- 596 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

In re Estate of Marcia G. Abbott-Ochsner, deceased.

Mark D. Abbott, Personal Representative of

the Estate of Marcia G. Abbott-Ochsner, 

deceased, appellant, v. Cynthia J. Sellon

and Russell G. Abbott, appellees.

___ N.W.2d ___

Filed April 13, 2018. No. S-17-528.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the appeal.

3. Final Orders. A special proceeding includes every special statutory 

remedy that is not in itself an action, or an integral step to commence it, 

join issues in it, and conduct it to a final hearing and judgment.

4. Decedents’ Estates: Final Orders. A proceeding under Neb. Rev. Stat. 

§ 30-2457 (Reissue 2016) is a special proceeding.

5. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

6. Final Orders: Appeal and Error. An order affects a substantial right 

if it affects the subject matter of the litigation by diminishing a claim or 

defense that was available to the appellant prior to the order from which 

he or she is appealing.

7. Final Orders. It is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

8. Final Orders: Appeal and Error. A substantial right under Neb. Rev. 

Stat. § 25-1902 (Reissue 2016) is not affected when that right can be 

effectively vindicated in an appeal from the final judgment.

9. Decedents’ Estates: Final Orders: Appeal and Error. Orders denying 

a request to remove a personal representative for cause are final and 

immediately appealable by the person interested in the estate who petitioned for the personal representative’s removal.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/25/2018 12:07 AM CDT
- 597 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

10. Final Orders: Appeal and Error. To be a final order, the substantial right affected must be of the appellant and cannot be claimed 

vicariously.

11. Decedents’ Estates: Final Orders. In and of itself, and without additional facts indicating otherwise, an order appointing a special administrator pursuant to Neb. Rev. Stat. § 30-2425 (Reissue 2016) is not a 

final order.

12. Final Orders: Appeal and Error. An appellate court does not entertain 

direct appeals from interlocutory orders in order to avoid piecemeal 

review, chaos in trial procedure, and a succession of appeals granted in 

the same case to secure advisory opinions to govern further actions of 

the trial court.

13. Decedents’ Estates. The underlying purpose of the Nebraska Probate 

Code is to promote a speedy and efficient system for liquidating the 

estate of the decedent and making distribution to the successors.

14. Final Orders: Jurisdiction: Appeal and Error. An appellate court’s 

jurisdiction to review whether the lower court acted extrajurisdictionally 

presupposes its appellate jurisdiction over an appeal from a final order 

or judgment.

Appeal from the County Court for Douglas County: 

Lawrence E. Barrett, Judge. Appeal dismissed.

Michael F. Coyle, Elizabeth A. Culhane, and Jacqueline M. 

DeLuca, of Fraser Stryker, P.C., L.L.O., for appellant.

John M. Lingelbach, James A. Tews, and Minja Herian, of 

Koley Jessen, P.C., L.L.O., for appellees.

Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Pirtle, 

Judge.

Heavican, C.J.

INTRODUCTION

This case involves the probate of Marcia G. Abbott-Ochsner’s 

estate, most of which consists of a trust that was the subject 

of a previous appeal to this court in In re Conservatorship 

of Abbott (Abbott I).1 Two siblings filed a petition in county 

court contesting the validity of the will presented for informal 

1 In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).
- 598 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

probate by their brother, who had been appointed by the county 

court as the personal representative of the estate.

Pursuant to Neb. Rev. Stat. § 30-2429.01(1) (Reissue 2016), 

the personal representative transferred his siblings’ will contest to the district court. Afterward, pursuant to Neb. Rev. 

Stat. § 30-2425 (Reissue 2016), the county court granted the 

siblings’ request to appoint a special administrator for the 

estate, pending resolution of the district court proceedings. The 

siblings had also sought appointment of a different personal 

representative, but the county court’s order did not remove the 

brother as personal representative. The brother appeals, arguing 

that the county court lacked jurisdiction to appoint a special 

administrator, because the case had been transferred to the district court. The siblings disagree and assert, as a threshold matter, that an order appointing a special administrator pursuant to 

§ 30-2425 is not a final order.

BACKGROUND

The “Abbott Living Trust” was created by Marcia G. AbbottOchsner (Marcia) and her first husband, George W. Abbott, in 

1995. Marcia and George were cotrustees of the trust, which 

was divided into a revocable “‘Survivor’s Trust’” and an 

irrevocable “‘Family Trust.’”2 Marcia and George had three 

children—Russell G. Abbott, Cynthia J. Sellon (Cynthia), and 

Mark D. Abbott—who were beneficiaries.

