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Brinkman v. Brinkman

Supreme Court of Nebraska

February 22, 2019

Nicole Brinkman, appellant,
Seth Michael Brinkman and kimberly millus, personal representative of the Estate of Michael R. Brinkman and as parent and next best friend of seth Michael Brinkman, a minor, appellees.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when different state courts have concurrent original jurisdiction over the same subject matter, basic principles of judicial administration require that the first court to acquire jurisdiction should retain it to the exclusion of another court.

         3. Jurisdiction. The rule of jurisdictional priority does not apply unless there are two cases pending at the same time.

         4. Jurisdiction: Dismissal and Nonsuit. The doctrine of jurisdictional priority does not apply if the first action terminates, is resolved, or is disposed of before the second action commences.

         5. Jurisdiction. Two pending cases fall under the doctrine of jurisdictional priority only when they involve the same "whole issue." In other words, the two actions must be materially the same, involving the substantially same subject matter and the same parties.

         6. Constitutional Law: Courts: Jurisdiction. Because a district court's general jurisdiction emanates from the Nebraska Constitution, it cannot be legislatively limited or controlled.

         7. Decedents' Estates: Actions: Equity: Courts: Jurisdiction. The county courts have concurrent original jurisdiction with the district courts in common-law and equity actions relating to decedents' estates.

         8. Decedents' Estates: Wills: Declaratory Judgments: Courts. The district court has the power in a declaratory judgment action to [302 Neb. 316] construe a will and make a determination of interests of beneficiaries in the estate.

         9. Wills: Courts. The county court has the limited power to construe a will for the benefit of the executor in carrying out the terms of the will.

         10. Courts: Jurisdiction. County courts can acquire jurisdiction only through legislative enactment.

         11. Decedents' Estates: Wills: Courts: Jurisdiction. A county court has complete equity powers as to all matters within its probate jurisdiction. This includes the authority to construe a will when necessary to enable the settlement of an estate properly.

         12. Courts: Jurisdiction. While jurisdictional priority is not a matter of subject matter or personal jurisdiction, courts should enforce the jurisdictional priority doctrine to promote judicial comity and avoid the confusion and delay of justice that would result if courts issued conflicting decisions in the same controversy.

         13. Actions: Courts: Jurisdiction: Public Policy. The rule of jurisdictional priority is based on the public policies of avoiding conflicts between courts and preventing vexatious litigation and a multiplicity of suits.

         14. Courts: Jurisdiction. When a subsequent court decides a case already pending in another court with concurrent subject matter jurisdiction, it errs in the exercise of its jurisdiction.

          Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Reversed and remanded with directions.

          Ryan R Watson and Jeffrey A. Wagner, of Schirber & Wagner, L.L.R, for appellant.

          Joseph D. Thornton, of Smith Peterson Law Firm, L.L.R, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.


         The daughter of a testator sought a declaration of her rights under her father's will as an alleged devisee, claiming to be entitled to one-half of the residual share of her father's [302 Neb. 317] testamentary estate under a residuary clause in the decedent's will. The estate asserted that the decedent unambiguously disinherited the daughter by excluding her name in the definition of '"children"' or "'issue, '" while expressly including the decedent's younger son's name and "all children of mine born or adopted after the execution hereof." After both parties moved for summary judgment, the district court found that the terms of the will were clear and unambiguous and that the daughter was expressly disinherited by the will's provisions. Based on these findings, the court granted the estate's motion for summary judgment. The daughter appeals.


         The testator, Michael R. Brinkman, died on December 23, 2016, leaving two known children, Nicole Brinkman and Seth Michael Brinkman. The testator's will was admitted for probate, naming Kimberly Millus as personal representative. Millus is Seth's ...

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