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In re Conservatorship of Genevieve Franke, d

Laurie Berggren, appellee, v. Genevie

deceased, appellant, and John Franke, 

___ N.W.2d ___

Filed March 4, 2016. No. S-14-959.

1. Guardians and Conservators: Appeal and Error. An appellate court 

reviews guardianship and conservatorship proceedings for error appearing on the record in the county court.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. ____: ____. An appellate court independently reviews questions of law 

decided by a lower court.

4. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case because only a party who has standing may invoke the 

jurisdiction of a court.

6. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal 

and Error. The statutory provisions regarding abatement and revivor of 

actions apply to cases in which a party dies pending an appeal.

7. ____: ____: ____: ____: ____. Whether a party’s death abates an appeal 

or cause of action presents a question of law.

8. Statutes. Statutory interpretation presents a question of law.

9. Abatement, Survival, and Revival: Words and Phrases. The term 

“abatement” can refer to the extinguishment of a cause of action or the 

equitable suspension of suit for the lack of proper parties.

10. Abatement, Survival, and Revival: Moot Question: Appeal and 

Error. An abatement can also refer to the extinguishment of an appeal 

only when the legal right being appealed has become moot because of a 

party’s death while the appeal was pending.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

03/04/2016 09:16 AM CST
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11. Actions: Parties: Death: Abatement, Survival, and Revival. Even if 

a party’s death does not abate a cause of action, a substitution of parties 

may be required before the action or proceeding can continue.

12. ____: ____: ____: ____. Neb. Rev. Stat. § 25-322 (Reissue 2008) 

abrogates the common-law rule that all pending personal actions permanently abate on the death of a sole plaintiff or defendant, regardless of 

whether the cause of action on which it was based survived.

13. ____: ____: ____: ____. Under Neb. Rev. Stat. § 25-322 (Reissue 

2008), a court may allow an action to continue after a party’s death 

through a transfer of interests, if the cause of action survives the party’s death.

14. Actions: Parties: Death. A deceased person cannot maintain a right 

of action against another or defend a legal interest in an action or 

proceeding.

15. Attorney and Client: Death. Although an attorney of a deceased client 

may have a duty to protect the client’s interests by alerting a legal representative of his or her pending claim, absent a contractual agreement to 

the contrary, an attorney’s representation of a client generally ends upon 

the death of that client.

16. Actions: Parties: Death: Abatement, Survival, and Revival. A 

deceased party’s representative or successor in interest must either 

seek a conditional order of revival under chapter 25, article 14, of the 

Nebraska Revised Statutes or seek a court’s substitution order under 

Neb. Rev. Stat. § 25-322 (Reissue 2008) before an action or proceeding 

can continue.

17. Actions: Attorney and Client. An attorney’s unauthorized actions on 

the part of a deceased client are a nullity. So, unless a deceased client’s 

legal representative or the client’s contractual agreement authorizes the 

attorney to take or continue an action for the client, an attorney cannot 

take any further valid action in the matter.

18. Guardians and Conservators: Final Orders: Appeal and Error. 

Under Neb. Rev. Stat. § 30-1601(2) (Cum. Supp. 2014), a protected person’s close family members have the right to appeal from a final order 

in a conservatorship proceeding if they filed an objection and the county 

court appointed a conservator.

19. Actions: Parties: Death: Abatement, Survival, and Revival. When a 

party dies pending an appeal, the general rule is that the death does not 

abate the cause of action or affect the underlying judgment.

20. Estates: Guardians and Conservators. A protected person’s death terminates a conservator’s authority and responsibility as conservator but 

does not affect the conservator’s liability for acts taken before the death 

or the conservator’s obligation to account for the protected person’s 

funds and assets.
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21. Actions: Guardians and Conservators: Abatement, Survival, and 

Revival: Appeal and Error. A protected person’s death pending an 

appeal from a conservatorship proceeding does not abate the cause of 

action or affect the underlying orders appointing a conservator.

