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293 Nebraska Reports

IN RE ESTATE OF ALBERTS

Cite as 293 Neb. 1

In re Estate of Emil C. Alberts, deceased.

Mark Alberts and Mike Alberts, in their individual

capacities and as Copersonal Representatives

and Cotrustees, appellants, v. 

Lois M. Alberts, appellee.

___ N.W.2d ___

Filed March 11, 2016. No. S-15-173.

1. Decedents’ Estates: Appeal and Error. An appeal from the county 

court’s allowance or disallowance of a claim in probate will be heard as 

an appeal from an action at law. In reviewing a judgment of the probate 

court in a law action, an appellate court does not reweigh evidence, but 

considers the evidence in the light most favorable to the successful party 

and resolves evidentiary conflicts in favor of the successful party, who is 

entitled to every reasonable inference deducible from the evidence. The 

probate court’s factual findings have the effect of a verdict and will not 

be set aside unless clearly erroneous.

2. Judgments: Appeal and Error. On a question of law, an appellate court 

is obligated to reach a conclusion independent of the determination 

reached by the court below.

3. Statutes: Appeal and Error. The language of a statute is to be given 

its plain and ordinary meaning, and an appellate court will not resort 

to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous.

4. ____: ____. When construing a statute, an appellate court must look 

to the statute’s purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which 

would defeat it.

5. Attorney and Client. The power of the attorney to act for his client in 

an action is to be considered valid and sufficient until disproved.

6. Statutes: Appeal and Error. An appellate court may not add language 

to the plain terms of a statute to restrict its meaning.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

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IN RE ESTATE OF ALBERTS

Cite as 293 Neb. 1

Appeal from the County Court for Custer County: Tami K. 

Schendt, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

William J. Lindsay, Jr., of Gross & Welch, P.C., L.L.O., 

and Steve Windrum, of Malcom, Nelsen & Windrum, L.L.C., 

for appellants.

Gregory C. Scaglione and John V. Matson, of Koley Jessen, 

P.C., L.L.O., and Claude E. Berreckman, of Berreckman & 

Davis, P.C., for appellee.

Heavican, C.J., Wright, Connolly, Cassel, and Stacy, JJ.

Wright, J.

NATURE OF CASE

Following the death of Emil C. Alberts, his surviving spouse, 

Lois M. Alberts, authorized her attorney to file a petition on 

her behalf to elect to take one-half of Emil’s augmented estate 

under Neb. Rev. Stat. § 30-2313 (Reissue 2008). Emil’s two 

nephews, Mark Alberts and Mike Alberts, as copersonal representatives of Emil’s estate and as beneficiaries of Emil’s trust 

(the appellants), challenge both the validity of Lois’ petition 

and the county court’s inclusion of the value of certain trust 

property into the calculation of Lois’ elective share.

BACKGROUND

Emil passed away in June 2013 and was survived by Lois 

and the appellants. After Emil’s death, Lois hired an attorney 

who filed a petition with the county court for Custer County 

for Lois to elect one-half of Emil’s augmented estate pursuant 

to § 30-2313.

In response to the petition for the elective share, the appellants objected to the petition’s validity and to the calculation 

of Lois’ elective share within it. The appellants alleged that 

the petition was not valid, because Neb. Rev. Stat. § 30-2315 

(Reissue 2008) states that the right to an elective share may 

only be exercised by the surviving spouse, and Lois did not 
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IN RE ESTATE OF ALBERTS

Cite as 293 Neb. 1

sign or file the petition herself. The appellants also alleged 

that the value of certain property transferred during Emil’s 

lifetime was improperly included in the augmented estate for 

purposes of calculating Lois’ elective share; they argued that 

Lois consented to the transfer and that thus, the value of the 

property should have been excluded from the augmented estate 

under Neb. Rev. Stat. § 30-2314(c)(2) (Reissue 2008).

The property at issue was real estate transferred by deeds to 

Emil’s revocable trust. Seventeen months prior to Emil’s death, 

he and Lois jointly met with an attorney to put together an 

estate plan. In addition to Emil’s living trust and will, the attorney prepared four deeds for them. Two of the deeds conveyed 

real property to Lois as trustee of Lois’ trust. The other two 

deeds conveyed the real property at issue in this appeal, valued 

at $2,529,460, to Emil as trustee of Emil’s trust. All four deeds 

were signed by both Emil and Lois on the same day that Emil’s 

trust and will and Lois’ trust and will were executed. Lois does 

not dispute that she signed the deeds and does not allege any 

fraud in the inducement.

The county court ultimately found that Lois’ petition for 

elective share was validly filed and that the value of the property at issue should be included in the augmented estate for 

purposes of calculating Lois’ elective share.

