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Cite as 306 Neb. 646

In re Estate of Madeline A. Adelung, deceased. 

Lynda Adelung Heiden, Personal Representative 

of the Estate of Madeline A. Adelung, 

deceased, appellee and cross-appellant, 

v. Kent A. Adelung, appellant 

and cross-appellee.

___ N.W.2d ___

Filed July 31, 2020. No. S-19-705.

1. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

2. ____. An argument that does little more than restate an assignment of 

error does not support the assignment, and an appellate court will not 

address it.

3. Jurisdiction: Statutes. Subject matter jurisdiction and statutory interpretation present questions of law.

4. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

5. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

6. Decedents’ Estates: Judgments: Appeal and Error. In the absence of 

an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court. 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.

7. Decedents’ Estates: Equity: Appeal and Error. Equity questions arising in appeals involving the Nebraska Probate Code are reviewed 

de novo.

Nebraska Supreme Court Online Library

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

09/04/2020 02:28 AM CDT
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8. Trial: Appeal and Error. Cases are determined in an appellate court on 

the theory upon which they were tried.

9. Equity: Decedents’ Estates: Accounting. An action for an accounting 

of estate property is in equity.

10. Judgments: Evidence: Appeal and Error. Despite de novo review, 

when credible evidence is in conflict on material issues of fact, the 

appellate court will consider and may give weight to the fact that the 

trial court observed the witnesses and accepted one version of the facts 

over another.

11. 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.

12. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

13. Decedents’ Estates: Courts: Jurisdiction. Generally, the county court 

has exclusive original jurisdiction over all matters relating to decedents’ estates.

14. Decedents’ Estates: Courts: Jurisdiction: Equity. The county courts, 

in exercising exclusive original jurisdiction over estates, may apply 

equitable principles to matters within probate jurisdiction.

15. Constitutional Law: Decedents’ Estates: Courts: Jurisdiction. The 

county court’s jurisdiction under Neb. Rev. Stat. §§ 24-517(1) (Cum. 

Supp. 2018) and 30-2211 (Reissue 2016) cannot be exclusive as to matters within the district court’s chancery and common law jurisdiction 

conferred by Neb. Const. art. V, § 9.

16. Constitutional Law: Courts: Jurisdiction. The grant of jurisdiction 

to the district court under Neb. Const. art. V, § 9, while original, is 

not exclusive.

17. Courts: Jurisdiction: Words and Phrases. Under the doctrine of jurisdictional priority, when different state courts have concurrent original 

jurisdiction over the same subject matter, basic principles of judicial 

administration require that the first court to acquire jurisdiction should 

retain it to the exclusion of another court.

18. Statutes: Legislature: Intent. A collection of statutes pertaining to a 

single subject matter are in pari materia and should be conjunctively 

considered and construed to determine the intent of the Legislature, so 

that different provisions are consistent, harmonious, and sensible.

19. Statutes. A court must attempt to give effect to all parts of a statute, 

and if it can be avoided, no word, clause, or sentence will be rejected as 

superfluous or meaningless.
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20. Statutes: Appeal and Error. An appellate court will not resort to 

interpretation to ascertain the meaning of statutory words that are plain, 

direct, and unambiguous.

21. Principal and Agent. An agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any 

harmful act to the principal.

22. ____. The Nebraska Uniform Power of Attorney Act places an agent 

under a power of attorney in a fiduciary relationship with his or her 

principal.

23. Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. In 

common-law and equity actions relating to decedents’ estates, the county 

court has concurrent original jurisdiction with the district court.

24. Agency: Trusts. Neb. Rev. Stat. § 30-4045 (Reissue 2016)—the provision of the Nebraska Uniform Power of Attorney Act governing retroactivity—should be construed similarly to Neb. Rev. Stat. § 30-38,110 

(Reissue 2016)—the comparable provision of the Nebraska Uniform 

Trust Code.

25. Equity: Decedents’ Estates: Accounting: Limitations of Actions. The 

statute of limitations for an action in equity for an accounting of estate 

property is 4 years.

26. Limitations of Actions: Words and Phrases. The accrual of a cause of 

action means the right to maintain and institute a suit, and whenever one 

person may sue another, a cause of action has accrued and the statute 

begins to run, but not until that time. So whether at law or in equity, the 

cause of action arises when, and only when, the aggrieved party has a 

right to apply to the proper tribunal for relief.

27. Principal and Agent. A power of attorney authorizes another to act as 

one’s agent.

28. Agency: Words and Phrases. An agency is a fiduciary relationship 

resulting from one person’s manifested consent that another may act on 

behalf and subject to the control of the person manifesting such consent 

and, further, resulting from another’s consent to so act.

29. Principal and Agent. An agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing 

any harmful act to the principal, to act solely for the principal’s benefit in all matters connected with the agency, and to adhere faithfully 

to the instructions of the principal, even at the expense of the agent’s 

own interest.

30. ____. An attorney in fact, under the duty of loyalty, always has the 

obligation to act in the best interest of the principal unless the principal 

voluntarily consents to the attorney in fact’s engaging in an interested 

transaction after full disclosure.
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31. Principal and Agent: Gifts: Intent. No gift may be made by an attorney in fact to himself or herself unless the power to make such a gift is 

expressly granted in the instrument and there is shown a clear intent on 

the part of the principal to make such a gift.

32. Principal and Agent: Gifts: Fraud. The basic policy concern underlying the law that forbids self-dealing is not linked to any duty an agent 

may have to third parties, but is primarily addressed to the potential 

for fraud that exists when an agent acting pursuant to a durable power 

of attorney has the power to make gifts, especially after the principal 

becomes incapacitated.

33. Agency. Powers of attorney are by necessity strictly construed, and 

broad encompassing grants of power are to be discounted.

34. Landlord and Tenant: Property. A life tenant is entitled to and owns 

by absolute title everything in the nature of income, profit, and gain 

realized or accrued from the property during his or her tenancy.

35. Agency: Intent. An agency relationship may be implied from the 

words and conduct of the parties and the circumstances of the case evidencing an intention to create the relationship irrespective of the words 

or terminology used by the parties to characterize or describe their 

relationship.

36. Principal and Agent: Property. An agent has a duty to account to his 

or her principal for all property or funds which he or she has received or 

paid out on behalf of the principal.

37. Laches. The defense of laches is not favored in Nebraska.

38. ____. Laches occurs only if a litigant has been guilty of inexcusable neglect in enforcing a right and his or her adversary has suffered 

prejudice.

39. Laches: Equity. Laches does not result from the mere passage of time, 

but because during the lapse of time, circumstances changed such that to 

enforce the claim would work inequitably to the disadvantage or prejudice of another.

40. Agency: Gifts. The rule of strict construction regarding authority under 

a power of attorney to make gifts continues under the Nebraska Uniform 

Power of Attorney Act.

41. ____: ____. The Nebraska Uniform Power of Attorney Act limits gifts 

made via a general grant of authority.

42. Principal and Agent: Liability. An exoneration clause in a power of 

attorney will not relieve an agent of liability if the clause was inserted 

as a result of an abuse of a confidential or fiduciary relationship with 

the principal.

43. Appeal and Error. Appellate courts do not consider arguments and 

theories raised for the first time on appeal.
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Cite as 306 Neb. 646

Appeal from the County Court for Buffalo County: Gerald 

R. Jorgensen, Jr., Judge. Affirmed as modified, and cause 

remanded with directions.

Jared J. Krejci, of Smith, Johnson, Baack, Placzek, Allen, 

Connick & Hansen, for appellant.

Blake E. Johnson and Paul A. Lembrick, of Bruning Law 

Group, for appellee.

