In re Estate of Hutton

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/16/2020 09:08 AM CDT




                                                      - 579 -
                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                          IN RE ESTATE OF HUTTON
                                              Cite as 

                               In re Estate of William Daniel
                                      Hutton, deceased.
                       John Hodge, Successor Personal Representative
                          of the Estate of William Daniel Hutton,
                           deceased, appellee, v. Webster County,
                                    Nebraska, appellant.
                                                  ___ N.W.2d ___

                                        Filed July 24, 2020.    No. S-19-875.

                 1. Guardians and Conservators: Judgments: Appeal and Error.
                    Appeals of matters arising under the Nebraska Probate Code, 

 through 30-2902 (Reissue 2016, Cum. Supp. 2018 &
                    Supp. 2019), are reviewed for error on the record. When reviewing a
                    judgment for errors 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.
                 2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable
                    compensation, fees, and expenses under the statutes governing com-
                    pensation of personal representatives, expenses in estate litigation, and
                    compensation of personal representatives and employees of the estate, is
                    within the sound discretion of the county court.
                 3. Statutes: Appeal and Error. Statutory interpretation is a question of
                    law, which an appellate court resolves independently of the trial court.
                 4. Costs. Costs of litigation and expenses incident to litigation may not
                    be recovered unless provided for by statute or a uniform course of
                    procedure.
                 5. ____. Whether costs and expenses are authorized by statute or by the
                    court’s recognition of a uniform course of procedure presents a question
                    of law.
                 6. Statutes: Legislature: Intent. In construing a statute, a court must
                    determine and give effect to the purpose and intent of the Legislature
                    as ascertained from the entire language of the statute considered in its
                    plain, ordinary, and popular sense.
                                    - 580 -
           Nebraska Supreme Court Advance Sheets
                    306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

 7. Statutes. It is not within the province of the courts to read a meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
 8. Legislature: Intent. The intent of the Legislature is expressed by omis-
    sion as well as by inclusion.

  Appeal from the County Court for Webster County: Michael
O. Mead, Judge. Judgment vacated.

   Sara J. Bockstadter, Webster County Attorney, for appellant.

   No appearance for appellee.

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

   Funke, J.
   Webster County, Nebraska (County), appeals from an order
of the county court requiring the County to pay fees and
expenses to a court-appointed successor personal representa-
tive. Because the court lacked the authority to order the County
to pay the successor personal representative fees, we vacate
the order.

                       BACKGROUND
   William Daniel Hutton died intestate without a surviv-
ing spouse in February 2015. The county court granted an
application filed by Hutton’s only children, John Hutton and
Alexis Elledge, for informal appointment of copersonal repre-
sentatives of the estate. In July 2015, counsel for the coper-
sonal representatives withdrew from the case. Thereafter, each
coper­sonal representative retained independent counsel.
   In January 2016, John filed a “Motion to Distribute Estate
Assets,” requesting that the court order Elledge to pay him
half the value of E.W. Seals, a business owned and operated
by William at the time of his death. John alleged that the busi-
ness had a value of $250,000. The court ordered the business
to be liquidated or sold with the proceeds to be paid to the
                            - 581 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                   IN RE ESTATE OF HUTTON
                       Cite as 

estate. The copersonal representatives filed an inventory that
included valuations for all estate assets except E.W. Seals.
   In January 2017, in response to an order to show cause,
Elledge filed a motion seeking the appointment of a new
personal representative who was not a family relative. The
motion alleged that there was a breakdown in communication
between the copersonal representatives due to disagreement
over the valuation and distribution of the E.W. Seals assets.
At the show cause hearing, the copersonal representatives
informed the court it was unlikely they would be able to
complete the administration of the estate. On February 14, the
court discharged John and Elledge as copersonal representa-
tives and appointed attorney John Hodge as successor per-
sonal representative.
   In October 2018, Hodge filed an amended inventory which
valued the estate at approximately $420,000. Hodge filed a
statement of distributions of the prior copersonal representa-
tives showing that John had taken $210,455.62 and Elledge
had taken $147,908.43. Although the assets of the estate were
to be divided equally between the surviving children, John had
received $62,547.19 more than Elledge.
   The estate owed $60,346.23 in federal income taxes and
$8,429.29 in state income taxes. The court ordered John and
Elledge to return liquid funds to Hodge for payment of estate
taxes, and then it granted Elledge’s motion for reconsideration
and ordered John to return the value of an investment account
and the value of a 2013 Toyota pickup.
   Hodge filed a “Petition for Order to Pay Debts of the
Estate and Equalization of Assets Among Beneficiaries”
and a “Petition for Determination of Inheritance Tax and
Reimbursement of Prior Paid Tentative Inheritance Tax.”
Around this same time, Hodge filed an application for payment
of his fees and expenses. In December 2018, following a hear-
ing, the court ordered John to immediately return $62,547.19,
of which John returned $30,000. The court ordered Hodge to
pay court costs and outstanding federal and state taxes. The
                             - 582 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                    IN RE ESTATE OF HUTTON
                        Cite as 

