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IN RE ESTATE OF RYAN

Cite as 302 Neb. 821

In re Estate of Wayne L. Ryan, dec

Shadow Ridge Limited Partnership, a

limited partnership, appellant, v. S

Personal Representative of the Es

Wayne L. Ryan, deceased, app

___ N.W.2d ___

Filed April 5, 2019. No. S-18-799.

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a trial court’s order granting a motion to dismiss de novo, 

accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. A motion to dismiss for failure to state 

a claim tests the legal sufficiency of the complaint, not the claim’s substantive merits.

3. ____: ____. To prevail against a motion to dismiss for failure to state a 

claim, a plaintiff must allege sufficient facts, accepted as true, to state a 

claim to relief that is plausible on its face.

4. Decedents’ Estates: Claims: Time. The Nebraska Probate Code 

requires that all claims, whether absolute or contingent, be presented 

within certain time periods or be barred against the estate.

5. Actions: Charities: Contracts: Consideration. An action on a note 

given to a church, college, or other like institution, upon the faith of 

which money has been expended or obligations incurred, generally cannot be successfully defended on the ground of lack of consideration.

6. Charities: Contracts: Intent. Charitable subscriptions often serve the 

public interest by enabling projects which otherwise could not occur and 

are thus construed, if reasonably possible, to support recovery.

7. Contracts: Estoppel. Recovery on a theory of promissory estoppel is 

based upon the principle that injustice can be avoided only by enforcement of a promise.

8. Forbearance: Estoppel. Under the doctrine of promissory estoppel, a 

promise which the promisor should reasonably expect to induce action 

Nebraska Supreme Court Online Library

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

06/28/2019 09:07 AM CDT
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Cite as 302 Neb. 821

or forbearance is binding if injustice can be avoided only by enforcement of the promise.

9. Estoppel. Under Nebraska law, the doctrine of promissory estoppel does 

not require that the promise giving rise to the cause of action must meet 

the requirements of an offer that would ripen into a contract if accepted 

by the promisee.

Appeal from the County Court for Douglas County: 

Lawrence E. Barrett, Judge. Affirmed in part, and in 

reversed and remanded for further proceedings.

Thomas M. Locher and Kevin J. Dostal, of Locher, Pavelka, 

Dostal, Braddy & Hammes, L.L.C., for appellant.

Marnie A. Jensen and Kamron T.M. Hasan, of Husch 

Blackwell, L.L.P., and William J. Lindsay, Jr., and John A. 

Svoboda, of Gross &Welch, P.C., L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke,

Freudenberg, J

Cassel, J

INTRODUCTION

In a decedent’s probate proceeding, a golf course partnership sought to enforce a claim based upon an unfulfilled 

pledge agreement, relying alternatively upon contract and 

promissory estoppel theories. The probate court dismissed 

both theories for failure to state a claim. Because the partnership is not a charitable, educational, or like institution, it failed 

to state a claim based on contract. But because it alleged having expended substantial funds in reliance upon the pledge—

which must be accepted as true—it stated a claim based upon 

promissory estoppel. We affirm in part, and in part reverse and 

remand for further proceedings.

BACKGROUND

Pledge Agree

In 2016, Wayne L. Ryan entered into a written “Pledge 

Agreement” with Shadow Ridge Limited Partnership, a 
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IN RE ESTATE OF RYAN

Cite as 302 Neb. 821

Nebraska limited partnership (Shadow Ridge). The signature block identified Ryan as “Donor” and Shadow Ridge as 

“Donee.” According to the agreement, Ryan would make a 

total gift of $20 million so that Shadow Ridge could make 

improvements to the golf course it operated. In the agreement, 

Ryan stated that he had resided along the golf course for 23 

years and had “great pride and affection” for it. His intent in 

providing funds, as stated in the agreement, was to “develop 

the golf course into one of the top-rated golf courses in the 

entire Midwest” and to make it “become a significant asset to 

the City of Omaha in much the same manner as the Omaha 

Henry Doorly Zoo, the TD Ameritrade Ball Park and other 

similar civic improvements which attract people to visit and 

reside in the City of Omaha.”

According to the pledge agreement, “[Ryan] has discussed 

a number of improvements which [Shadow Ridge] would like 

to make to the Shadow Ridge Golf Course in order to provide 

the underwriting that is appropriate to meet the goals and 

objectives generally set forth in this Pledge Agreement.” The 

improvements were set forth in an attachment to the pledge 

agreement and were incorporated by reference. The 11-page 

attachment detailed $12.5 million in capital improvements. 

Because recognizing Ryan’s contributions would “be paramount to this endeavor,” Shadow Ridge would construct and 

name a golf performance center after Ryan and place a bronze 

statue in Ryan’s honor at the first tee.