Appeal from the County Court for Hall County: Arthur S

Wetzel, Judge. Appeal dismissed

Jordan W. Adam, of Fraser Stryker, P.C., L.L.O., for 

appellant.

Susan M. Koenig, of Mayer, Burns, Koenig & Janulewicz, 

for appellee Laurie Berggren.

Robert A. Mooney, of Gross & Welch, P.C., L.L.O., for 

appellee John Franke.

Heavican, C.J., Wright, Connolly, Mille

and Stacy, JJ

Connoll

SUMMARY

This appeal involves a dispute between Genevieve Franke’s 

children regarding the county court’s appointment of a conservator for her. Genevieve has since died. Genevieve’s daughter, 

Laurie Berggren, sought the conservatorship after Genevieve 

agreed to sell her farmland to her son John Franke at a price 

below its fair market value.

Genevieve appealed from the court’s appointment of 

Cornerstone Bank as her permanent conservator. John also 

appealed. But before the parties filed briefs, Genevieve’s attorney filed a suggestion of death with the Nebraska Court 

of Appeals stating that Genevieve had died on December 

31, 2014.

This appeal presents four issues. First, does Genevieve’s 

attorney have standing to continue representing a deceased client in an appeal without authorization from Genevieve’s legal 

representative? Second, does John have standing to appeal from 

the county court’s appointment of a permanent conservator? 
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Third, if John does have standing, does Genevieve’s death 

abate his appeal? And fourth, does Genevieve’s death abate 

the cause of action and require this court to vacate the county 

court’s orders appointing a conservator?

We reach the following conclusions:

• Genevieve’s attorney has no standing to represent her in this

court after her death.

• Under the Nebraska Probate Code, John had standing to

appeal from the county court’s appointment of a conservator because he objected to the proceeding and asked for an 

evidentiary hearing. But his standing on appeal is limited to 

whether Genevieve was in need of a conservator.

• Genevieve’s death has abated John’s appeal because her competency and need for a conservator are moot issues.

• Genevieve’s death does not require us to remand the case

with directions to the county court to vacate its order. We 

conclude that an abatement of an appeal in a conservatorship 

proceeding does not affect the validity of the final judgment 

or order from which a party or statutorily authorized person 

has appealed.

BACKGROUND

Before Genevieve’s death in 2014 at the age of 90, she had 

been a resident of a nursing home since November 2011. The 

catalyst for this dispute involved Genevieve’s agreement to 

sell her farmland to John in 2013. According to John, in April 

2013, he learned that some other farmland near his own property, which he had wanted to buy, would soon be auctioned. He 

asked Laurie if Genevieve had $400,000 to $500,000 to purchase it, and Laurie said Genevieve did not have enough liquid 

assets to do so. But Laurie, who took care of Genevieve’s 

finances, authorized the bank to release Genevieve’s financial 

information to John. He learned that Genevieve had $580,000 

in investments and $780,000 in certificates of deposit. John 

drove Genevieve out to the property for viewing; he said that 

she authorized him to purchase it.
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John said that he then met with Genevieve’s accountant and 

attorney. The accountant told him that Genevieve wanted to 

purchase the land for him. They arranged for the purchase to 

be an asset of Genevieve’s trust and limited the purchase price 

to $10,000 per acre of cropland. The plan called for John and 

his wife to make payments to the trust for the property. But for 

unexplained reasons, John did not purchase the property. He 

said that the irrigated cropland sold for about $7,500 to $7,800 

per acre.

Before the auction, John had learned that under Genevieve’s 

estate plan, at her death, he would have the first option to buy 

her property at its appraised value. But he said that he could 

not profitably farm the property if he had to buy it at its fair 

market value. He said that he was upset he could not buy the 

auctioned property near his own farm. So after the auction, but 

before Genevieve’s death, he had multiple conversations with 

her about his purchasing her farmland, an asset of her trust. He 

said that Genevieve agreed to sell him her farmland and that 

her neighbor, who was John’s close friend and Genevieve’s 

tenant farmer, recommended the purchase price. John proposed 

to purchase Genevieve’s property for about $3,600 to $3,700 

per acre. In November 2013, Genevieve’s “good quality irrigated” farmland, about 153 acres, was appraised at $1,653,000. 

