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306 Nebraska Reports

IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

In re Estate of William Daniel 

Hutton, deceased. 

John Hodge, Successor Personal Representative 

of the Estate of William Daniel Hutton, 

deceased, appellee, v. Webster County, 

Nebraska, appellant.

___ N.W.2d ___

Filed July 24, 2020. No. S-19-875.

1. Guardians and Conservators: Judgments: Appeal and Error.

Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. 

Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & 

Supp. 2019), are reviewed for error on the record. When reviewing a 

judgment for errors on the record, the inquiry is whether the decision 

conforms to the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable.

2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable 

compensation, fees, and expenses under the statutes governing compensation of personal representatives, expenses in estate litigation, and 

compensation of personal representatives and employees of the estate, is 

within the sound discretion of the county court.

3. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

4. Costs. Costs of litigation and expenses incident to litigation may not 

be recovered unless provided for by statute or a uniform course of 

procedure.

5. ____. Whether costs and expenses are authorized by statute or by the 

court’s recognition of a uniform course of procedure presents a question 

of law.

6. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

Nebraska Supreme Court Online Library

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

08/28/2020 08:07 AM CDT
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

7. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

8. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

Appeal from the County Court for Webster County: Michael 

O. Mead, Judge. Judgment vacated.

Sara J. Bockstadter, Webster County Attorney, for appellant.

No appearance for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Webster County, Nebraska (County), appeals from an order 

of the county court requiring the County to pay fees and 

expenses to a court-appointed successor personal representative. Because the court lacked the authority to order the County 

to pay the successor personal representative fees, we vacate 

the order.

BACKGROUND

William Daniel Hutton died intestate without a surviving spouse in February 2015. The county court granted an 

application filed by Hutton’s only children, John Hutton and 

Alexis Elledge, for informal appointment of copersonal representatives of the estate. In July 2015, counsel for the copersonal representatives withdrew from the case. Thereafter, each 

copersonal representative retained independent counsel.

In January 2016, John filed a “Motion to Distribute Estate 

Assets,” requesting that the court order Elledge to pay him 

half the value of E.W. Seals, a business owned and operated 

by William at the time of his death. John alleged that the business had a value of $250,000. The court ordered the business 

to be liquidated or sold with the proceeds to be paid to the 
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

estate. The copersonal representatives filed an inventory that 

included valuations for all estate assets except E.W. Seals.

In January 2017, in response to an order to show cause, 

Elledge filed a motion seeking the appointment of a new 

personal representative who was not a family relative. The 

motion alleged that there was a breakdown in communication 

between the copersonal representatives due to disagreement 

over the valuation and distribution of the E.W. Seals assets. 

At the show cause hearing, the copersonal representatives 

informed the court it was unlikely they would be able to 

complete the administration of the estate. On February 14, the 

court discharged John and Elledge as copersonal representatives and appointed attorney John Hodge as successor personal representative.

In October 2018, Hodge filed an amended inventory which 

valued the estate at approximately $420,000. Hodge filed a 

statement of distributions of the prior copersonal representatives showing that John had taken $210,455.62 and Elledge 

had taken $147,908.43. Although the assets of the estate were 

to be divided equally between the surviving children, John had 

received $62,547.19 more than Elledge.

The estate owed $60,346.23 in federal income taxes and 

$8,429.29 in state income taxes. The court ordered John and 

Elledge to return liquid funds to Hodge for payment of estate 

taxes, and then it granted Elledge’s motion for reconsideration 

and ordered John to return the value of an investment account 

and the value of a 2013 Toyota pickup.

Hodge filed a “Petition for Order to Pay Debts of the 

Estate and Equalization of Assets Among Beneficiaries” 

and a “Petition for Determination of Inheritance Tax and 

Reimbursement of Prior Paid Tentative Inheritance Tax.” 

Around this same time, Hodge filed an application for payment 

of his fees and expenses. In December 2018, following a hearing, the court ordered John to immediately return $62,547.19, 

of which John returned $30,000. The court ordered Hodge to 

pay court costs and outstanding federal and state taxes. The 
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

court continued to a later date the final settlement and Hodge’s 

application for fees and expenses. Hodge used the remaining 

funds in the estate’s account to pay $478 in court costs and 

$42,545.89 in federal taxes.

