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IN RE ESTATE OF MARSH

Cite as 307 Neb. 893

In re Estate of Gale H. Marsh, deceased.

Sarah J. Marsh and Carla M. Marsh, Cotrustees of 

the Gale H. Marsh Revocable Trust Agreement, 

appellees, v. County of Richardson, 

Nebraska, appellant.

___ N.W.2d ___

Filed December 4, 2020. No. S-20-102.

1. Decedents’ Estates: Taxation: Appeal and Error. On appeal of an 

inheritance tax determination, an appellate court reviews the case for 

error appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing 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.

3. Decedents’ Estates: Appeal and Error. In reviewing a judgment of 

the probate court in a law action, an appellate court does not reweigh 

evidence, but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible 

from the evidence.

4. ____: ____. The probate court’s factual findings have the effect of a 

verdict and will not be set aside unless clearly erroneous.

5. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached 

by the trial court.

6. Motions for Continuance: Appeal and Error. A motion for contin

uance is addressed to the discretion of the trial court, whose ruling will 

not be disturbed on appeal in the absence of an abuse of discretion.

7. 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 matter before it.

Nebraska Supreme Court Online Library

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

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8. ____: ____. If the court from which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction.

9. Jurisdiction. One who invokes the power of the court on an issue other 

than the court’s jurisdiction over one’s person makes a general appearance so as to confer on the court personal jurisdiction over that person.

10. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

11. Decedents’ Estates: Taxation: Jurisdiction. Neb. Rev. Stat. 

§ 77-2018.02(1) (Supp. 2019) confers upon the county court subject 

matter jurisdiction of an independent proceeding brought for the sole 

purpose of determining Nebraska inheritance tax.

12. Statutes. Basic principles of statutory interpretation require a court to 

give statutory language its plain and ordinary meaning.

13. Decedents’ Estates: Taxation: Jurisdiction: Notice. Published notice 

is not a prerequisite of a county court’s subject matter jurisdiction of an 

independent proceeding for the sole purpose of determining Nebraska 

inheritance tax; rather, such jurisdiction is invoked by the filing of a 

petition to initiate the proceeding.

14. Appeal and Error. Error without prejudice is not a ground for reversal.

15. Gifts: Intent. To make a valid inter vivos gift, there must be an intention to transfer title to property, delivery by the donor, and acceptance 

by the donee.

16. Gifts. Ordinarily, actual delivery is necessary where the subject of the 

gift is capable of manual delivery, but where actual manual delivery cannot be made, the donor may do that which, under the circumstances, will 

in reason be considered equivalent to actual delivery.

17. ____. The exercise by the donee of dominion over the property which 

is the subject of a gift, or an assertion of a right to the property by the 

donee, generally will constitute an acceptance.

18. Deeds: Intent. Whether a deed or other instrument conveying an interest in property has been delivered is largely a question of intent to be 

determined by the facts and circumstances of the particular case.

Appeal from the County Court for Richardson County: 

Curtis L. Maschman, Judge. Affirmed.

Douglas E. Merz, Richardson County Attorney, Samantha K. 

Scheitel, and Thomas J. Gist for appellant. 
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IN RE ESTATE OF MARSH

Cite as 307 Neb. 893

Steven J. Mercure and Lindy L. Mahoney, of Nestor & 

Mercure, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

After Gale H. Marsh died, his daughters brought a proceeding to determine the amount of inheritance tax due. The dispute 

centered on the ownership interest of Marsh’s revocable trust 

in a limited liability company valued at over $12 million. The 

county court determined that assignments signed by Marsh 

rather than the trustees were valid. The County of Richardson 

(County) appeals. Finding no error by the county court in the 

respects alleged, we affirm.

II. BACKGROUND

1. Procedural Background

Marsh, a domiciliary of Richardson County, Nebraska, died 

on April 6, 2017. On March 22, 2018, his daughters, Sarah 

J. Marsh and Carla M. Marsh, filed in the county court for 

Richardson County a petition for determination of inheritance 

tax. The petition alleged that Sarah and Carla (collectively 

cotrustees) were cotrustees of the Gale H. Marsh Revocable 

Trust Agreement, that they had a legal interest in the property involved in the determination of inheritance tax, that 

they were the beneficiaries of the trust property, and that they 

were the only persons against whom an inheritance tax may 

be assessed.