The appraiser believed that the property’s value in April 2013 

would have been about the same.

Genevieve’s longtime attorney and accountant were concerned Genevieve did not understand that there were tax 

consequences to this sale, that the proposed purchase price 

was well below the property’s fair market value, and that 

the proposed sale was inconsistent with her continually 

expressed desire to treat her children equally. In June 2013, 

Laurie petitioned for the appointment of a conservator. John 

objected and requested an evidentiary hearing. The court 

appointed Laurie as Genevieve’s temporary conservator with 

the limited duty to prevent the sale of the farm and preserve 

Genevieve’s assets pending further order. After an evidentiary 
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hearing, it appointed Cornerstone Bank as Genevieve’s permanent conservator.

As noted, before the parties filed briefs, Genevieve’s attorney filed a suggestion of death with the Court of Appeals stating that Genevieve had died on December 31, 2014. The Court 

of Appeals then issued an order for the parties to show cause 

why the appeal should not be dismissed as moot. Genevieve’s 

attorney, Laurie, and John all filed responses to this order. 

Laurie responded that the action was not moot because a 

conservator has continuing duties for the estate even after a 

protected person dies and because Genevieve’s children still 

have an interest in a decision on her competency. Laurie 

stated that the “administration and ultimately the distribution 

of [Genevieve’s] assets remain[] at issue.”

Genevieve—not her personal representative—sought an 

order (through her attorney of record) to dismiss the appeal 

as moot and to vacate the county court’s order appointing a 

permanent conservator. Two days later, John moved for an 

order reviving the appeal. Alternatively, he sought an order 

concluding that (1) the appeal was not moot but only abated by 

Genevieve’s death and (2) the abatement required the county 

court to vacate all its previous orders in the proceeding. John 

claimed the right to file this motion as a person interested in 

Genevieve’s conservatorship and as her successor in interest. 

We overruled both of these motions without prejudice and 

granted John’s petition to bypass the Court of Appeals.

ASSIGNMENTS OF ERROR

In Genevieve’s appellate brief, her attorney assigned that 

the court erred in finding that she had mental or physical 

disabilities that rendered her unable to manage her property. 

Although John appealed also, he is designated an appellee and 

did not assign errors. In his brief, he has not argued that we 

should allow him to revive Genevieve’s appeal, so we treat 

that request as abandoned. But he argues that because the conservatorship cause of action abated upon Genevieve’s death, 
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this court should dismiss her appeal and remand the cause 

with directions for the county court to vacate all its orders in 

the proceeding.

STANDARD OF REVIEW

[1,2] An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record in the 

county court.1 When reviewing a judgment for errors appearing 

on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable.2

[3-8] But we independently review questions of law decided 

by a lower court.3 A jurisdictional issue that does not involve 

a factual dispute presents a question of law.4 And standing is 

a jurisdictional component of a party’s case because only a 

party who has standing may invoke the jurisdiction of a court.5

The statutory provisions regarding abatement and revivor of 

actions apply to cases in which a party dies pending an appeal.6

Whether a party’s death abates an appeal or cause of action 

presents a question of law.7 Also, statutory interpretation presents a question of law.8

1 In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314, 859 

N.W.2d 856 (2015).

2 Id.

3 In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013). 4 See In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 

413 (2015).

5 In re Guardianship & Conservatorship of Barnhart, supra note 1.

6 See, Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006); Long 

v. Krause, 104 Neb. 599, 178 N.W. 188 (1920); Sheibley v. Nelson, 83 

Neb. 501, 119 N.W. 1124 (1909).

7 See, e.g., Sherman v. Neth, 283 Neb. 895, 813 N.W.2d 501 (2012); Bullock 

v. J.B., 272 Neb. 738, 725 N.W.2d 401 (2006); Schumacher, supra note 6; 

Sheibley, supra note 6.