Hodge completed administration of the estate and renewed 

his application for fees and expenses. Per order of the court, 

Hodge served the Webster County Attorney with a notice of 

hearing for August 2, 2019. At the hearing, the court informed 

the County that the estate was insolvent and that Hodge would 

submit his request for payment to the County. The County 

objected to being responsible for Hodge’s fees and expenses, 

and it stated that Hodge’s application had not requested that 

the County pay his fees and expenses. The County argued 

that the estate at one point had substantial assets and that the 

heirs of the estate should be held responsible for Hodge’s fees. 

Hodge admitted he knew of no statutory authority to require 

the County to pay his fees.

In its order dated August 13, 2019, the court found that 

Hodge had served as a court-appointed successor personal 

representative for 21⁄2 years and that his fees were fair and 

reasonable given the amount of work involved. The court 

found that the estate was insolvent and that the amount owed 

by the heirs to the Internal Revenue Service and the Nebraska 

Department of Revenue was likely uncollectible. The court 

found that “the County . . . shall pay the amount of $6,455.63 to

 . . . Hodge.”

The County appealed and is the only party to participate 

in this matter. We moved this case to our docket on our own 

motion.

ASSIGNMENTS OF ERROR

The County assigns, restated, that the court lacked authority 

to order the County to pay the fees and expenses of the courtappointed successor personal representative. The County further contends that had the distributions taken by the original 
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

copersonal representatives not occurred, there would have 

been sufficient assets for the estate to pay Hodge.

STANDARD OF REVIEW

[1] Appeals of matters arising under the Nebraska Probate 

Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 

2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error 

on the record. 1 When reviewing a judgment for errors on the 

record, the inquiry is whether the decision conforms to the law, 

is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable. 2

[2] Ordinarily, the fixing of reasonable compensation, fees, 

and expenses, pursuant to § 30-2480, governing compensation 

of personal representatives; § 30-2481, governing expenses in 

estate litigation; and § 30-2482, governing compensation of 

personal representatives and employees of the estate, is within 

the sound discretion of the county court. 3

[3] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 4

ANALYSIS

[4,5] The issue presented to us is whether the county court 

was authorized to order the County to pay the reasonable 

fees and expenses of the court-appointed successor personal 

representative. We have long held that costs of litigation and 

expenses incident to litigation may not be recovered unless 

provided for by statute or a uniform course of procedure. 5

Whether costs and expenses are authorized by statute or by the 

1 In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).

2 Id.

3 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).

4 In re Guardianship of Eliza W., supra note 1.

5 City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 

N.W.2d 256 (2011). See Nat. Bank of Commerce Trust & Savings Assn. v. 

Rhodes, 207 Neb. 44, 295 N.W.2d 711 (1980).
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

court’s recognition of a uniform course of procedure presents 

a question of law. 6

[6,7] In construing a statute, a court must determine and 

give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense. 7 It is not within the province 

of the courts to read a meaning into a statute that is not there or 

to read anything direct and plain out of a statute. 8

In In re Guardianship of Suezanne P.,

 9 the Nebraska Court 

of Appeals addressed whether, in a guardianship proceeding, a 

county may be ordered to pay the fees of an attorney appointed 

to represent the minor child’s mother. Although the county was 

not involved in the case, the trial court ordered the county to 

pay the attorney fees. When the county appealed, the appellate 

court found that the attorney pled no authority for requiring the 

county to pay his fees and that no authority was cited in the 

trial court’s order. In vacating the order, the Court of Appeals 

found that although various other statutes authorize a court to 

order a county to pay attorney fees, there was no authority for 

the trial court to order the county to pay the fees of the parent’s 

court-appointed attorney in a civil guardianship case in which 

the county was no way involved. 10

[8] In In re Adoption of Kailynn D.,

 11 this court considered whether a county could be required to pay the fee of a 

guardian ad litem in a private adoption. Our interpretation 

of the statutes at issue focused on the rule that the intent of 

6 See, D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017); In re 

Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).

7 Anderson v. A & R Ag Spraying & Trucking, ante p. 484, ___ N.W.2d ___ 

(2020).

8 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

9 In re Guardianship of Suezanne P., 6 Neb. App. 785, 578 N.W.2d 64 

(1998).

