In re Estate of Mecello

• Decision Date: 07 September 2001
• Docket Number: No. S-00-141.,S-00-141.
• Citation: 633 N.W.2d 892,262 Neb. 493
• Parties: In re ESTATE OF Helen R. MECELLO, also known as Helen R. Geringer, deceased. Joseph R. Kitta, Appellee and Cross-Appellant, v. George R. Geringer, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

633 N.W.2d 892

262 Neb. 493

In re ESTATE OF Helen R. MECELLO, also known as Helen R. Geringer, deceased.

Joseph R. Kitta, Appellee and Cross-Appellant, v. George R. Geringer, Appellant and Cross-Appellee.

No. S-00-141.

Supreme Court of Nebraska.

September 7, 2001.

Francis R. Pane and, on brief, Lisa M. Meyer, Omaha, of Gaines, Pansing & Hogan, for appellant.

William Stillmock, Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, Justice.

NATURE OF CASE

This is an appeal from the Douglas County Court, which denied the admission to probate of two wills allegedly executed by Helen R. Mecello (Mecello). The proponent of the 1996 will, Joseph R. Kitta (Kitta), offered an initialed copy of the will because the original could not be found. The proponent of the 1991 will, George R. Geringer (Geringer), offered a signed original.

The trial court found that both wills were duly executed and that the 1996 will revoked the 1991 will. However, the trial court also found that because the original 1996 will could not be located, it was presumed that Mecello had destroyed the instrument animo revocandi. Geringer has appealed, and Kitta has cross-appealed. We moved this matter to our docket pursuant to our statutory authority to regulate the caseloads of this court and the Nebraska Court of Appeals.

SCOPE OF REVIEW

An appellate court reviews probate cases for error appearing on the record made in the county court. In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).

When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

FACTS

Mecello died on January 5, 1999. Geringer, Mecello's stepson, filed an "Application for Appointment of Special Administrator in Informal Proceedings" on January 6. On January 8, an "Amended Appointment of Special Administrator" was entered by the trial court, indicating that appointment was necessary to, inter alia, obtain access to Mecello's safe-deposit box. On February 4, Geringer filed an "Application for Informal Adjudication of Intestacy ... and Appointment of Personal Representative."

On February 19, 1999, attorney David Kolenda filed an affidavit with the trial court stating that he had prepared a will for Mecello and that she had executed said will on June 18, 1996 (the 1996 will). Attached to the affidavit was a copy of the 1996 will, which copy Mecello had allegedly initialed rather than signed.

On April 2, 1999, Kitta filed a petition for formal probate of the 1996 will and appointment of a personal representative. On April 5, 1999, Geringer petitioned for formal probate of a will dated June 25, 1991 (the 1991 will), and appointment of a personal representative. The actions were consolidated on the motion of the parties.

At trial, Geringer and his wife, Patricia Geringer, testified that some time in late February or early March 1999, they and their daughter went through Mecello's house and discovered a safe. Inside the safe, they discovered the 1991 will with a note allegedly stapled to it, which note Geringer tore off. The note read: "Ron[,] This is my will (dated June 25, 1991). All others are Revoked! [signed] Helen R Mecello May 9, 1998 Mom."

In summary, the 1991 will devised $10,000 each to Geringer, Kerri Sibert, Scott Geringer, and Christopher Geringer; $5,000 to Brandon Sibert; $1,000 to St. Gerald's Catholic Church; and the remainder to Samuel Mecello, Mecello's husband, if living, otherwise to the cash devisees in proportion to their cash devises. The 1991 will revoked all previous wills and codicils.

The 1996 will devised $25,000 to Kathryn Kitta; $20,000 to Louis Mecello; $15,000 to the American Red Cross; $10,000 each to Kitta, Edward Kitta, Catholic Relief Services, the Salvation Army, and the Child Saving Institute; $5,000 each to Mary Kitta Scheebuger, Rick Sibert, Mary Kitta, Food for the Poor, Inc., the Visiting Nurse Association of Omaha, Nebraska, and the Salesian Society of St. John Bosco; $3,000 each to Richard Kitta, Thomas Kitta, Michael Kitta, Albert Kitta, Carol Kitta Gray, Debbie Kitta Wieczorak, Lori Kitta Long, Nicholas Sibert, and Brandon Sibert; $2,500 each to Emily Ryan and Mary Ridge; $2,000 to Marinell Garnatz; a certificate of deposit to St. Gerald's Catholic Church; and a certificate of deposit to Trinity Broadcasting Network. The will directed the personal representative to sell Mecello's house and give $10,000 to Christopher Geringer, with the remaining proceeds to go to Geringer. The will bequeathed Mecello's automobile to Daryl Greger. The residue of Mecello's estate was to go to St. John's Cemetery. The will revoked all previous wills and codicils.