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

and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Within a county court probate case, the personal representative filed an action against the decedent’s son to recover money 

he received in two ways: (1) collecting and retaining farm 

rents receivable under the decedent’s life estate and (2) writing 

checks to himself and others under a power of attorney from 

the decedent. The county court entered a judgment, from which 

the son appeals and the personal representative cross-appeals.

The son challenges the county court’s jurisdiction of the 

matter as one relating to a decedent’s estate and relating to 

the action of an agent under a power of attorney. We consider 

statutes governing powers of attorney, including retroactivity. 

Except as to the son’s statute of limitations defense, we find no 

merit to the appeal or the cross-appeal. We affirm the judgment 

as modified and remand the cause with directions.

II. BACKGROUND

1. Decedent’s Family

Madeline A. Adelung (the decedent) and her husband lived 

on a family farm outside Amherst, Nebraska. Her husband 

owned and operated the farm during his lifetime. They had 

three children: Sheralee Adelung Boe, Lynda Adelung Heiden, 

and Kent A. Adelung (Adelung). Adelung remained in the 
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area, but in the mid-to-late 1970’s, Boe moved to Madison, 

Nebraska, and Heiden moved to Lincoln, Nebraska.

The decedent’s husband died in 1987. He left a life estate in 

the farm property to the decedent with the remainder interest 

going to Adelung. The decedent wished to remain on the family farm, and from 2008 to 2010, Adelung stayed at the farm 

with the decedent nearly every night. In August 2010, the 

decedent was moved to an assisted living facility. She died on 

October 21, 2014.

2. Farm Income

After Adelung graduated from high school in 1975, he 

farmed with his father. They had a 50-50 partnership, each 

being responsible for half of the expenses and being entitled to 

half of the revenue. Adelung continued to farm the land after 

his father’s death, and the decedent initially charged him half 

of the standard rental rate.

In 2000, Adelung began to explore a career change. In return 

for Adelung’s care and companionship so that the decedent 

could remain on the farm, she agreed to pay all of the farm 

expenses, to not charge Adelung rent, and to let him collect all 

of the farm income.

Also in approximately 2000, Adelung stopped farming the 

land in which the decedent held a life estate. He began renting 

the land to another individual. From 2010 to 2014, roughly half 

of the rent Adelung received was from land owned by the decedent. Adelung testified that he was essentially managing the 

farm during that time and that the value of farm management 

would be around 10 percent of the rental income.

3. Gifts

In July 2008, the decedent executed a power of attorney 

conferring “[p]lenary [p]ower.” The document named Adelung 

and Heiden as the decedent’s agents. It contained an “additional provision” on gifting which stated:

Gifting. To carry out on my behalf any plan or pattern 

of gifting to my issue, including gifting to my Agent, 
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which had apparently been established or clearly contemplated by myself. In determining whether to initiate 

or continue any such gifting plan, my Agent shall give 

consideration to the size of my estate in light of what 

might reasonably be anticipated as my future needs and 

the potential federal estate taxes which may be due upon 

my death in order that such taxes may be lessened or 

eliminated. If a gifting plan has not been initiated by me, 

my Agent shall have complete discretion to make gifts to 

my issue, including making gifts to my Agent, after consideration of the foregoing factors. No individual or entity 

shall have the right, by court action or otherwise, to compel the initiation or continuation of any type of gifting 

plan by my Agent and no individual or entity shall have 

any claim or right of reimbursement from my Agent for 

initiating or continuing a gifting plan or for not initiating 

or continuing a gifting plan; it being my intention hereby 

that my Agent shall have absolute discretion and shall 

bear no liability for any decision made.

The decedent had never engaged in a pattern of gifting prior 

to July 2008. From that point on, Adelung or his wife received 

$2,000 checks each month from the decedent, which Adelung 

alleged to be gifts. Checks were made payable to Adelung’s 

wife for the purpose of staying within the annual federal gift 

tax exclusion amount for each donee. Adelung testified that 

the decedent wrote the checks for “quite a while,” but that in 

approximately 2010, she wanted him to write them because she 

was having trouble with arthritis. No gifts were made to Boe 

or Heiden. According to Adelung, because the decedent wanted 

him to continue writing the $2,000 monthly checks after she 

was placed in assisted living facilities, he did so.

4. Probate Proceedings

In January 2015, a little less than 3 months after the decedent’s October 2014 death, Heiden filed an application for 

informal probate of the decedent’s will and to be appointed 

personal representative. Letters of personal representative were 
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issued as evidence of such appointment. In the decedent’s will, 

Boe, Heiden, and Adelung were named as devisees. After the 

initial informal testacy and appointment proceeding, the record 

does not show any other proceeding in the probate case until 

February 1, 2016.

On that date, Heiden, as personal representative, filed within 

the probate case a petition for an equitable accounting. She did 

not pay a filing fee in connection with this petition. She asserts 

that the county court did not assess a fee.

We summarize the petition’s allegations: The decedent was 

“a vulnerable elderly person.” Adelung had a fiduciary or confidential relationship with the decedent, including the relationship of principal and agent by virtue of the power of attorney. 

From at least 2000, Adelung received rent from the decedent’s 

farmland without sufficient consideration. Adelung and his 

wife received over $100,000 of the decedent’s money without sufficient consideration. Adelung’s actions amounted to a 

conversion of the decedent’s property, an unjust enrichment of 

Adelung, and a breach of fiduciary duties.

Based upon these allegations, Heiden’s petition requested 

that Adelung be ordered to account for that money and to repay 

the decedent’s estate.

In an answer filed in the probate proceeding, Adelung raised 

a number of affirmative defenses, including the statute of 

limitations, the decedent’s ratification or consent during her 

lifetime, laches, and res judicata.

5. County Court’s Decision

At some point, according to the county court’s judgment 

(styled as a journal entry and order), Adelung moved to dismiss 

the action for lack of subject matter jurisdiction. This motion is 

not in our record. In the judgment, the court characterized the 

proceeding as an “equity action.” The court determined that it 

had subject matter jurisdiction, noting that it had broad powers 

in probate matters and that Adelung was an interested party and 

heir. Based on this reasoning, the court overruled the motion. 

The court then turned to the merits.
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The court found that from 2000 to August 2010, “Adelung 

was benefiting from the farm rents, was foregoing [sic] other 

career opportunities and [the decedent] was benefitting in the 

form of care, companionship and being allowed to remain at 

home.” However, the court determined that farm rental income 

between August 2010—when the decedent moved into assisted 

living—and the decedent’s death was improperly collected by 

Adelung. The court reasoned that during that time, “all of the 

benefits were flowing to . . . Adelung to the detriment of [the 

decedent’s] financial position” and “Adelung was not actively 

working the farm, simply collecting the rents.”

The court determined that the $2,000 monthly checks were 

not gifts. Instead, the court stated that the checks were compensation for the care and companionship Adelung and his 

wife provided to the decedent. The court found that 38 monthly 

$2,000 checks from August 2010 until late 2013, totaling 

$76,000, were improperly obtained by Adelung.

The court entered judgment against Adelung. It determined 

that the value of the improperly obtained farm income was 

$114,550 and that together with the improper gifts obtained 

by Adelung, he must reimburse the estate $190,550. The judgment made no reference to either the statute of limitations 

or laches.

Adelung filed a timely appeal, and Heiden cross-appealed. 

We granted Adelung’s petition to bypass review by the Nebraska 

Court of Appeals. Adelung also filed a motion asking this court 

to take judicial notice of the legislative history of 2015 Neb. 

Laws, L.B. 314, and of a printout from Nebraska’s online trial 

court case management system, known as JUSTICE, showing 

the filing fees paid to the county court. In resolving this appeal, 

we have taken notice to the extent appropriate to do so.

