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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

Janice K. Litherland, appellant, v. 

Gary Martin Jurgens and Velda

Lee Lenners, appellees.

___ N.W.2d ___

Filed September 11, 2015. No. S-14-818.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing 

an order dismissing a complaint, an appellate court accepts as true all 

facts which are well pled and the proper and reasonable inferences of 

law and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion.

3. Principal and Agent: Fraud: Proof. A prima facie case of fraud is 

established if the plaintiff shows that the defendant held the principal’s 

power of attorney and that the defendant, using the power of attorney, 

made a gift to himself or herself.

4. Principal and Agent: Fraud: Proof: Intent. Once it is shown that 

the defendant used the power of attorney to make a gift to himself or 

herself, the burden is upon the defendant to establish by clear and convincing evidence that the transaction was made with the clear intent of 

the donor.

5. Trusts: Agency: Equity. An agent or other fiduciary who deals with 

the subject matter of the agency so as to make a profit for himself or 

herself will be held to account in equity as trustee for all profits and 

advantages acquired by him or her in such dealings.

6. Decedents’ Estates: Executors and Administrators. Where the beneficiary seeks to challenge the personal representative’s administration of the estate, a special administrator can be appointed to pursue 

the claims.

7. Conspiracy: Torts. A conspiracy is not a separate and independent 

tort in itself, but, rather, is dependent upon the existence of an underlying tort.
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

Appeal from the District Court for Gage County: Daniel E. 

Bryan, Jr., Judge. Affirmed.

Lyle J. Koenig, of Koenig Law Firm, for appellant.

J. L. Spray and Patricia L. Vannoy, of Mattson Ricketts Law 

Firm, for appellees.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

Wright, J.

NATURE OF CASE

Janice K. Litherland appeals from the dismissal of her 

action against the appellees, Gary Martin Jurgens and Velda 

Lee Lenners, for unjust enrichment, intentional interference 

with an inheritance, and conspiracy to commit those acts. 

Litherland was to receive certain real estate under the terms 

of the decedent’s will, but the property was sold by Jurgens as 

attorney in fact for the decedent prior to her death. The proceeds from the sale were deposited into the decedent’s bank 

accounts and divided equally among Litherland, Jurgens, and 

Lenners upon the decedent’s death, under a separate provision 

of the will.

For the reasons stated below, we decline to adopt the tort 

of intentional interference with an inheritance and affirm the 

judgment of the district court.

SCOPE OF REVIEW

[1,2] A district court’s grant of a motion to dismiss is 

reviewed de novo. Brothers v. Kimball Cty. Hosp., 289 Neb. 

879, 857 N.W.2d 789 (2015). When reviewing an order dismissing a complaint, an appellate court accepts as true all facts 

which are well pled and the proper and reasonable inferences 

of law and fact which may be drawn therefrom, but not the 

plaintiff’s conclusion. SID No. 1. v. Adamy, 289 Neb. 913, 858 

N.W.2d 168 (2015).
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

FACTS

Litherland was the daughter of Etta J. Ideus Jurgens (Etta), 

who died on January 2, 2013, as a resident of Beatrice, Gage 

County, Nebraska. Jurgens and Lenners were Etta’s stepchildren. Each is a beneficiary under Etta’s will dated November 

4, 2004, which was offered for probate in the county court. 

Under the terms of the will, Litherland was to receive certain real estate if it was owned by Etta at the time of her 

death. The will devised all the decedent’s savings accounts, 

certificates, and money deposited in any financial institution 

to Litherland, Jurgens, and Lenners in equal shares. The will 

named Jurgens and Lenners as joint personal representatives 

of the estate.

On February 17, 2006, Etta executed a durable power of 

attorney appointing Jurgens as her attorney in fact. Jurgens 

used the durable power of attorney to cause the sale of the 

real estate that Litherland would have received under the 

will. The sale proceeds were deposited in the decedent’s bank 

accounts. And upon Etta’s death, the bank account was distributed equally among Litherland, Jurgens, and Lenners in 

accordance with her will.

On February 4, 2014, Litherland filed a complaint against 

Jurgens and Lenners in Gage County District Court alleging three theories of recovery: unjust enrichment, intentional 

interference with an inheritance, and conspiracy. The first 

claim was against Jurgens for improperly using the power of 

attorney to unjustly enrich himself by selling the real estate. 

Litherland requested that the court create a constructive trust 

regarding the proceeds of the sale. The second claim was 

against Jurgens for the tort of intentional interference with 

an inheritance. The third claim was against both Jurgens and 

Lenners for conspiracy to commit the acts alleged in the first 

and second claims.

