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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

In re Estate of Dr. Wayne L. Ryan, deceased.

Constance Ryan, appellant, v. Steven Ryan, 

Personal Representative of the Estate of 

Dr. Wayne L. Ryan, deceased, appellee.

___ N.W.2d ___

Filed April 7, 2023. No. S-22-252.

1. Judgments: Statutes: Appeal and Error. The interpretation of statutes 

presents questions of law, and an appellate court reaches a conclusion 

independent of that reached by the lower court.

2. Decedents’ Estates: Wills: Parties. The decision to dismiss a proceeding to administer or probate an estate, including a will contest, is within 

the discretion of the trial court; an abuse of discretion occurs when the 

court does not protect the interests of all parties in the estate, whether 

before the court in person or not.

3. Wills: Dismissal and Nonsuit. A will contest is an in rem proceeding 

and is not an action for purposes of statutes governing civil voluntary dismissal.

4. Decedents’ Estates: Wills: Parties. Courts that exercise the power to 

dismiss proceedings for the probate of a will must protect the interests 

of all parties in the estate.

5. Dismissal and Nonsuit. Generally, under Neb. Rev. Stat. §§ 25-601 

(Reissue 2016) and 25-602 (Cum. Supp. 2022), a plaintiff has the 

right to dismiss an action without prejudice before final submission of 

the case, subject to compliance with conditions precedent as may be 

imposed by the court.

6. ____. In those matters to which Neb. Rev. Stat. §§ 25-601 (Reissue 

2016) and 25-602 (Cum. Supp. 2022) apply, the statutory right to voluntary dismissal under §§ 25-601 and 25-602 is not a matter of judicial 

grace or discretion, but neither is it absolute or without limitation.

7. Wills: Parties. Proceedings to probate a will are in rem, and every person interested in the subject matter is a party whether named or not.

Nebraska Supreme Court Online Library

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04/07/2023 09:06 AM CDT
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313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

8. Wills: Dismissal and Nonsuit: Parties. Parties to a proceeding to probate a will do not have the power to voluntarily dismiss because it is an 

in rem proceeding.

9. Decedents’ Estates. Upon commencement of estate proceedings, the 

instant the petition is filed, the further operation or control of the matter passes out of the hands of the petitioner and into the hands of 

the court.

10. Wills: Dismissal and Nonsuit: Parties: Jurisdiction: Presumptions.

A party attempting to dismiss the operative pleadings to probate a will 

and any will contest, before action has been taken by the court, cannot 

deprive the court of its jurisdiction and its power. A party may cease 

to become an active participant by attempting to dismiss the petition, 

but the petition would be presumed filed for the benefit of all persons interested.

11. Wills: Dismissal and Nonsuit: Parties. A court carries a duty to protect 

all parties interested in a probate proceeding, whether such parties are 

before the court or not, but may dismiss proceedings to probate a will in 

its discretion.

Appeal from the District Court for Douglas County: Nathan 

B. Cox, Judge. Reversed and remanded for further proceedings.

Daniel J. Welch and Damien J. Wright, of Welch Law Firm, 

P.C., for appellant.

Marnie A. Jensen, David A. Lopez, and Kamron T.M. Hasan, 

of Husch Blackwell, L.L.P., and John A. Svoboda, of Dvorak 

Law Group, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, and Freudenberg, 

JJ., and Kube, District Judge.

Miller-Lerman, J.

NATURE OF CASE

In this will contest, Constance Ryan, a daughter of the 

decedent, appeals the order of the district court for Douglas 

County that dismissed a petition filed by her sister, Stacy Ryan, 

and Stacy’s children (collectively Stacy), which challenged 

the validity of the 2015 will and codicil (2015 Will) of their 

late father, Dr. Wayne L. Ryan. The 2015 Will was subject 
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313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

to informal probate. Stacy claimed that the 2015 Will was a 

product of undue influence, was signed when Wayne lacked 

sufficient legal capacity, or was not signed by Wayne. Stacy 

claimed that a 2004 will and a 2006 codicil (2004 Will) constituted the effective last will and testament of Wayne. The children of Wayne stood to benefit under the earlier testamentary 

instruments. Constance appeared in this case as an interested 

party. Certain original parties are no longer participating in 

this proceeding.

The order of dismissal was predicated on a “Joint Stipulation 

for Dismissal With Prejudice” in which the estate and children of Wayne, except Constance, represented that they had 

resolved claims and defenses in this matter and sought dismissal with prejudice. Because the record does not show that 

all interested parties were protected in this proceeding, we 

determine that the district court abused its discretion when it 

dismissed this matter. Accordingly, we reverse, and remand for 

further proceedings.

STATEMENT OF FACTS

Parties.

