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BRINKMAN v. BRINKMAN

Cite as 302 Neb. 315

Nicole Brinkman, appellant, v. Seth Micha

and Kimberly Millus, Personal Represe

of the Estate of Michael R. Brin

as parent and next best friend of

Michael Brinkman, a minor, appe

___ N.W.2d ___

Filed February 22, 2019. No. S-18-476.

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

factual dispute presents a question of law.

2. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when 

different state courts have concurrent original jurisdiction over the same 

subject matter, basic principles of judicial administration require that 

the first court to acquire jurisdiction should retain it to the exclusion of 

another court.

3. Jurisdiction. The rule of jurisdictional priority does not apply unless 

there are two cases pending at the same time.

4. Jurisdiction: Dismissal and Nonsuit. The doctrine of jurisdictional 

priority does not apply if the first action terminates, is resolved, or is 

disposed of before the second action commences.

5. Jurisdiction. Two pending cases fall under the doctrine of jurisdictional 

priority only when they involve the same “whole issue.” In other words, 

the two actions must be materially the same, involving the substantially 

same subject matter and the same parties.

6. Constitutional Law: Courts: Jurisdiction. Because a district court’s 

general jurisdiction emanates from the Nebraska Constitution, it cannot 

be legislatively limited or controlled.

7. Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. The 

county courts have concurrent original jurisdiction with the district 

courts in common-law and equity actions relating to decedents’ estates.

8. Decedents’ Estates: Wills: Declaratory Judgments: Courts. The 

district court has the power in a declaratory judgment action to 

Nebraska Supreme Court Online Library

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

04/05/2019 12:06 AM CDT
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construe a will and make a determination of interests of beneficiaries 

in the estate.

9. Wills: Courts. The county court has the limited power to construe a will 

for the benefit of the executor in carrying out the terms of the will.

10. Courts: Jurisdiction. County courts can acquire jurisdiction only 

through legislative enactment.

11. Decedents’ Estates: Wills: Courts: Jurisdiction. A county court has 

complete equity powers as to all matters within its probate jurisdiction. 

This includes the authority to construe a will when necessary to enable 

the settlement of an estate properly.

12. Courts: Jurisdiction. While jurisdictional priority is not a matter of 

subject matter or personal jurisdiction, courts should enforce the jurisdictional priority doctrine to promote judicial comity and avoid the confusion and delay of justice that would result if courts issued conflicting 

decisions in the same controversy.

13. Actions: Courts: Jurisdiction: Public Policy. The rule of jurisdictional 

priority is based on the public policies of avoiding conflicts between 

courts and preventing vexatious litigation and a multiplicity of suits.

14. Courts: Jurisdiction. When a subsequent court decides a case already 

pending in another court with concurrent subject matter jurisdiction, it 

errs in the exercise of its jurisdiction.

Appeal from the District Court for Douglas County: 

LeighAnn Retelsdorf, Judge. Reversed and remanded 

directions.

Ryan P. Watson and Jeffrey A. Wagner, of Schirber & 

Wagner, L.L.P., for appellant.

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

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

NATURE OF CASE

The daughter of a testator sought a declaration of her 

rights under her father’s will as an alleged devisee, claiming 

to be entitled to one-half of the residual share of her father’s 
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testamentary estate under a residuary clause in the decedent’s 

will. The estate asserted that the decedent unambiguously 

disinherited the daughter by excluding her name in the definition of “‘children’” or “‘issue,’” while expressly including 

the decedent’s younger son’s name and “all children of mine 

born or adopted after the execution hereof.” After both parties 

moved for summary judgment, the district court found that 

the terms of the will were clear and unambiguous and that the 

daughter was expressly disinherited by the will’s provisions. 

Based on these findings, the court granted the estate’s motion 

for summary judgment. The daughter appeals.

BACKGROUND

The testator, Michael R. Brinkman, died on December 

23, 2016, leaving two known children, Nicole Brinkman and 

Seth Michael Brinkman. The testator’s will was admitted for 

probate, naming Kimberly Millus as personal representative. 

Millus is Seth’s mother, but not Nicole’s mother. Nicole is the 

older of the two children.

The relevant portions of the will 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.”

. . . .

ARTICLE IV.

I give and bequeath all right, title and interest I may 

own at the time of my death, if any, in any automobile, 

furniture and furnishings, including pictures and works of 

art, articles of domestic use or adornment of every kind 

and character, recreational equipment, personal effects 

used by me about my person or home, and any collections or memorabilia, wheresoever located as provided in 

the last dated writing in existence at the time of my death 
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signed by me which describes such item and distributee 

with reasonable certainty. To the extent any of said items 

are not so disposed of, I give said property to my son. 

To the extent any of such items are not so distributed, 

I direct my personal representative to sell or dispose of 

such items by such method and manner as my personal 

representative deems to be in the best interests of my 

estate, and any proceeds realized therefrom shall become 

a part of the residue of my estate.