8 See D.I. v. Gibson, 291 Neb. 554, 867 N.W.2d 284 (2015).
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ANALYSIS

[9] The term “abatement” can have more than one meaning in law. It can refer to the extinguishment of a cause of 

action or the equitable suspension of suit for the lack of 

proper parties:

[T]here is a distinction between the use of the word 

“abatement” in common law, where it means an entire 

overthrow or destruction of a suit, and in equity courts, 

where abatement may indicate rather a temporary suspension of further proceedings in the suit because of want of 

proper parties.9

[10] Additionally, as we explain later, an abatement can 

refer to the extinguishment of an appeal only when the legal 

right being appealed has become moot because of a party’s 

death while the appeal was pending. This appeal raises the 

issue whether a protected person’s death pending an appeal 

from a conservatorship appointment abates only the appeal 

or the entire cause of action. John argues that it abates the 

entire cause of action, which means that we must vacate the 

lower court’s orders. But first, we consider the standing of 

Genevieve’s attorney to continue her appeal.

Genevieve’s Ap

After Genevieve’s attorney filed a suggestion of death, 

he filed an appellant’s brief on her behalf. He argues that 

because the conservatorship proceedings involved purely personal rights, Genevieve’s appeal is moot due to her death 

and should be dismissed. Yet, he asks this court to vacate the 

county court’s conservatorship orders. He notes that some 

courts have held that when a party who has been adjudicated 

9 In re Estate of Samson, 142 Neb. 556, 561, 7 N.W.2d 60, 62 (1942) 

(superseded by statute as stated in In re Estate of Stephenson, 243 Neb. 

890, 503 N.W.2d 540 (1993), overruled in part on other grounds, Knights 

of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791 N.W.2d 

317 (2010)). See, also, Fox v. Abbott, 12 Neb. 328, 11 N.W. 303 (1882); 

Black’s Law Dictionary 3 (10th ed. 2014).
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as mentally incompetent dies during the pendency of an appeal, 

the abatement of the appeal requires the lower court’s orders 

to be vacated. Despite his claim that the issue is moot, he also 

argues that the evidence was insufficient to show Genevieve 

needed a conservator. We conclude that Genevieve’s attorney 

lacks standing to seek any relief on her behalf.

[11-13] Even if a party’s death does not abate a cause of 

action, a substitution of parties may be required before the 

action or proceeding can continue. Neb. Rev. Stat. § 25-322 

(Reissue 2008) abrogates the common-law rule that “all pending personal actions permanently abate on the death of a sole 

plaintiff or defendant, regardless of whether the cause of 

action on which it was based survived.”10 But under § 25-322, 

a court may allow an action to continue after a party’s death 

through a transfer of interests, if the cause of action survives 

the party’s death:

An action does not abate by the death or other disability of a party, or by the transfer of any interest therein 

during its pendency, if the cause of action survives or 

continues. In the case of the death or other disability of 

a party, the court may allow the action to continue by or 

against his or her representative or successor in interest. 

In case of any other transfer of interest, the action may be 

continued in the name of the original party or the court 

may allow the person to whom the transfer is made to be 

substituted in the action.

[14-16] Through § 25-322, the Legislature anticipated that 

a substitution of a legal representative or successor in interest 

is required when a party dies, before the action can continue. 

This substitution is required because a deceased person cannot 

maintain a right of action against another11 or defend a legal 

interest in an action or proceeding.12 Although an attorney of a 

10 See 1 Am. Jur. 2d Abatement, Survival, and Revival § 44 at 129 (2005).

11 See Neb. Rev. Stat. § 25-1410 (Reissue 2008).

12 See Neb. Rev. Stat. § 25-1411 (Reissue 2008).
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deceased client may have a duty to protect the client’s interests 

by alerting a legal representative of his or her pending claim, 

absent a contractual agreement to the contrary, an attorney’s 

representation of a client generally ends upon the death of that 

client.13 And a deceased party’s representative or successor in 

interest must either seek a conditional order of revival under 

chapter 25, article 14, of the Nebraska Revised Statutes or seek 

a court’s substitution order under § 25-322 before an action or 

proceeding can continue.14

[17] In short, even if a legal right is not abated by a party’s 

death, Nebraska’s abatement laws would require a suspension 

of an action or proceeding until an appropriate representative is substituted by court order through one of the statutory 

