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In re Guardianship and Conservatorship of Kaiser

Supreme Court of Nebraska

January 13, 2017

In re Guardianship and Conservatorship of Loyola Jane Kaiser, an incapacitated and protected person.
v.
PAULA KAISER-ASMUS and Carol Harris, APPELLEES. Heartland Trust Company, Conservator, APPELLANT,

         1. Guardians and Conservators: Appeal and Error. An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record in the county court.

         2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

         3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         4. Statutes: Legislature: Presumptions. In enacting an amendatory statute, the Legislature is presumed to have known the preexisting law.

         5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         6. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.

         Appeal from the County Court for Fillmore County: Michael P. Burns, Judge. Affirmed.

          Joseph H. Murray, PC, L.L.O., of Germer, Murray & Johnson, for appellant.

          Joseph N. Bixby and Paul N. Bixby, Senior Certified Law Student, of Bixby Law Office, for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         NATURE OF CASE

         The appellant, Heartland Trust Company (Heartland), was appointed as the conservator for Loyola Jane Kaiser. After the death of Loyola's husband, Albert A. Kaiser, Heartland filed an application in the county court for Fillmore County seeking authority to file the elective share it stated was due to Loyola as Albert's surviving spouse. After a hearing, the county court denied Heartland's application. Heartland appeals. We affirm.

         STATEMENT OF FACTS

         Albert and Loyola were married and had one child together, Paula Kaiser-Asmus (Paula). Loyola had two children from a previous marriage, James Votipka (James) and Carol Harris (Carol). The record does not specifically indicate when Albert and Loyola were married, but the county court noted in its order that "Paula was born in 1959, suggesting that the marriage between Albert and Loyola . . . spanned over many decades."

         Albert and Loyola both executed wills on December 16, 2005, and these wills appear to mirror each other. The wills provided a life estate to the surviving spouse for certain property and devised all the residue of their property interests to the surviving spouse. They both also devised remainder interests in certain property to James, Carol, and Paula.

         Loyola did not modify her 2005 will, but Albert executed a new will and a living trust on March 19, 2014. Albert's 2014 will named Loyola as his spouse, Paula as his child, and Carol as his spouse's child, and it stated that "[a]ll references to 'my children' in this Will are to these children." Albert's 2014 will further stated: "My spouse has a son, JAMES . . .; that I have intentionally and with full knowledge chosen not to provide for him or his descendants." Albert's 2014 will distributed all of his property into his living trust.

         Similar to his 2014 will, Albert's living trust identified Loyola as his spouse, Paula as his child, and Carol as his spouse's child, and it stated that "[a]ll references to 'my children' in this Agreement are to these children." The living trust specifically excluded James, stating that Albert had "intentionally and with full knowledge chosen not to provide for [James] or his descendants." "Article Nine" of Albert's living trust is titled "Distribution of My Trust Property, " and it specifically designated Paula and Carol as the only two beneficiaries of the trust, with each receiving a 50-percent share of the trust upon Albert's death. Neither Loyola nor James were included as a beneficiary of Albert's trust.

         On July 23, 2014, while Albert was still alive, the county court filed an order and letters in which it appointed ...


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