Together with the petition, the cotrustees filed a number of 

documents, including an inventory and an inheritance tax worksheet. The inventory stated that the Gale H. Marsh Revocable 

Trust owned a 15.62152-percent interest in Marcasa, LLC; 

that the total value of Marcasa was $12,914,162; and that the 
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IN RE ESTATE OF MARSH

Cite as 307 Neb. 893

trust’s interest amounted to $1,412,171.88. The inheritance 

tax worksheet showed assets of the estate of $1,476,720.88 

and total deductions of $585,250.26, for a net value of property 

subject to Nebraska inheritance tax of $891,470.62. According 

to the inheritance tax computation, Sarah owed $4,081.22 and 

Carla owed $4,033.49. On March 26, 2018, the cotrustees 

filed an application and moved the court for an order allowing 

payment of tentative inheritance tax by Sarah and by Carla in 

the amounts computed on the worksheet. 1

The County filed an objection to the inheritance tax worksheet. According to the County, the worksheet did not reflect 

the fair market value of the assets owned by Marsh.

2. Hearing

Nearly 11⁄2 years later, the court commenced an evidentiary 

hearing. The hearing was held on two dates in 2019: August 14 

and September 20.

(a) Revocable Trust

Evidence was adduced concerning the trust. Marsh, identified as the settlor, created the inter vivos revocable trust on 

November 4, 1988. As mentioned, he designated his daughters 

as cotrustees. Sarah testified that she did not actually serve as 

a trustee or cotrustee during Marsh’s lifetime, explaining that 

“he managed his own affairs.”

Article II of the trust agreement addressed trust property. It 

stated that trust property was listed on an attached “Schedule 

‘A’” and that insurance policies were listed on an attached 

“Schedule ‘B’”; however, Sarah was unable to find either document. Marsh “reserve[d] the right to add property to the trust 

or to withdraw property from the trust in the manner provided 

for alteration of the trust in ARTICLE IV.”

Article IV of the trust agreement dealt with changes to the 

trust. It stated that Marsh “reserve[d] the right at any time 

1 See Neb. Rev. Stat. § 77-2018.07(1) (Reissue 2018).
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. . . to amend, alter, revoke or terminate this trust . . . by an 

instrument in writing signed by the Settlor and delivered to 

the Trustee in the lifetime of the Settlor, or by the Settlor’s Last 

Will and Testament at his death.” The trust was never amended 

or revoked.

(b) Marsh Company, Limited

In 1998, Marsh created Marsh Company, Limited, a partnership used for ownership of his property. He transferred 

all of his real estate holdings in Richardson County to Marsh 

Company.

Initially, Marsh owned 100 percent of Marsh Company. In 

1998 and 1999, he gave to each of the cotrustees, their spouses, 

and to a grandson an undivided “65/100ths” of 1 percent limited partnership interest in Marsh Company. Marsh reported 

these transfers on gift tax returns. In 2001, Marsh made several assignments of an undivided “40/100[ths]” of 1 percent 

limited interest in Marsh Company to family members. On 

December 31, 2001, Marsh owned a 91.6-percent interest in 

Marsh Company.

In 2002, Marsh gave Sarah and Carla each an undivided 

26.63-percent limited partnership interest in Marsh Company. 

He filed a gift tax return with respect to those gifts. He also 

gave a .456-percent interest to the cotrustees’ spouses and to 

trusts for three of his grandchildren. Marsh’s percentage of 

ownership at the end of 2002 was 36.1 percent. Marsh transferred small amounts of his interest in 2003, 2004, and 2005. 

On December 31, 2006, Marsh owned a 34.17-percent interest 

in Marsh Company.

During the August 2019 hearing, Sarah testified that the 

gifts in Marsh Company came from the trust. But during 

the September hearing, Sarah testified that when her attorney 

“pulled out the deeds,” she learned that Marsh’s ownership in 

Marsh Company was his individually and was not placed in 

the trust. She clarified that the trust never held an interest 

in Marsh Company.
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Cite as 307 Neb. 893

(c) Marcasa

In 2007, Marsh created Marcasa, a limited liability company. The operating agreement showed members of Marcasa 

to be Marsh, the cotrustees, the cotrustees’ spouses, and the 

cotrustees in their capacity as trustees of qualified trusts for 

their respective children. The operating agreement stated that 

“any Member may transfer all or any part of his or her interest in the Company by gift, in trust or otherwise, to or for the 

benefit of himself or herself, his or her spouse or his or her 

descendants.” Sarah was not aware of any modifications to the 

Marcasa operating agreement.