George died in 1996. Marcia suffered a stroke in 2011. 

As a result of the stroke, Marcia suffered from expressive 

aphasia—a disorder that affects the brain’s ability to use and 

understand language. In March 2015, Marcia appointed Mark 

as successor trustee to the living trust and Mark accepted the 

appointment.

At the behest of Russell and Cynthia, the county court 

ordered the appointment of a conservator and removed Mark 

as trustee. At that time, the living trust was valued at approximately $2 million.

2 Id. at 514, 890 N.W.2d at 475.
- 599 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

As described in Abbott I, the county court considered evidence that Mark was hostile toward Cynthia. Mark accused 

Cynthia of murdering their aunt and receiving an unequal share 

of their aunt’s estate. Mark repeatedly threatened to “‘make it 

even,’” using the assets of the trust.3 Mark described his relationship with Russell and Cynthia as “‘WWIII.’”4

The county court also considered evidence that Mark had 

refused to provide documentation concerning the trust and 

trust activities, had acted as trustee before being appointed, 

and had facilitated money transfers resulting in negative tax 

consequences.

The county court found that Mark had violated several of 

his duties under the Nebraska Uniform Trust Code, including his duty to administer the trust in good faith, his duty of 

loyalty, his duty of impartiality, and his duty to inform and 

report. On appeal, we affirmed Mark’s removal as trustee, 

concluding that Mark’s breach of his duty of impartiality was 

dispositive.5

In September 2015, several months after Marcia had 

appointed Mark as successor trustee, and apparently after a 

conservator had been appointed for Marcia, Marcia executed 

a pourover will. Marcia exercised her limited testamentary 

power in the family trust to change the default equal distribution between the three children to a 100-percent distribution to 

Mark and a 0-percent distribution to Russell and Cynthia. The 

pourover will provided that Mark was to be the estate’s personal representative, with sole discretion to distribute Marcia’s 

personal possessions.

Marcia died in October 2016. Mark filed an application 

for informal probate of the 2015 pourover will and informal appointment of a personal representative of Marcia’s 

estate. That same day, Mark accepted informal appointment as 

3 Id. at 516, 890 N.W.2d at 477.

4 Id.

5 Abbott I, supra note 1.
- 600 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

personal representative of the estate. He also filed a petition 

for declaratory judgment in the district court, seeking an order 

declaring Marcia’s 2015 amendments to the living trust valid, 

including her distribution of 100 percent of the assets to Mark. 

The county court confirmed Mark’s informal appointment and 

issued letters of personal representative. Russell and Cynthia 

filed a petition in the county court to set aside the informal 

probate of the will, for a formal testacy proceeding, and for 

appointment of a different personal representative in the formal 

proceedings. Russell and Cynthia alleged that the 2015 pourover will was not valid, because Marcia lacked the requisite 

capacity to execute the will, and that the will was the product 

of undue influence.

In their petition for formal proceedings, Russell and Cynthia 

also requested an order, pursuant to § 30-2425, restraining 

Mark from exercising any powers of a personal representative 

and appointing a special administrator.

Pursuant to § 30-2429.01(1), Mark filed a notice of transfer 

of Russell and Cynthia’s petition to the district court and paid 

the required docket fee. After Mark filed his notice of transfer 

under § 30-2429.01(1), a hearing was held in the county court 

to determine Russell and Cynthia’s request for the appointment 

of a special administrator during the pendency of the district 

court proceedings.

Mark argued at the hearing that the county court no longer 

had jurisdiction to appoint a special administrator, because 

the proceeding to determine whether Marcia left a valid will 

had been moved to the district court. Russell and Cynthia, in 

contrast, asserted that although the will contest had been transferred to the district court, the county court retained jurisdiction over the rest of the formal probate proceedings, such as 

claims by creditors.

Mark conceded that some “ancillary matters” were still to 

be handled by the county court, but that the appointment of 

a special administrator was part of the will contest proceedings in district court. When Mark pointed out that the request 
- 601 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

for the appointment of a special administrator had been made 

in the petition that was moved to district court, Russell and 

Cynthia offered to file a separate motion.