procedures. An attorney’s unauthorized actions on the part 

of a deceased client are a nullity.15 So, unless a deceased 

client’s legal representative or the client’s contractual agreement authorizes the attorney to take or continue an action for 

the client, an attorney cannot take any further valid action in 

the matter.16

Here, even if the legal right that Genevieve had defended 

(her competency to manage her own affairs) were not abated 

by her death, her appeal could only be continued by someone 

statutorily authorized to represent her interests. Her attorney is 

not her personal representative or her successor in interest. He 

stated at oral argument that a county court in a separate trust 

proceeding authorized him to continue this appeal. But he has 

not asked us to take judicial notice of such order or explained 

the legal grounds for the purported authorization. He has not 

13 See, State ex rel. Counsel for Dis. v. James, 267 Neb. 186, 673 N.W.2d 

214 (2004); Long, supra note 6.

14 See Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 

(2007).

15 See Long, supra note 6.

16 See, id.; Schaeffler v. Deych, 38 So. 3d 796 (Fla. App. 2010); 7A C.J.S. 

Attorney & Client § 335 (2015).
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claimed an interest in this action or shown that Genevieve 

contractually authorized him to continue her appeal even if she 

died. We conclude that Genevieve’s attorney has no authority to continue her appeal and no interest in the litigation. 

Accordingly, he lacked standing to file a brief and seek relief 

for her. So we dismiss Genevieve’s appeal.

John’s App

In contrast to Genevieve’s attorney, her son John has standing to appeal the court’s appointment of a conservator. Under 

Neb. Rev. Stat. § 30-1601(2) (Cum. Supp. 2014), an appeal 

from a probate matter “may be taken by any party and may 

also be taken by any person against whom a final judgment or 

final order may be made or who may be affected thereby.” The 

statute sets forth the requirements for filing an appeal in the 

alternative. So § 30-1601(2) gives John standing to appeal if 

he had an interest that was affected by the order or if the order 

was final with regard to any objections he raised. But because 

§ 30-1601(2) directly refers to a final order, he still must show 

that the order affected a substantial right.

John must show that the order affected a substantial right 

because proceedings initiated to appoint a guardian of a person 

alleged to be incapacitated and to appoint a conservator are 

special proceedings.17 And under Neb. Rev. Stat. § 25-1902 

(Reissue 2008), an order in a special proceeding is final only 

if it affects a substantial right. But under § 25-1902, we have 

held that an order that disposes of every issue before a court is 

necessarily a final order.18

[18] The conservatorship statutes do not explicitly authorize any person to object to a conservator appointment. But 

as relevant here, they do require notice of a petition for 

a conservator to the subject’s adult children and a hearing 

17 See In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708 

N.W.2d 262 (2006).

18 See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
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before making an appointment.19 And this court has previously decided appeals from family members who objected to 

a conservatorship appointment.20 So, under our implicit interpretation of § 30-1601(2), a protected person’s close family members have the right to appeal from a final order in a 

conservatorship proceeding if they filed an objection and the 

county court appointed a conservator. Although John is not a 

party, the right to appeal under § 30-1601(2) is not limited to 

parties. John filed an objection and requested an evidentiary 

hearing. So, under the probate code’s generous appeal statute, 

he is a person against whom a final order was entered and has 

the right to appeal.

Nonetheless, John only has standing to address the sole issue 

resolved in the final order, which is Genevieve’s need for a 

conservator. But that issue is mooted by her death. Although 

all the appellate attorneys asserted at oral argument that there 

is a separate, pending trust proceeding, neither party has asked 

us to take judicial notice of a proceeding that shows the issue 

of Genevieve’s competency is not moot. Because the issue 

appealed is moot, we conclude that Genevieve’s death has 

abated John’s appeal.21 He does not dispute that point. But 

he argues that the abatement on appeal requires us to vacate 

the county court’s previous orders appointing a conservator. 