On March 21, 2007, Marsh Company merged into Marcasa 

and ceased to exist. The membership interests of Marsh, the 

cotrustees, the cotrustees’ spouses, and the trusts for the children of the cotrustees in Marsh Company were converted to 

membership interests in Marcasa. Sarah was not aware of 

any additional contributions to Marcasa other than what was 

in Marsh Company. Approximately 1 month after the merger, 

Marsh and his wife executed a quitclaim deed to Marcasa, 

but Sarah stood by her testimony that no additional contributions to Marcasa were made after the merger. She testified that 

after that transfer, there was no change in Marsh’s ownership 

interest. On December 31, 2007, Marsh held approximately a 

34.17-percent interest in Marcasa, just as he had held in Marsh 

Company at the end of 2006.

On January 2, 2008, Marsh assigned interests of approximately .382 percent in Marcasa to each of the cotrustees, their 

spouses, and their children’s trusts. On May 27, Marsh signed 

a memorandum of action concerning the trust. With that instrument, he assigned to the trust the ownership of various properties, including Marsh’s interest in Marcasa.

Each year from 2009 to 2013, when Marsh assigned a percentage ownership of Marcasa to the cotrustees, their spouses, 

and their children’s trusts, he signed the document as grantor 

of the trust. From January 31, 2014, to December 31, 2016, the 
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trust owned a 15.62-percent interest in Marcasa, the cotrustees 

each owned a 27.92-percent interest, and their spouses and 

children’s trusts each owned a 4.76-percent interest.

(d) Motion for Continuance

During the August 2019 hearing, the County requested a continuance. The County stated that it needed research on recently 

discovered deeds. The court continued the hearing from August 

14 to September 20.

On September 10, 2019, the County filed a motion to continue. According to the motion, the County needed to engage 

in formal discovery because certain requested documents had 

not been provided. The County asserted that it was necessary to 

have the complete ledger of ownership interests for all years of 

Marsh Company. The cotrustees objected to a continuance. The 

court took the motion under advisement and later denied it.

(e) County’s Witnesses

The County adduced testimony from three attorneys and 

a certified public accountant. One attorney testified that the 

cotrustees were the only people who could transfer from the 

trust and that the provisions to effectuate a gift would apply 

if there were transfers being made by Marsh as grantor of his 

own trust. The second attorney testified that “[t]he trust property would be under the title or authority of the co-trustees.” 

The third attorney testified that “[a]ssets that are in the trust 

would be subject to the power over title of the Co-Trustees.” In 

other words, the attorneys testified that the cotrustees were the 

people who could transfer assets in the trust.

The certified public accountant reviewed a number of documents for Marcasa. The documents included Schedule L forms 

for tax years 2007 through 2013, the complete 2014 tax return, 

and two pages of bank statements from 2006. The accountant 

testified that to properly determine capital contributions, she 

would need the full tax returns and all bank statements.
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IN RE ESTATE OF MARSH

Cite as 307 Neb. 893

3. Court’s Order

The county court reasoned that although the trust was the 

legal owner of Marcasa’s interests, Marsh was the beneficial 

owner of those interests. It noted that Marsh retained authority to 

change the terms of the trust and that trustees are bound by 

duties of the Nebraska Uniform Trust Code.

After reciting the elements of a gift, the court determined 

that tax filings and other documentation showed the transfers 

were completed and consented to by the legal owner of the 

interests—the trust. The court overruled the County’s objections to the worksheet and stated that the transfers of interests 

signed by Marsh should be considered. However, the court 

reduced the valuation discount on Marcasa from 30 percent 

to 25 percent, thereby increasing the value of the estate by 

$98,720.50 and the inheritance tax by $987.21.

The County filed a timely appeal, which we moved to 

our docket. 2

III. ASSIGNMENTS OF ERROR

The County alleges, reordered, that the court erred by (1) 

failing to order published notice, (2) failing to allow a continuance for the County’s expert to review the capital contributions made to Marsh Company and Marcasa, (3) determining 

that certain attempted transfers of ownership shares of Marsh 

Company and Marcasa were valid transfers that reduced the 

taxable value of the estate for inheritance tax purposes, and (4) 

failing to determine that Marsh retained possession or enjoyment of the property he claimed to have transferred to Marsh 

Company and Marcasa during his lifetime.