III. ASSIGNMENTS OF ERROR

Adelung assigns 10 errors. He claims that the county court 

erred in determining that it had equitable subject matter jurisdiction over Heiden’s claims and in determining that it had 

subject matter jurisdiction over Heiden’s petition despite her 
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failure to pay a filing fee or obtain leave to file in forma pauperis. He also alleges the county court erred in (1) failing to 

apply the statute of limitations to transactions which occurred 

before February 2012, (2) finding that he was liable for the 

farm rent voluntarily given to him by the decedent, (3) failing to apply the provisions of the Nebraska Uniform Power 

of Attorney Act (NUPOAA), 1 (4) failing to determine that 

Adelung was not liable due to the doctrine of consent, (5) failing to determine that Adelung was not liable due to the doctrine of exoneration, (6) failing to determine that Adelung was 

not liable due to the doctrine of laches, (7) making factual findings relating to the exoneration clause in the decedent’s power 

of attorney and to the extent that it determined the decedent 

lacked mental capacity other than the time shortly before her 

death, and (8) entering judgment against Adelung.

On cross-appeal, Heiden alleges the county court erred in 

failing to require that all funds transferred from the decedent’s 

account from June 2008 to September 2013 and all farm rental 

income be returned to the estate.

[1,2] In a few instances, Adelung’s brief fails to comply 

with one or both of two appellate rules. To be considered by 

an appellate court, an alleged error must be both specifically 

assigned and specifically argued in the brief of the party asserting the error. 2 Similarly, an argument that does little more than 

restate an assignment of error does not support the assignment, 

and an appellate court will not address it. 3 We do not consider 

those assignments or arguments.

IV. STANDARD OF REVIEW

[3-5] Subject matter jurisdiction and statutory interpretation 

present questions of law. 4 A jurisdictional question which does 

not involve a factual dispute is determined by an appellate 

1 Neb. Rev. Stat. §§ 30-4001 to 30-4045 (Reissue 2016 & Supp. 2019).

2 Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020).

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

4 Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
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court as a matter of law. 5 An appellate court independently 

reviews questions of law decided by a lower court. 6

[6,7] In the absence of an equity question, an appellate court, 

reviewing probate matters, examines for error appearing on the 

record made in the county court. 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. 7

Equity questions arising in appeals involving the Nebraska 

Probate Code 8 are reviewed de novo. 9

V. ANALYSIS

1. Type of Action

The county court characterized the proceeding below as an 

“equity action,” that is, a suit in equity. We do not read the 

parties’ briefs as challenging that classification. But two allegations were inconsistent with a suit in equity. First, an action for 

conversion sounds in law. 10 Second, a claim for unjust enrichment is a quasi-contract claim for restitution. 11 And we have 

held that any quasi-contract claim for restitution is an action 

at law. 12

[8] Because the county court treated the matter as an equity 

action, it necessarily tried the case on some basis other than 

conversion or unjust enrichment. Cases are determined in an 

5 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).

6 Hochstein v. Cedar Cty. Bd. of Adjustment, 305 Neb. 321, 940 N.W.2d 251 

(2020).

7 In re Estate of Radford, 304 Neb. 205, 933 N.W.2d 595 (2019).

8 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).

9 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

10 Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015).

11 See City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 

N.W.2d 725 (2011).

12 See id.
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appellate court on the theory upon which they were tried. 13

Thus, we will determine the appeal based on the theory utilized 

in the court below.

[9,10] Heiden sought to recover property that Adelung 

received but which Heiden asserted belonged to the decedent’s 

estate. In other words, she sought an accounting. An action 

for an accounting of estate property is in equity. 14 Because the 

action sounded in equity, we must review it accordingly. This 

requires us to review the county court’s judgment de novo on 

the record. Despite de novo review, when credible evidence is 

in conflict on material issues of fact, the appellate court will 

consider and may give weight to the fact that the trial court 

observed the witnesses and accepted one version of the facts 

over another. 15

2. Jurisdiction

Adelung presents two arguments challenging the county 

court’s jurisdiction of this proceeding. One is based on the 

nature of Heiden’s claims. This has two components: the extent 

of the county court’s probate jurisdiction and its jurisdiction 

over powers of attorney. The other stems from the court’s 

failure to charge and collect a filing fee. In both arguments, 

he claims the court lacked subject matter jurisdiction. Before 

turning to his specific arguments, we recall general principles, 

change in probate jurisdiction, and the development of jurisdiction regarding powers of attorney.

(a) General Principles

[11,12] 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 

13 Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994).

14 Cheloha v. Cheloha, 255 Neb. 32, 582 N.W.2d 291 (1998), disapproved on 

other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).

15 Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017).
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the general subject matter involved. 16 Lack of subject matter 

jurisdiction may be raised at any time by any party or by the 

court sua sponte. 17

(b) Probate Jurisdiction

[13] We have said that generally, the county court has exclusive original jurisdiction over all matters relating to decedents’ 

estates. 18 But this is not as simple as it sounds.

Adelung directs us to Lambie v. Stahl,

 19 where in 1965 this 

court recognized that a title dispute between an estate repre

sentative and a third person with an adverse claim was “ordinarily decided in another forum,” 20 that is, not in the probate 

court. There, we said, “Jurisdiction to enforce a right of retainer 

does not imply jurisdiction to render a personal judgment.” 21

In a later case, describing the legal regime prior to 1970, we 

explained, “At least since 1879, the county court has had 

exclusive original jurisdiction in all matters of probate and 

the settlement of decedents’ estates, and the District Court has 

had exclusive original jurisdiction in equity cases.” 22 Thus, at 

the time of the Lambie decision, a county court simply had no 

jurisdiction in equity cases.

[14-17] Shortly after Lambie, however, that changed, as we 

explained in a 1985 case where we articulated three important 

concepts: 23 First, the county courts, in exercising exclusive original jurisdiction over estates, may apply equitable principles 

16 Christine W. v. Trevor W., supra note 4.

17 Id.

18 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). See Neb. 

Rev. Stat. § 24-517(1) (Cum. Supp. 2018). See, also, § 30-2211(a).

19 Lambie v. Stahl, 178 Neb. 506, 134 N.W.2d 86 (1965).

20 Id. at 507, 134 N.W.2d at 87.

21 Id. at 508, 134 N.W.2d at 87.

22 In re Estate of Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 785, 295 

N.W.2d 275, 280 (1980).

23 See In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985).
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to matters within probate jurisdiction. 24 Second, applying the 

constitutional avoidance canon, we determined that the county 

court’s jurisdiction under §§ 24-517(1) and 30-2211 cannot be 

“exclusive” 25 as to matters within the district court’s “chancery 

and common law jurisdiction” conferred by Neb. Const. art. 

V, § 9. Finally, we acknowledged that the grant of jurisdiction 

to the district court under article V, § 9, while original, is not 

exclusive. 26 Under the doctrine of jurisdictional priority, when 

different state courts have concurrent original jurisdiction over 

the same subject matter, basic principles of judicial administration require that the first court to acquire jurisdiction should 

retain it to the exclusion of another court. 27

In the modern era, we have upheld a county court’s jurisdiction over matters related to a decedent’s estate in numerous 

situations. These include partitioning real estate belonging to 

a decedent, 28 adjudicating a claim against a decedent’s estate 

based upon an alleged oral contract to execute a will leaving 

the decedent’s business to the claimant employee, 29 determining the title to personal property possessed by the decedent 

where ownership was asserted by another, 30 resolving a claim 

by a decedent wife’s personal representative of a share of 

ownership of bearer bonds allegedly owned as tenants in 

common as against a decedent husband’s personal represent

ative, 31 and recovering an improper distribution from a pending estate 32 pursuant to a probate statute. 33 In each instance, 

24 Id.

25 See id. at 332, 377 N.W.2d at 85.

26 Id.

27 Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019).