Jurgens and Lenners moved to dismiss Litherland’s complaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1) and 

(6), alleging that the district court lacked jurisdiction and 
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

that Litherland failed to state a claim for which relief may 

be granted.

On July 10, 2014, the district court dismissed Litherland’s 

unjust enrichment claim. The court concluded that because 

the claim was related to the decedent’s estate, it should have 

been brought in the probate court. At the time this action was 

commenced, a probate proceeding concerning Etta’s estate 

was pending in the county court for Gage County and, therefore, the probate court had acquired jurisdiction over the 

decedent’s estate. The district court found that Litherland’s 

claim against Jurgens for improperly using the power of attorney to unjustly enrich himself and her request for a constructive trust over the proceeds from the sale of the real estate 

were both related to Etta’s estate. The district court concluded 

that Litherland could petition the probate court to impose a 

constructive trust on the proceeds of the sale of the real estate 

if the probate court found that Jurgens had improperly used 

the power of attorney to redirect estate property to himself or 

Lenners. As a result, the district court found that Litherland 

should bring the claim in the probate court to determine 

whether the sale of real estate was a proper use of the power 

of attorney that constituted “a valid ademption” of the anticipated devise.

The district court sustained Jurgens and Lenners’ motion 

to dismiss based upon § 6-1112(b)(1) as to Litherland’s 

first claim, because of the judicial administration rule. The 

court stated:

Because both courts have subject matter jurisdiction, if 

[the probate court] either terminates its jurisdiction or 

feels for whatever reason it does not want to exercise 

such equity jurisdiction and formally waives its jurisdiction to hear and decide this issue, within thirty (30) days 

from filing of this order, [Litherland] may within fifteen 

(15) days of the [probate court’s] waiver or termination of jurisdiction order, re-file her complaint in the 

District Court . . . .
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

Regarding Litherland’s claim for intentional interference 

with an inheritance, the district court assumed for purposes 

of its decision that Nebraska recognized the tort as a cause 

of action, but held that the claim failed for two reasons. First, 

Litherland failed to show that probate remedies were inadequate. It stated, “[T]his court has already ruled under the 

[§ 6-11]12(b)(1) motion [to dismiss] that [Litherland] has an 

equity action that may be brought before the probate court 

. . . . Therefore, [Litherland] can not [sic] show that the probate 

remedies are inadequate.”

Second, Litherland failed to allege that Jurgens and Lenners 

were aware of the contents of the will prior to the sale of the 

real estate. As a result, the district court found that Litherland 

did not allege tortious conduct which intentionally interfered 

with the inheritance. Because the court found that Litherland 

did not state a cause of action for an underlying tort, the court 

also dismissed her conspiracy claim. The court did not give 

Litherland an opportunity to amend her pleadings as to the 

second and third claims. Litherland timely appealed.

ASSIGNMENTS OF ERROR

Litherland assigns, consolidated and restated, that the district court erred in (1) requiring that remedies in probate 

court be exhausted in order to sustain a claim for intentional 

interference with an inheritance, (2) finding that Litherland 

was required to plead that Jurgens and Lenners were aware of 

the terms of the will to show intent, and (3) refusing to allow 

Litherland to amend her pleadings. Litherland’s assignments 

of error relate only to the district court’s dismissal of her 

claims for interference with an inheritance and conspiracy. No 

appeal was taken from the dismissal of Litherland’s action for 

unjust enrichment.

ANALYSIS

The question is whether Nebraska recognizes a cause of 

action for the tort of intentional interference with an inheritance. 
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

For the reasons set forth, we decline to adopt the tort as a 

cause of action that is permitted in Nebraska.

The Restatement defines the tort as follows: “One who by 

fraud, duress or other tortious means intentionally prevents 

another from receiving from a third person an inheritance or 

gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement 

(Second) of Torts § 774B at 58 (1979).

There is a jurisdictional split between the states that recognize intentional interference with an inheritance as a cause 

of action and those that do not. The U.S. Supreme Court has 

referred to the tort as “widely recognized.” See Marshall v. 

Marshall, 547 U.S. 293, 312, 126 S. Ct. 1735, 164 L. Ed. 2d 

480 (2006). However, even among those states that recognize 

this tort, most have held that a claim may be brought only in 

limited circumstances.

These states have concluded the tort is generally unavailable where a conventional will contest is available to the 

plaintiff, the plaintiff has not exhausted probate remedies, and 

a successful probate contest would provide adequate relief. 

See, e.g., Moore v. Graybeal, 843 F.2d 706 (3d Cir. 1988) 

(applying Delaware law); Firestone v. Galbreath, 895 F. Supp. 

