Estate of Walker, In re, 85-481

• Court: Supreme Court of Nebraska
• Citation: 402 N.W.2d 251,224 Neb. 812
• Docket Number: No. 85-481,85-481
• Parties: In re ESTATE OF Mary V. WALKER, Deceased. Grace M. WALKER, Personal Representative of the Estate of James O. Walker, Deceased, Appellant, v. Lawrence WALKER, Personal Representative of the Estate of Mary V. Walker, Deceased, Appellee.
• Decision Date: 06 March 1987

Page 251

402 N.W.2d 251

224 Neb. 812

In re ESTATE OF Mary V. WALKER, Deceased.

Grace M. WALKER, Personal Representative of the Estate of James O. Walker, Deceased, Appellant, v. Lawrence WALKER, Personal Representative of the Estate of Mary V. Walker, Deceased, Appellee.

No. 85-481.

Supreme Court of Nebraska.

March 6, 1987.

Syllabus by the Court

1. Decedents' Estates: Wills: Intent. The cardinal rule concerning a decedent's will is the requirement that the intention of the testator or testatrix 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.

2. Decedents' Estates: Wills: Intent. To arrive at a testator's or testatrix's intention expressed in a will, a court must examine the decedent's will in its entirety, consider and liberally interpret every provision in a will, employ the generally accepted literal and grammatical meaning of words used in the will, and assume that the maker of the will understood words stated in the will.

3. Wills. When language in a will is clear and unambiguous, construction of a will is unnecessary and impermissible. As a corollary of this rule, when ambiguity exists in a testamentary provision, construction of a will is necessary.

4. Wills: Words and Phrases. Ambiguity exists in an instrument, including a will, when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings.

5. Wills: Words and Phrases. A patent ambiguity is one which exists on the face of an instrument.

6. Wills: Words and Phrases. Construction includes the process of determining the correct sense, real meaning, or proper explanation of an ambiguous term, phrase, or provision in a written instrument.

7. Wills. When patent ambiguity exists in a will, a court must resolve such ambiguity as a matter of law.

8. Appeal and Error. Regarding a question of law, the Supreme Court has an obligation to reach its conclusion independent from the conclusion reached by a court whose judgment is the subject of review.

9. Wills: Judges. Neb.Rev.Stat. § 24-519 (Reissue 1985) expressly denies to an associate county judge who is not an attorney at law the power to construe a will.

Patrick J. Nelson of Jacobsen, Orr & Nelson, P.C., Kearney, for appellant.

Denzel R. Busick of Luebs, Dowding, Beltzer, Leininger, Smith & Busick, Grand Island, for appellee.

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

SHANAHAN, Justice.

When Mary V. Walker, 91 years of age, died on May 15, 1984, her survivors included her brother, James O. Walker, and 13 nieces and nephews. Mary's uncontested will, executed in 1977, was admitted to probate in the county court for Harlan County. Among the directions and dispositions contained in Mary's will were:

IV

In the event that my sister-in-law Alta Walker shall survive me, I devise the sum of $200.00 without restriction or reservation.

V

If my brother, James O. Walmer [sic] shall survive me, I give and devise to my brother a life estate in and to the following described real estate [legal description omitted for the purpose of this opinion], he to have the income therefrom for and during the period of his natural lifetime.... Upon the death of James O. Walker as the life tenant, or upon my death if my brother James O. Walker shall not have survived me [at this point in her will, Mary specified a procedure for sale of her real estate to family members]. If none of the Walker family members above named desire to purchase the land it shall be sold by my Personal Representative in whatever manner he shall deem to be for the best interest of my estate. My Personal Representative, if a Walker family member herein named, shall not be disqualified from buying the land by reason of his fiduciary capacity. The proceeds realized from the sale of the land shall be distributed to the persons and in the manner directed in paragraph VI of this will.

VI

All of the rest, residue and remainder of my estate ... shall be sold and converted to cash by my Personal Representative.... Whenever my residuary estate has been converted into cash as herein directed the same shall be distributed and I devise said residuary cash estate as follows:

A. If my brother James O. Walker shall survive me, I give and bequeath one-third thereof to him without restriction or reservation. If my brother James O. Walker shall not have survived me, his share of said cash residuary estate shall lapse and be divided to the beneficiaries named in the following sub-paragraph.