28 See In re Estate of Kentopp. Kentopp v. Kentopp, supra note 22.

29 See In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981).

30 See In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).

31 See In re Estate of Steppuhn, supra note 23.

32 See Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).

33 See § 30-24,106.
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jurisdiction arose from the county court’s jurisdiction under 

§ 24-517(1).

(c) Powers of Attorney

Section 24-517(13) confers upon the county court “[c]oncurrent original jurisdiction with the district court in any matter 

relating to a power of attorney and the action or inaction of 

any agent acting under a power of attorney.” Adelung makes 

a complex argument, but before considering it, some history 

is helpful.

At the time of the 2008 power of attorney, powers of attorney were governed by the Uniform Durable Power of Attorney 

Act (UDPAA) 34 and by the common law. 35 The provisions of 

the UDPAA were quite limited, focused mainly on validating 

a durable power of attorney—“thereby trumping the common law agency principle that the authority of the agent 

ceased upon the disability of the principal.” 36 The sections 

of the UDPAA were, in turn, included in the definition of the 

Nebraska Probate Code. 37 In the UDPAA, the only statute conferring jurisdiction to a county court stated, “The county court 

and the district court of the principal’s domicile shall have 

concurrent jurisdiction to determine the validity and enforceability of a durable power of attorney.” 38 But the UDPAA 

lacked any provision for judicial review of an agent’s conduct 

or any authorization for an agent to make gifts. Thus, in 2008, 

the only forum for a challenge to an agent’s conduct was the 

district court. 39

34 See Neb. Rev. Stat. §§ 30-2664 to 30-2672 (Reissue 2008).

35 See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act 

and Power of Attorney Act: A New Era Begins, 46 Creighton L. Rev. 499 

(2013).

36 Id. at 506.

37 See § 30-2201 (Reissue 2008).

38 § 30-2671.

39 See, Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (2008); 

Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003).
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In 2012, the Legislature repealed the UDPAA and enacted the 

NUPOAA. 40 The 2012 legislation also repealed the Nebraska 

Short Form Act, 41 which provided numerous definitions that 

could be included in powers of attorney by reference to “[s]hort 

form expression[s].” 42 All of the sections of the NUPOAA were 

included within the scope of the Nebraska Probate Code. 43

The NUPOAA conferred concurrent jurisdiction on the 

county court and the district court “to determine the validity 

and enforceability of a power of attorney.” 44 But the NUPOAA 

also greatly expanded the statutory scope: The Uniform Law 

Commission “designed the [uniform act] to be comprehensive in nature, addressing the many issues that arose with the 

increased utilization of the durable power of attorney.” 45 And 

among the statutory provisions included in the NUPOAA was 

one authorizing a “petition [to] a court to construe a power 

of attorney or review the agent’s conduct and grant appropriate relief.” 46 Thus, when the NUPOAA conferred concurrent 

jurisdiction “to determine the validity and enforceability of a 

power of attorney,” 47 it did so in a much broader context than 

the same words had conveyed under the UDPAA. 48

At the time the Legislature adopted the NUPOAA, it 

made no corresponding change to § 4-517. The Legislature 

remedied this omission in 2015, 49 adding the above-quoted 

§ 24-517(13). With this understanding, we turn to Adelung’s 

jurisdictional arguments.

40 See 2012 Neb. Laws, L.B. 1113.

41 See Neb. Rev. Stat. §§ 49-1501 to 49-1562 (Reissue 2010).

42 See § 49-1504(5).

43 See § 30-2201.

44 § 30-4006(1).

45 Volkmer, supra note 35 at 506.

46 § 30-4016(1).

47 § 30-4006(1).

48 See § 30-2671.

49 See 2015 Neb. Laws, L.B. 314.
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(d) Adelung’s Jurisdictional 

Arguments

(i) Power of Attorney

Adelung posits that the 2015 legislation adding § 24-517(13) 

changed the county court’s jurisdiction contrary to the 

Legislature’s purpose. He asserts that the 2012 grant of jurisdiction in § 30-4006(1) is “limited to determining ‘the validity 

and enforceability of a power of attorney.’” 50 Reading the 2015 

addition of § 24-517(13) as recognizing jurisdiction “in any 

matter relating to a power of attorney and the action or inaction of any agent acting under a power of attorney” 51 would, he 

asserts, render § 30-4006(1) superfluous.

[18,19] Adelung relies on two well-established principles 

of law. First, a collection of statutes pertaining to a single 

subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of 

the Legislature, so that different provisions are consistent, 

harmonious, and sensible. 52 Second, a court must attempt to 

give effect to all parts of a statute, and if it can be avoided, 

no word, clause, or sentence will be rejected as superfluous or 

meaningless. 53

Next, asserting that the difference between § 24-517(13) and 

§ 30-4006(1) creates ambiguity, Adelung relies on legislative 

history to show that L.B. 314—which added § 24-517(13)—

was not intended to make any substantive changes to county 

court jurisdiction. He first notes the introducer’s statement 

that the purpose of L.B. 314 was “to clearly define the jurisdiction of the County Court in one statutory section.” 54 He 

50 Brief for appellant at 27 (quoting § 30-4006(1)).

51 § 24-517(13).

52 Shelter Mut. Ins. Co. v. Freudenberg, 304 Neb. 1015, 938 N.W.2d 92 

(2020).

53 Id.

54 Introducer’s Statement of Intent, L.B. 314, Judiciary Committee, 104th 

Leg., 1st Sess. (Jan. 29, 2015).
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also emphasizes the introducer’s testimony to the Judiciary 

Committee that the amendment “clarifies that the jurisdiction 

is not changing but only becoming clearly stated. [The amendment] does not change the jurisdiction of any court.” 55

We do not agree that the legislative history is as definitive 

as Adelung claims. The committee statement asserted that the 

amendment would “establish the county court’s concurrent 

original jurisdiction with the district court in a number of areas, 

including any matter relating to a power of attorney and the 

inaction of any agent acting under a power of attorney.” 56

[20] But more important, in the absence of ambiguity, we 

do not consult legislative history. An appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

words that are plain, direct, and unambiguous. 57 And we need 

not do so here.

The premise of Adelung’s ambiguity argument is flawed. 

He compares only §§ 24-517(13) and 30-4006(1) and reads 

the latter in isolation. But when § 24-517(13) is read in 

the context of all of the NUPOAA, § 30-4006(1) cannot be 

described as superfluous. The words “validity and enforceability” therein must be read together with the other sections 

governing virtually every aspect of a power of attorney. In 

light of the broad scope of the NUPOAA and its “comprehensive . . . nature,” 58 the plain language of these sections 

becomes consistent, harmonious, and sensible. And they certainly confer county court jurisdiction to “construe a power 

of attorney or review the agent’s conduct and grant appropriate relief.” 59

55 Judiciary Committee Hearing, L.B. 314, 104th Leg., 1st Sess. 11 (Jan. 29, 

2015).

56 Committee Statement, L.B. 314, Judiciary Committee, 104th Leg., 1st 

Sess. (Jan. 29, 2015).

57 Shelter Mut. Ins. Co. v. Freudenburg, supra note 52.

58 Volkmer, supra note 35 at 506.

59 § 30-4016(1).
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(ii) Probate Jurisdiction

Adelung’s arguments regarding the probate court’s jurisdiction of Heiden’s suit for an equitable accounting fare no better. 

Several statutory provisions apply.

First, with certain specified exceptions, § 24-517(1) confers 

jurisdiction of “all matters relating to decedents’ estates” to the 

county court.

