasonably diligent attention, observation, and judgment; (4) the defendant concealed the fact with the intention that the plaintiff act in response to the concealment or suppression; (5) the plaintiff, reasonably relying on the fact or facts as the plaintiff believed them to be as the result of the concealment, acted or withheld action; and (6) the plaintiff was damaged by the plaintiff's action or inaction in response to the concealment.

11. Fraud: Proof. As a general principle of proof, one alleging fraud must prove fraud.

12. Decedents' Estates: Courts: Jurisdiction: Equity. In exercising probate jurisdiction, a court may use equity power and principles to dispose of a matter within the court's probate jurisdiction.

13. Actions: Contracts: Rescission: Equity. An action to rescind a written instrument is an equity action.

14. Fraud: Proof: Circumstantial Evidence. Fraud may be proved by circumstantial evidence.

15. Equity: Fraud: Proof: Evidence. In an equity case, fraud must be proven by clear and convincing evidence.

16. Decedents' Estates: Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court.

Richard L. Halbert and Michael R. Dunn, of Halbert & Dunn, Falls City, and Daniel Duffy, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

M.J. Bruckner and Paul J. Peter, of Bruckner, O'Gara, Keating, Sievers & Hendry, P.C., Lincoln and William F. Davis, Nebraska City, for appellees.

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

SHANAHAN, Justice.

Helen Stephenson, the widow of A.M. Stephenson, filed her petition in the county court for Otoe County, requesting allowances for homestead, exempt property, and spousal support and further requesting that the court, pursuant to Neb.Rev.Stat. § 30-2317 (Reissue 1989), set over to Helen her elective share in the augmented estate of A.M. Stephenson, deceased.

The personal representatives of the A.M. Stephenson estate objected to Helen's requested allowances and an elective share because Helen and A.M. Stephenson had signed an antenuptial agreement which barred Helen's sharing in the A.M. Stephenson estate and waived all claims against the estate. In response to the objection, Helen replied that the antenuptial agreement was "a result of fraud and overreaching."

The county court found that the evidence was "clear and convincing" that the antenuptial agreement was the "result of fraud in the inducement on the part of A.M. Stephenson" because "A.M. Stephenson intentionally withheld from Helen Stephenson information concerning the nature and extent of his assets." Therefore, the court entered judgment for Helen Stephenson and invalidated the antenuptial agreement, thereby entitling Helen to an elective share equal to one-half of the augmented estate of A.M. Stephenson, deceased. The county court also granted Helen Stephenson allowances for spousal support, homestead, and exempt property. Later, the county court ordered that the estate pay fees and costs The county court's judgments were appealed to the district court, which, finding that the evidence was not "clear and convincing" on the issue of A.M. Stephenson's fraud, reversed the county court's judgment on the antenuptial agreement and remanded the cause to the county court with direction "to incorporate the provisions of the antenuptial agreement in the estate proceeding, giving it full force and effect," that is, the antenuptial agreement barred Helen Stephenson's claims against, and an elective share of, the estate of A.M. Stephenson, deceased. However, the district court affirmed the county court's judgment for fees and costs.

for the lawyers who represented the personal representatives on their objections.

Helen Stephenson appealed from both judgments of the district court, but died pending her appeals consolidated for disposition by this court. Helen Stephenson's appeals have been revived in the name of Michael N. Mulligan, personal representative of the estate of Helen Stephenson, deceased. See Neb.Rev.Stat. § 25-1401 et seq. (Reissue 1989) (revivor of action).

REVIVOR

The personal representatives of the A.M. Stephenson estate contend that since Helen has died during pendency of these appeals, her claims for allowances and an elective share as a surviving spouse have abated; therefore, revivor is unavailable.

Neb.Rev.Stat. § 30-2315 (Reissue 1989) of the Nebraska Probate Code states: "The right of election of the surviving spouse may be exercised only during his or her lifetime by him or her." According to § 30-2317: "The surviving spouse may elect to take his or her elective share in the augmented estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share...."

Neb.Rev.Stat. § 30-2324 (Reissue 1989) of the Nebraska Probate Code authorizes an allowance for support of a surviving spouse during administration of an estate. Further, § 30-2324 provides in part: "The death of any person entitled to family allowance, other than the surviving spouse, terminates his [or her] right to allowances not yet paid." Also, in part Neb.Rev.Stat. § 30-2325 (Reissue 1989) provides:

The homestead allowance, the exempt property, and the family allowance as finally determined by the personal representative or by the court, shall vest in the surviving spouse as of the date of decedent's death, as a vested indefeasible right of property, shall survive as an asset of the surviving spouse's estate if unpaid on the date of death of such surviving spouse, and shall not terminate upon the death or remarriage of the surviving spouse.

The appellee personal representatives point to In re Estate of Samson, 142 Neb. 556, 7 N.W.2d 60 (1942), and Jacobson v. Nemesio, 204 Neb. 180, 281 N.W.2d 552 (1979), as support for their position that Helen Stephenson's claims for allowance and an elective share are abated by her death. In In re Estate of Samson, which was decided before the current Nebraska Probate Code became effective on January 1, 1977, see Neb.Rev.Stat. § 30-2901 (Reissue 1989), this court held that a widow's claim for spousal allowance for her deceased husband's estate was based on a personal right that abated when the widow died during pendency of the widow's appeal from an adverse judgment on her claim for the allowance. In Jacobson, this court, considering whether a...