B. I give and bequeath the two-thirds remaining of my cash residuary estate to the following nephews and nieces who are living at the time of my death, namely [here, Mary's will listed 13 nieces and nephews as individual devisees]....

Mary's will then designated her nephew Lawrence Walker as personal representative.

At her death, Mary owned the real estate described in paragraph V of her will. Surviving Mary were James O. Walker, Alta Walker, and the 13 nieces and nephews named as devisees in paragraph VI of Mary's will. One of Mary's nephews, Lawrence Walker, was appointed personal representative and, on October 10, 1984, filed in the county court a "FORMAL PETITION FOR COMPLETE SETTLEMENT AFTER FORMAL TESTATE PROCEEDING," alleging:

5. The will of Mary V. Walker, page two, states that James O. Walker shall have a life estate in the real estate owned by Mary V. Walker and as described on page two. The real estate described on page two constitutes all of the real estate that Mary V. Walker owned at the date of her death. The will further states that the real estate is to be appraised at the time of James O. Walker's death by two disinterested appraisers and their values averaged to determine the sale price thereof. The personal representative shall then offer the same at the value so established to only the following Walker family members: [names of family members] and sell it for cash to the one accepting the same.

On page three of the will, Mary V. Walker's will further states that the proceeds realized from the sale of the land shall be distributed to the persons and in the manner directed in Paragraph VI of the will. n page three, Paragraph VI of the will, the will states that whenever the residuary estate has been converted into cash, the same shall be distributed and devised one-third to James Walker, provided he is living at the date of Mary V. Walker's death, and the remaining two-thirds equally to the following nieces and nephews who are living at the time of Mary V. Walker's death, namely [names of 13 nieces and nephews], "the same to be divided equally between the named beneficiaries who were living as of the time of my death."

The personal representative interprets the directions of Mary V. Walker to direct and authorize that after the death of James O. Walker and after the real estate is converted to cash that the proceeds thereof would be divided equally among the nieces and nephews named above, namely [nieces and nephews] in equal shares, so that each of the persons named above would each receive a one-thirteenth share of the net sales proceeds of the real estate sold after James O. Walker's death. All thirteen of the persons so named in Mary V. Walker's will are alive at this time, but in the event one of them should die prior to James O. Walker, it would appear from a reading of the will that Mary V. Walker intended that each survive only beyond her death and there is no requirement that any of them survive James O. Walker, so that in the event one of them should predecease James O. Walker, his or her share shall not lapse but shall go to his or her heirs by the right of representation.

At the conclusion of his petition, the personal representative requested that the court

D. Enter an order construing the will of Mary V. Walker so that after the death of James O. Walker and the eventual conversion of the real estate to cash, that the net sales proceeds shall be divided, a one-thirteenth share each, to [nieces and nephews], and in the event one of them predeceases James O. Walker, his or her share shall not lapse but shall go to his or her heirs by right of representation.

The "CERTIFICATE OF SERVICE" incorporated into the petition recites that the personal representative mailed a copy of his petition to each of the 13 nieces and nephews, including himself, but not to James O. Walker. A "notice" was properly published in the appropriate newspaper, namely, notice that the personal representative had filed a petition for complete settlement and that a hearing on such petition would be held on November 1. A copy of that notice, as published on October 11, was mailed to James O. Walker.

On October 31 the personal representative filed a "SCHEDULE OF DISTRIBUTION" reflecting James O. Walker's life estate in Mary's real estate and a one-third interest in Mary's residuary estate. The schedule of distribution also reflected the $200 devise to Alta Walker. Additionally, the personal representative's schedule of distribution recited that each of Mary's 13 nieces and nephews had a " 1/13 of 2/3 of Residue" and a " 1/13 remainder interest [in Mary's real estate] subject to sale of same upon James Walker's death, all as set forth in Mary Walker's Will."

A hearing on the personal representative's petition was held on November 1. The record does not indicate that any evidence was adduced in reference to the petition and does not identify persons attending that hearing. After considering the personal representative's petition, the associate county judge, who, both parties agree, was not an attorney at law, entered a "FORMAL ORDER FOR COMPLETE SETTLEMENT AFTER FORMAL TESTATE PROCEEDING," which stated:

D. The Personal Representative be, and hereby is authorized and directed to deliver and distribute title and possession of the assets of the estate...