Nalezinek v. Union Bank & Trust Co.

628 N.W.2d 246, 262 Neb. 17, 2001 Neb. LEXIS 108
CourtNebraska Supreme Court
DecidedJune 22, 2001
DocketS-00-158
StatusPublished
Cited by38 cases

This text of 628 N.W.2d 246 (Nalezinek v. Union Bank & Trust Co.) 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
Nalezinek v. Union Bank & Trust Co., 628 N.W.2d 246, 262 Neb. 17, 2001 Neb. LEXIS 108 (Neb. 2001).

Opinion

Stephan, J.

We are asked to determine how the residue of the estate of Otto A. Eickmeyer (testator) should be distributed. Three of the five devisees named in the residuary clause of the testator’s will predeceased him. Two died without issue. The third was survived *18 by a daughter, appellant Lana Nalezinek. The parties agree that pursuant to the antilapse statute, Neb. Rev. Stat. § 30-2343 (Reissue 1995), Nalezinek is entitled to that portion of the residuary estate specifically devised to her father, Harry Eickmeyer. The single question of law presented for review is whether Nalezinek is also entitled to a portion of the residuary devised to the two persons who predeceased the testator without issue.

BACKGROUND

The relevant facts are not disputed. The testator died on March 3, 1999. His will, dated January 12, 1987, provided in pertinent part:

All the rest, residue and remainder of my property, both personal and real, I give, devise and bequeath as follows: 50% thereof to my sister, La Verne Schuelke, 20% to my sister Emma Sunderman, and the remaining 30% to my brother Harry Eickmeyer and to my sisters Mabel Jones and Erma Schwartz, share and share alike.

La Verne Schuelke and Mabel Jones predeceased the testator, leaving no issue. Harry Eickmeyer also predeceased the testator and has one surviving issue, Nalezinek. Appellees Emma Sunderman and Erma Schwartz survived the testator.

On April 28, 1999, the registrar issued a statement of informal probate. The registrar declared the January 12, 1987, will valid and appointed Union Bank and Trust Company as personal representative. The personal representative then filed a petition, and later an amended petition, to construe the will. In its amended petition, the personal representative alleged that “[i]t is unclear through the application of Nebraska Probate Code Section 30-2343 and 30-2344 whether ‘residuary devisees’ means the persons named in the residual clause or the persons who receive under the residual clause and those who receive pursuant to Nebraska Probate Code Section 30-2343.” The personal representative alleged that

[i]t is possible to construe the application of 30-2344 to divide the failed amount (60% of residual estate) only to the residuary devisees named in the will without the application of 30-2343 whereby the 60% residual will be distributed proportionately among Emma H. Sunderman and *19 Erma L. Schwartz. It is also possible to construe Section 30-2344 with Section 30-2343 whereby the residual amount would be distributed proportionately among Emma H. Sunderman, Erma L. Schwartz and Lana Nalezinek.

The personal representative further alleged that under the first construction, Sunderman would receive 60 percent of the residue, Schwartz would receive 30 percent, and Nalezinek would receive the remaining 10 percent. However, under the second construction of the statutes, Sunderman would receive 50 percent of the residue, Schwartz would receive 25 percent, and Nalezinek would be entitled to a 25-percent share.

Following a hearing, the county court entered an order determining that Nalezinek was not a “residuary devisee” within the meaning of § 30-2344 and therefore “the failed amount of 60 percent of the residue should be distributed proportionately between Emma Sunderman and Erma Schwartz, the residuary devisees named in the will.” Nalezinek perfected this appeal, which we moved to our docket pursuant to our authority to regulate the dockets of the appellate courts. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).

ASSIGNMENTS OF ERROR

Nalezinek assigns that the county court erred in finding that she was not a “substitute residuary devisee” of the testator’s estate pursuant to § 30-2343 and Neb. Rev. Stat. § 30-2344(b) (Reissue 1995). She also assigns that the county court erred in failing to instruct the personal representative to distribute the estate proportionately between Sunderman, Schwartz, and Nalezinek.

STANDARD OF REVIEW

When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Mertz v. Pharmacists Mut. Ins. Co., 261 Neb. 704, 625 N.W.2d 197 (2001); North Bend Senior Citizens Home v. Cook, 261 Neb. 500, 623 N.W.2d 681 (2001).

ANALYSIS

Resolution of the issue presented for appeal requires that we construe statutory language found in two sections of the Nebraska Probate Code. The first is § 30-2343, which provides in pertinent part:

*20 If a devisee related to the testator in any degree of kinship is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by one hundred twenty hours take in place of the deceased devisee....

The second statute is § 30-2344, which delineates how failed devises should be distributed. Specifically, § 30-2344(b) provides:

Except as provided in section 30-2343, if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.

Nalezinek argues that because § 30-2344(b) makes specific reference to § 30-2343, the phrase “other residuary devisee” as used in § 30-2344(b) would include residuary devisees specifically named in the will and those who take in their place by operation of the antilapse statute. Thus, Nalezinek contends she is entitled not only to that portion of the estate specifically devised to Harry Eickmeyer, but also that share of the devises to Schuelke and Jones which Harry Eickmeyer would have received under § 30-2344 if he had survived the testator.

On the other hand, Schwartz argues that because the term “devisee” is defined by Neb. Rev. Stat. § 30-2209(8) (Cum. Supp. 2000) as “any person designated in a will to receive a devise,” the phrase “other residuary devisee” as used in § 30-2344(b) must be narrowly construed to include only persons or entities who are specifically named in the will as devisees. She argues that the Legislature did not intend to treat people who take the place of another through the operation of the antilapse statute in the same manner as persons who are actually named in the will.

We have not previously addressed the issue presented.

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Bluebook (online)
628 N.W.2d 246, 262 Neb. 17, 2001 Neb. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nalezinek-v-union-bank-trust-co-neb-2001.