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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

In re Estate of Michael R. 

Brinkman, deceased.

Nicole Brinkman, appellee, v. Seth Michael 

Brinkman and Kimberly Milius, Personal 

Representative of the Estate of Michael 

R. Brinkman and as parent and next 

friend of Seth Michael Brinkman, 

a minor, appellants.

___ N.W.2d ___

Filed January 8, 2021. No. S-20-235.

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

2. 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.

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

reviews questions of law decided by a lower court.

4. Wills: Trusts. The interpretation of the words in a will or a trust presents a question of law.

5. Decedents’ Estates: Judgments: Appeal and Error. When reviewing 

questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

6. 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.

7. Decedents’ Estates: Appeal and Error. Nebraska’s statutory grant of 

the right to appeal under Neb. Rev. Stat. § 30-1601(2) (Cum. Supp. 

2018) is generous.

8. Decedents’ Estates: Wills: Intent. The cardinal rule concerning a 

decedent’s will is the requirement that the intention of the testator shall 

be given effect, unless the maker of the will attempts to accomplish 

Nebraska Supreme Court Online Library

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

01/15/2021 08:07 AM CST
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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

a purpose or to make a disposition contrary to some rule of law or 

public policy.

9. Wills. When language in a will is clear and unambiguous, construction 

of a will is unnecessary and impermissible.

10. Decedents’ Estates: Wills. A latent ambiguity exists when the testator’s words are susceptible of more than one meaning, and the uncertainty arises not upon the words of the will as looked at in themselves, 

but upon those words when applied to the object or subject which 

they describe.

11. Wills: Intent: Words and Phrases. A patent ambiguity is one which 

exists on the face of an instrument and must be removed by interpretation according to legal principles, and the intention of the testator must 

be found in the will.

12. Words and Phrases. The word “include” means to contain, embrace, or 

comprise, as a whole does parts or any part or element; to place in an 

aggregate, class, category, or the like; and to contain as a subordinate 

element or involve as a factor.

13. Decedents’ Estates: Wills. A testator will not be held to have disinherited an heir except where that conclusion is impelled by the express 

provisions or by necessary implication from provisions specifically 

set forth.

Appeal from the County Court for Douglas County: Grant 

A. Forsberg, Judge. Affirmed.

Joseph D. Thornton, of Smith Peterson Law Firm, L.L.P., 

for appellants.

Ryan P. Watson and Jeffrey A. Wagner, of Wagner, Meehan 

& Watson, L.L.P., for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Nicole Brinkman, the daughter of testator Michael R. 

Brinkman, claimed to be entitled to one-half of the residual 

share of her father’s testamentary estate and sought a declaration of her rights under her father’s will in the county court 
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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

for Douglas County. The personal representative for the 

estate, Kimberly Milius, and the decedent’s son, Seth Michael 

Brinkman, through Milius’ appearing as his next friend, 

claimed that the decedent had disinherited Nicole. The county 

court agreed with Nicole and determined as a matter of law 

that the will is ambiguous with regard to Nicole’s status under 

the will; that Nicole is not clearly disinherited; and that Nicole 

should receive as a child, an issue, and an heir of the decedent 

pursuant to the terms of the will. This appeal filed by Milius 

and Seth followed. We affirm.

STATEMENT OF FACTS

Michael died on December 23, 2016, leaving two children, 

Nicole and Seth. Michael’s will was admitted for probate, 

naming Milius as personal representative. Milius is Seth’s 

mother, but not Nicole’s mother. Nicole is the older of the 

two children. Nicole objected to the probate of the will and 

claimed that she was entitled to an undivided one-half interest 

in the estate, less personal effects. Milius appeared for Seth as 

next friend.

Previously, we considered a jurisdictional issue in this matter. Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 

(2019). In that opinion, we determined that for purposes of 

construing the will in this case, the county court had jurisdictional priority over the district court. Id. The matter was 

remanded to the county court, resulting in the order from 

which this appeal was taken.

The relevant portions of the will for purposes of this appeal 

are as follows:

ARTICLE I.

The references in this Will to my “son” refer to my 

son, SETH MICHAEL BRINKMAN. The references in 

this Will to my “children” and/or my “issue” shall include 

my son, SETH MICHAEL BRINKMAN, and all children 

of mine born or adopted after the execution hereof.”

. . . .
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Cite as 308 Neb. 117

ARTICLE V.