ASSIGNMENTS OF ERROR

The appellants assign, combined and restated, that the 

county court erred in finding that the petition for elective share 

was validly filed and in failing to exclude from the augmented 

estate the value of the real estate transferred by deeds to Emil’s 

trust under § 30-2314(c)(2).

STANDARD OF REVIEW

[1,2] An appeal from the county court’s allowance or disallowance of a claim in probate will be heard as an appeal from 

an action at law.1 In reviewing a judgment of the probate court 

1 In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).
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in a law action, an appellate court does not reweigh evidence, 

but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of 

the successful party, who is entitled to every reasonable inference deducible from the evidence.2

 The probate court’s factual 

findings have the effect of a verdict and will not be set aside 

unless clearly erroneous.3 On a question of law, an appellate 

court is obligated to reach a conclusion independent of the 

determination reached by the court below.4

ANALYSIS

[3,4] This case presents two issues involving statutory interpretation. The language of a statute is to be given its plain 

and ordinary meaning, and an appellate court will not resort 

to interpretation to ascertain the meaning of statutory words 

which are plain, direct, and unambiguous.5 When construing 

a statute, an appellate court must look to the statute’s purpose 

and give to the statute a reasonable construction which best 

achieves that purpose, rather than a construction which would 

defeat it.6

Validity of Petition for

Elective Share

The first issue is whether the surviving spouse’s claim for 

her elective share was properly filed. The appellants claim the 

petition for elective share was not valid, because it was signed 

and filed by Lois’ attorney. The appellants concede that Lois 

verbally authorized her attorney to file the petition, but they 

assert that the petition was void, because the attorney signed 

and filed it, and Lois did not. We disagree.

2 Id.

3 Id.

4 Id.

5 Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).

6 In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
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IN RE ESTATE OF ALBERTS

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Section 30-2315 provides in part that “[t]he right of election 

of the surviving spouse may be exercised only during his or 

her lifetime by him or her.” That right may be exercised “by 

filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share.”7

 Neither 

§ 30-2315 nor § 30-2317 requires the surviving spouse to personally sign and file the petition. And we reject the appellants’ 

argument that “[n]o one other than [Lois], her conservator or 

her agent under an appropriate power of attorney can have the 

authority to act for [Lois] in exercising her personal right to 

elect to take the elective share.”8

The purpose of the statutory elective share is to protect the 

surviving spouse against disinheritance, and the purpose of 

§ 30-2315 is to ensure that such protection is afforded only 

to the surviving spouse.9 In other words, § 30-2315 prevents 

someone other than the surviving spouse, such as the surviving 

spouse’s heir, from claiming the elective share for himself or 

herself. But § 30-2315 is clearly not meant to deprive the surviving spouse of his or her own elective share simply because 

the surviving spouse directed an attorney to sign and file the 

petition, rather than doing so himself or herself.

[5] Moreover, we have said that the power of the attorney to 

act for his client in an action is to be considered valid and sufficient until disproved.10 Here, there is no evidence that Lois’ 

attorney filed the petition without Lois’ permission or direction; on the contrary, the appellants agree that Lois authorized 

her attorney to file the petition on her behalf. Accordingly, we 

find that Lois properly exercised her right of election by directing her attorney to file the petition on her behalf. We conclude 

that the petition for elective share was validly filed and that the 

appellants’ first assignment of error is without merit.

7 Neb. Rev. Stat. § 30-2317(a) (Reissue 2008).

8 Brief for appellants at 19.

9 See, In re Estate of Fries, supra note 6; Annot., 83 A.L.R.2d 1077 (1962).

10 See Koch v. Koch, 226 Neb. 305, 411 N.W.2d 319 (1987).
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IN RE ESTATE OF ALBERTS

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Calculation of

Elective Share

The second issue is whether the value of the real estate 

transferred by deeds to Emil’s trust ($2,529,460) should be 

included in the augmented estate. The county court determined 

that it should, and the appellants disagree. The appellants argue 

that the value of the property at issue should be excluded from 

the augmented estate under § 30-2314(c)(2).

Section 30-2314 sets forth what is to be included in and 

excluded from the augmented estate. Subsection (a) generally 

sets forth what is to be included in the calculation, and subsection (c) excludes certain property otherwise includable under 

subsection (a).

Section 30-2314(a), in relevant part, includes in the augmented estate:

(1) The value of property transferred by the decedent 

at any time during marriage . . . to or for the benefit of 

any person other than a bona fide purchaser or the surviving spouse, but only to the extent to which the decedent 

did not receive adequate and full consideration in money 

or money’s worth for such transfer, if such transfer is a 

transfer of any of the following types:

. . . .

(ii) Any transfer to the extent to which the decedent 

retained at death a power alone or with any other person 

to revoke such transfer or to consume, invade, or dispose 

of the principal of the property for his or her own benefit.