Not so.

There is a distinction between a party’s death that abates 

an appeal and a party’s death that abates a cause of action. 

But courts have not always been clear on this point. In early 

cases, if an appeal called for a trial de novo, perfecting the 

appeal vacated the judgment, or the judgment was treated as 

19 See Neb. Rev. Stat. §§ 30-2630 to 30-2635 (Reissue 2008 & Cum. Supp. 

2014).

20 See, e.g., In re Guardianship & Conservatorship of Karin P., 271 Neb. 

917, 716 N.W.2d 681 (2006); Winters v. Lange, 197 Neb. 157, 247 N.W.2d 

617 (1976).

21 See Sherman, supra note 7, citing 4 C.J.S. Appeal and Error § 343 (2007).
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interlocutory. But if review was sought through a writ of error, 

the judgment was not vacated; it was suspended.22 So a party’s 

death pending a writ of error proceeding did not vacate or annul 

the judgment reviewed. Unless the judgment was reversed on 

appeal, it remained in effect and was res judicata between the 

parties.23 Over time, however, this distinction was lost and considerable confusion developed whether a party’s death pending 

an appeal abated the appeal or the entire action.24 Our case law 

illustrates this point.

For example, in 1927, we considered a case in which a 

husband died pending a wife’s appeal of a marital dissolution 

decree.25 At that time, our review of a dissolution decree was 

a trial de novo and a divorce precluded a spouse from taking 

insurance benefits from a former spouse. We stated that the 

decree was interlocutory—i.e., not final until we issued a decision—and concluded that the husband’s death had abated the 

action and annulled the judgment, as if he had died before the 

trial court entered the decree. So the wife was not precluded 

from taking the husband’s insurance benefits.

But we no longer treat marital dissolution decrees as interlocutory or review them in a trial de novo. If an order or decree 

were not final, we would dismiss the appeal for lack of jurisdiction.26 And our disposition in a later case dealing with the 

same issue showed that we concluded the party’s death pending his appeal abated the appeal, not the action.

Specifically, in 1945, we again considered a case in which 

a husband died pending appeal from a marital dissolution 

22 See, In re Estate of Marsh, 145 Neb. 559, 17 N.W.2d 471 (1945); Annot., 

148 A.L.R. 1111 (1944).

23 See, 148 A.L.R., supra note 22; Green v. Watkins, 19 U.S. (6 Wheat.) 260, 

5 L. Ed. 256 (1821).

24 See 148 A.L.R., supra note 22; Annot., 33 A.L.R.4th 47, § 2[b] (1984).

25 See Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429 (1927).

26 See, e.g., Gerber v. Gerber, 218 Neb. 228, 353 N.W.2d 4 (1984).
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decree.27 There, we denied a special administrator’s motion on 

appeal to revive the husband’s appeal for review of the decree’s 

requirement that he pay alimony. We repeated the rule that a 

dissolution decree was interlocutory. And we concluded that 

the death of one of the parties destroys the subject matter of 

the decree, including matters of alimony and property rights, 

which we described as only incidental to the main object of 

the action. But despite this broad language that the action

was extinguished, we only denied the motion for revivor and 

dismissed the appeal. We did not hold that the decree was 

annulled, nor did we remand the cause for the lower court to 

vacate its decree. So, our disposition showed that the appeal 

was abated—not the action.