10 Id.

11 In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

the Legislature is expressed by omission as well as by inclusion. 12 The statutory provision at issue in that case, Neb. Rev. 

Stat. § 43-104.18 (Reissue 2016), addressed the court’s authority to appoint a guardian ad litem to represent the interests of 

the biological father. We reasoned that because the Legislature 

expressly obligated a county to pay guardian ad litem or attorney fees in other statutes, such as Neb. Rev. Stat. § 43-292.01 

(Reissue 2016), but not in the statute at issue, the Legislature 

did not intend to grant a court the authority to order a county 

to pay the fees of a guardian ad litem appointed for a biological 

father in a private adoption case. 13 We cited with approval In 

re Guardianship of Suezanne P., noting that in both cases the 

county was not involved in the case until the court ordered it 

to pay fees. 14

In this matter, we must examine the statutory provisions 

under the Nebraska Probate Code that address personal representatives. A personal representative “includes executor, 

administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.” 15 A successor personal representative is “a personal representative, other than a 

special administrator, who is appointed to succeed a previously 

appointed personal representative.” 16 A personal representative 

is entitled to reasonable compensation. 17 We have held that the 

fixing of reasonable compensation is within the sound discretion of the county court. 18

12 Id.

13 See id.

14 See id. See, also, In re Guardianship of Suezanne P., supra note 9.

15 § 30-2209(33).

16 § 30-2209(45).

17 § 30-2480.

18 See, In re Estate of Graham, supra note 3; In re Estate of Odineal, 220 

Neb. 168, 368 N.W.2d 800 (1985).
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

This court has not been presented with any authority or 

recognized course of procedure to support an order requiring a 

county to pay a personal representative’s fees. Our review of 

the relevant statutes indicates that a personal representative’s 

fees are paid by the estate. Under § 30-2481, a personal representative who defends or prosecutes any proceeding in good 

faith is entitled to receive necessary expenses “from the estate.” 

Under § 30-2482(1), the court may review the reasonableness 

of the compensation determined by the personal representative 

for his or her own services and may order the return of excessive “compensation from an estate.” Section 30-2487 states 

that “[c]osts and expenses of administration” are paid from 

“assets of the estate.” Under § 30-2473, a personal representative is liable to interested persons for damage or loss resulting 

from breach of his or her fiduciary duty.

We digress to note that the county court discharged the 

copersonal representatives instead of merely removing them 

or terminating their authority. Typically, courts remove or 

terminate the status of a personal representative rather than 

discharge the personal representative so that the terminated 

personal representative remains responsible for any misdeeds 

he or she may have committed while acting as personal 

representative. 19

In returning to the case at bar, the Legislature has expressly 

designated the estate as being responsible for personal representative compensation. Additionally, the Legislature has 

not expressly stated that a county is responsible for personal 

representative compensation. Any rules governing whether 

a county should be ordered to pay for a personal repre

sentative’s costs and expenses should be established by the 

Legislature. 20

The County notes in its brief that there are a number of 

statutory provisions which grant the court authority to require 

19 See In re Estate of Graham, supra note 3.

20 See White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

counties to pay fees in other circumstances. 21 Regarding such 

provisions under the Nebraska Probate Code, § 30-2620.01 

permits a court to order a county to pay the reasonable fees 

and costs of an attorney, a guardian ad litem, a physician, and 

a visitor appointed by the court for an incapacitated person, 

if the incapacitated person does not possess an estate. Section 

30-2643 permits a court to order a county to pay the reasonable 

fees and costs of an attorney, a guardian ad litem, a physician, 

a conservator, a special conservator, and a visitor appointed by 

the court for a protected person, if the protected person does 

not possess an estate. The fact that the Legislature did not 

expressly obligate counties to pay personal representative fees 

and expenses reflects a legislative intent that a county cannot 

be ordered to pay those fees. Moreover, this is a probate matter 

in which the County was in no way involved. Accordingly, pursuant to In re Guardianship of Suezanne P. 22 and In re Adoption 

of Kailynn D.,

 23 we conclude that the court erred in ordering 

the County to pay Hodge’s fees.

