Estate of West, In re, 85-822

CourtSupreme Court of Nebraska
Citation415 N.W.2d 769,226 Neb. 813
Docket NumberNo. 85-822,85-822
PartiesIn re ESTATE OF Loyd WEST, Deceased. Theo Lewis WEST, Personal Representative of the Estate of Loyd West, Deceased, Appellant, v. Donna KARNES, Tax Commissioner for the State of Nebraska, Appellee.
Decision Date13 November 1987

Syllabus by the Court

1. Legislature: Taxation: Decedents' Estates. Whether the Nebraska estate or excise tax, Neb.Rev.Stat. § 77-2101.01 (Reissue 1986), is imposed on the transfer of every Nebraska resident's estate is a matter of legislative prerogative exercisable only by the Nebraska Legislature and not exercisable by any other legislature outside the State of Nebraska.

2. Legislature: Taxation: Decedents' Estates. Although the Nebraska estate tax is correlative in operation with the federal estate tax law, inasmuch as the amount of the Nebraska estate tax is computed, and eventually determined, by reference to the state death tax credit used in fixing federal estate tax liability, the Nebraska estate tax is, nevertheless, authorized and imposed in a statute enacted by the Nebraska Legislature and does not exist 3. Legislature: Taxation: Decedents' Estates. While Neb.Rev.Stat. § 77-2102.01 (Reissue 1986) sets out the method for computing the amount due as the Nebraska estate tax and refers to the federal estate tax law in specifying the computation, existence of the Nebraska estate tax results only from, and depends entirely on, the power of the Nebraska Legislature to enact legislation imposing a tax on the estate of every Nebraska resident--a legislative power exercisable irrespective of, and independent from, federal estate tax law, but exercised with correlated reference to federal law as a practical matter of convenience to the estate and economy for the state. The Nebraska Legislature, not the United States, has statutorily dictated that the credit for state death taxes in the federal estate tax scheme is the basis for computing the Nebraska estate tax. Therefore, § 77-2101.01 is not an unconstitutional delegation of legislative power.

independent of such legislative act of the Nebraska Legislature.

4. Constitutional Law: Standing. For standing to contest constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the statute in question and must show that, as a consequence of the statute's alleged unconstitutionality, the contestant is deprived of a constitutionally protected right.

5. Constitutional Law: Standing. Courts will not decide a question concerning the constitutionality of a statute unless such question has been raised by a litigant whose interests are adversely affected by the questioned statute. A court has no power to summarily pass upon the constitutionality of a legislative act, but has power only to decide justiciable disputes. A court's power to declare a statute unconstitutional may be invoked only when the challenged statute affects a litigant's right under the Constitution.

6. Actions. The province of a court is to decide real controversies and to determine rights actually controverted, and the judicial power does not extend to the determination of abstract questions.

7. Motions to Vacate: Fraud: Equity. For the purpose of Neb.Rev.Stat. § 25-2008 (Reissue 1985), equity will afford relief against a judgment procured by fraud of the successful party, when it appears that the injured party did not, in the exercise of reasonable diligence, discover, within the time allowed for commencing a statutory proceeding to vacate such judgment, sufficient evidence of the fraud to warrant a reasonable belief and expectation that such a proceeding would be successful, if begun.

8. Motions to Vacate: Fraud: Equity. As authorized under Neb.Rev.Stat. § 25-2001(4) (Reissue 1985), a proceeding to vacate a judgment is not an equitable cause of action based on fraud, but is a remedy at law or legal remedy conferred by statute. Whether the relief is sought by a motion addressed to a court's equity jurisdiction or a petition based on a statute which supplies a legal remedy, vacating a judgment or order is equitable in character, available or administered on equitable principles, and extended on equitable terms.

9. Motions to Vacate: Fraud: Equity. A court's jurisdiction based on Neb.Rev.Stat. § 25-2001 (Reissue 1985) is concurrent with a court's independent equity jurisdiction.

10. Motions to Vacate: Fraud: Proof. Under Neb.Rev.Stat. § 25-2001(4) (Reissue 1985), to vacate a judgment or order after the term in which the judgment or order was made, the party seeking to vacate such judgment or order allegedly obtained through fraud practiced by the successful party must prove: (1) The judgment or order has been obtained or produced through fraud; (2) it is inequitable or against good conscience to enforce the judgment or order; (3) failure to secure a just decision is not the result of the vacating party's fault, neglect, or lack of diligence; and (4) the party seeking to vacate has exercised due diligence in discovering the fraud which resulted in the judgment or order in question.

11. Motions to Vacate: Fraud: Appeal and Error. Under Neb.Rev.Stat. § 25-2001(4) (Reissue 1985), in reviewing a 12. Fraud: Words and Phrases. Collude means to connive with another; conspire; or plot. Collusion is a secret agreement or secret cooperation for a fraudulent or deceitful purpose, such as a secret agreement between two or more persons to defraud a person of his rights, often by the forms of law.

trial court's action in vacating, or refusing to vacate, a judgment or order made in a previous term of court and [226 Neb. 815] allegedly obtained through fraud practiced by the successful party, the Supreme Court will uphold and affirm the trial court's action in the absence of an abuse of discretion.