Later, our disposition in another case dealing with a party’s 

death pending appeal from a probate judgment similarly 

showed that the party’s death abated only the appeal. There, a 

surviving spouse appealed from an order denying him a statutory allowance, a homestead exemption, and the decedent’s 

personal property, but he died pending appeal. We decided 

the case after the Legislature had amended the probate statutes to allow a surviving spouse’s petition for allowances or 

an elective share to survive the surviving spouse’s death,28

but the parties apparently did not raise the statute. We concluded that the asserted rights did not survive the appellant’s 

death: “[T]he rights in question, being personal to the surviving spouse, terminated upon his death as did the cause of 

action. . . . It is fundamental that when a party to a pending 

suit dies and the right is personal in nature, the right dies 

with the person.”29 But our statement that the cause of action 

terminated with the appellant’s death clearly meant that the 

27 See Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945).

28 See In re Estate of Stephenson, supra note 9.

29 Jacobson v. Nemesio, 204 Neb. 180, 183, 281 N.W.2d 552, 554 (1979) 

(superseded by statute as stated in In re Estate of Stephenson, supra

note 9).
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cause of action died from that point forward; i.e., his death 

abated the appeal. The abatement obviously did not extinguish the entire action or annul the order denying his asserted 

legal rights.

It is true that in Sherman v. Neth,

30 we determined that 

because a party’s death pending appeal from an administrative 

license revocation abated the appeal, we should vacate the proceedings in the lower court. John relies on Sherman and a 1939 

Missouri conservatorship case.31 The Missouri case was one of 

the cases that we cited in Sherman to show courts will sometimes vacate a lower court’s judgment if the right asserted on 

appeal was strictly personal. John also cites another Missouri 

case and a New York case.32 In those cases, the court held 

that a protected person’s death pending appeal from a mental 

incompetency order abates not just the appeal but the cause 

of action. But we decline to extend Sherman or to follow the 

cases that John cites for three reasons.

First, in Sherman, we were clearly concerned that the Court 

of Appeals had already issued a decision on a new question 

of law that we could not review—because we concluded that 

applying the public interest exception was inappropriate in 

that circumstance. So our inability to review the Court of 

Appeals’ precedent was a unique circumstance that is not 

presented here. The county court’s orders are not precedent 

for any other court, and final orders and judgments have no 

preclusive effect if appellate review of them is denied as a 

matter of law.33

[19] Second, in modern decisions by state courts explicitly deciding the effect of a party’s death pending an appeal, 

30 Sherman, supra note 7.

31 See Gee v. Bess, 132 S.W.2d 242 (Mo. App. 1939).

32 See, Moberly v. Powell and Walker, 229 Mo. App. 857, 86 S.W.2d 383 

(1935); Matter of Thomas v. Baumeister, 21 N.Y.2d 720, 234 N.E.2d 705 

(1967).

33 See Restatement (Second) of Judgments § 28(1) (1982).
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the general rule is that the death does not abate the cause of 

action or affect the underlying judgment.34 These courts have 

frequently reasoned that under the doctrine of merger, an 

action does not abate when a party dies after the final judgment. Under that doctrine, a cause of action merges into the 

final judgment, thus extinguishing the cause of action and 

barring a subsequent action for the same cause.35 And some 

of our case law is consistent with the rule that a party’s death 

pending appeal does not abate the cause of action or affect the 

final judgment.

Third, unlike the license revocation issue appealed in 

Sherman, the legal right at stake in a conservatorship appeal 

is not solely the protected person’s status. Vacating the county 

court’s orders could leave a conservator exposed to liability. 

And the conservatorship cases from other jurisdictions that 

John cites were decided before the Legislature enacted the 

Nebraska Probate Code in 1974.36

[20] We have stated that a protected person’s death terminates a conservator’s authority and responsibility as conservator but does not affect the conservator’s liability for acts taken 

before the death or the conservator’s obligation to account for 

the protected person’s funds and assets.37 And those continuing 

34 See, e.g., Kaufman v. Kaufman, 22 So. 3d 458 (Ala. Civ. App. 2007); 

Variety Children’s Hospital, Inc. v. Perkins, 382 So. 2d 331 (Fla. App. 

1980); Tunnell v. Edwardsville Intelligencer, 43 Ill. 2d 239, 252 N.E.2d 

538 (1969); Goldstein v. Feeley, 299 S.W.3d 549 (Ky. 2009); Simpson 

v. Strong, 234 S.W.3d 567 (Mo. App. 2007); Acito v. Acito, 72 A.D.3d 

493, 898 N.Y.S.2d 133 (2010); Albrecht v. Albrecht, 856 N.W.2d 755 

(N.D. 2014); Black v. Black, 673 S.W.2d 269 (Tex. App. 1984); Gordon v. 

