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In re Estate of Filsinger

Court of Appeals of Nebraska

April 23, 2019

In re Estate of Berniece C. Filsinger, deceased.
v.
Merlin Jacobs and Dana Anderson, Copersonal Representatives of the Estate of Berniece C. Filsinger, DECEASED, APPELLEES. Marvin O. Filsinger et al., appellants,

         1. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or 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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         3. Decedents' Estates: Wills: Contracts: Breach of Contract. The effect of a valid contract for wills is not to create a cause of action against the decedent's estate, but instead is to create a cause of action for breach of contract.

         4. Wills: Contracts: Time. Even where a valid contractual will exists, that existence does not make a will irrevocable. Wills by their nature are ambulatory and may be revoked at any time.

         5. Decedents' Estates: Wills: Contracts: Breach of Contract. If the surviving party revokes or breaches a mutual contractual will, an action lies for a breach of contract against the estate of the survivor.

         6. Decedents' Estates: Claims: Limitations of Actions. In addition to the time limitations of bringing claims against distributees, there are additional limitations on bringing such claims, including, but not limited to, when the matter was previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative.

         [27 Neb.App. 143] 7. Judgments: Appeal and Error. A correct result will not be set aside even when the lower court applied the wrong reasoning in reaching that result.

          Appeal from the County Court for Cheyenne County: Randin R. Roland, Judge. Affirmed.

          Robert M. Brenner, of Robert M. Brenner Law Office, for appellants.

          Paul E. Hofmeister, of Hofmeister Law Offices, L.L.C., for appellees.

          Moore, Chief Judge, and Riedmann and Welch, Judges.

          Welch, Judge.

         I. INTRODUCTION

         Marvin O. Filsinger, Javonne Kreuger, and Gloria Vegas (the Claimants) appeal the order of the Cheyenne County Court granting summary judgment in favor of Merlin Jacobs and Dana Anderson, the copersonal representatives of the estate of Berniece C. Filsinger (the Copersonal Representatives) and dismissing the Claimants' creditor claim. For the reasons set forth herein, we affirm.

         II. STATEMENT OF FACTS

         This matter arises from a creditor claim filed by the Claimants against Berniece's estate. In that claim, the Claimants allege that they are the "remainder heirs" of the estate of Orville W. Filsinger under his prior estate proceedings; that Berniece, now deceased, obtained an excessive distribution from Orville's estate as a distributee; and that said distribution was in violation of a contract entered between Orville and Berniece during their lifetimes.

         The Copersonal Representatives filed a notice of disallowance of the Claimants' claim. The Claimants subsequently filed a petition for allowance of the claim, which attached and incorporated their original claim. The Copersonal Representatives filed an answer with affirmative defenses and [27 Neb.App. 144] a counterclaim requesting that the Claimants' claim be deemed frivolous. The Copersonal Representatives then filed a motion for summary judgment, arguing that there was no genuine issue of material fact and that Berniece's estate was entitled to summary judgment as a matter of law. Specifically, the Copersonal Representatives argued that pursuant to Neb. Rev. Stat. § 30-24, 120 (Reissue 2016), the Claimants' claim against Berniece's estate as distributee was brought outside of the applicable statute of limitations period, thereby barring any claim for recovery.

         In an April 2017 order, the court granted the Copersonal Representatives' motion for summary judgment as to the Claimants' claim but not on the specific basis argued by the Copersonal Representatives. Instead, in its order, the court reasoned: "Although the Claimants have filed their claim in this case, it is actually a claim that should be asserted in the Estate of Orville Filsinger, PR 09-48, because the claim asserts an improper distribution from that estate. Berniece Filsinger was simply the benefactor of the alleged improper distribution." Several months later, the court denied the Copersonal Representatives' counterclaim. The Claimants timely appealed to this court, alleging error on the part of the county court in granting the Copersonal Representatives' motion for summary judgment. The Copersonal Representatives did not cross-appeal the denial of their counterclaim. Accordingly, we address only the court's order granting the motion for summary judgment.

         III. ASSIGNMENTS OF ERROR

         The Claimants argue the court erred (1) in granting the Copersonal Representatives' motion for summary judgment, (2) in determining the claim must be filed in Orville's estate, and (3) in not finding that fraud was perpetrated on the Claimants.

         IV. STANDARD OF REVIEW

         Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue [27 Neb.App. 145] regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Colwell v. Mullen.301 Neb. 408, 918 N.W.2d 858 (2018). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against ...


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