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In re Estate of Gilbert R. Fuchs, deceased.

Jim R. Fuchs, Copersonal Representative of the

Estate of Gilbert R. Fuchs, deceased, appellant, 

and Joseph M. Fuchs, Copersonal Representative

of the Estate of Gilbert R. Fuchs, deceased, 

appellee, v. Julie K. Albin and

Jason R. Fuchs, appellees.

___ N.W.2d ___

Filed September 8, 2017. Nos. S-16-694, S-16-849.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings 

and admitted evidence show that there is no genuine issue as to any 

material facts or as to the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

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

4. Judgments: Appeal and Error. Appellate courts independently review 

questions of law decided by a lower court.

5. Decedents’ Estates: Limitations of Actions. Under the Uniform Probate 

Code, the general rule is that no appointment or testacy proceeding may 

be commenced more than 3 years after the death.

6. ____: ____. Under the Uniform Probate Code, the statute of limitations is self-executing and ordinarily begins to run upon the decedent’s death.

7. Decedents’ Estates: Statutes: Appeal and Error. In interpreting the 

various sections of the Nebraska Probate Code, an appellate court may 

examine the comments to the code.

Nebraska Supreme Court Online Library

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

11/22/2017 08:11 PM CST
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8. Statutes: Appeal and Error. Statutory language 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.

9. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of 

a statute.

10. Estoppel: Words and Phrases. Equitable estoppel is a bar which precludes a party from denying or asserting anything to the contrary of 

those matters established as the truth by his or her own deeds, acts, or 

representations.

11. Estoppel: Fraud. The elements of equitable estoppel are, as to the 

party estopped: (1) conduct which amounts to a false representation or 

concealment of material facts, or at least which is calculated to convey 

the impression that the facts are otherwise than, and inconsistent with, 

those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon 

by, or influence, the other party or other persons; and (3) knowledge, 

actual or constructive, of the real facts. As to the other party, the elements are: (1) lack of knowledge and of the means of knowledge of 

the truth as to the facts in question; (2) reliance, in good faith, upon 

the conduct or statements of the party to be estopped; and (3) action or 

inaction based thereon of such a character as to change the position or 

status of the party claiming the estoppel, to his or her injury, detriment, 

or prejudice.

12. Summary Judgment: Evidence. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues 

of fact for the purposes of summary judgment; the evidence must be 

sufficient to support an inference in the nonmovant’s favor without the 

fact finder engaging in guesswork.

13. Limitations of Actions. The doctrine of equitable tolling permits a 

court to excuse a party’s failure to comply with the statute of limitations 

where, because of disability, irremediable lack of information, or other 

circumstance beyond his or her control, the plaintiff cannot be expected 

to file suit on time.

14. ____. Equitable tolling requires no fault on the part of the defendant.

15. ____. Equitable tolling requires due diligence on the part of the claimant.

Appeals from the District Court for Pierce County: Mark A. 

Johnson, Judge. Affirmed.
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George H. Moyer, of Moyer & Moyer, for appellant.

Susan J. Spahn, of Endacott, Peetz & Timmer, P.C., L.L.O., 

for appellees Julie K. Albin and Jason R. Fuchs.

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

Kelch, and Funke, JJ.

Funke, J.

Jim R. Fuchs, a son of Gilbert R. Fuchs and a copersonal 

representative of Gilbert’s estate, appeals from the district 

court’s order that dismissed his amended application to probate Gilbert’s will. Jim alleged that he learned about Gilbert’s 

will more than 3 years after he and his brother commenced 

an informal probate proceeding to administer Gilbert’s intestate estate. The district court granted summary judgment to 

Gilbert’s other two children, who had objected to probating 

the will, and dismissed the amended petition under Neb. Rev. 

Stat. § 30-2408 (Reissue 2016) as time barred.

BACKGROUND

Factual Background

Gilbert died on May 29, 2012. At the time of his death, 

Gilbert was unmarried and was survived by his four children: 

Jim, Joseph M. Fuchs, Julie K. Albin, and Jason R. Fuchs.