I give the residue of my estate to my issue, per stirpes.

. . . .

ARTICLE VII.

If at any time before final distribution there shall not 

be in existence anyone who is, or might become, entitled 

to receive benefits under the foregoing provisions of this 

Will, any portion remaining shall be distributed to the 

persons to whom and in the proportions in which the 

same would have been distributed had I died intestate, 

domiciled in the State of Nebraska, owning such assets 

immediately following the death of the last survivor of 

the class composed of my issue and myself.

(Emphasis supplied.) Nicole is not mentioned by name in 

the will.

On remand, Nicole filed a motion to construe the will 

and contended that an ambiguity exists in the term “issue” 

and asserted that a proper construction of “issue” included 

both Nicole and Seth. Milius contended that the will was not 

ambiguous and that its terms disinherited Nicole. Following 

a hearing, the county court found, inter alia, that the will is 

patently ambiguous with regard to whether Michael specifically intended to disinherit Nicole. The court interpreted the 

will and found that its language does not serve to disinherit 

Nicole. The court reasoned that the portion of the will defining 

“children” and/or “issue” states they “shall include my son, 

SETH MICHAEL BRINKMAN” and such terms do not clearly 

disinherit Nicole. The county court examined definitions of 

“include” and reasoned:

The Court notes that the inclusion of a named individual that was born out of wedlock clearly adds that individual to an otherwise identified group of heirs. Potentially 

to avoid an attack that he should be excluded. The word 

include does not mean it’s [sic] opposite. Simply put, to 

include is not to exclude. To include the named individual 

merely adds him to the otherwise definition of “children” 

and “issue.”
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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

Thus, the county court determined that Nicole, as the decedent’s daughter, is included under the will as a child, an issue, 

and an heir of Michael.

Milius and Seth filed a motion to alter or amend the order, 

which was denied.

An appeal was taken by Seth, individually, and Milius, representing the estate and also purporting to act as next friend to 

Seth. During the pendency of the case, the parties agree that 

Seth turned 19 years old and reached the age of majority as 

defined under Neb. Rev. Stat. § 43-2101 (Supp. 2019).

ASSIGNMENTS OF ERROR

Seth and Milius assign, summarized and restated, that the 

county court erred when it (1) determined that the will is 

patently ambiguous with respect to Nicole’s status and (2) 

found that Nicole is not excluded from the definition of “children” and “issue” as defined by the will, which they claim 

served to expressly disinherit Nicole.

STANDARDS OF REVIEW

[1-3] Subject matter jurisdiction and statutory interpretation 

present questions of law. In re Estate of Adelung, 306 Neb. 

646, 947 N.W.2d 269 (2020). A jurisdictional question which 

does not involve a factual dispute is determined by an appellate 

court as a matter of law. Id. An appellate court independently 

reviews questions of law decided by a lower court. Id.

[4,5] The interpretation of the words in a will or a trust 

presents a question of law. In re Estate of Barger, 303 Neb. 

817, 931 N.W.2d 660 (2019). When reviewing questions of 

law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court 

below. Id.

ANALYSIS

Subject Matter Jurisdiction.

As an initial matter, we note that during the pendency of 

this appeal, Nicole challenged our subject matter jurisdiction 
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Cite as 308 Neb. 117

over this case based on the statuses of Seth and Milius. As we 

explain below, we conclude we have jurisdiction.

[6] 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. In re Estate of Adelung, supra. 

Lack of subject matter jurisdiction may be raised at any time 

by any party or by the court sua sponte. Id. Appellate jurisdiction must be specifically provided by the Legislature for 

this court to have jurisdiction over an appeal. See Heckman v. 

Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). “[U]nless a 

statute provides for an appeal, such right does not exist.” Id. at 

461, 894 N.W.2d at 299.

[7] In probate cases, Neb. Rev. Stat. § 30-1601(2) (Cum. 

Supp. 2018) provides that “[a]n appeal may be taken by any 

party and may also be taken by any person against whom the 

final judgment or final order may be made or who may be 

affected thereby.” (Emphasis supplied.) We have described 

Nebraska’s statutory grant of the right to appeal in these cases 

as “generous.” See In re Conservatorship of Franke, 292 Neb. 

912, 923, 875 N.W.2d 408, 417 (2016). Compare Unif. Probate 

Code § 1-308, 8 (part I) U.L.A. 70 (2013).