917 (S.D. Ohio 1995) (applying Ohio law); Jackson v. Kelly, 

345 Ark. 151, 44 S.W.3d 328 (2001); Benedict v. Smith, 34 

Conn. Supp. 63, 376 A.2d 774 (1977); DeWitt v. Duce, 408 

So. 2d 216 (Fla. 1981); Robinson v. First State Bank, 97 Ill. 

2d 174, 454 N.E.2d 288, 73 Ill. Dec. 428 (1983); Huffey v. 

Lea, 491 N.W.2d 518 (Iowa 1992); Axe v. Wilson, 150 Kan. 

794, 96 P.2d 880 (1939); Allen v. Lovell’s Adm’x, 303 Ky. 

238, 197 S.W.2d 424 (1946); Brignati v. Medenwald, 315 

Mass. 636, 53 N.E.2d 673 (1944); Gianella v. Gianella, 234 

S.W.3d 526 (Mo. App. 2007); Griffin v. Baucom, 74 N.C. App. 

282, 328 S.E.2d 38 (1985). These courts have concluded that 

where probate remedies are adequate and available, a plaintiff 

cannot maintain an action for intentional interference with 

an inheritance.
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Cite as 291 Neb. 775

The Florida Supreme Court has stated, “The vast majority of 

these cases characterize as collateral a later tort action whenever the plaintiff has failed to pursue an adequate remedy in 

the probate proceedings.” DeWitt v. Duce, 408 So. 2d at 218. 

The Arkansas Supreme Court determined that adopting the tort 

where an adequate probate remedy exists “‘would only lead 

to duplicative litigation, encouraging inefficient relitigation of 

issues better handled within the context of the core cause of 

action.’” Jackson v. Kelly, 345 Ark. at 157, 44 S.W.2d at 331 

(quoting Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 

27 S.W.3d 387 (2000)).

One commentator has noted:

One frequently cited reason for allowing recovery for 

intentional interference with inheritance is that every 

wrong should have a remedy. Yet the facts giving rise to 

the tort are often identical to facts giving rise to a will 

contest. If either action would provide an adequate remedy, the plaintiff should be limited to the probate action 

because that is the preferred method for resolving issues 

related to wills. Accordingly, most jurisdictions prohibit 

a plaintiff from pursuing the tort action unless a probate 

action is either unavailable or inadequate.

Nita Ledford, Note, Intentional Interference With Inheritance, 

30 Real Prop. Prob. & Tr. J. 325, 340-41 (1995).

Although this court has not reached the issue directly, we 

expressed strong disapproval of the tort in Manon v. Orr, 289 

Neb. 484, 491, 856 N.W.2d 106, 111 (2014), stating:

We expressly decline to opine on the interplay between 

[Neb. Rev. Stat.] § 30-3855(a) [(Reissue 2008)] and 

§ 774B of the Restatement. Even if we were to conclude 

that the statute did not prevent the adoption of a cause of 

action for intentional interference with an inheritance or 

gift, we would nevertheless decline to adopt this tort.

Our language in Manon v. Orr is consistent with the general preference for resolving disputes pertaining to wills and 
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LITHERLAND v. JURGENS

Cite as 291 Neb. 775

inheritances in probate court. Therefore, we consider whether 

Litherland’s probate remedies were adequate.

In deciding Litherland’s claim for unjust enrichment, the 

district court concluded that the probate court had jurisdiction of this claim. It therefore sustained Jurgens and Lenners’ 

§ 6-1112(b)(1) motion, concluding the probate court had 

jurisdiction because of the judicial administration rule. The 

district court concluded that had Litherland filed a proper 

petition in the probate court, the probate court could hear 

and decide the issue as easily as the district court. It further 

stated that Litherland could file a petition in the probate court 

to determine whether Jurgens improperly used the power 

of attorney to sell the real estate prior to Etta’s death and 

whether the sale defeated the intended devise to Litherland. 

If the probate court determined that the sale was intended 

to improperly enrich Jurgens, the court could have imposed 

a constructive trust over the real estate proceeds in favor 

of Litherland.

[3] The remedies available to Litherland in the probate 

court were adequate. When compared to the tort of intentional 

interference with an inheritance, the action in the probate court 

would be to impose a constructive trust over the proceeds of 

the sale of real estate, as compared to an action for damages 

based upon the tort. The adoption of the tort would duplicate 

theories of recovery available to Litherland. A cause of action 

for fraud, which is the basis for the tort, already exists in 

Nebraska in the context of self-dealing through the use of a 

power of attorney. We have held:

[A] prima facie case of fraud is established if the plaintiff 

shows that the defendant held the principal’s power of 

attorney and that the defendant, using the power of attorney, made a gift to himself or herself. . . . The burden 

of going forward under such circumstances falls upon 

the defendant to establish by clear and convincing evidence that the transaction was made pursuant to power 
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Cite as 291 Neb. 775

expressly granted in the power of attorney document and 

made pursuant to the clear intent of the donor.