Second, contrary to positions taken at oral argument, statutory authority for related proceedings appears in the Nebraska 

Probate Code. Section 30-2405 authorizes interested persons 

to “petition the court for orders in formal proceedings within 

the court’s jurisdiction including but not limited to those 

described in this article.” (Emphasis supplied.) This section 

also confers upon the county court “jurisdiction of all proceedings to determine how decedents’ estates subject to the laws of 

this state are to be administered, expended and distributed.” 60

Section 30-2464(c) granted Heiden, as personal representative, the “same standing to sue and be sued in the courts of 

this state . . . as his or her decedent had immediately prior to 

death.” Before the decedent’s death, she had the right to seek 

a review of the agent’s conduct and appropriate relief. 61 And 

§ 30-2470 empowered the personal representative to “maintain 

an action to recover possession of property or to determine the 

title thereto.”

Third, § 30-2476(22) authorized Heiden to “prosecute or 

defend claims or proceedings in any jurisdiction for the protection of the estate.” She certainly could have commenced 

this action in the district court, which had concurrent jurisdiction. But at that point, the district court’s jurisdiction had not 

been invoked.

[21,22] These statutory provisions conferred ample authority to pursue the equitable action against Adelung. He was a 

devisee of the estate. As the decedent’s agent pursuant to the 

power of attorney, he stood in a fiduciary relationship with 

60 § 30-2405.

61 See § 30-4016(1).
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the decedent. As we said prior to enactment of the NUPOAA, 

an agent and principal are in a fiduciary relationship such that 

the agent has an obligation to refrain from doing any harmful 

act to the principal. 62 The NUPOAA places an agent under 

a power of attorney in a fiduciary relationship with his or 

her principal. 63

To escape the county court’s statutory jurisdiction over all 

matters relating to decedents’ estates, Adelung relies on several cases; but none supports his argument. One was merely 

an example of a common-law or equitable action initiated in 

a district court. 64 Another pertained to nonprobate property, 

where the property was transferred by contract and was not 

testamentary in nature. 65 One addressed the jurisdiction over 

statutory fair and equitable distribution of tort claim proceeds 

subject to subrogation for workers’ compensation benefits 

paid by or on behalf of an employer. 66 One simply had no 

relationship to a decedent. 67 And one, which also had no relationship to a decedent’s estate, attempted to use a different 

subsection of § 24-517 to support injunctive relief in a county 

court action. 68

[23] In common-law and equity actions relating to decedents’ estates, the county court has concurrent original jurisdiction with the district court. 69 This is such a case.

(iii) Filing Fee

Adelung’s jurisdictional argument asserts that because Heiden 

did not pay a filing fee at the time she filed her petition, the 

62 Crosby v. Luehrs, supra note 39.

63 See § 30-4014.

64 See Crosby v. Luehrs, supra note 39.

65 Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250 (1982).

66 See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

67 See Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990).

68 See Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) (addressing 

§ 24-517(4)).

69 See In re Estate of Steppuhn, supra note 23.
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court did not acquire jurisdiction. Heiden responds that the 

court did not charge a filing fee.

Adelung cites no authority for the proposition that a county 

court does not acquire subject matter jurisdiction of an original proceeding where no filing fee is paid. Certainly, the 

Legislature understands how to make the payment of a fee 

jurisdictional. 70

We find no merit to this argument. Because Adelung 

addressed the matter purely as an issue of jurisdiction, we 

express no opinion regarding any fees which may be owed 

to the county court. 71 Having concluded that all of Adelung’s 

arguments challenging the county court’s jurisdiction lack 

merit, we turn to the substantive issues.

3. Power of Attorney: 

Underlying Questions

Before addressing specific questions regarding Adelung’s 

liability to the decedent’s estate, we resolve two issues regarding the 2008 power of attorney.

(a) General Assignment

Adelung generally assigns that that county court “fail[ed] to 

apply” several provisions of the NUPOAA, which he lists by 

section number. We agree with Heiden that the court’s decision 

does not disclose any erroneous recitation from the NUPOAA. 

We do not address this general assignment further.

(b) UDPAA and Common Law, 

or NUPOAA?

Adelung used the 2008 power of attorney both before 

and after the operative date of the NUPOAA on January 1, 

70 See, Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals from district 

court to Court of Appeals or Supreme Court); Neb. Rev. Stat. § 25-2729 

(Cum. Supp. 2018) (appeals from county court to district court).

71 See Neb. Rev. Stat. § 33-125(1)(a)(ii) (Reissue 2016) (establishing fee 

for “any other proceeding under the Nebraska Probate Code for which no 

court fee is established by statute”).
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2013. 72 Heiden does not dispute that the NUPOAA applies to 

acts after that date. But the parties disagree whether it applies 

to actions taken before that date. Adelung argues that it does. 

We disagree.

One section of the NUPOAA controls its effect, both retroactively and prospectively. 73 Although it contains four subsections, only three apply here. And the dispute focuses on the 

last one.

The first specifies that unless the act provides otherwise, the 

NUPOAA applies to a power of attorney created before, on, or 

after January 1, 2013. 74 By this language, the NUPOAA would 

apply to the 2008 power of attorney.

The second states that the NUPOAA applies to a judicial 

proceeding concerning a power of attorney commenced on 

or after that date. 75 Because Heiden’s petition was filed over 

3 years after the operative date, the NUPOAA applied to the 

proceeding.

The last subsection, which the parties dispute, states that 

“[a]n act done before January 1, 2013, is not affected by 

the [NUPOAA].” 76 Although § 30-4045 is patterned after a 

provision of the Uniform Power of Attorney Act, 77 which 

was adopted in over half of the states, our research did not 

uncover an examination by any court of language similar to 

that in § 30-4045(4).

To aid in interpretation, Adelung directs us to the Nebraska 

Uniform Trust Code (NUTC), 78 which contains a substantially similar statute regarding its retroactive scope. 79 Our case 

72 See 2012 Neb. Laws, L.B. 1113, § 48.

73 See § 30-4045.

74 § 30-4045(1).

75 § 30-4045(2).

76 § 30-4045(4).

77 See Unif. Power of Attorney Act § 403, 8B U.L.A. 262 (2014).

78 Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & Cum. Supp. 

2018).

79 See § 30-38,110(a).
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law shows that we have applied the NUTC to trusts created 

prior to the NUTC’s enactment. 80 And we have recognized 

that § 30-38,110(a)(3) required application of the NUTC to 

judicial proceedings commenced prior to its operative date 

“except in those instances where we determine that such application would ‘substantially interfere with the effective conduct 

of the judicial proceedings or prejudice the rights of the parties,’ in which instance, we must apply prior law which has 

been superseded by the NUTC.” 81

But the NUPOAA equivalent to § 30-38,110(a)(3)—

§ 30-4045(3)—does not apply here. Section 30-4045(3) governs the treatment of a judicial proceeding commenced before

January 1, 2013. Here, the proceeding was commenced in 

2016, well after the NUPOAA’s operative date. Instead, this 

proceeding is governed by § 30-4045(2), which applies the 

NUPOAA to any judicial proceeding commenced after the 

NUPOAA’s operative date. Thus, the NUPOAA applies to this 

proceeding.

But that does not end our inquiry. Like the NUPOAA, the 

NUTC states that “an act done before [the operative date] is not 

affected by the [NUTC].” 82 And in none of those cases did we 

apply or interpret the NUTC equivalent to § 30-4045(4). In one 

case, the equivalent subsection was not mentioned. 83 In another, 

the law was the same before and after the operative date. 84

For assistance regarding § 30-4045(4), we turn to a comment to the Uniform Trust Code which provides further guidance regarding retroactivity. It states:

80 See, In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 

700 (2011); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 

(2007); In re Trust Created by Inman, 269 Neb. 376, 693 N.W.2d 514 

(2005).