IV. STANDARD OF REVIEW

[1,2] On appeal of an inheritance tax determination, an 

appellate court reviews the case for error appearing on the 

2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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IN RE ESTATE OF MARSH

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record. 3 When reviewing a judgment for errors appearing 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. 4

[3,4] In reviewing a judgment of the probate court in a 

law action, an appellate court does not reweigh evidence, but 

considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the 

successful party, who is entitled to every reasonable inference 

deducible from the evidence. 5 The probate court’s factual findings have the effect of a verdict and will not be set aside unless 

clearly erroneous. 6

[5] Statutory interpretation presents a question of law. When 

reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions 

reached by the trial court. 7

[6] A motion for continuance is addressed to the discretion 

of the trial court, whose ruling will not be disturbed on appeal 

in the absence of an abuse of discretion. 8

V. ANALYSIS

1. Publication of Notice

[7,8] The County asserts that the county court failed to 

order published notice of the proceeding and that the court 

thus lacked jurisdiction and “any rulings by the [c]ourt are 

invalid.” 9 It relies on Neb. Rev. Stat. § 77-2018.02 (Supp. 

3 In re Estate of Hasterlik, 299 Neb. 630, 909 N.W.2d 641 (2018). See, also, 

In re Estate of Baer, 273 Neb. 969, 735 N.W.2d 394 (2007).

4 In re Estate of Hasterlik, supra note 3.

5 In re Estate of Karmazin, 299 Neb. 315, 908 N.W.2d 381 (2018).

6 Id.

7 In re Estate of Reed, 271 Neb. 653, 715 N.W.2d 496 (2006).

8 Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).

9 Brief for appellant at 19.
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2019). The County’s argument in brief consists of only 97 

words and amounts to little more than a bare recital of its 

assignment of error, which would ordinarily preclude us from 

considering the argument. 10 But before reaching the legal issues 

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

determine whether it has jurisdiction over the matter before it. 11

If the court from which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction. 12 Thus, 

in order to determine that we have jurisdiction of this appeal, 

we must determine whether the county court had jurisdiction of 

the proceeding below. We conclude that it did.

[9] Although the County does not say so, it must be arguing 

that the statute requires publication to confer subject matter 

jurisdiction upon the county court. Here, all of the parties were 

plainly before the court. One who invokes the power of the 

court on an issue other than the court’s jurisdiction over one’s 

person makes a general appearance so as to confer on the court 

personal jurisdiction over that person. 13 The cotrustees, who 

were the petitioners, were also the sole beneficiaries of Marsh’s 

trust. They clearly invoked the court’s power. The County 

sought a determination that the entire value of Marcasa was 

subject to inheritance tax. It thereby invoked the court’s power 

on an issue other than personal jurisdiction. The County does 

not identify, nor does the record disclose, any other party having an interest in Marsh’s estate or in the property of the trust. 

Because the county court clearly had personal jurisdiction of 

all of the parties, only the matter of subject matter jurisdiction remains.

10 See Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015) 

(appellate court will not address argument that does little more than restate 

assignment of error).

11 Cinatl v. Prososki, ante p. 477, 949 N.W.2d 505 (2020).

12 State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).

13 Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001).
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[10,11] In a general sense, the county court had subject matter jurisdiction. Subject matter jurisdiction is the power of a 

tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to 

deal with the general subject matter involved. 14 The statute at 

issue here authorizes an “independent proceeding for the sole 

purpose of determining the [inheritance] tax.” 15 It specifies 

that the “independent proceeding . . . may be instituted in the 

county court.” 16 We hold that § 77-2018.02(1) confers upon the 

county court subject matter jurisdiction of an independent proceeding brought for the sole purpose of determining Nebraska 

inheritance tax.

Here, the cotrustees initiated this type of proceeding. The 

only remaining question of subject matter jurisdiction is 

whether the statute requires such jurisdiction to be invoked in 

a particular manner that specifically demands published notice. 

We conclude that it does not. Our opinion does not address 

the nature of publication required by the general notice statute 

under the probate code. 17

[12] Applying the usual standard of statutory interpretation, the pertinent language dictates only the method of giving 

notice of hearing. Basic principles of statutory interpretation 

require a court to give statutory language its plain and ordinary 

meaning. 18 Upon the filing of a petition to initiate this type of 

independent proceeding, the statute requires the court to “order 

the petition set for hearing” and to “cause notice thereof to be 

given to all persons interested in the estate of the deceased 

and the property described in the petition . . . in the manner provided for in subsection (3).” 19 Subsection (3), in turn, 

14 Benjamin M. v. Jeri S., ante p. 733, ___ N.W.2d ___ (2020).

15 § 77-2018.02(1).