The appellants concede that the property would be included 

in the augmented estate under subsection (a) of § 30-2314, if it 

were not excluded under subsection (c)(2).

Section 30-2314(c)(2) excludes from the augmented estate:

Property transferred by the decedent to any person other 

than the surviving spouse by any . . . deed . . . joined 

in by the surviving spouse of the decedent or with the 

consent to transfer manifested before or after death of 

the decedent by a writing signed by the surviving spouse 
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of the decedent before, contemporaneously with, or after 

the transfer[.]

The county court found that § 30-2314(c)(2) did not apply. 

In its January 30, 2015, order, it stated:

Although [Lois] signed warranty deeds conveying the real estate to [the trust], [Emil] retained the 

power to revoke the trust and enjoy the benefits from 

the income of this trust during his lifetime, therefore, 

under §30-2314(a)[(1)](ii) the augmented estate must be 

increased by the value of the real estate. §30-2314(c)(2) 

is not applicable and cannot be used to exclude the real 

estate from the augmented estate, because [Emil] effectively retained possession and enjoyment and right to the 

income from the property.

We do not agree with the county court’s conclusion that 

the deeds from Lois and Emil were transfers for purposes of 

subsection (a)(1) of § 30-2314 and were not excluded by subsection (c)(2). The plain language in § 30-2314(c)(2) excludes 

from the augmented estate certain “[p]roperty transferred by 

the decedent to any person other than the surviving spouse 

. . . .” (Emphasis supplied.) The rights reserved by Emil as the 

settlor of the trust do not control the determination of whether 

the transfer is excluded from the augmented estate. Rather, 

the question is whether a trust is a “person” for purposes of 

§ 30-2314(c)(2). We find that it is. Although not cited by 

either party, Neb. Rev. Stat. § 30-2209 (Cum. Supp. 2014) 

sets forth general definitions of terms applicable to § 30-2314. 

Section 30-2209 states that the term “[p]erson means . . . an 

organization . . .” and that the term “[o]rganization includes a 

. . . trust . . . .”

Substituting the term “person” in § 30-2314(c)(2) with the 

term “trust,” we find that subsection (c)(2) clearly applies and 

excludes from the augmented estate the value of the property 

in question. Subsection (c)(2) excludes from the augmented 

estate “[p]roperty transferred by the decedent to any [trust] 

by any . . . deed . . . joined in by the surviving spouse of the 
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decedent or with the consent to transfer manifested before or 

after death of the decedent by a writing signed by the surviving spouse . . . .” Here, the property was transferred by Emil 

to his trust by deeds joined in by Lois, and with Lois’ consent 

to the transfer manifested by her signature on the deeds. Lois 

joined in the transfer by Emil of the property to the trust, and 

the property was not part of the augmented estate.

Lois does not dispute that she signed the deeds. She does 

not allege any fraud in the inducement. Yet, Lois contends that 

her signature on the deeds was not a consent to the transfer. 

She argues that in order to be excluded under § 30-2314(c)(2), 

the consent must be to a transfer that diminishes the decedent 

spouse’s estate. In support of her argument, Lois relies on our 

discussion of § 30-2314(c)(2) in In re Estate of Fries.

11 Her 

reliance is misplaced.

In In re Estate of Fries, a wife executed quitclaim deeds 

transferring her interest in three parcels of land (Properties) to 

her husband. The husband later recorded the quitclaim deeds 

and then transferred the Properties by deed to his children as 

joint tenants. The wife did not sign the joint tenancy deed. 

After the husband’s death, the wife filed a petition for elective 

share and included the Properties in the augmented estate for 

purposes of calculating her elective share.

Both parties filed motions for summary judgment. The trial 

court sustained the personal representative’s motion and dismissed the wife’s petition for an elective share as augmented 

by the Properties described in the quitclaim deeds.

We held that the trial court erred in concluding as a matter of law that the Properties described in the quitclaim deeds 

should not be included in the augmented estate.

As an alternative basis for summary judgment, the personal 

representative of the husband’s estate and the husband’s children argued that even if the Properties were includable in the 

augmented estate under § 30-2314(a), the Properties should 

be excluded under subsection (c)(2), because the wife signed 

11 In re Estate of Fries, supra note 6.
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the deeds transferring the Properties to her husband, thereby 

relinquishing her rights to inheritance.

We explained that the pertinent transfer for purposes of 

§ 30-2314(c)(2) was the husband’s transfer of the Properties 

to the children. Not only is such fact explicit in the statute 

(“[p]roperty transferred by the decedent to any person . . .” 

(emphasis supplied)), but we also explained why the decedent’s 

transfer to his children, rather than the transfer by the wife to 

the decedent, comports with the policy of § 30-2314(c)(2):

Logically, when a spouse agrees to a transfer of property that diminishes the eventual decedent’s estate, the 

surviving spouse should not be allowed to reclaim the 

value of the transferred property in the augmented estate. 