Wayne died on November 3, 2017, at the age of 90. His 

children are Constance, Stacy, Timothy Ryan, Carol Ryan, and 

Steven Ryan. On December 7, Steven filed an “Application 

for Informal Probate of Will and Informal Appointment of 

Personal Representative,” which sought to enter to probate the 

2015 Will consisting of a “Last Will and Testament of Wayne 

L. Ryan,” signed by Wayne on January 23, 2015, and a “First 

Codicil to Last Will and Testament of Wayne L. Ryan,” signed 

by Wayne on October 6, 2015. Under the 2015 Will, the sole 

beneficiary of Wayne’s estate was the trustee of the Wayne L. 

Ryan Revocable Trust, to be disposed of pursuant to the terms 

of the trust.

Wayne was the founder of Streck, Inc., a closely held 

Nebraska corporation owned primarily by family members. 

Constance is Streck’s current president and chief executive officer.
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313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

Estate Proceedings.

Stacy petitioned to set aside the informal probate of the 

2015 Will and to contest its validity in Wayne’s estate proceedings in the county court for Douglas County. Stacy claimed 

that the effective last will and testament of Wayne was the will 

executed on April 2, 2004, modified by a codicil thereto on 

December 13, 2006. The children of Wayne stood to benefit 

under the 2004 Will. Stacy claimed that the 2015 Will was the 

product of undue influence, was signed when Wayne lacked 

sufficient legal capacity, or was not signed by Wayne. She 

alleged that beginning at least as early as 2012, Wayne had 

dementia and experienced small strokes that continued until his 

death. Stacy filed a notice to transfer her petition to set aside 

the informal probate of the will and to contest the validity of 

the will to the district court.

Steven, as the appointed personal representative of the estate, 

filed an answer generally denying allegations in the petition. 

Constance filed an appearance as an interested party.

In April 2020, Stacy unsuccessfully sought to consolidate 

this will contest with a pending trust and tort contest that was 

also docketed in the district court. See Ryan v. Ryan, ante p. 

938, ___ N.W.2d ___ (2023). The parties filed a stipulation in 

the trust and tort contest that discovery produced in that case 

could be used in the will contest.

On November 25, 2020, Steven filed a motion for summary 

judgment. Stacy and Constance opposed the motion, and the 

court admitted extensive evidence. The district court overruled 

the motion for summary judgment because “genuine issues of 

material fact do still remain with respect to a number of issues 

in this matter including, but not limited to, [Wayne’s] testamentary capacity in 2015, as well as whether he was unduly 

influenced to execute the 2015 Will and Codicil.”

Agreement and Stipulation.

On February 8, 2022, Stacy, Timothy, Carol, Steven, 

and the estate filed a “Joint Stipulation for Dismissal With 
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313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

Prejudice.” The stipulation represented that “they have resolved 

claims and defenses in this matter and seek the Court’s dismissal with prejudice of all claims and defenses stated or 

that could have been stated in this case.” The impetus for the 

stipulation was an agreement approved after court-ordered 

mediation in the separate trust and tort case. Constance was 

not a party to the agreement and objected to the stipulation 

for dismissal of this will contest. The district court overruled 

Constance’s motion and objection to the dismissal. On April 4, 

the district court entered an order, inter alia, which dismissed 

the case with prejudice “in accordance with the stipulation.” 

Constance appeals.

ASSIGNMENT OF ERROR

Constance assigns, consolidated and restated, that for a variety of reasons, the district court erred when it dismissed this 

will contest with prejudice.

STANDARDS OF REVIEW

[1] The interpretation of statutes presents questions of law, 

and an appellate court reaches a conclusion independent of 

that reached by the lower court. See Mollring v. Nebraska 

Dept. of Health & Human Servs., ante p. 251, 983 N.W.2d 

536 (2023).

[2] The decision to dismiss a proceeding to administer or 

probate an estate, including a will contest, is within the discretion of the trial court; an abuse of discretion occurs when 

the court does not protect the interests of all parties in the 

estate, whether before the court in person or not. See, Hill v. 

Humlicek, 156 Neb. 61, 54 N.W.2d 366 (1952); In re Estate of 

Marsh, 145 Neb. 559, 17 N.W.2d 471 (1945).

ANALYSIS

The “Joint Stipulation for Dismissal With Prejudice” contained language to the effect that the parties thereto “have 

resolved claims and defenses in this matter” and the parties thereto “seek the Court’s dismissal.” We thus read the 
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313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

language of the stipulation and the record as a whole as 

indicating that the parties to the stipulation consisting of the 

estate and Wayne’s children, except Constance, had reached 

a compromise and were seeking a voluntary dismissal of 

this will contest. The record shows that Constance’s interests 

will be impacted by dismissal. Constance contends that the 

court erred when it dismissed this matter without following the procedures in the Nebraska Probate Code relating to 

compromise, see Neb. Rev. Stat. §§ 30-24,123 and 30-24,124 

(Reissue 2016), which correspond to Unif. Probate Code 

§§ 3-1101 and 3-1102, 8 (part II) U.L.A. 417 (2013), respectively. Constance also contends that the district court erred 

when it endorsed a purported voluntary dismissal of this will 

contest without protecting all interested parties. We find merit 

to Constance’s arguments.