81 In re Trust Created by Inman, supra note 80, 269 Neb. at 381, 693 N.W.2d 

at 519.

82 § 30-38,110(a)(4).

83 See In re Margaret Mastny Revocable Trust, supra note 80.

84 In re Trust Created by Inman, supra note 80.
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This Code cannot be fully retroactive, however. 

Constitutional limitations preclude retroactive application 

of rules of construction to alter property rights under 

trusts that became irrevocable prior to the effective date. 

Also, rights already barred by a statute of limitation 

or rule under former law are not revived by a possibly 

longer statute or more liberal rule under this Code. Nor is 

an act done before the effective date of the Code affected 

by the Code’s enactment.

 85

[24] We agree with Adelung that § 30-4045—the provision of the NUPOAA governing retroactivity—should be construed similarly to § 30-38,110—the comparable provision of 

the NUTC. But we disagree with his conclusion. While the 

NUPOAA applies to this proceeding, the plain language of the 

statute makes it clear that the NUPOAA does not apply retroactively to acts done before its effective date. 86 To the extent that 

Adelung’s actions as an agent prior to January 1, 2013, may 

have violated a duty he owed to the decedent under the UDPAA 

or the common law, applying the NUPOAA would prejudice 

the decedent’s rights. And of course, as personal representative 

of the decedent’s estate, Heiden stands in the decedent’s shoes 

to assert those rights. Because the plain language of the statute 

makes it clear that the NUPOAA does not apply retroactively to 

acts done before its effective date, Adelung’s use of the power 

of attorney prior to January 1, 2013, is not governed by the 

NUPOAA but his actions after that date are.

4. Liability Issues

We now turn to the other substantive issues raised by 

Adelung’s appeal and Heiden’s cross-appeal. Because of the 

county court’s factual findings, it seems expedient to address 

the issues in four segments of time.

85 Unif. Trust Code § 1106, comment, 7D U.L.A. 380 (2018) (emphasis 

supplied).

86 See § 30-4045(4).
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(a) Before August 2010: 

Heiden’s Cross-Appeal

The county court determined that Adelung was not liable to 

the estate for either farm rents he collected or checks he wrote 

to himself or his family members prior to August 2010, when 

the decedent moved to an assisted living facility. Heiden’s 

cross-appeal, by separate assignments, challenges both of 

those conclusions.

The court specifically found that the decedent was “very 

competent and aware of her surroundings and situation” during this period of time. Here, our standard of review becomes 

critical.

We have reviewed the record de novo. But we are permitted to consider and give weight to the county court’s observation of the witnesses and credibility assessments. Having done 

so, we find no merit to Heiden’s cross-appeal. In light of the 

county court’s findings, we are not persuaded that Adelung 

acted contrary to the decedent’s express instructions or in contravention of her wishes. We affirm that portion of the county 

court’s judgment.

(b) August 2010 Through January 2012: 

Statute of Limitations

Although Adelung raised the statute of limitations below, 

the county court’s judgment made no mention of it. The parties 

agree that Neb. Rev. Stat. § 25-207 (Reissue 2016) governs 

this proceeding. Under that statute, an action must be brought 

within 4 years.

Adelung argues that Heiden’s petition was filed on February 

1, 2016; that the decedent “initiated and always knew about 

the money [Adelung] was receiving”; and that the county court 

erred in allowing Heiden to recover for transactions which 

occurred before February 1, 2012. 87 Heiden acknowledges 

the rules that a statute of limitations begins to run as soon as 

the claim accrues and that an action in tort accrues as soon 

87 Brief for appellant at 28.
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as the act or omission occurs. 88 But she argues that in certain 

categories of cases, the injury is not obvious and the individual 

is wholly unaware that he or she has suffered an injury or damage. 89 In such cases, it is manifestly unjust for the statute of 

limitations to begin to run before a claimant could reasonably 

become aware of the injury. Heiden argues that Adelung “did 

not present sufficient evidence to demonstrate . . . that [the 

decedent] was even aware that such money was being taken.” 90

We disagree.

[25,26] First, we have already determined that the parties 

tried this case as an action in equity for an accounting of estate 

property. The statute of limitations for an action in equity for 

an accounting of estate property is 4 years. 91 The accrual of a 

cause of action means the right to maintain and institute a suit, 

and whenever one person may sue another, a cause of action 

has accrued and the statute begins to run, but not until that 

time. So whether at law or in equity, the cause of action arises 

when, and only when, the aggrieved party has a right to apply 

to the proper tribunal for relief. 92

For the sake of completeness, we note that a probate statute 

prevents a cause of action belonging to a decedent, which had 

not been barred as of the date of the decedent’s death, from 

being barred sooner than 4 months after death. 93 Because this 

action was commenced more than 4 months after the decedent’s death, that statute does not apply here.

Second, we think the evidence is essentially undisputed that 

the decedent initiated the practice of Adelung’s retaining the 

farm rents. The decedent initially signed the checks for gifts 

to Adelung and his family members. Coupled with the county 

88 See Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).

89 See Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).

90 Brief for appellee at 28.

91 See Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319 (1962).

92 Id.

93 See § 30-2409.
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court’s finding that the decedent was “very competent and 

aware of her surroundings and situation,” this evidence establishes that the decedent was aware of these transactions at the 

times they were occurring. Thus, the cause of action accrued 

with each transaction. As personal representative, Heiden 

stands in the decedent’s shoes. The decedent’s knowledge 

binds the estate. Upon our de novo review, we conclude that 

the statute of limitations bars any recovery for money Adelung 

received prior to February 1, 2012.

(c) February Through December 2012: 

Before NUPOAA’s Operative Date

[27,28] In this section, we address the money Adelung 

received from or on behalf of the decedent prior to the operative date of the NUPOAA. The 2008 power of attorney was in 

effect throughout this period. A power of attorney authorizes 

another to act as one’s agent. 94 An agency is a fiduciary relationship resulting from one person’s manifested consent that 

another may act on behalf and subject to the control of the 

person manifesting such consent and, further, resulting from 

another’s consent to so act. 95

(i) Duty Under Power of Attorney

[29,30] During this period of time, the duty of an agent 

under a power of attorney was well established; thus, we 

recall the general principles establishing that duty. An agent 

and principal are in a fiduciary relationship such that the 

agent has an obligation to refrain from doing any harmful act 

to the principal, to act solely for the principal’s benefit in all 

matters connected with the agency, and to adhere faithfully 

to the instructions of the principal, even at the expense of 

the agent’s own interest. 96 An attorney in fact, under the duty 

of loyalty, always has the obligation to act in the best interest 

94 Crosby v. Luehrs, supra note 39.

95 Id.

96 Archbold v. Reifenrath, supra note 39.
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of the principal unless the principal voluntarily consents to the 

attorney in fact’s engaging in an interested transaction after 

full disclosure. 97

[31,32] With respect to gifts, we articulated a related rule. 

No gift may be made by an attorney in fact to himself or herself unless the power to make such a gift is expressly granted 

in the instrument and there is shown a clear intent on the part 

of the principal to make such a gift. 98 The basic policy concern 

underlying the law that forbids self-dealing is not linked to 

any duty an agent may have to third parties, but is primarily addressed to the potential for fraud that exists when an 

agent acting pursuant to a durable power of attorney has the 

power to make gifts, especially after the principal becomes 

incapacitated. 99

[33] Closely related is a rule of strict construction. Powers of 

attorney are by necessity strictly construed, and broad encompassing grants of power are to be discounted. 100

(ii) Collection of Farm Rents

Adelung argues that he did not use the power of attorney 

to collect the farm rents. Thus, he argues, his duty to the 

decedent under the power of attorney was not implicated. We 

disagree.