In support of their argument that a special administrator 

should be appointed, Russell and Cynthia offered Cynthia’s 

affidavit. The affidavit was admitted over Mark’s objections 

on the basis of subject matter jurisdiction, hearsay, foundation, 

speculation, and unfair surprise. Cynthia averred in her affidavit that she had reviewed the trust activity records and believed 

that approximately $800,000 was unaccounted for.

Russell and Cynthia also entered into evidence the county 

court’s prior order appointing a conservator for Marcia and 

removing Mark as trustee, as well as this court’s opinion in 

Abbott I affirming the county court’s decision to remove Mark 

as trustee. Russell and Cynthia argued that a special administrator was appropriate, given Mark’s past history of breaching 

his fiduciary duties as trustee.

On April 10, 2017, the county court issued an order appointing a special administrator. The court did not remove Mark as 

personal representative of the estate. Mark appeals from the 

April 10 order.

ASSIGNMENTS OF ERROR

Mark assigns that the county court erred in (1) failing to 

dismiss Russell and Cynthia’s petition when the case had 

already been removed to district court; (2) failing to dismiss 

for lack of jurisdiction Russell and Cynthia’s request for a special administrator when the case had already been removed to 

district court; (3) entering an order appointing a special administrator; (4) allowing Cynthia’s affidavit into evidence; (5) ruling on the petition to set aside informal probate of the will, for 

formal adjudication of intestacy, determination of heirs, and 

appointment of personal representative without allowing Mark 

the ability to cross-examine Cynthia; and (6) failing to restrict 

the special administrator from acting during the pendency of 

the litigation in district court.
- 602 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law.6

ANALYSIS

[2] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether 

it has jurisdiction over the appeal.7 Appellate review under 

the Nebraska Probate Code is governed by Neb. Rev. Stat. 

§ 30-1601 (Reissue 2016), which states that appeals from a 

county court may be taken in the same manner as appeals 

from a district court and that “[a]n appeal may be taken by 

any party and may also be taken by any person against whom 

the final judgment or final order may be made or who may be 

affected thereby.”

There has not yet been a final judgment in which the probate 

estate has been finally established.8 Thus, we must determine 

whether Mark appeals from a final order.9 Final orders are 

defined by Neb. Rev. Stat. § 25-1902 (Reissue 2016). As applicable here, the question is whether, under § 25-1902, the April 

10, 2017, order “affect[ed] a substantial right” and was “made 

in a special proceeding.”

[3,4] A special proceeding includes every special statutory 

remedy that is not in itself an action, or an integral step to 

commence it, join issues in it, and conduct it to a final hearing and judgment.10 Neb. Rev. Stat. § 30-2457 (Reissue 2016) 

confers upon persons interested in an estate the specific right 

to petition the county court to appoint a special administrator. 

Thus, a proceeding under § 30-2457 is a special proceeding.

6 See Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).

7 See In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 

(2016).

8 See In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).

9 See In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).

10 See In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).
- 603 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

[5-8] Whether the April 10, 2017, order affected a substantial right requires more analysis. A substantial right is an essential legal right, not a mere technical right.11 An order affects a 

substantial right if it affects the subject matter of the litigation 

by diminishing a claim or defense that was available to the 

appellant prior to the order from which he or she is appealing.12 The duration of the order is also relevant to whether it 

affects a substantial right.13 It is not enough that the right itself 

be substantial; the effect of the order on that right must also 

be substantial.14 And a substantial right under § 25-1902 is not 

affected when that right can be effectively vindicated in an 

appeal from the final judgment.15

This court has never determined whether an order appointing a special administrator upon a petition for formal probate 

affects a substantial right of the informally appointed personal representative. A formal testacy proceeding is litigation 

to determine whether a decedent left a valid will.16 Section 

30-2425 states that a formal testacy proceeding “may be commenced by an interested person filing a petition as described 

in section 30-2426(a) . . . or . . . section 30-2426(b).” Such a 

petition may be either with or without a request for appointment of a personal representative.17

Russell and Cynthia filed a petition as described by 

§ 30-2426(a). In the petition, they requested the appointment 

of a personal representative. Mark is not appealing the commencement of formal proceedings, and he is not appealing his 

removal as personal representative, because no such order has 

been made.

11 Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

12 See id.

13 See id.

14 In re Adoption of Madysen S. et al., supra note 7.

15 In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).

16 § 30-2425.