Probate Code Compromises.

Sections 30-24,123 and 30-24,124 provide a procedure for 

securing court approval of compromise agreements. Section 

30-24,123 provides that to resolve

any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, 

the construction, validity, or effect of any probated will, 

the rights or interests in the estate of the decedent of any 

successor, or the administration of the estate . . . .

The policy reflected in these statutes is similar to the common law that allowed the court to review and approve family 

agreements. See 31 Am. Jur. 2d Executors and Administrators

§ 38 (2022). The tension between family agreements and 

the intent of the testator is discussed in a comment to the 

Uniform Probate Code, which states: “The only reason for 

approving a scheme of devolution which differs from that 

framed by the testator or the statutes governing intestacy is 

to prevent dissipation of the estate in wasteful litigation.” 

Unif. Probate Code, supra, § 3-1102, Comment, 8 (part 

II) U.L.A. at 419. In light of this tension, the compromise 
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IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

agreement must be “approved in a formal proceeding in the 

court” to become “binding on all the parties thereto including 

those unborn, unascertained, or who could not be located.” 

§ 30-24,123.

Section 30-24,124 provides the procedure for a court to formally review and approve a compromise proposal. The terms 

of the compromise must be in a written agreement and any 

interested person may submit the agreement to the court for 

its approval. § 30-24,124(1) and (2). Under § 30-24,124(3), 

in order to approve a compromise between the parties, the 

court must find that (1) “the contest or controversy is in good 

faith” and (2) “the effect of the agreement upon the interests 

of persons represented by fiduciaries or other representatives 

is just and reasonable.” The interpretation of statutes presents 

questions of law, and an appellate court reaches a conclusion 

independent of that reached by the lower court. See Mollring 

v. Nebraska Dept. of Health & Human Servs., ante p. 251, 

983 N.W.2d 536 (2023). We agree with courts interpreting 

identical statutes which have held that both parts of a twopart test must be satisfied for a court to approve a compromise. See, e.g., Wilson v. Dallas, 403 S.C. 411, 743 S.E.2d 

746 (2013); Unif. Probate Code, supra, § 3-1102, comment, 

8 (part II) U.L.A. 419. After notice to all interested persons 

or their representatives, and upon making the required findings, the court shall make an order approving the agreement. 

See § 30-24,124(3).

In the present case, there is no semblance of adherence to 

the foregoing procedure under § 30-24,124(3). We make no 

comment regarding whether and to what extent Constance 

would be bound by a compromise properly approved to which 

she was not a party or a compromise which impacted her 

interests to which she was not a party. In the present case, 

there is no record showing the district court reviewed the 

agreement or made the statutory findings as to its propriety, 

but nevertheless, it “dismissed with prejudice in accordance 

with the stipulation.” Because the basis of the dismissal 
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

was a compromise that had not been properly considered as 

required by § 30-24,124(3), the dismissal of the will contest 

by the district court based on the compromise was an abuse 

of discretion.

Voluntary Dismissal of Action.

[3,4] On appeal, it has been urged upon us, but not by 

Constance, that Stacy, as the petitioner in the case below, 

had the right to dismiss this will contest with prejudice under 

the civil procedure provisions of Neb. Rev. Stat. §§ 25-601 

(Reissue 2016) and 25-602 (Cum. Supp. 2022). However, as 

we explain below, under Nebraska law, a will contest is an in 

rem proceeding and is not an action for purposes of statutes 

governing civil voluntary dismissal. Courts that exercise the 

power to dismiss proceedings for the probate of a will must 

protect the interests of all parties in the estate. See In re Estate 

of Marsh, 145 Neb. 559, 17 N.W.2d 471 (1945). In this case, 

we determine on this record that the district court abused its 

discretion when it dismissed all claims with prejudice without ensuring that the interests of all interested parties would 

be safeguarded.

[5,6] As an initial matter, we address the assertion that 

a voluntary dismissal by Stacy is subject to civil procedure 

statutes §§ 25-601 and 25-602, which codify the ability of 

a plaintiff to dismiss an action without prejudice. Generally, 

under these statutes, a plaintiff has the right to dismiss an 

action without prejudice before final submission of the case, 

subject to compliance with conditions precedent as may be 

imposed by the court. See Schaaf v. Schaaf, 312 Neb. 1, 

978 N.W.2d 1 (2022). In those matters to which §§ 25-601 

and 25-602 apply, the statutory right to voluntary dismissal 

under §§ 25-601 and 25-602 is not a matter of judicial grace 

or discretion, but neither is it absolute or without limitation. 