We have previously explained that the distribution of assets 

from an estate is a proceeding in rem and that every person 

interested in the distribution is entitled to appear on appeal. 

See Clutter v. Merrick, 162 Neb. 825, 77 N.W.2d 572 (1956). 

Heirs of the decedent are interested persons. See id. Under 

§ 30-1601(2), Seth, individually, as an heir to Michael, was 

directly “affected” by the county court’s “final order” ruling 

that Nicole is also an heir under the decedent’s will, and therefore, Seth was enabled by statute to appeal, even if he had not 

appeared below.

Section 30-1601(2) also enables “any party” to take an 

appeal. Milius, as personal representative of the estate, was 

a party in the county court. Nicole’s contention that Milius, 

as personal representative, lacks standing on appeal is without merit.
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Finally, we note that in addition to her status as personal representative, Milius also identified herself as next friend to Seth 

in the notice of appeal. However, because Seth is no longer 

a minor and instead is appearing individually in this appeal, 

Milius’ previous next friend status is irrelevant. Accordingly, 

we have jurisdiction and overrule Nicole’s motion to dismiss.

Construction of Will.

We next turn to Seth and Milius’ assignments of error 

regarding the county court’s construction of the will. They 

generally object to Nicole’s taking under the will. They specifically contend that the will is not ambiguous or that if it is 

ambiguous, such ambiguity is latent, and under the terms of the 

will, Nicole was expressly disinherited by her exclusion from 

the definition of “children” and “issue.” These assignments are 

without merit.

[8] The cardinal rule concerning a decedent’s will is the 

requirement that the intention of the testator shall be given 

effect, unless the maker of the will attempts to accomplish 

a purpose or to make a disposition contrary to some rule of 

law or public policy. In re Estate of Etmund, 297 Neb. 455, 

900 N.W.2d 536 (2017). To arrive at a testator’s intention 

expressed in a will, a court must examine the decedent’s will in 

its entirety, consider and liberally interpret every provision in 

a will, employ the generally accepted literal and grammatical 

meaning of words used in the will, and assume that the maker 

of the will understood words stated in the will. Id.

[9,10] When language in a will is clear and unambiguous, 

construction of a will is unnecessary and impermissible. Id. 

Ambiguity exists in an instrument, including a will, when a 

word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable interpretations or meanings. 

Id. Parol evidence is inadmissible to determine the intent 

of a testator as expressed in his or her will, unless there is 

a latent ambiguity therein which makes his or her intention 

obscure or uncertain. In re Estate of Mousel, 271 Neb. 628, 

715 N.W.2d 490 (2006). A latent ambiguity exists when the 
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IN RE ESTATE OF BRINKMAN

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testator’s words are susceptible of more than one meaning, and 

the uncertainty arises not upon the words of the will as looked 

at in themselves, but upon those words when applied to the 

object or subject which they describe. Id.

[11] In contrast, a patent ambiguity is one which exists 

on the face of an instrument. Id. A patent ambiguity must be 

removed by interpretation according to legal principles, and the 

intention of the testator must be found in the will. Id.

The dispute regarding construction of the will focuses on 

articles I and V, which we set forth below:

ARTICLE I.

The references in this Will to my “son” refer to my 

son, SETH MICHAEL BRINKMAN. The references in 

this Will to my “children” and/or my “issue” shall include 

my son, SETH MICHAEL BRINKMAN, and all children 

of mine born or adopted after the execution hereof.

. . . .

ARTICLE V.

I give the residue of my estate to my issue, per stirpes.

(Emphasis supplied.)

Contrary to the assertions of Seth and Milius, we agree 

with the county court and conclude that by using the word 

“include,” article I contains a patent ambiguity which must 

be removed by harmonizing the expression therein with the 

intention of the testator as it may be ascertained from the plain 

provisions of the will. See Marsh v. Marsh, 92 Neb. 189, 137 

N.W. 1122 (1912). As indicated above, in searching for the 

intention of the testator, the court must examine the entire 

will, consider each of its provisions, give words their generally 

accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words 

used. Gretchen Swanson Family Foundation, Inc. v. Johnson, 

193 Neb. 641, 228 N.W.2d 608 (1975).

[12] We previously considered the generally understood 

meaning of the word “include” in a contract case in which 

we were presented with the question of whether the word 
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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