At trial, Kolenda testified that he met with Mecello at his office on June 18, 1996. After they discussed and reviewed the will and determined that it met with Mecello's approval, Kolenda arranged for another witness to be present for the signing. He testified that Mecello signed the will in the presence of himself, the other witness, and his secretary, who would have notarized their signatures. Although Kolenda did not recall the name of the second witness, he stated that there were definitely two witnesses and that his secretary notarized their signatures. A copy of the will that was executed on that date was initialed by Mecello. This copy, marked as exhibit 7, was eventually sent to the First National Bank of Omaha (First National Bank). Kolenda stated that he would have asked Mecello whether this was her last will and testament and would have also asked her whether she was executing this will as a free and voluntary act for the purposes expressed therein.

Kolenda stated that it was his opinion that Mecello was of sound mind and that she knew the extent "of her family and her relatives and the natural objects of her bounty." As a subscribing witness, he watched Mecello sign the document and execute it as her last will and testament in the presence of the other witness. In addition, Kolenda testified that a self-proving affidavit was also executed by himself, Mecello, and the other witness in the presence of his secretary, who then notarized the self-proving affidavit along with the will.

The affidavit provided:

1. That the Testatrix declared, published and signed such instrument as her Will in the presence of each of [the witnesses] and that [the Testatrix] declared, published, and signed each instrument willingly, or directed another to sign for her, and that the Testatrix executed such instrument as her free and voluntary act for the purposes therein expressed.

2. That each of us, witnesses, signed the Will as a witness in the presence and hearing of the Testatrix and at her request.

3. That each of us, witnesses, signed the Will as a witness in the presence of each other.

4. That to the best knowledge of each of us, at all times during the activities stated above:

(a) The Testatrix was 18 years old or more, or was not a minor;

(b) The Testatrix was of sound mind; and

(c) The Testatrix was under no constraint or undue influence.

After the will and self-proving affidavit were executed, Kolenda called Thomas Gaughen, a trust officer at First National Bank, and told him that a copy of the will would be sent to him because the bank was named as personal representative. Gaughen told Kolenda that a copy of the will initialed by Mecello would suffice. Kolenda stated that this was the reason that Mecello's initials were on the copy of the will that was sent to First National Bank.

Gaughen testified that he received "an unexecuted copy" of the 1996 will. Several other witnesses testified to conversations they had had with Mecello regarding this will and her intentions concerning the disposition of her property. A more detailed discussion of these facts will be set forth in the analysis section of this opinion.

Janet L. Huff, a safe-deposit clerk at the Norwest Bank in Ralston, testified that Mecello maintained a safe-deposit box there. Geringer contacted Huff prior to January 8, 1999, with regard to accessing the box. Since Mecello was the only signator for the box, Huff told Geringer that she would need a "court paper" granting him access. When Huff refused to let Geringer enter the box, Geringer replied that he was Mecello's son. Huff still refused to allow Geringer into the box because his name was not on the "access card."

On January 8, 1999, Geringer and his wife returned to the Norwest Bank with a "Letter of Special Administrator" allowing him access to the safe-deposit box. Huff testified that the Geringers were alone when they opened and examined the box in a privacy room. When the Geringers returned the box to Huff, it was empty. Geringer then surrendered the key and signed a contract closing the box.

Geringer testified that following Mecello's death, as special administrator of her estate, he entered her home and found the 1991 will and the attached handwritten note described above. Patricia Geringer testified that she also found a 1985 will in a stack of papers next to a shredder on Mecello's desk. On the front page of the will, a handwritten note across the text of the will states: "This Will is Void[.][T]here is a New one Made[.] Febr 14—1998 [signed] Helen R Geringer Mecello." Patricia Geringer testified that the 1985 will, marked as exhibit 15, was in the same condition as when she found it. Geringer offered exhibit 15 into evidence. Kitta's objection on the basis of insufficient foundation was sustained.

The trial court found that Mecello executed a will on June 25, 1991; that Geringer, the proponent of the 1991 will, had met the burden of establishing testamentary capacity and venue; and that the 1991 will was duly executed. The trial court also found that Mecello executed a will on June 18, 1996, in the law offices of Kolenda;...