In re Estate of Breinig, No. A-06-633 (Neb. App. 3/11/2008)
| Decision Date | 11 March 2008 |
| Docket Number | No. A-06-633.,A-06-633. |
| Parties | IN RE ESTATE OF CHARLES A. BREINIG, DECEASED. C. DOUGLAS BREINIG, APPELLANT, v. DENNIS BREINIG, APPELLEE. |
| Court | Nebraska Court of Appeals |
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
C. Douglas Breinig (Douglas) appeals from an order of the county court for Furnas County resolving certain disputed issues in the administration of the estate of Charles A. Breinig. Pursuant to authority granted to this court under Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this case was ordered submitted without oral argument. We find no reversible error and affirm the final order of the county court.
The decedent was survived by his spouse, Mary Jane Breinig, and two sons, Douglas and Dennis Breinig. The decedent's will was brief. Paragraph "FIRST" stated: "I direct that upon my death, my personal representative shall pay all my just debts, funeral expenses, costs of administration and inheritance and estate taxes that may be assessed against my estate waiving any recovery from the legatees." Second, the will specifically devised certain property, including the "home real estate," to Mary Jane; generally devised "the rest of my land, livestock, machinery and equipment in equal shares" to Douglas and Dennis; and devised the residue of the estate to Mary Jane. Finally, the will appointed Douglas and Dennis as copersonal representatives. The court initially appointed Douglas and Dennis as personal representatives, and they filed an inventory, obtained a determination of inheritance tax, filed federal and state estate tax returns, and generally proceeded with the administration of the estate.
On May 18, 2004, Douglas, purportedly acting on behalf of the estate as personal representative, sued Dennis and Dennis' wife in the district court for Furnas County for a judgment on a promissory note allegedly executed by Dennis and his wife to the decedent in May 1998. Douglas alleged that the first installment of the note was to be paid on May 20, 1999, and that Dennis and his wife failed to make that payment or any subsequent payments. Douglas claimed to have made demand upon Dennis and his wife for payment. Douglas alleged that he and Dennis had been appointed as personal representatives of the decedent's estate and that Douglas had requested an accounting of the amount due on the note, but that Dennis had failed to pay the amount due or to submit proof of any payments or credits claimed.
On May 27, 2004, apparently in response to the district court lawsuit, Dennis filed a petition in the county court probate case seeking Douglas' removal as personal representative and other related relief. Attached to the petition as an exhibit is a letter dated May 6, 2004, from Mary Jane to the decedent's estate in care of the original attorney representing both Douglas and Dennis, demanding that the estate assign the promissory note to Mary Jane and agreeing to hold the personal representatives harmless for such assignment.
On June 7, 2004, Douglas petitioned for removal of Dennis as personal representative and for a reimbursement of expenses. Douglas and Dennis each sought restraining orders against the other. On June 14, the county court heard the respective motions for restraining orders. According to the court's filed order, after opening statements and discussion, the parties entered into an agreement for supervised administration and continued the petitions for removal to a later date. On July 30, both Douglas and Dennis submitted written resignations, nominating an attorney from Oxford, Nebraska, as successor personal representative. On September 13, Douglas and Dennis jointly filed an application to appoint the Oxford lawyer as successor personal representative. Mary Jane also joined in the application. The lawyer accepted appointment, and on December 13, letters of personal representative were issued to the successor.
On January 7, 2005, the successor personal representative requested an accounting from each of the prior personal representatives. On February 25, the successor personal representative filed an accounting of her receipts and disbursements. The estate file reflects no further activity until the instant proceedings.
The appeal before us pertains to four pleadings filed in the county court. On August 3, 2005, the successor personal representative filed a motion for instructions regarding disbursement of proceeds from a check from Ag Valley Coop, representing payment of patronage refunds and stock equity of the decedent. She also requested instructions regarding any reimbursement to be made from Dennis to Douglas or Douglas to Dennis for inequitable division of farm real estate, equipment, and machinery distributed in kind during their tenure as copersonal representatives. Finally, she requested instructions regarding whether the promissory note executed by Dennis and his wife passed to Mary Jane.