court continued to a later date the final settlement and Hodge’s
application for fees and expenses. Hodge used the remaining
funds in the estate’s account to pay $478 in court costs and
$42,545.89 in federal taxes.
    Hodge completed administration of the estate and renewed
his application for fees and expenses. Per order of the court,
Hodge served the Webster County Attorney with a notice of
hearing for August 2, 2019. At the hearing, the court informed
the County that the estate was insolvent and that Hodge would
submit his request for payment to the County. The County
objected to being responsible for Hodge’s fees and expenses,
and it stated that Hodge’s application had not requested that
the County pay his fees and expenses. The County argued
that the estate at one point had substantial assets and that the
heirs of the estate should be held responsible for Hodge’s fees.
Hodge admitted he knew of no statutory authority to require
the County to pay his fees.
    In its order dated August 13, 2019, the court found that
Hodge had served as a court-appointed successor personal
representative for 21⁄2 years and that his fees were fair and
reasonable given the amount of work involved. The court
found that the estate was insolvent and that the amount owed
by the heirs to the Internal Revenue Service and the Nebraska
Department of Revenue was likely uncollectible. The court
found that “the County . . . shall pay the amount of $6,455.63 to
 . . . Hodge.”
    The County appealed and is the only party to participate
in this matter. We moved this case to our docket on our own
motion.

                ASSIGNMENTS OF ERROR
   The County assigns, restated, that the court lacked ­authority
to order the County to pay the fees and expenses of the court-
appointed successor personal representative. The County fur-
ther contends that had the distributions taken by the original
                                  - 583 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                        IN RE ESTATE OF HUTTON
                            Cite as 

copersonal representatives not occurred, there would have
been sufficient assets for the estate to pay Hodge.

                   STANDARD OF REVIEW
   [1] Appeals of matters arising under the Nebraska Probate
Code, 

 through 30-2902 (Reissue
2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error
on the record. 1 When reviewing a judgment for errors 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. 2
   [2] Ordinarily, the fixing of reasonable compensation, fees,
and expenses, pursuant to § 30-2480, governing compensation
of personal representatives; § 30-2481, governing expenses in
estate litigation; and § 30-2482, governing compensation of
personal representatives and employees of the estate, is within
the sound discretion of the county court. 3
   [3] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 4

                          ANALYSIS
   [4,5] The issue presented to us is whether the county court
was authorized to order the County to pay the reasonable
fees and expenses of the court-appointed successor personal
representative. We have long held that costs of litigation and
expenses incident to litigation may not be recovered unless
provided for by statute or a uniform course of procedure. 5
Whether costs and expenses are authorized by statute or by the
1
    In re Guardianship of Eliza W., 

, 

 (2020).
2
    

3
    In re Estate of Graham, 

, 

 (2018).
4
    In re Guardianship of Eliza 

.
5
    City of Falls City v. Nebraska Mun. Power Pool, 

, 

 (2011). See Nat. Bank of Commerce Trust & Savings Assn. v.
    Rhodes, 

, 

 (1980).
                                   - 584 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

court’s recognition of a uniform course of procedure presents
a question of law. 6
   [6,7] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as ascer-
tained from the entire language of the statute considered in its
plain, ordinary, and popular sense. 7 It is not within the province
of the courts to read a meaning into a statute that is not there or
to read anything direct and plain out of a statute. 8
   In In re Guardianship of Suezanne P., 9 the Nebraska Court
of Appeals addressed whether, in a guardianship proceeding, a
county may be ordered to pay the fees of an attorney appointed
to represent the minor child’s mother. Although the county was
not involved in the case, the trial court ordered the county to
pay the attorney fees. When the county appealed, the appellate
court found that the attorney pled no authority for requiring the
county to pay his fees and that no authority was cited in the
trial court’s order. In vacating the order, the Court of Appeals
found that although various other statutes authorize a court to
order a county to pay attorney fees, there was no authority for
the trial court to order the county to pay the fees of the parent’s
court-appointed attorney in a civil guardianship case in which
the county was no way involved. 10
   [8] In In re Adoption of Kailynn D., 11 this court consid-
ered whether a county could be required to pay the fee of a
guardian ad litem in a private adoption. Our interpretation
of the statutes at issue focused on the rule that the intent of
 6
     See, D.I. v. Gibson, 

