Home/Nebraska Supreme Court/Dunlap v. Lynn

Dunlap v. Lynn

89 N.W.2d 58, 166 Neb. 342, 1958 Neb. LEXIS 113
CourtNebraska Supreme Court
DecidedMarch 28, 1958
Docket34352
StatusPublished
Cited by3 cases

This text of 89 N.W.2d 58 (Dunlap v. Lynn) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. Lynn, 89 N.W.2d 58, 166 Neb. 342, 1958 Neb. LEXIS 113 (Neb. 1958).

Opinion

Boslaugh, J.

This is a proceeding in equity to obtain an adjudication of the meaning and effect of the part of the will *344 of Christina D. Dugger, deceased, which disposes of the residue of her estate. There is no issue of fact.

The will of Christina D. Dugger, a resident of Morrill County, was made May 28, 1913. The following persons related to her were then living: George W. Dugger, her husband; James P. Dunlap, her father; Christina C. Dunlap, her mother; Nelson C. Dunlap, a brother; Agnes D. Lynn, a sister; Patience D. Boyd, a sister; and Lewis C. Dunlap, a brother. Christina D. Dugger, sometimes hereafter referred to as testatrix, and her husband were divorced and their property rights adjudicated August 3, 1916. Testatrix did not remarry and she died without issue.

Christina C. Dunlap died April 7, 1924, and left surviving her James P. Dunlap, her husband, who departed this life January 21, 1929; Nelson C. Dunlap, a son; Agnes D. Lynn, a daughter; Patience D. Boyd, a daughter; Christina D. Dugger, á daughter; and Lewis C. Dunlap, a son.

Nelson C. Dunlap died April 25, 1930, and left surviving him a son, C. Palmer Dunlap, and a daughter, May D. English, who is now May D. Anderson. They are grandchildren of Christina C. Dunlap and a nephew and niece of Christina D. Dugger.

Patience D. Boyd died May 21, 1942, and she left surviving her two daughters, Ellen Boyd Yocum and Beatrice B. Landis. They were granddaughters of Christina C. Dunlap and nieces of Christina D. Dugger.

Agnes D. Lynn survives and has one child, Margaret Hamilton, who is living, is a granddaughter of Christina C. Dunlap, and a niece of Christina D. Dugger.

Lewis C. Dunlap is living and has no issue.

The grandchildren of Christina C. Dunlap above named were each born before the will of Christina D. Dugger was made. They are living and are the only grandchildren of Christina C. Dunlap.

Christina D. Dugger died September 21, 1956, a resident of and the owner of real estate in Morrill County. *345 Her will was admitted to probate by the county court of that county May 21, 1957. She was survived by Lewis C. Dunlap, her brother; Agnes D. Lynn, her sister; Margaret Hamilton, her niece, the daughter of Agnes D. Lynn; C. Palmer Dunlap, her nephew, and May D. Anderson, her niece, children of Nelson C. Dunlap, deceased; and Ellen Boyd Yocum and Beatrice B. Landis, her nieces, daughters of Patience D. Boyd, deceased.

The part of the will of Christina D. Dugger, deceased, concerned in this case is the paragraph thereof numbered and designated “FIVE” the language of which is: “If Christina C. Dunlap shall die before I do and there shall be no heirs born to me, then and in that case all of my property above described and all other property, both real and personal which shall belong to me at my demise shall descend to the heirs of Christina C. Dunlap share and share alike, and should there be grand children of the said Christina C. Dunlap they shall share and share alike of the share falling to their parent, under this will.”

The district court found and adjudicated that Lewis C. Dunlap, Agnes D. Lynn, C. Palmer Dunlap, May D. Anderson, Ellen Boyd Yocum, and Beatrice B. Landis were, by the terms of the will of Christina D. Dugger, the only devisees and legatees under the will and the only persons entitled to share in the estate of the testatrix; that Lewis C. Dunlap and Agnes D. Lynn were each entitled to an undivided one-fourth of all the property owned by Christina D. Dugger at the time of her death; that C. Palmer Dunlap, May D. Anderson, Ellen Boyd Yocum, and Beatrice B. Landis were each entitled to an undivided one-eighth of all the property owned by Christina D. Dugger at the time of her death; and that Margaret Hamilton was not a devisee or legatee under the terms of the will of Christina D. Dugger and was not entitled to any of the property owned by the testatrix at the time of her death.

A motion of Agnes D. Lynn and Margaret Hamilton *346 for a new trial was denied and they by this appeal present the record to this court for review. The action of the trial court produced the precise result appellees sought by this litigation and, of course, they approve and attempt to sustain it on this appeal.

Appellants argue that the language of the will “they (grandchildren) shall share and share alike of the share falling to their parent” means that the gift to the grandchildren and their parents is an original gift to the former subject to the condition that they take only if the parents were living at the time of the death of the testatrix and received a part of her property under the will; that nothing “fell” under the will to Nelson C. Dunlap or Patience D. Boyd because they each predeceased the testatrix and any gift to them lapsed; that because thereof the grandchildren, C. Palmer Dunlap and May D. Anderson, children of Nelson C. Dunlap, deceased, and Ellen Boyd Yocum and Beatrice B. Landis, children of Patience D. Boyd, deceased, take no part of the estate of the testatrix; that the will says the grandchildren shall share in the share falling to their parent but nothing fell to the parents of the four grandchildren last above named and because of this there is nothing in which the four grandchildren can share; that Agnes D. Lynn and Lewis C. Dunlap are the only “heirs” of Christina C. Dunlap surviving the death of the testatrix; and that because of section 76-113, R. R. S. 1943, Agnes D. Lynn has a life estate in one-half of the property of the testatrix, her daughter Margaret Hamilton owns the remainder thereof in fee, and the other half of the property of the testatrix is vested in Lewis C. Dunlap in fee.

The family tree of testatrix is reproduced from the record.

*347

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Related

In Re Estate of Corrigan
358 N.W.2d 501 (Nebraska Supreme Court, 1984)
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228 N.W.2d 608 (Nebraska Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
89 N.W.2d 58, 166 Neb. 342, 1958 Neb. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-lynn-neb-1958.