See Schaaf v. Schaaf, supra. However, as discussed below, 

these voluntary dismissal principles are not suited to a will 

contest proceeding.
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

[7] It is well settled in Nebraska that proceedings to probate 

a will are in rem, and every person interested in the subject 

matter is a party whether named or not. In re Estate of Dickie, 

261 Neb. 533, 623 N.W.2d 666 (2001); In re Estate of Emery, 

258 Neb. 789, 606 N.W.2d 750 (2000); Clutter v. Merrick, 162 

Neb. 825, 77 N.W.2d 572 (1956). See, similarly, In re Estate of 

Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021) (stating interested parties to estate may appeal, whether they appeared in 

lower court or not).

[8-10] We have held that the parties to a proceeding to 

probate a will do not have the power to dismiss because it is 

an in rem proceeding. See Hill v. Humlicek, 156 Neb. 61, 54 

N.W.2d 366 (1952); In re Estate of Marsh, supra. Upon commencement of estate proceedings, “[t]he instant the petition is 

filed the further operation or control of the matter passes out 

of the hands of the petitioner and into the hands of the court.” 

In re Estate of Glover, 104 Neb. 151, 158, 175 N.W. 1017, 

1019-20 (1920). We have observed that “[w]here the court 

is called upon to determine the probate of a will, it is acting 

upon the res of the estate . . . .” In re Estate of Sweeney, 94 

Neb. 834, 835, 144 N.W. 902, 902 (1913) (emphasis omitted) (syllabus of the court). A party attempting to dismiss the 

operative pleadings to probate a will and any will contest, 

before action has been taken by the court, cannot deprive the 

court of its jurisdiction and its power. See Hill v. Humlicek, 

supra (citing In re Estate of Glover, supra). A party may 

cease to become an active participant by attempting to dismiss the petition, but the petition would be presumed filed 

for the benefit of all persons interested. See In re Estate of 

Glover, supra.

[11] A court carries a duty to protect all parties interested 

in a probate proceeding, whether such parties are before the 

court or not, but may dismiss proceedings to probate a will 

in its discretion. See In re Estate of Marsh, 145 Neb. 559, 17 

N.W.2d 471 (1945). When exercising the court’s power over 

probate proceedings, “it is the duty of the court to protect 
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IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

all parties to the proceeding, whether before the court in person 

or not, and any failure to do so is subject to review.” Id. at 565, 

17 N.W.2d at 475-76.

The adoption of the Uniform Probate Code, which does not 

supply a procedure for dismissal, leaves the above principles 

of law intact. See, also, Mamoulian v. St. Louis University, 732 

S.W.2d 512 (Mo. 1987) (holding that will contest may not be 

voluntarily dismissed under Uniform Probate Code). In this 

regard, we note that Neb. Rev. Stat. § 30-2203 (Reissue 2016) 

provides that “[u]nless displaced by the particular provisions of 

this code, the principles of law and equity supplement its provisions.” Accordingly, we continue to adhere to the principles 

just recited and apply them to this case.

As noted, dismissal of a proceeding to probate an estate is 

an abuse of discretion when it does not protect the interests 

of all parties in the estate, whether before the court in person 

or not. Constance was an “interested person” as a child of the 

decedent, see Neb. Rev. Stat. § 30-2209(21) (Reissue 2016), 

and a beneficiary under the 2004 Will if it was found to be 

controlling. Stacy’s objection to the probate of the 2015 Will 

is presumed to have been filed on behalf of all interested persons. The district court made no rulings showing its consideration of or its adherence to its duty to protect the interests 

of all parties interested in the estate, and on the record provided, it did not inquire if the compromising parties resolved 

the matter for their benefit to the exclusion of Constance, 

who stood in the same position. See Mamoulian v. St. Louis 

University, supra. Because the court had not determined the 

validity of any of the testamentary instruments, the will contest should have remained pending even if some parties no 

longer intended to participate in it. In this situation, Neb. Rev. 

Stat. § 30-2429.01(4) (Cum. Supp. 2022) provides in part that 

“[t]he district court may order such additional pleadings as 

necessary and shall thereafter determine whether the decedent 

left a valid will.” Because the district court abused its discretion when it dismissed the matter and the validity of the 
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IN RE ESTATE OF RYAN

Cite as 313 Neb. 970

2015 Will has not been resolved, we reverse, and remand for 

further proceedings.

CONCLUSION

The district court abused its discretion when it dismissed 

the will contest with prejudice. Accordingly, we reverse, and 

remand for further proceedings.

Reversed and remanded for 

further proceedings.

Stacy, Funke, and Papik, JJ., not participating.