, 

 (2017); In re
     Guardianship of Brydon P., 

, 

 (2013).
 7
     Anderson v. A & R Ag Spraying & Trucking, ante p. 484, ___ N.W.2d ___
     (2020).
 8
     State v. Swindle, 

, 

 (2018).
 9
     In re Guardianship of Suezanne P., 

, 

     (1998).
10
     

11
     In re Adoption of Kailynn D., 

, 

 (2007).
                                    - 585 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

the Legislature is expressed by omission as well as by inclu-
sion. 12 The statutory provision at issue in that case, 

 (Reissue 2016), addressed the court’s author-
ity to appoint a guardian ad litem to represent the interests of
the biological father. We reasoned that because the Legislature
expressly obligated a county to pay guardian ad litem or attor-
ney fees in other statutes, such as 

(Reissue 2016), but not in the statute at issue, the Legislature
did not intend to grant a court the authority to order a county
to pay the fees of a guardian ad litem appointed for a biological
father in a private adoption case. 13 We cited with approval In
re Guardianship of Suezanne P., noting that in both cases the
county was not involved in the case until the court ordered it
to pay fees. 14
   In this matter, we must examine the statutory provisions
under the Nebraska Probate Code that address personal rep-
resentatives. A personal representative “includes executor,
administrator, successor personal representative, special admin-
istrator, and persons who perform substantially the same func-
tion under the law governing their status.” 15 A successor per-
sonal representative is “a personal representative, other than a
special administrator, who is appointed to succeed a previously
appointed personal representative.” 16 A personal representative
is entitled to reasonable compensation. 17 We have held that the
fixing of reasonable compensation is within the sound discre-
tion of the county court. 18
12
     

13
     See 

14
     See 

 See, also, In re Guardianship of Suezanne P., supra note 9.
15
     § 30-2209(33).
16
     § 30-2209(45).
17
     § 30-2480.
18
     See, In re Estate of Graham, supra note 3; In re Estate of Odineal, 

, 

 (1985).
                                   - 586 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

   This court has not been presented with any authority or
recognized course of procedure to support an order requiring a
county to pay a personal representative’s fees. Our review of
the relevant statutes indicates that a personal representative’s
fees are paid by the estate. Under § 30-2481, a personal rep-
resentative who defends or prosecutes any proceeding in good
faith is entitled to receive necessary expenses “from the estate.”
Under § 30-2482(1), the court may review the reasonableness
of the compensation determined by the personal representative
for his or her own services and may order the return of exces-
sive “compensation from an estate.” Section 30-2487 states
that “[c]osts and expenses of administration” are paid from
“assets of the estate.” Under § 30-2473, a personal representa-
tive is liable to interested persons for damage or loss resulting
from breach of his or her fiduciary duty.
   We digress to note that the county court discharged the
coper­sonal representatives instead of merely removing them
or terminating their authority. Typically, courts remove or
terminate the status of a personal representative rather than
discharge the personal representative so that the terminated
personal representative remains responsible for any misdeeds
he or she may have committed while acting as personal
representative. 19
   In returning to the case at bar, the Legislature has expressly
designated the estate as being responsible for personal rep-
resentative compensation. Additionally, the Legislature has
not expressly stated that a county is responsible for personal
representative compensation. Any rules governing whether
a county should be ordered to pay for a personal repre­
sentative’s costs and expenses should be established by the
Legislature. 20
   The County notes in its brief that there are a number of
statutory provisions which grant the court authority to require
19
     See In re Estate of Graham, supra note 3.
20
     See White v. White, 

, 

 (2017).
                                    - 587 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

counties to pay fees in other circumstances. 21 Regarding such
provisions under the Nebraska Probate Code, § 30-2620.01
permits a court to order a county to pay the reasonable fees
and costs of an attorney, a guardian ad litem, a physician, and
a visitor appointed by the court for an incapacitated person,
if the incapacitated person does not possess an estate. Section
30-2643 permits a court to order a county to pay the reasonable
fees and costs of an attorney, a guardian ad litem, a physician,
a conservator, a special conservator, and a visitor appointed by
the court for a protected person, if the protected person does
not possess an estate. The fact that the Legislature did not
expressly obligate counties to pay personal representative fees
and expenses reflects a legislative intent that a county cannot
be ordered to pay those fees. Moreover, this is a probate matter
in which the County was in no way involved. Accordingly, pur-
suant to In re Guardianship of Suezanne P. 22 and In re Adoption
of Kailynn D., 23 we conclude that the court erred in ordering
the County to pay Hodge’s fees.
   Additionally, the County contends that the court should
have ordered the estate to pay for Hodge’s services before the
estate became insolvent. Prior to ordering the County to pay
Hodge’s reasonable compensation, the court ordered Hodge to
pay the estate’s court costs and outstanding federal and state
income taxes. Hodge paid court costs and a large portion, but
not all, of the federal taxes owed. The estate had insufficient
assets to satisfy the remaining federal and state taxes or com-
pensate Hodge. The County contends that if the estate cannot
fully pay all of its claims, the court should have given priority
to Hodge’s compensation under § 30-2487(a)(1). However,
21
     See, 

