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In re Estate of Fuchs

Supreme Court of Nebraska

September 8, 2017

In re Estate of Gilbert R. Fuchs, deceased.
Julie K. Albin and Jason R. Fuchs, appellees. Jim R. Fuchs, Copersonal Representative of the Estate of Gilbert R. Fuchs, deceased, appellant, and Joseph M. Fuchs, Copersonal Representative of the Estate of Gilbert R. Fuchs, deceased, appellee,

         1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         2. __:__. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         3. Statutes. Statutory interpretation presents a question of law.

         4. Judgments: Appeal and Error. Appellate courts independently review questions of law decided by a lower court.

         5. Decedents' Estates: Limitations of Actions. Under the Uniform Probate Code, the general rule is that no appointment or testacy proceeding may be commenced more than 3 years after the death.

         6. __: __ . Under the Uniform Probate Code, the statute of limitations is self-executing and ordinarily begins to run upon the decedent's death.

         7. Decedents' Estates: Statutes: Appeal and Error. In interpreting the various sections of the Nebraska Probate Code, an appellate court may examine the comments to the code.

         [297 Neb. 668] 8. 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.

         9. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         10. Estoppel: Words and Phrases. Equitable estoppel is a bar which precludes a party from denying or asserting anything to the contrary of those matters established as the truth by his or her own deeds, acts, or representations.

         11. Estoppel: Fraud. The elements of equitable estoppel are, as to the party estopped: (1) conduct which amounts to a false representation or concealment of material facts, or at least which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. As to the other party, the elements are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his or her injury, detriment, or prejudice.

         12. Summary Judgment: Evidence. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for the purposes of summary judgment; the evidence must be sufficient to support an inference in the nonmovant's favor without the fact finder engaging in guesswork.

         13. Limitations of Actions. The doctrine of equitable tolling permits a court to excuse a party's failure to comply with the statute of limitations where, because of disability, irremediable lack of information, or other circumstance beyond his or her control, the plaintiff cannot be expected to file suit on time.

         14. __ . Equitable tolling requires no fault on the part of the defendant.

         15. __ . Equitable tolling requires due diligence on the part of the claimant.

         Appeals from the District Court for Pierce County: Mark A. Johnson, Judge. Affirmed.

         [297 Neb. 669] George H. Moyer, of Moyer & Moyer, for appellant.

          Susan J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O.. for appellees Julie K. Albin and Jason R. Fuchs.

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

          FUNKE, J.

         Jim R. Fuchs, a son of Gilbert R. Fuchs and a copersonal representative of Gilbert's estate, appeals from the district court's order that dismissed his amended application to probate Gilbert's will. Jim alleged that he learned about Gilbert's will more than 3 years after he and his brother commenced an informal probate proceeding to administer Gilbert's intestate estate. The district court granted summary judgment to Gilbert's other two children, who had objected to probating the will, and dismissed the amended petition under Neb. Rev. Stat. § 30-2408 (Reissue 2016) as time barred.


         Factual Background

         Gilbert died on May 29, 2012. At the time of his death, Gilbert was unmarried and was survived by his four children: Jim, Joseph M. Fuchs, Julie K. Albin, and Jason R. Fuchs.

         Gilbert was living in Norfolk, Nebraska, when he died, but he owned two houses, one in Norfolk and the other on the family farm. Both homes were in a state of disarray, with papers strewn all about.

         Gilbert did not keep his important documents well organized, often leaving them lying about his houses or piled in his cars. Some of Gilbert's cars were sold after his death, and the subsequent purchasers would mail to the children various documents and photographs they had found inside the vehicles.

         Either before or after his death, each of the children had access to Gilbert's homes. Jim, Julie, and Jason searched [297 Neb. 670] Gilbert's homes for his important documents, such as a will, deeds, and car titles. Jim attempted to find Gilbert's will by calling attorneys in the area and checking for safe deposit boxes at banks Gilbert had done business with. Both Jim and Joseph checked with surrounding courthouses for the presence of a will. Julie and Jason cleaned out Gilbert's houses and placed papers and other items in storage totes, two of which Julie took back to her home in Chicago, Illinois. Despite the parties' efforts, no will was found.

         On July 8, 2015, Joseph received a plain brown envelope. The envelope was postmarked July 6, 2015, from Omaha, Nebraska. Inside the envelope, Joseph found Gilbert's last will and testament, dated January 26, 1987. In that will, Gilbert left all his property to Jim and named Jim as his personal representative. Joseph delivered the will to Jim.

         Lower Court Proceedings

         On June 12, 2012, Jim and Joseph filed an "Application for Informal Appointment of Personal Representative in Intestacy" in the county court for Pierce County, Nebraska. In their application, they alleged that after the exercise of reasonable diligence, they were unaware of any unrevoked testamentary instrument relating to property having a situs in the state. As a result, they were appointed as copersonal representatives.

         The matter was still being probated, when, on July 15, 2015, Jim filed a petition for the formal probate of Gilbert's 1987 will. Julie and Jason (hereinafter collectively the objectors) objected to the probate and Jim's appointment. On August 24, Jim transferred his probate application from county court to district court.

         In September 2015, the objectors filed a supplemental answer to Jim's application. They alleged that in June 2012, Jim and Joseph applied for informal appointment as copersonal representatives of Gilbert's intestate estate and received that appointment on the same day; that Jim's probate application [297 Neb. 671] was time barred under § 30-2408 because it had been more than 3 years since Gilbert's death and the informal appointment proceedings; that Jim was estopped from seeking a probate by a memorandum of understanding, which Jim had signed while acting as a copersonal representative of Gilbert's intestate estate; and that because Jim and Joseph had already sold estate property and made partial distributions of the estate, Gilbert's will could no longer be probated. They also objected to Jim's appointment as copersonal representative, because they had previously petitioned to remove Jim and Joseph as informal copersonal representatives, which petition was still pending before the county court.

         The objectors moved for summary judgment. Jim then moved to file an amended application in which he had alleged for the first time that Joseph showed him Gilbert's 1987 will on July 13, 2015, 2 days before Jim filed his original application for a formal probate. He alleged that Joseph received Gilbert's will in the mail on July 8, 2015, in an envelope that was postmarked in Omaha but had no return address. He alleged that when Gilbert died, he had two residences and his legal documents were strewn about in both houses. He believed that one of the persons who had helped search for a will had found one and then waited to ...

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