Hillman, 102 Wash. 411, 173 P. 22 (1918); 1 C.J.S. Abatement and Revival

§ 139 (2005); 1 Am. Jur. 2d, supra note 10, § 58. But see Panter v. Panter, 

499 A.2d 1233 (Me. 1985).

35 See 46 Am. Jur. 2d Judgments §§ 451 and 452 (2006).

36 See In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

37 See In re Guardianship & Conservatorship of Trobough, 267 Neb. 661, 

676 N.W.2d 364 (2004).
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obligations mean that a conservator could also be liable for 

actions taken after a protected person’s death. Under Neb. Rev. 

Stat. § 30-2654(e) (Reissue 2008), a conservator has the duty 

to wind up the conservatorship and deliver the estate to an 

appointed personal representative.

A conservator’s potential liability exists because title to both 

real and personal property passes immediately upon death to a 

decedent’s devisees or heirs, subject to administration, allowances, and a surviving spouse’s elective share.38 Additionally, 

the Nebraska Probate Code authorizes nontestamentary, nonprobate transfers on death, including transfers through trusts.39

So a conservator could take actions that directly conflict with 

the interests of heirs, devisees, and beneficiaries of nontestamentary transfers. This could happen, for example, if a 

conservator takes or retains property of the protected person to pay for administration costs or attorney fees during 

the conservatorship.40

But if the death of a protected person pending an appeal 

rendered a conservator’s appointment void, by what authority 

would the conservator have acted before or after the protected 

person’s death? Concluding that the death abated the action 

ab initio would call into question the conservator’s actions 

and create unnecessary disputes and litigation. So here, there 

is good reason to follow the general rule that a party’s death 

after a final judgment does not extinguish the cause of action 

or affect the underlying judgment.

[21] Finally, although the parties here have failed to show 

that this appeal is not moot, we recognize that conservatorship proceedings for elderly persons are frequently prompted 

by the elderly person’s land or financial transactions that 

38 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

39 In re Estate of Chrisp, supra note 36; 1993 Neb. Laws, L.B. 250.

40 See, e.g., Naito v. Naito, 125 Or. App. 231, 864 P.2d 1346 (1993); In re 

Estate of Briley, 16 Kan. App. 546, 825 P.2d 1181 (1992).
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threaten the person’s well-being or affect his or her heirs 

or family members who have contributed to the assets.41 As 

stated, dismissing an appeal as moot because of the protected 

person’s death pending appeal would not render the conservatorship order conclusive in another action. But the interests 

of judicial economy would often be better served by deciding 

an appeal from a final adjudication of incompetency if the 

parties showed that the issue was not moot. So, we hold that a 

protected person’s death pending an appeal from a conservatorship proceeding does not abate the cause of action or affect 

the underlying orders appointing a conservator.

But because Genevieve’s competency is a moot issue, her 

death extinguishes this appeal.

CONCLUSION

We conclude that after Genevieve’s death pending her 

appeal, her appeal could be continued only by someone statutorily authorized to represent her interests. Because her attorney 

has not shown any interest in the litigation or authorization to 

continue her appeal, he lacks standing to seek any relief on her 

behalf. We therefore dismiss Genevieve’s appeal.

We conclude that Genevieve’s son John has standing under 

§ 30-1601(2) to appeal from the county court’s appointment 

of a conservator for Genevieve because he filed an objection 

and asked for an evidentiary hearing. His standing on appeal 

is limited, however, to challenging the court’s finding that 

Genevieve was in need of a conservator. That issue is abated 

by Genevieve’s death.

But Genevieve’s death abates only John’s appeal. It does not 

abate the cause of action or affect the validity of the county 

court’s orders appointing a conservator.

Appeal dismi

41 See, e.g., 6 Causes of Action 2d 625, § 7 (1994).