17 See § 30-2425 and Neb. Rev. Stat. § 30-2426 (Reissue 2016).
- 604 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

Upon commencement of a formal testacy proceeding, the 

court shall fix a time and place of hearing.18 Section 30-2425 

provides that “[u]nless a petition in a formal testacy proceeding also requests confirmation of the previous informal 

appointment, a previously appointed personal representative 

. . . must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding.”

Section 30-2425 goes on to provide that a petitioner who 

seeks the appointment of a different personal representative 

in a formal proceeding “also may request an order restraining 

the acting personal representative from exercising any of the 

powers of his office and requesting the appointment of a special administrator.”

Section 30-2425 states that if no special administrator is 

appointed, then the commencement of a formal proceeding has 

no effect on the powers and duties of the previously appointed 

special administrator other than those relating to distribution. 

But Neb. Rev. Stat. § 30-2438(a) (Reissue 2016) states that 

if a formal proceeding for adjudication regarding the qualification of one who previously has been appointed personal 

representative in informal proceedings is commenced after 

appointment, “the previously appointed personal representative 

. . . shall refrain from exercising any power of administration 

except as necessary to preserve the estate or unless the court 

orders otherwise.” Though the court’s order was not explicit in 

this case, such restriction apparently was to continue until the 

court determined who is entitled to appointment as set forth in 

§ 30-2438(b).

Section 30-2438 states that a formal proceeding for adjudication regarding the qualification of one who previously has 

been appointed personal representative in informal proceedings, when an issue concerning the testacy of the decedent 

is or may be involved, is governed by both §§ 30-2426 and 

30-2438. Russell and Cynthia presented in their petition issues 

18 See Neb. Rev. Stat. § 30-2427(a) (Reissue 2016).
- 605 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

regarding Mark’s qualification as personal representative. We 

treat their petition as a request to have Mark’s qualification 

adjudicated in a formal proceeding under § 30-2438.19

Mark asserts that his substantial rights were affected because 

the April 10, 2017, order appointing a special administrator 

“stripped Mark” of his powers to act as personal representative.20 But, as set forth above, the commencement of the formal 

proceedings had already limited Mark’s power to do anything 

other than preserve the estate.

Mark does not elaborate how appointing a special administrator to protect the estate affected his substantial rights, other 

than to point out that he was nominated in the contested will 

and that the estate and, ultimately, Mark, as an heir, will bear 

the costs of the special administrator’s compensation. Mark 

argues that the effect on these allegedly substantial rights cannot be vindicated in an appeal from the judgment, because the 

costs and any potential mishandling of the estate by the special 

administrator cannot later be undone.

While rights of priority among persons seeking appointment, “who are not disqualified,” are set forth in Neb. Rev. 

Stat. § 30-2412 (Reissue 2016), no determination of appointment in the formal proceeding has yet been made. And Mark 

does not present any reason why the special administrator, an 

uninterested third party, would mishandle the estate. Mark did 

not object below that the special administrator was disqualified 

or move for removal for cause. Mark does not explain how 

a special administrator’s reasonable compensation would be 

more burdensome to the estate than the reasonable compensation due to a personal representative who would otherwise be 

acting during that time.21

[9] We have held that orders denying a request to remove 

a personal representative for cause are final and immediately 

19 See In re Estate of Sutherlin, 261 Neb. 297, 622 N.W.2d 657 (2001).

20 Reply brief for appellant at 7.

21 Neb. Rev. Stat. § 30-2480 (Reissue 2016).
- 606 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

appealable by the person interested in the estate who petitioned 

for the personal representative’s removal.22 Neb. Rev. Stat. 

§ 30-2454 (Reissue 2016) grants a person interested in the 

estate the right to petition for removal of a personal representative for cause. Orders subsequent to a hearing under that statute 

are the final determination of that right. We have explained that 

personal representatives have broad powers to administer and 

distribute the decedent’s estate, usually without direction of the 

county court.23 We have thus indicated that the right conferred 

by § 30-2454 is more than a mere technical right, and one 

that could not be effectively vindicated in an appeal from the 

final judgment.24

We have also held that orders finally determining a personal 

representative’s right to fees, as provided in § 30-2480, are 

final.25 We reason that such orders are a final disposition of the 

personal representative’s rights granted under § 30-2480.26

In In re Estate of Muncillo,

27 we held that the court’s denial 

of an application to appoint a special administrator pursuant to § 30-2457(2) was a final order. As already described, 

§ 30-2457(2) grants to a person interested in the estate the 

right to petition for appointment of a special administrator to 

preserve the estate and secure its proper administration. Not 

only was this right finally determined by the court’s order, 

but we explained that this right could not be effectively vindicated upon appeal from entry of the later final judgment.28

Explaining that the probate of an estate can remain open for 

22 See, In re Estate of Nemetz, 273 Neb. 918, 735 N.W.2d 363 (2007); In re 

Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992); In re Estate of 

Snover, supra note 10.