The pledge agreement stated that “in consideration of the 

foregoing Recitals and the mutual promises hereinafter set 

forth, [Ryan] hereby agrees to provide the gratuitous transfers hereinafter described . . . , subject to the conditions set 

forth in paragraph 3 below.” Paragraph 3, titled “Conditions,” 

stated that the intended transfers were “specifically subject 

to” two conditions. One condition was the resolution of specified litigation in Sarpy County, Nebraska, and the eventual 

sale of the stock or assets of “Streck, Inc.,” to an independent third party for fair value. The other condition was the 
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agreement of Shadow Ridge “to pay the anticipated transfer taxes attributable to the transfers contemplated by this 

Pledge Agreement (gift taxes reportable on IRS Forms 709) 

so that the practical result of the intended transfers is that they 

will be properly characterized as a net gift for federal gift 

tax purposes.”

Probate Procee

Ryan died in 2017. Shadow Ridge filed a statement of claim 

against the estate of Wayne L. Ryan (estate) for the $20 million 

pledge agreement. The claim disclosed that payment was contingent on the resolution of the Sarpy County case. The estate 

denied the claim.

Shadow Ridge filed a petition for allowance of claim and 

attached the pledge agreement. According to the petition, 

Ryan “enjoyed ‘Founding Membership’ status with Shadow 

Ridge at the time of the execution of the Pledge Agreement.” 

Shadow Ridge alleged that in reliance upon Ryan’s pledge, 

it had incurred expenses in beginning improvements specified in the agreement. It claimed that the pledge agreement 

was an enforceable obligation that was binding against the 

estate. Alternatively, Shadow Ridge alleged that the petition 

should be granted under a promissory estoppel theory. Shadow 

Ridge conceded that the contingency in the pledge agreement concerning the Sarpy County case had not occurred, but 

asserted that it would likely occur prior to the distribution of 

the estate.

Dismi

The estate moved to dismiss the petition for failure to state a 

claim. The probate court thereafter dismissed the petition with 

prejudice, finding that the petition failed to state a claim upon 

which relief may be granted and that no future amendments to 

the petition would be successful. The court’s order stated: “The 

conclusion of the . . . litigation in Sarpy County is a prerequisite before the intended gifts could be made by . . . Ryan. [He] 
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has died and no gifts were made to [Shadow Ridge] before 

his death.”

Shadow Ridge filed a timely appeal, and we granted the 

estate’s petition to bypass review by the Nebraska Court of 

Appeals.

ASSIGNMENTS OF ERROR

Shadow Ridge assigns that the court erred in dismissing its 

contract claim based upon the pledge agreement and in dismissing its claim based upon a promissory estoppel theory.

STANDARD OF REVIEW

[1] An appellate court reviews a trial court’s order granting a motion to dismiss de novo, accepting all allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.1

ANALYSIS

Principles of Law

Motion to D

[2,3] We begin by recounting principles governing motions 

to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). A 

motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, not the claim’s substantive merits.2

To prevail against a motion to dismiss for failure to state a 

claim, a plaintiff must allege sufficient facts, accepted as true, 

to state a claim to relief that is plausible on its face.3 In cases 

in which a plaintiff does not or cannot allege specific facts 

showing a necessary element, the factual allegations, taken as 

true, are nonetheless plausible if they suggest the existence of 

1 See Sandoval v. Ricketts, ante p. 138, 922 N.W.2d 222 (2019).

2 See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 

(2017).

3 Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018).
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the element and raise a reasonable expectation that discovery 

will reveal evidence of the element or claim.4 At this stage, 

the question boils down to whether, after accepting the wellpleaded facts as true, Shadow Ridge’s petition stated either a 

claim on a contract or a claim for promissory estoppel.

Contingent 

The transfers of money set forth in the pledge agreement 

were subject to two conditions. The estate argues that Shadow 

Ridge’s claims fail due to the nonoccurrence of conditions 

precedent. Here, we disagree.

A condition precedent includes a condition which must be 

fulfilled before a duty to perform an existing contract arises.5

There is no dispute that the conditions set forth in the agreement have not occurred. But this was not an action against 

Ryan to compel payment of an obligation; here, Shadow Ridge 

seeks to preserve its claims against Ryan’s estate in the probate 

proceeding resulting from Ryan’s death.

[4] The Nebraska Probate Code requires that all claims, 

whether absolute or contingent, be presented within certain 

time periods or be barred against the estate.6 Neb. Rev. Stat. 