ARTICLE V.

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

(Emphasis supplied.)

Nicole is not mentioned by name within the will.

Nicole filed the present action seeking a declaration that she 

was entitled to an undivided one-half interest in the estate, less 

personal effects. She argued that though article I provided the 

term “‘issue’” to “include” Seth, it did not expressly exclude 

Nicole as “‘issue.’” (Emphasis supplied.) She later moved for 

summary judgment, asserting that she was not expressly disinherited or disinherited by implication.

Seth and Millus, on behalf of the estate, filed a resistance 

and counter-motion for summary judgment, arguing that the 

will was not subject to interpretation because it was not ambiguous. Alternatively, Seth and Millus argued that if the will was 

ambiguous, Nicole was nonetheless expressly disinherited from 

taking under the testator’s will.

The district court granted the estate’s motion for summary 

judgment. The court found that the language of the will was 

clear and unambiguous. The district court further found that 

it was clear that “issue” as used in article V was to be given 

the meaning set forth in article I and that article I defined 

“‘issue’” to mean Seth and any children born or adopted after 

the execution of the will. Because no children were born or 

adopted after the execution of the will, the court read “issue” 

in article V to mean only Seth. The court further found that 

Nicole was expressly disinherited by these provisions of the 
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will. The court concluded that based on the clear terms of the 

will, the entire residue of the estate passed to only Seth and 

that Nicole was not entitled to a one-half interest in the residue 

of the estate.

ASSIGNMENTS OF ERROR

Nicole assigns that the district court erred in finding that (1) 

the will was not ambiguous and (2) she was expressly disinherited from her father’s will.

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law.1

ANALYSIS

[2] Though not originally raised by the parties, following their submission of supplemental briefing at our request, 

an issue of jurisdictional priority was identified. We do not 

reach the merits of Nicole’s assignments of error, because we 

conclude that the county court had jurisdictional priority over 

the district court in this matter. It is undisputed that a probate 

action pertaining to the will at issue was brought in county 

court before Nicole brought her declaratory judgment action in 

district court seeking interpretation of the same will, and that 

probate action is still pending in county court. Under the doctrine of jurisdictional priority, when different state courts have 

concurrent original jurisdiction over the same subject matter, 

basic principles of judicial administration require that the first 

court to acquire jurisdiction should retain it to the exclusion of 

another court.2

[3-5] This rule of jurisdictional priority does not apply 

unless there are two cases pending at the same time.3 The 

1 Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

2 Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).

3 Id.
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doctrine further does not apply if the first action terminates, 

is resolved, or is disposed of before the second action commences.4

 Additionally, two pending cases fall under this doctrine only when they involve the same “‘“whole issue.”’”5

In other words, the two actions must be materially the same, 

involving the substantially same subject matter and the 

same parties.6

Nicole conceded during oral argument that the probate of 

the will began in the county court and remained pending when 

Nicole brought her declaratory judgment action regarding the 

construction of the will in district court. Both the probate and 

the declaratory judgment actions involve the construction of 

the same will and a determination of the rights of the parties 

based on the will’s meaning. The cases involve substantially 

the same parties.

Thus, there were two pending cases involving substantially 

the same subject matter and parties in two different courts. The 

only dispute presented by the parties concerning the elements 

of jurisdictional priority is whether the county and the district 

courts have concurrent original jurisdiction.

The estate argues that the county court has exclusive original jurisdiction over the construction of the will and that the 

district court lacks subject matter jurisdiction over such matters. We disagree.

The estate relies on Neb. Rev. Stat. §§ 24-517(1) and 

30-2211 (Reissue 2016). Section 24-517 provides in pertinent 

part: “Each county court shall have the following jurisdiction: 

(1) Exclusive original jurisdiction of all matters relating to 

decedents’ estates, including the probate of wills and the construction thereof . . . .” Section 30-2211(a) provides in part: 

“To the full extent permitted by the Constitution of Nebraska, 

the [county] court has jurisdiction over all subject matter 

4 Id.

5 Id. at 464, 855 N.W.2d at 596.

6 Id.
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relating to (1) estates of decedents, including construction of 

wills and determination of heirs and successors of decedents, 

and estates of protected persons . . . .”

We have held, however, that the Legislature’s purported 

grant of exclusive original jurisdiction to the county court in 

matters relating to decedents’ estates “‘is of suspect constitutionality insofar as it relates to matters that would involve 

either the chancery or common-law jurisdiction of the district 

courts.’”7 This is because the district court’s jurisdiction over 

such matters emanates from the Nebraska Constitution.