23 In re Estate of Snover, supra note 10.

24 Id.

25 In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

26 See id.

27 In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

28 See id.
- 607 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

years, we said that after the appeal from the final judgment, a 

“special administrator cannot go back in time and preserve or 

administer the estate long after the application to appoint has 

been denied.”29

We find these cases inapposite to the present appeal. Even if 

a personal representative’s substantial rights are affected by an 

order granting a petitioner’s request to remove for cause under 

§ 30-2454,30 the April 10, 2017, order did not remove Mark 

as the personal representative. While priority among persons 

seeking appointment “who are not disqualified” is set forth 

by § 30-2412, to the extent Mark asserts that his right under 

§ 30-2412 has been affected, the order before us is not a final 

determination of his appointment.

[10] Likewise, our holding in In re Estate of Muncillo does 

not apply to the facts of this case. To be a final order, the 

substantial right affected must be of the appellant and cannot 

be claimed vicariously.31 Given that Mark’s status as personal 

representative has not been finally determined, Mark’s remaining right allegedly affected is merely to prohibit the appointment of a special administrator to protect the estate while the 

underlying will contest and his qualifications as personal representative are litigated. It is unclear where such a right might 

come from.

Any alleged right to avoid the appointment of a special 

administrator is meaningfully different from the right conferred by § 30-2457(2) to seek the appointment of a special 

administrator to protect the estate upon commencement of a 

formal proceeding that calls into question the informal appointment. Unlike an informally appointed personal representative, 

the special administrator is appointed by the court in a formal proceeding after notice and a hearing in which the court 

has determined that the appointment is necessary to preserve 

29 Id. at 674, 789 N.W.2d at 42.

30 See In re Estate of Weingarten, 10 Neb. App. 82, 624 N.W.2d 653 (2001).

31 See, e.g., In re Adoption of Amea R., supra note 15.
- 608 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

the estate.32 Absent a motion to remove the special administrator for cause, there is no reason to conclude that the appointment of the special administrator creates a risk of improper 

administration of the estate that cannot later be undone. This 

is in contrast to the refusal to appoint a special administrator 

under the circumstances described in § 30-2425.

Other courts with similar final order jurisprudence distinguish orders appointing special administrators, which they 

hold are not final, from orders appointing or removing a personal representative, which they hold are final.33 The court in 

Estate of Keske,

34 for instance, reasoned that the appointment 

of a special administrator is not the kind of interim order that 

precluded further hearing and investigation of the rights of 

the parties.

With regard to its effect on any right of the appellant, the 

April 10, 2017, order is analogous to the order we held was 

not final in In re Estate of Peters.

35 In In re Estate of Peters, 

we held that an order reappointing a personal representative 

after an estate has been formally closed is not a final order, 

because it does not affect a substantial right. The estate had 

been reopened upon discovery that a specific bequest had not 

been paid, and as a result, excess distributions were made to 

the residuary beneficiaries of the estate.36 We noted that while 

reopening the estate and reappointing the personal representative forced the heirs to defend their distributions, which they 

claimed was an improper collateral attack, the order was not 

dispositive of their rights.37

32 See § 30-2457.

33 See, Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998); Estate of 

Keske, 33 Wis. 2d 64, 146 N.W.2d 450 (1966). But see Matter of Estate of 

Franchs, 722 P.2d 422 (Colo. App. 1986).

34 Estate of Keske, supra note 33.

35 In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000).

36 See id.

37 See id.
- 609 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

We cited, with approval, In re Miller Estate,

38 wherein the 

court said that the test of finality of a probate order is whether 

it affects with finality the rights of the parties in the subject 

matter. We concluded that the court’s order did not affect a 

substantial right, because it did not diminish with finality 

the heirs’ claims and defenses to returning a portion of their 

bequests.39 The order simply was not dispositive of any of the 

rights of the parties.40

[11] Similarly, here, the April 10, 2017, order did not affect 

with finality Mark’s substantial rights. We hold that in and of 

itself, and without additional facts indicating otherwise, an 

order appointing a special administrator pursuant to § 30-2425 

is not a final order.