But that principle is not implicated if a transfer did not 

remove the property from the decedent spouse’s estate, 

because the consent of the surviving spouse to the transfer was not a consent to any corresponding diminution in 

the estate.12

When the husband presented three documents for the wife’s 

signature, he told her the documents were for tax purposes. 

Most important was the fact the wife did not sign the deed 

transferring title of the Properties to the husband’s children. 

The husband’s deed of the Properties, and not the wife’s execution of the quitclaim deeds, was the decisive transfer.

We concluded there was a genuine issue of material fact 

regarding whether the wife’s execution of the quitclaim deeds 

to the husband should be interpreted as her written consent 

to the later transfer of the Properties to the children. We concluded the county court erred in entering summary judgment 

and dismissing the wife’s petition for an elective share of the 

husband’s estate, and we reversed the judgment and remanded 

the cause for further proceedings.

Based on our statements about diminution of the estate, Lois 

argues that § 30-2314(c)(2) does not apply to the transfer of 

the property, because the transfer did not diminish the estate. 

12 Id. at 899, 782 N.W.2d at 606 (emphasis in original).
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She argues that Emil retained control over the property and 

could have terminated the trust at any time prior to his death 

and that therefore, the deeds to the trust did not diminish her 

husband’s estate. Based on these presuppositions, Lois argues 

that her signature on the deeds could not have been a consent 

to relinquish her rights to the property.

But Lois misapplies our rationale in In re Estate of Fries

regarding the effect of the quitclaim deeds from the wife to 

the husband. In that case, we explained that § 30-2314(c)(2) 

applies to transfers made by the decedent and consented to by 

the surviving spouse in writing. Although the quitclaim deeds 

were executed by the surviving spouse in writing, subsection 

(c)(2) did not apply, because the quitclaim deeds by the wife to 

the husband were not a transfer by the husband. Although the 

husband’s deed to his children was a transfer made by the husband, the value of the Properties transferred was not excluded 

from the augmented estate under subsection (c)(2), because the 

wife did not consent to that transfer.

[6] Lois misconstrues In re Estate of Fries as adding a 

requirement to § 30-2314(c)(2) that in order to be excluded 

from the augmented estate, the transfer must diminish the 

decedent’s estate. But an appellate court may not add language 

to the plain terms of a statute to restrict its meaning.13 And our 

discussion of the diminution of the estate in In re Estate of 

Fries explained why the exclusion in subsection (c)(2) would 

apply to the transfer made by the husband (had the wife consented) and not to the quitclaim deeds from the wife to her 

husband. Whether the quitclaim deeds were a consent to the 

transfer by the husband to his children was a material issue of 

fact, which cause we remanded to the trial court.

Emil and Lois’ transfer of property to the revocable trust 

did diminish the decedent’s estate for purposes of calculating 

the elective share, because § 30-2314(c)(2) excludes transfers 

by the decedent to any person other than the surviving spouse 

by an instrument joined in by the surviving spouse. The fact 

13 Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).
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that the trust was revocable during Emil’s lifetime is irrelevant 

for purposes of subsection (c)(2), because the decedent did not 

revoke the trust while he was alive and cannot revoke it now. 

Unlike In re Estate of Fries, Lois joined in the transfer of the 

property to a person other than herself.

We find that the language within the deeds of the property, which contained Lois’ signatures, is clear evidence that 

Lois joined in and consented to the transfer. The deeds state 

that both Emil and Lois convey the property to “EMIL C. 

ALBERTS, TRUSTEE OF THE EMIL C. ALBERTS LIVING 

TRUST.” Nothing within the deeds suggests that Lois (or Emil 

in his personal capacity) retained any interest. Accordingly, 

we conclude that the value of the property at issue should be 

excluded from Emil’s augmented estate.

This result is not only compelled by the clear language of 

the statute as explained above, but it also comports with the 

purposes of the elective share and augmented estate statutes. 

Those statutes work together to protect the surviving spouse 

from disinheritance, but also to prevent the surviving spouse 

from taking more than his or her “fair share” of the total wealth 

of the decedent.14 Under these principles, Lois cannot include 

in her elective share the property transferred to Emil’s trust by 

deeds signed by Lois.

CONCLUSION

For the foregoing reasons, we affirm the county court’s 

finding that the petition for elective share was validly filed. 

We reverse the finding that § 30-2314(c)(2) did not apply and 

remand the cause with directions to recalculate Lois’ elective 

share consistent with this opinion.

 Affirmed in part, and in part reversed

and remanded with directions.

Miller-Lerman, J., not participating.

14 In re Estate of Fries, supra note 6, 279 Neb. at 892, 782 N.W.2d at 601.