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In re Estate of Loftus

Court of Appeals of Nebraska

October 23, 2018

In re Estate of Susan A. Loftus. Angela Loftus, Personal Representative of the Estate of Susan A. Loftus, deceased, appellee,
v.
Daniel Loftus, Jr., and Teri Loftus McClun, appellants.

         1. Decedents' Estates: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court.

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

         3. ___: ___ . An appellate court, in reviewing a judgment for errors appearing on the record, will not substitute its factual findings for those of the trial court when competent evidence supports those findings.

         4. Wills. The requirements of Neb. Rev. Stat. § 30-2327 (Reissue 2016) are satisfied if a will is (1) in writing, (2) signed by the testator, and (3) signed by at least two individuals, each of whom witnessed either the signing or the testator's acknowledgment of the signing of the will.

         5. Statutes: Appeal and Error. The language of a statute 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. ___: ___. Absent anything to the contrary, an appellate court will give statutory language its plain and ordinary meaning. 7. Statutes: Wills. Statutory provisions regarding the manner in which wills must be executed are mandatory and subject to strict construction.

         8. Wills: Witnesses. The attestation required of witnesses to a will consists of their seeing that those things exist and are done which the law requires to exist or to be done in order to make the instrument, in law, the will of the testator.

         [26 Neb.App. 440] 9. Statutes: Wills: Words and Phrases. Due execution of a will means compliance with the formalities required by the statute in order to make the instrument the will of the testator.

         10. Evidence. Habit evidence makes it more probable that the person acted in a manner consistent with that habit.

         11. Evidence: Proof. Evidence of habit may be the only vehicle available to prove that someone acted in a particular way on a particular occasion, and the lack of detail or specificity goes to the weight and credibility to be placed on the testimony by the factfinder.

         12. Witnesses: Testimony. The credibility of a witness is a question for the trier of fact, and it is within its province to credit the whole of the witness' testimony, or any part of it, which seemed to it to be convincing, and reject so much of it as in its judgment is not entitled to credit.

          Appeal from the County Court for Sarpy County: Robert C. Wester, Judge. Affirmed.

          Bradley A. Boyum, of Boyum Law Firm, for appellants.

          Dean J. Jungers for appellee. Pirtle, ...


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