13. Motions to Vacate: Fraud. As a general rule, if a judgment has been obtained through fraud and collusion, the judgment may be vacated or set aside in a subsequent action, especially where the court was imposed upon thereby and the complaining party was prevented from having his interests fairly presented or fully considered by the court.

14. Motions to Vacate: Fraud: Attorneys at Law. Setting aside or vacating a judgment may be an appropriate remedy where a judgment was obtained against a litigant by collusion between the attorney for the litigant and the adversary of the litigant.

15. Motions to Vacate: Attorneys at Law. If a party's lawyer colludes in a material and factual misrepresentation which otherwise constitutes an intentional fraud or deceit and results in a judgment adverse to the interests of the party represented by such collusive lawyer, relief by vacating such fraudulently obtained judgment is available under Neb.Rev.Stat. § 25-2001(4) (Reissue 1985) to the injured party.

Paul E. Galter, Lincoln, and, on brief, Frank Roubicek, Creighton, for appellant.

Robert M. Spire, Atty. Gen., and L. Jay Bartel, Lincoln, for appellee.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

On petition by the Tax Commissioner of the State of Nebraska, and pursuant to Neb.Rev.Stat. § 25-2001(4) (Reissue 1985), the county court for Knox County set aside its inheritance tax order entered in the probate proceedings for the estate of Loyd West, deceased. Theo Lewis West, as personal representative of the estate, appealed to the district court, which affirmed the county court's judgment setting aside the inheritance tax order. We affirm the district court's judgment.

DETERMINATION OF DEATH TAXES

On September 7, 1980, Loyd West, a resident of Knox County, died testate and had devised his estate to his surviving widow, Theo Lewis West, and his four children. After issuance of "Letters of Personal Representative" to Theo, on May 8, 1981, in the county court, Theo filed an inventory which reflected that Loyd's gross estate, located entirely within Nebraska, had a value of $2,319,355 at the date of Loyd's death. Frank Roubicek was the attorney representing Theo as personal representative, while John Thomas was the county attorney for Knox County.

Applicable Death Tax Statutes. The rate of inheritance tax for a transfer to an immediate relative, such as a widow or child, is 1 percent of the clear market value of property in excess of $10,000 taken by such recipient; provided, the succession interest of the surviving spouse is exempt from inheritance tax. See Neb.Rev.Stat. § 77-2004 (Reissue 1986). Deductions for determination of the inheritance tax are itemized in Neb.Rev.Stat. § 77-2018.04 (Reissue 1986).

An additional death tax, namely, the Nebraska or state estate tax, is imposed under Neb.Rev.Stat. § 77-2101.01 (Reissue 1986), which states in appropriate part:

[I]n addition to the inheritance taxes imposed by the laws of the State of Nebraska, there is levied and imposed an estate or excise tax upon the transfer of the estate of every resident decedent and To compute the amount due the United States for the federal estate tax, I.R.C. § 2011 (1982), as a part of the "Federal Revenue Act" mentioned in § 77-2101.01, allows credit for state death taxes paid up to a maximum credit specified in the federal statute. Therefore, the Nebraska estate tax is computed by reference to, or designed to "pick up," the difference between the maximum credit allowance under the Federal Revenue Act and the amount actually paid as the Nebraska inheritance tax.

upon the value of any interest in Nebraska real estate of a nonresident decedent. The amount of such tax shall be the amount by which the maximum credit allowance upon the tax imposed by the Federal Revenue Act imposing such tax shall exceed the aggregate amount of all estate, inheritance, legacy, or succession taxes paid to any state or territory or the District of Columbia, or any possession of the United States, in respect of any property subject to such tax.

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21 cases
  • State v. Monastero
    • United States
    • Nebraska Supreme Court
    • 17 juni 1988
    ...only when the challenged statute affects a litigant's right under the Constitution. [Citations omitted.] In re Estate of West, 226 Neb. 813, 829-30, 415 N.W.2d 769, 780-81 (1987). " 'The province of a court is to decide real controversies and to determine rights actually controverted, and "......
  • State v. Crowdell
    • United States
    • Nebraska Supreme Court
    • 16 februari 1990
    ...[Citations omitted.]" State v. Monastero, 228 Neb. 818, 837-38, 424 N.W.2d 837, 849-50 (1988) (quoting from In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987)). See, also, State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985); State v. Irwin, 208 Neb. 123, 302 N.W.2d 386 (1981). Bo......
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    • United States
    • Nebraska Supreme Court
    • 24 februari 2012
    ...he or she exercised due diligence at the former trial and was not at fault or negligent in the failure to secure a just decision.19 In In re Estate of West,20 we said that in order to vacate a judgment or order under § 25–2001(4) because of fraud, the movant must prove: (1) the judgment or ......
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    • Nebraska Supreme Court
    • 26 februari 1993
    ... ... That man then proceeded to enter the Cowans residence through a rear door on the west side of the house. At that time, the officers decided to approach Cowans and Baltimore, who was still in Cowans' house ... Police Entry into ... Nuernberger, 230 Neb. 921, 925, 434 N.W.2d 511, 515 (1989). Accord In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987). Thus, a court decides real controversies and determines rights actually controverted, and does not ... ...
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