“include,” on its own, was expansive or restrictive. Turning to 

dictionary and legal definitions, we explained:

The word “include” means “1. To contain, embrace, or 

comprise, as a whole does parts or any part or element 

. . . 2. to place in an aggregate, class, category, or the 

like. 3. To contain as a subordinate element; involve as 

a factor.” . . . [T]hese definitions support the conclusion 

that enumerated items in a list preceded by the word 

“include” are normally a part of the whole—not that the 

parts restrict the whole. Particularly in legal contexts, the 

“participle including typically indicates a partial list,” 

and this meaning holds true whether or not the drafter(s) 

added emphatic language such as “including but not limited to.” Obviously, interpretative aids cannot override 

the parties’ clear intent when a contract is considered as 

a whole. But the word “include” preceding a list does not 

indicate an exclusive list absent other language showing 

a contrary intent.

Timberlake v. Douglas County, 291 Neb. 387, 398, 865 N.W.2d 

788, 797 (2015).

We find the foregoing explanation of the word “include” 

applicable to the construction of the will in this case. The word 

“include” in article I precedes a “list” of persons who are to be 

added to the previously identified “children” and “issue.” The 

definition of “issue” thus includes the “list” composed of Seth 

and the decedent’s children born or adopted after the execution 

of the will.

Article V bequeaths the residue of the estate to the decedent’s “issue,” per stirpes. Under the default definition provided of “issue of a person” in the Nebraska Probate Code, 

Nicole is a linear descendant and thus a child or issue of 

Michael. Neb. Rev. Stat. § 30-2209(23) (Reissue 2016) provides that “[i]ssue of a person means all his or her lineal 

descendants of all generations, with the relationship of parent 

and child at each generation being determined by the definitions of child and parent contained in the Nebraska Probate 

Code.” Consistent with the statutory provision, Nicole is not 
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excluded from Michael’s use of “issue” simply because he 

wished to note that Seth and other children born or adopted 

later should be included. To include is not to exclude in this 

context. And, article I’s reference to “issue” is consistent with 

our conclusion under article I that both Seth and Nicole take 

under the will.

[13] In order to complete our analysis, we must review 

the will to determine whether Michael intended to disinherit 

Nicole from the definition of “children” or “issue” based on 

any other provisions of the will read in harmony with the provisions discussed above. “‘[A] testator will not be held to have 

disinherited an heir except where that conclusion is impelled 

by the express provisions or by necessary implication from 

provisions specifically set forth.’ . . .” Jacobsen v. Farnham, 

155 Neb. 776, 784, 53 N.W.2d 917, 922 (1952). We have 

explained that an heir may not be disinherited upon conjecture and that the heir “‘“is favored by . . . policy; and though 

the testator may disinherit [the heir], yet the law will execute 

that intention only when it is put in a clear and unambiguous 

shape.” . . .’” Lowry v. Murren, 195 Neb. 42, 45, 236 N.W.2d 

627, 630 (1975).

No express statement disinherits Nicole or otherwise provides that she not receive from the estate, and we will not 

speculate as to Michael’s intentions not contained in his will. 

A close examination of the entirety of the will is contrary to 

the suggestion of Seth and Milius to the effect that Nicole was 

disinherited. For example, article VII states:

If at any time before final distribution there shall not 

be in existence anyone who is, or might become, entitled 

to receive benefits under the foregoing provisions of this 

Will, any portion remaining shall be distributed to the 

persons to whom and in the proportions in which the 

same would have been distributed had I died intestate, 

domiciled in the State of Nebraska, owning such assets 

immediately following the death of the last survivor of 

the class composed of my issue and myself.
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IN RE ESTATE OF BRINKMAN

Cite as 308 Neb. 117

Under this provision, Michael acknowledges that if Seth (and 

any issue of Seth) predecease Michael, Nicole will inherit by 

operation of law as though the estate had passed intestate. This 

provision was an opportunity to disinherit Nicole had Michael 

chosen to do so; he did not. We reject the contention of Seth 

and Milius that Michael intended to disinherit Nicole in his 

will and did so expressly. Milius and Seth’s assignments of 

error are without merit.

CONCLUSION

Giving full effect to the intentions of Michael as expressed 

in the language of his will, we find no error by the county court 

which concluded that Nicole was not disinherited and, to the 

contrary, that Nicole was entitled to inherit under the provisions of the will.

Affirmed.