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,
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
__:__. 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
Statutes. Statutory interpretation presents
a question of law.
Judgments: Appeal and Error. Appellate
courts independently review questions of law decided by a
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.
__ . Under the Uniform Probate Code, the statute of
limitations is self-executing and ordinarily begins to run
upon the decedent's death.
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.
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.
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
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
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.
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.
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.
. Equitable tolling requires no fault on the part of the
. Equitable tolling requires due diligence on the part of the
from the District Court for Pierce County: Mark A. Johnson,
Neb. 669] George H. Moyer, of Moyer & Moyer, for
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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 ...