Adelung relies upon our decision in Eggleston v. Kovacich,

 101

but he reads it too broadly. There, we stated that the defend

ant did not use the power of attorney when the principal 

herself signed signature cards and the defendant also signed 

them but only as a co-owner on a multiple-party account that 

provided for a right of survivorship. In other words, because 

the principal acted on her own behalf and the agent did not 

97 Crosby v. Luehrs, supra note 39.

98 Id.

99 Id.

100Archbold v. Reifenrath, supra note 39.

101Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).
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sign for the principal, we said he did not “use” the power of 

attorney. 102 That case does not stand for the proposition that an 

agent’s status must be disclosed or that express reference must 

be made in using a power of attorney. There, the principal 

acted directly and the agent did not act as an agent regarding 

those accounts.

[34] The record here is clear that at all times, the decedent 

owned a life estate in the farm. A life tenant is entitled to and 

owns by absolute title everything in the nature of income, 

profit, and gain realized or accrued from the property during 

his or her tenancy. 103 There is no evidence that she ever terminated the life estate before her death. Nor is there any evidence 

that at any time after she began allowing Adelung to collect the 

rents, she collected any rents herself.

[35] Even before the 2008 power of attorney, Adelung collected the farm rents as the decedent’s agent. An agency relationship may be implied from the words and conduct of the 

parties and the circumstances of the case evidencing an intention to create the relationship irrespective of the words or terminology used by the parties to characterize or describe their 

relationship. 104 The circumstances here show that an agency 

relationship existed prior to the 2008 power of attorney. The 

2008 power of attorney simply created a more extensive, formal agency relationship.

[36] Other than Adelung’s relationship as the decedent’s 

agent, the record does not establish any basis during the decedent’s lifetime enabling Adelung to collect the farm rents. An 

agent has a duty to account to his or her principal for all property or funds which he or she has received or paid out on behalf 

of the principal. 105 That is precisely the nature of this action.

102 Id. at 594, 742 N.W.2d at 484.

103 See Slocum v. Bohuslov, 164 Neb. 156, 82 N.W.2d 39 (1957).

104Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009).

105Cheloha v. Cheloha, supra note 14.
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(iii) Power of Attorney

We read all of Adelung’s arguments regarding the 2008 

power of attorney to rely upon the NUPOAA. We have already 

rejected Adelung’s argument that the NUPOAA applies to his 

actions under the power of attorney prior to the NUPOAA’s 

operative date. Strictly construing the power of attorney in light 

of the common law that controlled his duties to the decedent at 

that time, we see no merit to any arguments he asserts regarding his liability for actions taken prior to January 1, 2013.

(iv) Laches

Adelung asserts that we should apply the equitable defense 

of laches. He asserts that if the decedent “had truly wanted 

[him] to stop receiving the money involved in this action, 

[she] would have been guilty of inexcusable neglect for allowing these transactions to go on so long and allowing so much 

potential monetary liability to accumulate.” 106 We disagree.

[37-39] The defense of laches is not favored in Nebraska. 107

Laches occurs only if a litigant has been guilty of inexcusable neglect in enforcing a right and his or her adversary has 

suffered prejudice. 108 Laches does not result from the mere 

passage of time, but because during the lapse of time, circumstances changed such that to enforce the claim would work 

inequitably to the disadvantage or prejudice of another. 109

We are not persuaded that laches has any application here. 

We have already determined that the statute of limitations 

applies to bar collection of money Adelung received prior to 

February 1, 2012. His argument seems to be focused on the 

years of his life when he devoted his time and attention to 

keeping the decedent on the farm. But that changed in 2010, 

106Brief for appellant at 42.

107Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 

105 (2015).

108 Id.

109 Id.
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when the decedent moved to an assisted living facility. We 

see nothing about his circumstances between February 1, 2012, 

and January 1, 2013, that would support a laches defense.

(d) January 2013 to Decedent’s Death: 

After NUPOAA’s Operative Date

(i) Effect of NUPOAA

As we have already explained, the NUPOAA applies to 

powers of attorney created before its operative date. 110 The 

NUPOAA also applies to a judicial proceeding commenced, as 

this one was, after that date. 111 And, obviously, the provision 

of § 30-4045(4), regarding acts done before the operative date, 

does not apply to the time period we consider in this part of 

our analysis.

a. Rule of Strict Construction

Adelung argues that § 30-4024(5) altered the common-law 

rule of strict construction of powers of attorney. That section 

states, “Subject to subsections (1), (2), and (4) of [§ 30-4024], if 

the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls.” 112

At least as to gifts made by an agent, we disagree.

First, by its terms, § 30-4024(5) is “[s]ubject to” § 30-4024(1). 

And § 30-4024(1) authorizes an agent to “[m]ake a gift,” but, 

in relevant part, “only if the power of attorney expressly grants 

the agent the authority.” The plain language of the statutory 

text requires an express grant of authority.

The comment to the section of the uniform act corresponding to § 30-4024(1) explains that the uniform act “enumerates the acts that require an express grant of specific authority and which may not be inferred from a grant of general 

authority.” 113 This approach, the comment explains, “follows a 

110 See § 30-4045(1).

111 See § 30-4045(2).

112 § 30-4024(5).

113 Unif. Power of Attorney Act § 201, comment, 8B U.L.A. 226 (2014).
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growing trend among states to require express specific authority for such actions as making a gift.” 114 The comment identifies the rationale for this approach: “the risk those acts pose to 

the principal’s property and estate plan. Although risky, such 

authority may nevertheless be necessary to effectuate the principal’s property management and estate planning objectives.” 115

We do not perceive any legislative intention to shield gift making under a power of attorney from strict construction. Indeed, 

the uniform act’s comment suggests otherwise.

Second, the comment notes, “Ideally, these are matters 

about which the principal will seek advise [sic] before granting 

authority to an agent.” 116 Here, the attorney who drafted the 

2008 power of attorney testified that he “drafted this document for [Adelung]” and that he “[n]ever met, never talked to 

[the decedent].” He recalled that there “may have been some 

conversation,” presumably with Adelung, about “whether there 

need[ed] to be a gifting clause or not.” He could not recall the 

purpose for including the gifting clause, but testified there “had 

to be some type of a conversation that led [him] to believe there 

needed to be the gifting clause.” And, again, he confirmed that 

the conversation was not with the decedent. Obviously, the 

decedent did not seek that attorney’s advice.

Third, the comment goes on to state that “[n]otwithstanding a grant of authority to perform any of the enumerated acts 

. . . , an agent is bound by the mandatory fiduciary duties set 

forth in [the uniform act’s equivalent of § 30-4014(1)] as well 

as the default duties that the principal has not modified.” 117

These include acting in accordance with the “principal’s best 

interest,” 118 in “good faith,” 119 and “only within the scope 

114 Id.

115 Id., 8B U.L.A. at 226-27.

116 Id., 8B U.L.A. at 227.

117 Id.

118 § 30-4014(1)(a).

119 § 30-4014(1)(b).
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of authority granted, or reasonably implied by, the grant of 

authority in the power of attorney.” 120

[40] Finally, § 30-4021 states that “[u]nless displaced by a 

provision of the [NUPOAA], the principles of law and equity 

supplement the act.” We are not persuaded that the drafters of 

the uniform act or the Nebraska Legislature intended to loosen 

the rule of strict construction with respect to gift making. Thus, 

we hold that the rule of strict construction regarding authority under a power of attorney to make gifts continues under 

the NUPOAA.

b. Authority to Make Gifts

Omitting the exoneration clause, we recall the specific language employed in the 2008 power of attorney. It stated:

Gifting. To carry out on my behalf any plan or pattern 

of gifting to my issue, including gifting to my Agent, 

which had apparently been established or clearly contemplated by myself. In determining whether to initiate 

or continue any such gifting plan, my Agent shall give 

consideration to the size of my estate in light of what 

might reasonably be anticipated as my future needs and 

the potential federal estate taxes which may be due upon 

my death in order that such taxes may be lessened or 

eliminated. If a gifting plan has not been initiated by me, 

my Agent shall have complete discretion to make gifts to 

my issue, including making gifts to my Agent, after consideration of the foregoing factors.