The second pleading before the county court was a "statement of issues" filed by Dennis on October 14, 2005, purporting to identify issues to be decided at a November 7 hearing. Dennis' statement generally restated the issues set forth in the successor personal representative's motion for instructions and set forth four additional issues: (1) whether Mary Jane's request for assignment in kind of the promissory note should be allowed and whether the estate should substitute Mary Jane as plaintiff, at her request, in the district court lawsuit; (2) whether the estate is responsible for paying costs and fees incurred by Douglas in initiating the district court action; (3) whether Douglas is estopped from challenging valuations and distributions previously agreed upon by him and from seeking reimbursement for taxes and estate expenses paid by him or out of the portion of the estate distributed to him while acting as copersonal representative; and (4) whether Douglas has accounted for and turned over all estate property.
On October 17, 2005, Douglas filed a motion to construe the will, making general allegations regarding disputes concerning "the parties responsible for payment of the expenses of administration, the inheritance taxes, the debts of [the decedent] at his death, and what constitutes the residuary estate devised to Mary Jane." On the same date, Douglas also filed a motion for instructions to the successor personal representative regarding accountings, return of assets improperly distributed, pursuit of the district court lawsuit for collection of the note executed by Dennis and his wife, and reimbursement of Douglas' attorney fees and expenses.
On December 5, 2005, the county court conducted a hearing. The respective parties entered into an oral stipulation of facts, and various documents were received in evidence pursuant to the oral stipulation. To the extent necessary to our analysis, the exhibits and stipulated facts are discussed below. The court took the matters under advisement.
On May 8, 2006, the court's letter decision, which had been signed by the judge, was file stamped and dated by the clerk. On May 18, a more formal order was entered by the court. The court determined that the Ag Valley Coop patronage refund and stock equity payments were assets of the estate and should be considered part of the residuary estate passing to Mary Jane. The court also determined that the residuary estate may be responsible for payment of costs and other expenses and ordered the successor personal representative to retain the funds in the estate until all expenses were paid. The court ordered that any funds remaining after the expenses were paid were to be distributed to Mary Jane as residuary devisee. The court found that the valuations and distributions in kind were equitable and directed the successor personal representative to approve the valuations and distributions and to deny any reimbursement for alleged inequitable division of assets. The court found that the promissory note given to the decedent by Dennis and his wife, and any unpaid balance upon the note, was an asset of the estate. The court directed the personal representative to pursue the note to determine its value and not to distribute any proceeds recovered from the note until administrative expenses were paid. The court found that the will expressed the intent of the decedent and was not ambiguous. The court found that the language in paragraph "FIRST" that waives "any recovery from the legatees" is frustrated by the limited assets of the estate and is superseded by the Nebraska Probate Code. The court denied the request to construe the will and any further orders based upon the construction. The court found that Douglas' request for instructions to the personal representative was based on a favorable ruling on the motion for construction of the will and determined that as the motion to construe had been denied, the actions requested were limited. The court ordered the successor personal representative's final accounting to address the issues concerning an accounting of all distribution of property, an accounting of taxes and expenses of administration, and an accounting of the decedent's debts.
The court explained that Neb. Rev. Stat. § 30-24,100 (Reissue 1995) mandates that residuary devises are to be spent for costs and expenses of administration before specific devises. The court explained that Douglas and Dennis had accepted distributions of farm real estate, equipment, and machinery as individuals and in fulfillment of the specific devises to each of them in their father's will. The court determined that acceptance of the distributions constituted agreement by each brother that the distributions were fair and equal as set out in the will. The court directed the successor personal representative to approve the valuations and distributions in kind. The letter decision was file stamped and dated by the clerk of the county court on May...
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