§ 30-2492 (Reissue 2016) specifically addresses the disposition 

of contingent claims:

(a) If a claim which will become due at a future time or 

a contingent or unliquidated claim becomes due or certain 

before the distribution of the estate, and if the claim has 

been allowed or established by a proceeding, it is paid in 

the same manner as presently due and absolute claims of 

the same class.

(b) In other cases the personal representative or, on 

petition of the personal representative or the claimant in a 

4 Burklund v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018).

5 Weber v. North Loup River Pub. Power, 288 Neb. 959, 854 N.W.2d 263 

(2014).

6 See Neb. Rev. Stat. § 30-2485 (Reissue 2016).
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special proceeding for the purpose, the court may provide 

for payment as follows:

(1) if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty 

into account;

(2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, 

or otherwise.

This statute treats contingent claims differently, depending 

upon whether the contingency is resolved before distribution 

of the estate. If it is, the claim is paid pursuant to the rules 

governing payment of claims of the same class.7 If not, the 

statute anticipates that the probate court will craft an equitable 

solution to dispose of the contingent claim.8

Here, it is not clear which subsection of § 30-2492 may 

ultimately apply. Shadow Ridge alleged that the contingency 

of the resolution of the litigation would likely occur prior to 

distribution of the estate. But it asserted that if the contingency had not occurred prior to the distribution of the entire 

estate, the claim should be paid under § 30-2492(b). To the 

extent Shadow Ridge argues that it must then be paid even 

if the contingencies have not been met, we disagree. If a 

claim’s contingencies remain unmet at the time of an estate’s 

distribution, § 30-2492(b) provides a probate court with a 

wide range of tools to achieve a just result. And depending 

upon the situation then, a contingency may be so unlikely 

of being performed as to justify only minimal provision for 

future payment.

Regardless of which subsection may apply, our probate code 

compelled Shadow Ridge to assert its claim against the estate 

even though it remained contingent. Thus, the contingencies’ 

7 See Neb. Rev. Stat. § 30-2487 (Reissue 2016) (classifying claims).

8 See § 30-2492(b).
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unfulfilled status did not automatically defeat the claim. We 

turn to the alternative theories raised by Shadow Ridge.

Contra

Typically, a promise to make a gift in the future is not 

legally enforceable.9 Long ago, this court recognized that a 

promise to make a gift in the future is ordinarily unenforceable, 

even when put in the form of a promissory note.10 But in charitable giving cases, courts frequently find such future promises 

to be enforceable as a pledge or subscription.11 “A ‘subscription 

contract’ or ‘subscription,’ as it is often called, is not a gift, but 

is a contract, oral or written, by which one engages to contribute a sum of money for a designated purpose, gratuitously, as 

in the case of subscribing to a charity.”12

[5] Here, Shadow Ridge sought to have the pledge agreement enforced as a contract. A contract requires an offer, 

acceptance, and consideration.13 The general rule is that a 

subscription to a charitable or other institution must be supported by a consideration in order to be a binding obligation.14 But an action on a note given to a church, college, or 

other like institution, upon the faith of which money has been 

expended or obligations incurred, generally cannot be successfully defended on the ground of lack of consideration.15 In such 

cases, although the note is characterized as a gift or donation, 

the expenditure of money or assumption of liability by the 

9 See Ferer v. Aaron Ferer & Sons Co., 273 Neb. 701, 732 N.W.2d 667 

(2007).

10 See Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365 (1898).

11 See William A. Drennan, Charitable Naming Rights Transactions: Gifts or 

Contracts? 2016 Mich. St. L. Rev. 1267 (2016).

12 83 C.J.S. Subscriptions § 1 at 615 (2010).

13 See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 708 

N.W.2d 235 (2006).

14 Trustees of Baker University v. Clelland, 86 F.2d 14 (8th Cir. 1936).

15 Ricketts v. Scothorn, supra note 10.
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donee in reliance on the promise constitutes a valuable and 

sufficient consideration.16

[6] Charitable subscriptions often serve the public interest by enabling projects which otherwise could not occur and 

are thus construed, if reasonably possible, to support recovery.17 This court has found valid consideration for a pledge 

or subscription note to an educational institution18 and to a 

church.19

Shadow Ridge did not plead that it is a “church, college, or 

other like institution.”20 Rather, it is a Nebraska limited partnership that operates a golf course known as Shadow Ridge 

Country Club. There is no allegation that Shadow Ridge is 

open to the public or is a nonprofit entity. By definition, a 

country club often has restricted membership.21

Our research did not uncover any cases addressing the 

enforceability of a pledge agreement in favor of a for-profit 

entity. Shadow Ridge cited an Illinois case22 involving a golf 

and country club, but it is distinguishable. In that case, which 

involved securities regulation, the promisor already held a life 

membership in the club and pledged money to protect his own 

property. There is no allegation that Ryan held a similar ownership interest in Shadow Ridge.