Additionally, the County contends that the court should 

have ordered the estate to pay for Hodge’s services before the 

estate became insolvent. Prior to ordering the County to pay 

Hodge’s reasonable compensation, the court ordered Hodge to 

pay the estate’s court costs and outstanding federal and state 

income taxes. Hodge paid court costs and a large portion, but 

not all, of the federal taxes owed. The estate had insufficient 

assets to satisfy the remaining federal and state taxes or compensate Hodge. The County contends that if the estate cannot 

fully pay all of its claims, the court should have given priority 

to Hodge’s compensation under § 30-2487(a)(1). However, 

21 See, Neb. Rev. Stat. § 29-3905 (Reissue 2016) (payment for attorneys 

appointed to represent indigent felony defendants); Neb. Rev. Stat. 

§ 42-358 (Reissue 2016) (payment for attorneys appointed for minor child 

in domestic relations cases if responsible party is indigent).

22 In re Guardianship of Suezanne P., supra note 9.

23 In re Adoption of Kailynn D., supra note 11.
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

we need not address the County’s argument regarding the 

priority of payments to be made under § 30-2487(a), because 

either way, the court lacked the statutory authority to order 

the County to pay the successor personal representative’s fees. 

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. 24

CONCLUSION

Because the county court lacked the authority to order the 

County to pay the successor personal representative’s fees and 

expenses, the order granting fees and expenses is vacated.

Judgment vacated.

24 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).

Cassel, J., concurring.

This court’s opinion, which I join unreservedly, correctly 

resolves the narrow issue presented in this appeal. But the 

court’s opinion gives a glimpse of an estate that went horribly 

wrong.

One lesson that deserves emphasis to the bench and bar is 

the distinction between the termination of an appointment of a 

personal representative and the discharge of a personal representative. They are not synonymous. And unwitting use of the 

wrong terminology can have disastrous consequences.

According to our transcript, on January 31, 2017, one of 

the heirs sought the appointment of a new personal represent

ative to replace the original copersonal representatives. The 

motion did not request that the original copersonal represent

atives be discharged.

Only 3 days later, at a hearing where the attorney for the 

original copersonal representatives apparently informed the 

court that they likely would be unable to complete administration, the county court not only appointed a new personal representative, it “discharged” the original copersonal 

representatives. Because we have no record of the hearing 
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IN RE ESTATE OF HUTTON

Cite as 306 Neb. 579

on that date, our record contains only the court’s written 

order.

The Nebraska Probate Code, 1 which is based on the Uniform 

Probate Code, 2 clearly distinguishes a “termination of appointment” from a “discharge.” 3 Section 30‐2451 states

Termination of appointment of a personal representative occurs as indicated in sections 30‐2452 to 30‐2455

Termination ends the right and power pertaining to the 

office of personal representative as conferred by this 

code or any will . . . . Termination does not discharge a 

personal representative from liability for transactions or 

omissions occurring before termination, or relieve him 

of the duty to preserve assets subject to his control, to 

account therefor and to deliver the assets. Termination 

does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.

(Emphasis supplied.) One of the methods for termination is 

specified in § 30‐2454, which authorizes the county court to

remove a personal representative and sets forth the procedure 

to do so. The comment to the equivalent provision of the uniform act explains, “‘Termination’, as defined by this and succeeding provisions, provides definiteness respecting when the 

powers of a personal representative (who may or may not be 

discharged by court order) terminate. . . . It is important to note 

that ‘termination’ is not ‘discharge’.” 4

Under § 30‐24,115(a), a court “may enter an order or

orders, on appropriate conditions, . . . discharging the personal 

1 Neb. Rev. Stat. §§ 30‐401 to 30‐406, 30‐701 to 30‐713, 30‐220

30‐2902, 30‐3901 to 30‐3923, 30‐4001 to 30‐4045, 30‐4101 to 30

and 30‐4201 to 30‐4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019

2 Unif. Probate Code, § 1‐101 et seq., 8 U.L.A. 1 et seq. (2013 & Supp.

2019).

3 § 30‐2451

4 Unif. Probate Code § 3‐608, comment, 8 (part II) U.L.A. 138 (2013)
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Cite as 306 Neb. 579

representative from further claim or demand of any interested person.”

I express no opinion regarding the legal effect of the county 

court’s order of February 9, 2017, which memorialized the 

hearing of February 3. But I urge that courts be precise in the 

use of this terminology.