16 Id.

17 See Neb. Rev. Stat. § 30-2220 (Reissue 2016).

18 State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).

19 § 77-2018.02(2).
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requires the notice “provided for by subsection (2)” to be given 

by “one publication in a legal newspaper of the county.” 20

In subsection (2), “notice thereof ” refers to the “hearing.” 

Properly understood, publication under this statute is required 

only to give notice of the hearing.

Section 77-2018.02(2) specifically provides that notice may 

be dispensed under certain circumstances. Notice is not necessary when no assessment of inheritance tax could result. 21 Nor 

is published notice required when the county attorney “has 

executed a waiver of notice upon him or her to show cause, or 

of the time and place of hearing, and has entered a voluntary 

appearance in such proceeding in behalf of the county and the 

State” and either all persons against whom an inheritance tax 

may be assessed “are either a petitioner or have executed a 

waiver of notice upon them to show cause, or of the time and 

place of hearing, and have entered a voluntary appearance” or 

a party has agreed to pay the full inheritance tax determined. 22

By adding provisions in which notice may be dispensed with, 

the Legislature signaled that notice is not a jurisdictional 

prerequisite.

Moreover, the statute requires that the “county attorney 

of each county in which the property described in the petition is located” be given “personal service of notice of the 

hearing.” 23 This reinforces our understanding of the publication requirement.

[13] In contrast, the first clause of § 77-2018.02(2) plainly 

mandates “the filing of a petition to initiate such an independent 

proceeding.” In other words, the proceeding is “initiate[d]” by 

“the filing of a petition.” We hold that published notice is not 

a prerequisite of a county court’s subject matter jurisdiction 

20 § 77-2018.02(3).

21 See § 77-2018.02(4).

22 § 77-2018.02(5).

23 § 77-2018.02(3).
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of an independent proceeding for the sole purpose of determining Nebraska inheritance tax; rather, such jurisdiction is 

invoked by the filing of a petition to initiate the proceeding. 

Because that was precisely what happened here, the County’s 

assertion that the county court lacked jurisdiction fails.

[14] Even if notice was not published, any error in failing 

to do so was harmless. Error without prejudice is not a ground 

for reversal. 24 Here, the county attorney and the cotrustees—

the only persons against whom an inheritance tax may be 

assessed—were actively involved in this matter from the time 

of filing of the petition and all appeared at the hearing. The 

County suffered no prejudice by any lack of published notice 

of the hearing.

2. Failure to Continue Matter

The County argues that the court should have sustained its 

motion for a continuance. On September 10, 2019, the County 

filed the motion, asserting that it needed to engage in formal 

discovery and that “it is necessary to have the complete ledger 

of ownership interests for all years of Marsh Company.” In 

the County’s brief, it argues that a continuance was necessary so that the certified public accountant could determine if the capital accounts of Marsh Company and Marcasa 

were accurate.

The cotrustees objected to the motion for several reasons. 

First, they had made arrangements based on the court’s scheduling of the second day of trial, including Sarah’s application 

of leave from her employment and Carla’s purchase of a nonrefundable airline ticket. Next, they noted that for over 1 year, 

the attorney representing the County had not served any formal 

discovery. Finally, in urging against further delay, they pointed 

out that any additional inheritance taxes assessed would draw 

interest at 14 percent from April 6, 2018.

24 Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).
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We find no abuse of discretion by the court in denying a 

continuance. We are mindful that the petition was filed on 

March 22, 2018; that such a petition should be set for hearing 

within 2 to 4 weeks 25; and that the County’s motion was filed 

nearly 11⁄2 years after the filing of the petition. This assignment 

of error lacks merit.

3. Whether Attempted Transfers 

Were Effective

The County contends that any attempted transfers of ownership interest in Marsh Company and Marcasa were ineffective. 

The County’s witnesses testified that for transfers to be valid, 

they had to be executed by the cotrustees, as prescribed by 

the terms of the trust. The County focuses on the fact that the 

transfers were executed by Marsh, not the cotrustees.

The evidence established that Marsh conveyed interests in 

Marsh Company to his family. It also established that the trust 

never held an ownership interest in Marsh Company. Thus, the 

County’s argument that assignments of ownership interests in 

Marsh Company were ineffective because they were not made 

by the cotrustees lacks merit.

The situation differs with respect to Marsh’s assignments of 

interest in Marcasa beginning in 2009. In January 2008, Marsh 

executed eight assignment forms in his individual capacity. 

Then, in May, Marsh assigned his interest in Marcasa to his 

trust. Thereafter, the assignment forms executed between 2009 

and 2013 showed that they were signed by Marsh as grantor of 

the trust.