We conclude that the absence of cases enforcing pledge 

agreements in favor of profitmaking entities is not mere 

16 See id.

17 See 83 C.J.S., supra note 12, § 3.

18 See, Nebraska Wesleyan University v. Estate of Couch, 170 Neb. 518, 103 

N.W.2d 274 (1960); In re Estate of Luce, 137 Neb. 846, 291 N.W. 562 

(1940); In re Estate of Griswold, 113 Neb. 256, 202 N.W. 609 (1925).

19 See Continental Co. v. Eilers, 134 Neb. 278, 278 N.W. 497 (1938).

20 See Ricketts v. Scothorn, supra note 10, 57 Neb. at 56, 77 N.W. at 366.

21 “Country club,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/381763 (last visited Mar. 29, 2019).

22 Blomgren v. Cowley, 282 Ill. App. 166 (1935).
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happenstance. “[F]rom early times academies, colleges, missionary enterprises, churches, and other similar institutions for 

the public welfare, have been established and often maintained 

upon private donations and subscriptions.”23 Some early cases 

advanced the view that “a subscription to charity was purely 

gratuitous,—a nudum pactum, not enforceable at law,—and 

performance was left to the conscience and honor of the 

subscriber.”24 But many courts, including this court, began 

to enforce eleemosynary subscriptions.25 This change flowed 

from a commendable regard for public policy and a desire to 

give stability and security to institutions dependent on charitable gifts.26

Because Shadow Ridge is not an entity for the public 

good like a charitable or educational institution, its petition 

premised on contract principles failed to state a claim upon 

which relief may be granted. We conclude the probate court 

did not err in granting the motion to dismiss as to the contract claim.

Promissory Esto

[7,8] Shadow Ridge alternatively alleged that its claim 

should be granted under a promissory estoppel theory. Recovery 

on a theory of promissory estoppel is based upon the principle 

that injustice can be avoided only by enforcement of a promise.27 Under the doctrine of promissory estoppel, a promise 

which the promisor should reasonably expect to induce action 

or forbearance is binding if injustice can be avoided only by 

enforcement of the promise.28

23 Annot., 38 A.L.R. 868, 869 (1925).

24 Id. at 869.

25 See In re Estate of Griswold, supra note 18.

26 See 38 A.L.R., supra note 23.

27 Blinn v. Beatrice Community Hosp. & Health Ctr., supra note 13.

28 Id.
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[9] Under Nebraska law, the doctrine of promissory estoppel 

does not require that the promise giving rise to the cause of 

action must meet the requirements of an offer that would ripen 

into a contract if accepted by the promisee.29 Under this theory, 

the main focus is on reasonable reliance. And here, we are 

reviewing only a dismissal for failure to state a claim.

At this stage, we must view the facts alleged by Shadow 

Ridge as true and draw all reasonable inferences in its favor. 

Shadow Ridge alleged that Ryan promised to give it $20 million “for the purposes specified in the Pledge Agreement.” It 

claimed that Ryan reasonably expected the promise of money 

to induce Shadow Ridge to incur expenses for the purposes 

identified in the pledge agreement, that it was foreseeable 

Shadow Ridge would incur substantial expenses in reliance 

upon Ryan’s promise, and that Shadow Ridge reasonably relied 

on the promise to incur substantial expenses.

Shadow Ridge’s last allegation—that it had incurred substantial expenses in reasonable reliance upon Ryan’s pledge 

agreement—is the heart of this theory. Based upon its assertion 

of facts supporting promissory estoppel, Shadow Ridge has 

adequately stated a claim on its alternative pleading. The probate court erred in dismissing the claim in the petition based on 

promissory estoppel.

CONCLUSION

Because Shadow Ridge is not a charitable, educational, or 

like institution, its attempt to enforce the pledge agreement as 

a contract fails. And we affirm the probate court’s order to that 

extent. However, accepting as true all well-pleaded facts and 

drawing all reasonable inferences in Shadow Ridge’s favor, 

Shadow Ridge has stated a claim upon which relief may be 

granted under a promissory estoppel theory. Of course, the 

truth of Shadow Ridge’s allegations, as well as any defenses 

29 Id.
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the estate may assert, has not been determined. Contingencies 

admittedly exist. Our decision today should not be misunderstood to mean that Shadow Ridge’s claim must ultimately 

prevail. Its success or failure depends upon the proceedings 

that will follow our remand. We reverse the probate court’s dismissal as to the promissory estoppel theory of Shadow Ridge’s 

claim and remand the cause for further proceedings.

 Affirmd in part and in part rev

remanded for further proceedi

Miller-Lerman, J., not participa