We note that in In re Estate of Lorenz,

41 the Nebraska Court 

of Appeals addressed the merits of an appeal directly from an 

order of summary judgment in probate proceedings, which 

determined the allowance of the interested person’s claim 

against the estate, will contest, and request for the appointment of a special administrator. But the court’s order appeared 

to be a final determination of the interested person’s claim, 

and the Court of Appeals did not discuss why it considered the 

order to be final.42

Likewise, the Court of Appeals’ decision in In re Estate 

of Wilson43 does not stand for the proposition that an order 

appointing a special administrator is final. The court did not 

discuss the direct appealability of the order, which, in any 

event, was the denial of a motion to vacate a prior appointment of the special administrator. The special administrator 

38 In re Miller Estate, 106 Mich. App. 222, 307 N.W.2d 450 (1981).

39 See In re Estate of Peters, supra note 35.

40 See id.

41 In re Estate of Lorenz, 22 Neb. App. 548, 858 N.W.2d 230 (2014), 

reversed in part on other grounds 292 Neb. 543, 873 N.W.2d 396 (2016).

42 See id.

43 In re Estate of Wilson, 8 Neb. App. 467, 594 N.W.2d 695 (1999).
- 610 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

in In re Estate of Wilson had been appointed some 21 months 

before. If anything, the court’s decision in In re Estate of 

Wilson stands for the proposition that the appointment of a 

special administrator is not a final order. For, if it were, then 

the appellant’s failure to appeal from the order within 30 days, 

as required by Neb. Rev. Stat. § 25-1931 (Reissue 2016) would 

have foreclosed a later challenge to the appointment.

[12,13] We do not entertain direct appeals from interlocutory 

orders in order to avoid piecemeal review, chaos in trial procedure, and a succession of appeals granted in the same case to 

secure advisory opinions to govern further actions of the trial 

court.44 The underlying purpose of the Nebraska Probate Code 

is to promote a speedy and efficient system for liquidating the 

estate of the decedent and making distribution to the successors.45 Allowing a piecemeal appeal from an order appointing a 

special administrator defeats that purpose.

[14] We find no merit to Mark’s argument that even if the 

appeal is not from a final order or judgment, we have appellate jurisdiction to consider whether the lower court acted 

without jurisdiction. The legal proposition upon which Mark 

relies states that though we lack jurisdiction over the merits 

of an extrajurisdictional act, we have jurisdiction to determine 

whether the lower court had the power to enter the judgment or 

final order sought to be reviewed.46 Our jurisdiction to review 

whether the lower court acted extrajurisdictionally presupposes 

our appellate jurisdiction over an appeal from a final order 

or judgment.

We have never held that we have appellate jurisdiction to 

determine if the lower court acted within its jurisdiction in 

an appeal from a nonfinal order. Our appellate jurisdiction is 

governed by statute. Nowhere does the Legislature provide 

44 State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).

45 Neb. Rev. Stat. § 30-2202 (Reissue 2016); In re Estate of Kentopp.

Kentopp v. Kentopp, 206 Neb. 776, 295 N.W.2d 275 (1980).

46 In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
- 611 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE ESTATE OF ABBOTT-OCHSNER

Cite as 299 Neb. 596

for our immediate review of all interlocutory orders alleged 

to be entered by the lower court without jurisdiction. The 

Legislature has provided only, as relevant here, that an order 

is final if it affects a substantial right. Whether the lower court 

acted with jurisdiction does not change the nature of the right 

affected by the court’s action. To the extent that the Court of 

Appeals in In re Interest of Angeleah M. & Ava M.47 concluded 

differently, that case is disapproved.

We have already concluded in this case that the April 10, 

2017, order did not affect Mark’s substantial rights. We express 

no opinion on the merits of Mark’s argument that the county 

court lacked jurisdiction to appoint a special administrator once 

the will contest had been removed to district court.

CONCLUSION

For the foregoing reasons, we lack jurisdiction over Mark’s 

appeal from the April 10, 2017, order. We dismiss the appeal.

Appeal dismissed.

Wright, Miller-Lerman, and Kelch, JJ., not participating.

47 In re Interest of Angeleah M. & Ava M., 23 Neb. App. 324, 871 N.W.2d 49 

(2015).