 (Reissue 2016) (payment for attorneys
     appointed to represent indigent felony defendants); 

 (Reissue 2016) (payment for attorneys appointed for minor child
     in domestic relations cases if responsible party is indigent).
22
     In re Guardianship of Suezanne P., supra note 9.
23
     In re Adoption of Kailynn D., supra note 11.
                                    - 588 -
             Nebraska Supreme Court Advance Sheets
                      306 Nebraska Reports
                         IN RE ESTATE OF HUTTON
                             Cite as 

we need not address the County’s argument regarding the
priority of payments to be made under § 30-2487(a), because
either way, the court lacked the statutory authority to order
the County to pay the successor personal representative’s fees.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 24

                       CONCLUSION
  Because the county court lacked the authority to order the
County to pay the successor personal representative’s fees and
expenses, the order granting fees and expenses is vacated.
                                         Judgment vacated.
24
     Saylor v. State, 

, 

 (2020).

   Cassel, J., concurring.
   This court’s opinion, which I join unreservedly, correctly
resolves the narrow issue presented in this appeal. But the
court’s opinion gives a glimpse of an estate that went horribly
wrong.
   One lesson that deserves emphasis to the bench and bar is
the distinction between the termination of an appointment of a
personal representative and the discharge of a personal repre-
sentative. They are not synonymous. And unwitting use of the
wrong terminology can have disastrous consequences.
   According to our transcript, on January 31, 2017, one of
the heirs sought the appointment of a new personal represent­
ative to replace the original copersonal representatives. The
motion did not request that the original copersonal represent­
atives be discharged.
   Only 3 days later, at a hearing where the attorney for the
original copersonal representatives apparently informed the
court that they likely would be unable to complete admin-
istration, the county court not only appointed a new per-
sonal representative, it “discharged” the original copersonal
representatives. Because we have no record of the hearing
                                  - 589 -
            Nebraska Supreme Court Advance Sheets
                     306 Nebraska Reports
                        IN RE ESTATE OF HUTTON
                            Cite as 

on that date, our record contains only the court’s written
order.
   The Nebraska Probate Code, 1 which is based on the Uniform
Probate Code, 2 clearly distinguishes a “termination of appoint-
ment” from a “discharge.” 3 Section 30‑2451 states:
         Termination of appointment of a personal representa-
      tive occurs as indicated in sections 30‑2452 to 30‑2455.
      Termination ends the right and power pertaining to the
      office of personal representative as conferred by this
      code or any will . . . . Termination does not discharge a
      personal representative from liability for transactions or
      omissions occurring before termination, or relieve him
      of the duty to preserve assets subject to his control, to
      account therefor and to deliver the assets. Termination
      does not affect the jurisdiction of the court over the per-
      sonal representative, but terminates his authority to repre-
      sent the estate in any pending or future proceeding.
(Emphasis supplied.) One of the methods for termination is
specified in § 30‑2454, which authorizes the county court to
remove a personal representative and sets forth the procedure
to do so. The comment to the equivalent provision of the uni-
form act explains, “‘Termination’, as defined by this and suc-
ceeding provisions, provides definiteness respecting when the
powers of a personal representative (who may or may not be
discharged by court order) terminate. . . . It is important to note
that ‘termination’ is not ‘discharge’.” 4
   Under § 30‑24,115(a), a court “may enter an order or
orders, on appropriate conditions, . . . discharging the personal
1
    Neb. Rev. Stat. §§ 30‑401 to 30‑406, 30‑701 to 30‑713, 30‑2201 to
    30‑2902, 30‑3901 to 30‑3923, 30‑4001 to 30‑4045, 30‑4101 to 30‑4118,
    and 30‑4201 to 30‑4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019).
2
    Unif. Probate Code, § 1‑101 et seq., 8 U.L.A. 1 et seq. (2013 & Supp.
    2019).
3
    § 30‑2451.
4
    Unif. Probate Code § 3‑608, comment, 8 (part II) U.L.A. 138 (2013).
                             - 590 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                    IN RE ESTATE OF HUTTON
                        Cite as 

representative from further claim or demand of any inter-
ested person.”
   I express no opinion regarding the legal effect of the county
court’s order of February 9, 2017, which memorialized the
hearing of February 3. But I urge that courts be precise in the
use of this terminology.