[15,16] To make a valid inter vivos gift, there must be an 

intention to transfer title to property, delivery by the donor, 

and acceptance by the donee. 26 The first two elements relate 

to intent and actions of the donor. The donor must have a 

present donative intent and a clear and unmistakable intent to 

25 See § 77-2018.02(2).

26 Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018).
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make a gift. 27 Ordinarily, actual delivery is necessary where 

the subject of the gift is capable of manual delivery, but where 

actual manual delivery cannot be made, the donor may do that 

which, under the circumstances, will in reason be considered 

equivalent to actual delivery. 28 The Ninth Circuit explained that 

interests in a limited liability company “do not lend themselves 

to manual delivery. Instead, they are delivered through the 

execution of papers. As a result, . . . it is somewhat artificial 

to separate the ‘delivery’ of [a limited liability company] interest from the intention to donate it.” 29 Here, intent and delivery 

are demonstrated by Marsh’s history of assigning interests to 

his daughters and their family members, his execution of the 

assignments, and his cessation of acting as the owner of those 

interests after execution of the assignments.

[17] The final element of a gift calls for action by the donee. 

The exercise by the donee of dominion over the property which 

is the subject of a gift, or an assertion of a right to the property 

by the donee, generally will constitute an acceptance. 30 The 

donees accepted the gifts by acting as the rightful owner of the 

interests in Marcasa, and their ownership took effect immediately. Their interests were reported on Schedule K-1 tax forms, 

thereby subjecting them to payment of income taxes attributable to their ownership interests.

[18] The County contends that no transfer of ownership 

interests occurred, because the cotrustees never executed any 

of the transfer documents. But under the trust agreement, 

Marsh retained authority “to withdraw property from the trust.” 

The trust agreement provided the manner to do so—“by an 

instrument in writing signed by the Settlor and delivered to 

the Trustee in the lifetime of the Settlor.” Here, the assignments at issue were all in writing. And the cotrustees, as 

27 Id.

28 Id.

29 Linton v. U.S., 630 F.3d 1211, 1217 (9th Cir. 2011).

30 See Zelenka v. Pratte, supra note 26.
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either the recipients or the spouses or parents of the recipients, 

were aware of the assignments. Further, we have stated that 

whether a deed or other instrument conveying an interest in 

property has been delivered is largely a question of intent to 

be determined by the facts and circumstances of the particular 

case. 31 Marsh’s parting with the ownership interests given as 

gifts and the cotrustees and other donees acting as owners of 

those respective interests manifest evidence of delivery. The 

court’s decision conforms to the law, is supported by competent evidence, and is not unreasonable.

4. Possession and Enjoyment 

Post-Transfer

The County asserts that Marsh continued to retain an ownership interest in the claimed transfers and that thus, the 

total value of Marcasa should be subject to inheritance tax. 

We disagree.

The County relies upon In re Estate of Fries,

 32 but that 

case provides little guidance. In re Estate of Fries concerned 

whether the value of real property should be part of the decedent’s augmented estate in calculating his widow’s elective 

share. In the decedent’s lifetime, he transferred his entire interest in real estate to his children, but he continued to perform 

management functions for, receive income from, and pay taxes 

on the properties. We noted that “in the case of real property, 

the terms ‘possession’ and ‘enjoyment’ have been interpreted to 

mean ‘the lifetime use of the property.’” 33

Here, Marsh engaged in a pattern of transferring ownership interests to his family for nearly 20 years. He, and then 

his trust, retained an interest in Marcasa. Although Marsh was 

the manager of Marcasa, neither he nor the trust ever owned a 

majority interest in the limited liability company. And as his 

31 Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002).

32 In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

33 Id. at 894-95, 782 N.W.2d at 603.
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

IN RE ESTATE OF MARSH

Cite as 307 Neb. 893

ownership interest decreased, so too did his share of Marcasa’s 

income. Tax records show that the cotrustees, their spouses, 

and their children were subject to federal income taxes based 

upon their interests in Marcasa. Competent evidence supports 

the court’s decision to not subject 100 percent of Marcasa to 

inheritance tax.

VI. CONCLUSION

We conclude that published notice of the hearing was not 

a prerequisite of the county court’s subject matter jurisdiction 

and that even if notice was not published, the County suffered 

no prejudice. We find no abuse of discretion in the overruling 

of the County’s motion for a continuance. Finally, we conclude that the court’s determination that ownership interests 

in Marcasa were validly transferred from the trust conforms 

to the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable.

Affirmed.