IN RE ESTATE OF EDWARD J. STUCHLIK, JR., DECEASED, AND IN RE TRUST CREATED BY EDWARD J. STUCHLIK, JR., DECEASED. JOHN E. STUCHLIK, APPELLANT,
MARGARET STUCHLIK, PERSONAL REPRESENTATIVE AND COTRUSTEE, AND KENNETH STUCHLIK, COTRUSTEE, APPELLEES
Appeal from the County Court for Saunders County: PATRICK R. MCDERMOTT, Judge. Supplemental opinion: Former opinion modified. Motions for rehearing overruled.
Paul R. Elofson, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellant.
Richard L. Rice and Andrew C. Pease, of Crosby Guenzel, L.L.P., for appellees.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ.
Case No. S-13-1118 is before this court on the motions for rehearing filed by the appellant and the appellees regarding our opinion in In re Estate of Stuchlik. We overrule the motions, but we modify the opinion as follows:
In the section of the opinion titled " II. BACKGROUND," under the subheading " 4. Activities of Cotrustees," we withdraw the first and second paragraphs and substitute the following:
After Stuchlik's death, Margaret, as the surviving joint tenant, conveyed her interest in the residence she shared with Stuchlik--which was property different from the " home place" --to Edward, Voboril, and Kenneth as tenants in common, subject to a life estate granted to [290 Neb. 393] Margaret. As the warranty deed states, " [Margaret], a single person, Grantor, in consideration of One Dollar ($1.00) and other good and valuable consideration, conveys to Grantees, [Edward, Voboril, and Kenneth], as tenants-in-common, an undivided one-half interest in and to the following described real estate . . . ." The warranty deed then purports to convey the residence from Margaret to Edward, Voboril, and Kenneth.
In January 2013, Margaret, Kenneth, and Edward entered the home place premises without the consent of John. They were accompanied by a county sheriff's deputy who testified that he did so " through a civil standby that [he] was requested to do sometime at the beginning of this year." The county sheriff's deputy testified that he was directed by the sheriff to accompany Margaret and her two children " to make sure that there's no sort of altercation between the two parties." Margaret, Kenneth, and Edward entered the residence and changed the locks. Since the retaking of the home place, Margaret, Kenneth, and Edward have indicated to John that they intend to demolish the residence. John alleges that Margaret's and Kenneth's treatment of his personal property in the residence constituted a conversion.
In the section of the opinion designated " V. ANALYSIS," under the subheadings " 2. Removal as Cotrustees," " (a) Contract for Wills or Oral Trust," and " (i) Contract for Wills," we withdraw the first paragraph and substitute the following:
The county court did not err in finding that even if there was enough evidence to support a contract for wills, such a contract was not relevant to this action. John argues that Margaret had entered into a contract for wills with Stuchlik before his death and that the two had contracted to equally divide the trust between their three sons. However, as the county court recognized, the proper case for a breach of a contract for wills is not a probate action against the decedent's estate, but, rather, is [290 Neb. 394] an action for breach of contract or an action against the breaching party's estate. Therefore, a contract for wills is
wholly irrelevant to this action to remove ...