This gifting clause was, at most, a general grant. It did not 

specifically refer to the farm rentals. Nor did it refer to checks 

payable to Adelung or his spouse or child.

[41] The NUPOAA limits gifts made via a general grant 

of authority in two ways. First, § 30-4040(2) states that “language in a power of attorney granting general authority with 

respect to gifts” authorizes gifts, as applicable here, only 

“(a) . . . in an amount per donee not to exceed the annual 

120 § 30-4014(1)(c).
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dollar limits of the federal gift tax exclusion.” But more important, § 30-4040(3) permits a gift “only as the agent determines 

is consistent with the principal’s objectives if actually known 

by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant 

factors.” The statute identifies five specific factors, including 

the value and nature of the principal’s property; the principal’s 

foreseeable obligations and need for maintenance; minimization of taxes; eligibility for a benefit, program, or assistance; 

and the principal’s personal history of making gifts. 121

As the comment to this section of the uniform act makes 

clear, to the extent a principal’s objectives “may potentially 

conflict with an agent’s default duties under the [NUPOAA], 

the principal should carefully consider stating those objectives 

in the power of attorney, or altering the default rules . . . , or 

both.” 122 Adelung does not claim that the 2008 power of attorney altered the default rules.

The stated objectives did not support the gifts. The power 

of attorney stated only two: “what might reasonably be anticipated as [the decedent’s] future needs” and lessening or eliminating federal estate taxes. Neither objective was furthered by 

these gifts. Heiden testified that Adelung told her the decedent 

“had less than $50,000 in the bank, because [the decedent] was 

broke.” A certified public accountant testified that “currently, 

you could pass through your estate over 12 million without any 

federal estate tax.”

Upon our de novo review, we are not persuaded that the 

provisions of the NUPOAA authorized the gifts Adelung made 

on the decedent’s behalf. In reaching this conclusion, we give 

weight to the county court’s factual findings.

c. Exoneration Clause

Adelung also relies upon the exoneration clause of the 2008 

power of attorney, which states:

121 See § 30-4040(3)(a) to (e).

122Unif. Power of Attorney Act § 217, comment, 8B U.L.A. 248 (2014).
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No individual or entity shall have the right, by court 

action or otherwise, to compel the initiation or continuation of any type of gifting plan by my Agent and 

no individual or entity shall have any claim or right of 

reimbursement from my Agent for initiating or continuing 

a gifting plan or for not initiating or continuing a gifting 

plan; it being my intention hereby that my Agent shall 

have absolute discretion and shall bear no liability for any 

decision made.

Adelung focuses on § 30-4015(1), which states that a provision “relieving an agent of liability for breach of duty is 

binding on the principal . . . except to the extent the provision: 

(a) [r]elieves . . . for breach of duty committed dishonestly, 

with an improper motive, or with reckless indifference[.]” He 

claims not to have acted in any of these ways.

[42] In passing, Adelung acknowledges § 30-4015(1)(b). 

Under § 30-4015(1)(b), an exoneration clause in a power of 

attorney will not relieve an agent of liability if the clause was 

“inserted as a result of an abuse of a confidential or fiduciary 

relationship with the principal.” He asserts that at the time of 

the 2008 power of attorney, he “was not in a confidential or 

fiduciary relationship with [the decedent].” 123 We disagree.

The comment to the uniform act provision mirroring 

§ 30-4015(1) explains that the language in subsection (1)(b) 

“provides . . . an additional measure of protection for the 

principal.” 124 But the Nebraska Legislature was not satisfied 

with only that measure of protection. It supplemented the 

uniform act by adding § 30-4015(2), which states that an 

“exculpatory term drafted or caused to be drafted by an agent 

is invalid as an abuse of fiduciary or confidential relationship unless the agent proves that the exculpatory term is fair 

under the circumstances and that its existence and contents 

were adequately communicated to the principal.”

123Brief for appellant at 36.

124Unif. Power of Attorney Act § 115, comment, 8B U.L.A. 208 (2014).
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At the time of the 2008 power of attorney, Adelung had already 

been acting for some years as the decedent’s agent in collecting the farm rents. That activity imposed upon him a fiduciary 

relationship. This alone seems sufficient under § 30-4015(1)(b) 

to defeat the exoneration clause. But § 30-4015(2) reinforces 

our conclusion. By hiring his own attorney to draft the power 

of attorney, Adelung “caused [the exoneration clause] to be 

drafted.” 125 Section 30-4015(2) imposed upon him the burden 

to prove that the clause was fair and adequately communicated 

to the decedent. He did not do so. The attorney who prepared 

it never spoke with the decedent. The notary public who 

administered the decedent’s acknowledgment did not recall 

discussing with her what the document authorized Adelung to 

do and denied that he would “normally” do so. Even Adelung 

did not claim that he provided any explanation to the decedent 

regarding its contents and meaning. He merely left it with her 

the day before it was signed and recalled her statement that she 

“had looked it over.” Adequate communication required more 

than this.

Adelung also asserts that Heiden waived the right to contest 

the exoneration clause, by failing to attack it in her petition. 

He relies upon a rule of pleading recited in a case long ago, 

that “where the illegality of an agreement is not suggested by 

the plaintiff’s pleadings or proofs it must, in order to be available to the adverse party, be especially pleaded.” 126 We are not 

sure that this rule survives under our current pleading rules, 127

but, in any event, the challenge to the exoneration clause was 

asserted by the proofs.

We find no merit to Adelung’s arguments attempting to rely 

upon the exoneration clause. The Legislature demanded an 

extra measure of protection regarding such provisions. This 

appeal illustrates why it did so.

125 See § 30-4015(2).

126Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463, 485, 62 

N.W. 899, 907 (1895).

127 See Neb. Ct. R. Pldg. § 6-1109 (rev. 2008) (pleading special matters).
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d. Arguments Not Raised Below

[43] On appeal, Adelung raises two arguments for the first 

time. He argues that the NUPOAA authorizes an agent to perform the acts necessary to maintain the customary standard of 

living of the principal’s close family members, including the 

principal’s children. He also contends that under the NUPOAA, 

agents are entitled to reasonable compensation, and that he 

is not liable for the decedent’s subsequent qualification for 

Medicaid. Because appellate courts do not consider arguments 

and theories raised for the first time on appeal, 128 we decline to 

further consider these arguments.

(ii) Laches

As we discussed in a preceding section, Adelung relies upon 

the defense of laches. There, we determined that it did not 

apply to the period from February through December 2012. 

For the same reasons, it does not apply to the time period from 

January 2013 to the decedent’s death.

VI. CONCLUSION

Because the county court had jurisdiction of the proceeding, 

we have jurisdiction of this appeal. We find no merit to Heiden’s 

cross-appeal. Except as to the defense of the statute of limitations, Adelung’s appeal lacks merit. Upon our de novo review, 

we affirm the judgment as modified and limited to Adelung’s 

actions after February 1, 2012, and we remand the cause to 

the county court with directions to calculate the amount of the 

modified judgment in conformity with this opinion.

Affirmed as modified, and cause 

remanded with directions.

Funke, J., not participating.

128 Junker v. Carlson, 300 Neb. 423, 915 N.W.2d 542 (2018).