[6,7] Neb. Const. art. V, § 9, states: “The district courts shall 

have both chancery and common law jurisdiction, and such 

other jurisdiction as the Legislature may provide . . . .” We 

have held that because a district court’s general jurisdiction 

emanates from the Nebraska Constitution, it cannot be legislatively limited or controlled.8

 Thus, in a long line of cases, we 

found that the county courts have concurrent original jurisdiction with the district courts in common-law and equity actions 

relating to decedents’ estates.9

[8] In this case, Nicole filed her complaint in district court 

seeking declaratory relief. Specifically, she sought a declaration of her rights under the decedent’s will. Neb. Rev. Stat. 

§ 25-21,150 (Reissue 2016) specifically allows such an action, 

providing in pertinent part: “Any person . . . under a . . . will 

. . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration 

of rights, status or other legal relations thereunder.” And we 

have held that the district court has the power in a declaratory 

7 Ptak v. Swanson, 271 Neb. 57, 63, 709 N.W.2d 337, 341 (2006) (quoting 

In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985)).

8 Id. (citing Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 

N.W.2d 524 (1999), and In re Estate of Steppuhn, supra note 7).

9 See id. (citing Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 

N.W.2d 894 (1999), and Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 

554 (1991)). See, also, In re Estate of Steppuhn, supra note 7.
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judgment action to construe a will and make a determination of 

interests of beneficiaries in the estate.10

Nicole argues that the district court had exclusive original 

jurisdiction over her declaratory judgment action and that the 

county court lacks subject matter jurisdiction over the interpretation of the decedent’s will. We likewise find no merit to 

this contention.

[9] Nicole relies on cases wherein we have said that district 

courts have exclusive jurisdiction to construe wills. While this 

court has held the district courts of this state have the exclusive power to construe wills, we have also held that the county 

court has the limited power to construe a will for the benefit of 

the executor in carrying out the terms of the will.11

[10,11] There is nothing in the Nebraska Constitution that 

limits the Legislature’s ability to grant to the county courts 

jurisdiction over the construction of wills. Article V, § 1, of the 

Nebraska Constitution provides in part:

The judicial power of the state shall be vested in a 

Supreme Court, an appellate court, district courts, county 

courts, in and for each county, with one or more judges 

for each county or with one judge for two or more counties, as the Legislature shall provide, and such other 

courts inferior to the Supreme Court as may be created 

by law.

County courts can acquire jurisdiction only through legislative 

enactment.12 As already set forth, the Legislature has provided 

through §§ 24-517(1) and 30-2211 that county courts have the 

power to construe wills. And it is well settled that the county 

court has been given complete equity powers as to all matters within its probate jurisdiction.13 This has long included 

10 See Father Flanagan’s Boys’ Home v. Graybill, 178 Neb. 79, 132 N.W.2d 

304 (1964).

11 See id.

12 Iodence v. Potmesil, supra note 9; In re Estate of Steppuhn, supra note 7.

13 See Youngson v. Bond, 69 Neb. 356, 95 N.W. 700 (1903).
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the authority to construe a will when necessary to enable the 

settlement of an estate properly.14

We find that the county court and the district court had exercisable concurrent jurisdiction over the construction of this will. 

All of the elements of jurisdictional priority are present in this 

case. Thus, the county court, as the first court to acquire jurisdiction, retained it to the exclusion of the district court unless 

it deferred to the district court.15 Neb. Rev. Stat. § 30-2429.01 

(Reissue 2016) provides that the district court may determine 

whether a decedent left a valid will if there is an objection to 

the probate of the will in county court and certain transfer procedures are followed. But this case was not transferred to the 

district court pursuant to this section, nor does it involve the 

validity of a will, but, rather, its construction.16

[12-14] While jurisdictional priority is not a matter of subject matter or personal jurisdiction, courts should enforce the 

jurisdictional priority doctrine to promote judicial comity and 

avoid the confusion and delay of justice that would result if 

courts issued conflicting decisions in the same controversy.17

The rule of jurisdictional priority is based on the public policies of avoiding conflicts between courts and preventing vexatious litigation and a multiplicity of suits.18 A pragmatic justification for the rule is efficiency in that proceedings earlier 

begun may be expected to be earlier concluded.19 When a 

subsequent court decides a case already pending in another 

court with concurrent subject matter jurisdiction, it errs in the 

exercise of its jurisdiction.20

14 See id.

15 See Charleen J. v. Blake O., supra note 2.

16 See § 30-2429.01.

17 See Charleen J. v. Blake O., supra note 2.

18 Id.

19 Id.

20 See id.
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Because the county court did not transfer the case or otherwise relinquish its jurisdictional priority, the district court 

improperly impinged on the county court’s jurisdictional priority in construing the will in this matter. The district court 

erred in its exercise of jurisdiction, and we reverse the order 

and remand this matter to the district court with directions to 

dismiss the complaint without prejudice.

CONCLUSION

We reverse, because we conclude that the county court has 

jurisdictional priority over the district court in construing the 

will in this matter.

Reversed and remanded with direct