Crosby v. Luehrs, 266 Neb. 827, 836, 669 N.W.2d 635, 645 

(2003).

[4] Thus, once it is shown that the defendant used the power 

of attorney to make a gift to himself or herself, the burden is 

upon the defendant to establish by clear and convincing evidence that the transaction was made with the clear intent of the 

donor. See Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 

471 (2007). This is contrasted with the tort’s requirement that 

the plaintiff must prove the intent of the defendant to deprive 

the plaintiff of receiving the inheritance. Thus, the action in 

the probate court presented an adequate remedy for Litherland 

and did not require proof of Jurgens’ intent in selling the real 

estate as Etta’s attorney in fact.

More important, we have long recognized that because of 

the agency relationship created by a power of attorney, the 

authority and duties of an attorney in fact are governed by 

the principles of the law of agency, including the prohibition 

against an agent profiting in transactions in which the agent 

represents the principal. See Archbold v. Reifenrath, 274 

Neb. 894, 744 N.W.2d 701 (2008). In these cases, we have 

stated that the policy concern underlying the law is primarily 

focused on the potential for fraud that exists when an agent 

acting under a durable power of attorney has the power to 

make gifts, especially after the principal becomes incapacitated. See In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 

13 (2009).

[5] Because of these concerns, we have held that a party 

establishes a prima facie case of fraud by showing that an 

attorney in fact used the principal’s power of attorney to make 

a gift of the principal’s assets to himself or herself. See id.

Whether the fiduciary acted in good faith or had actual intent 

to defraud is immaterial; when these circumstances are shown, 

the law presumes constructive fraud. Id. The significance is 

that the burden of going forward with evidence then shifts to 
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the fiduciary to establish by clear and convincing evidence 

that (1) the transaction was made under the power expressly 

granted in the instrument and the clear intent of the donor and 

(2) the fairness of the transaction. Id. An agent or other fiduciary who deals with the subject matter of the agency so as 

to make a profit for himself or herself will be held to account 

in equity as trustee for all profits and advantages acquired by 

him or her in such dealings. Mischke v. Mischke, 253 Neb. 

439, 571 N.W.2d 248 (1997).

We have decided several cases involving alleged wrongful conduct and self-dealing through the use of a power of 

attorney. See, e.g., In re Estate of Hedke, supra; Archbold 

v. Reifenrath, supra; Crosby v. Luehrs, supra. These cases 

contain facts similar to those alleged by Litherland in her 

complaint.

In Archbold v. Reifenrath, a successor personal representative of a decedent’s estate brought an action for constructive 

fraud against the decedent’s brother, who had durable power of 

attorney, to recover assets formerly belonging to the decedent. 

We held that the decedent’s brother did not have the power 

to make substantially gratuitous transfers of the decedent’s 

property to the brother and his family. Although the power of 

attorney granted plenary power exercisable in the brother’s 

absolute discretion, that power was limited by statute to those 

acts an agent was otherwise authorized to do, and the power of 

attorney did not contain a specific authorization for the making of gratuitous transfers, which an agent is not otherwise 

authorized to do.

[6] Litherland could have challenged the administration of 

the estate. Where the beneficiary seeks to challenge the personal representative’s administration of the estate, a special 

administrator can be appointed to pursue the claims. Such an 

appointment can occur based on an allegation that the personal representative is perpetrating fraud, has colluded with 

another to deprive the estate of a potential asset, is conflicted 

to properly administer the estate, or the existence of some 
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other equitable circumstance, plus some evidence of the personal representative’s alleged dereliction of duty. In re Estate 

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

[7] For the above reasons, we decline to adopt the tort 

of intentional interference with an inheritance. Because we 

decline to adopt the tort, we do not address the other issues 

related to it. Litherland does not appeal the district court’s 

dismissal of her unjust enrichment claim. Therefore, she has 

no separate cause of action on which to rest her conspiracy 

claim. A conspiracy is not a separate and independent tort 

in itself, but, rather, is dependent upon the existence of an 

underlying tort. United Gen. Title Ins. Co. v. Malone, 289 

Neb. 1006, 858 N.W.2d 196 (2015). Without such underlying 

tort, there can be no claim for relief for a conspiracy to commit the tort. Id.

CONCLUSION

For the reasons stated above, we affirm the judgment of the 

district court. The motion for attorney fees filed by Jurgens 

and Lenners is overruled.

Affirmed.

Stephan, J., not participating.