Gilbert was living in Norfolk, Nebraska, when he died, but 

he owned two houses, one in Norfolk and the other on the family farm. Both homes were in a state of disarray, with papers 

strewn all about.

Gilbert did not keep his important documents well organized, often leaving them lying about his houses or piled in 

his cars. Some of Gilbert’s cars were sold after his death, 

and the subsequent purchasers would mail to the children 

various documents and photographs they had found inside 

the vehicles.

Either before or after his death, each of the children had 

access to Gilbert’s homes. Jim, Julie, and Jason searched 
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Gilbert’s homes for his important documents, such as a will, 

deeds, and car titles. Jim attempted to find Gilbert’s will by 

calling attorneys in the area and checking for safe deposit 

boxes at banks Gilbert had done business with. Both Jim and 

Joseph checked with surrounding courthouses for the presence 

of a will. Julie and Jason cleaned out Gilbert’s houses and 

placed papers and other items in storage totes, two of which 

Julie took back to her home in Chicago, Illinois. Despite the 

parties’ efforts, no will was found.

On July 8, 2015, Joseph received a plain brown envelope. 

The envelope was postmarked July 6, 2015, from Omaha, 

Nebraska. Inside the envelope, Joseph found Gilbert’s last will 

and testament, dated January 26, 1987. In that will, Gilbert left 

all his property to Jim and named Jim as his personal representative. Joseph delivered the will to Jim.

Lower Court Proceedings

On June 12, 2012, Jim and Joseph filed an “Application 

for Informal Appointment of Personal Representative in 

Intestacy” in the county court for Pierce County, Nebraska. 

In their application, they alleged that after the exercise of 

reasonable diligence, they were unaware of any unrevoked 

testamentary instrument relating to property having a situs 

in the state. As a result, they were appointed as copersonal 

representatives.

The matter was still being probated, when, on July 15, 2015, 

Jim filed a petition for the formal probate of Gilbert’s 1987 

will. Julie and Jason (hereinafter collectively the objectors) 

objected to the probate and Jim’s appointment. On August 24, 

Jim transferred his probate application from county court to 

district court.

In September 2015, the objectors filed a supplemental 

answer to Jim’s application. They alleged that in June 2012, 

Jim and Joseph applied for informal appointment as copersonal 

representatives of Gilbert’s intestate estate and received that 

appointment on the same day; that Jim’s probate application 
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was time barred under § 30-2408 because it had been more 

than 3 years since Gilbert’s death and the informal appointment 

proceedings; that Jim was estopped from seeking a probate by 

a memorandum of understanding, which Jim had signed while 

acting as a copersonal representative of Gilbert’s intestate 

estate; and that because Jim and Joseph had already sold estate 

property and made partial distributions of the estate, Gilbert’s 

will could no longer be probated. They also objected to Jim’s 

appointment as copersonal representative, because they had 

previously petitioned to remove Jim and Joseph as informal 

copersonal representatives, which petition was still pending 

before the county court.

The objectors moved for summary judgment. Jim then 

moved to file an amended application in which he had alleged 

for the first time that Joseph showed him Gilbert’s 1987 will 

on July 13, 2015, 2 days before Jim filed his original application for a formal probate. He alleged that Joseph received 

Gilbert’s will in the mail on July 8, 2015, in an envelope 

that was postmarked in Omaha but had no return address. He 

alleged that when Gilbert died, he had two residences and 

his legal documents were strewn about in both houses. He 

believed that one of the persons who had helped search for 

a will had found one and then waited to disclose it until the 

3-year statute of repose had expired. He alleged that “all parties hereto should now be estopped to claim that the will be 

denied probate.”

The objectors filed an amended answer where they alleged 

Jim told the objectors that Gilbert did not leave a will and that 

Jim had scheduled a family meeting with an attorney for June 

4, 2012, 6 days after Gilbert’s death. The objectors alleged 

that in reliance on Jim’s representation, they agreed to the 

administration of Gilbert’s intestate estate by Jim and Joseph 

and subsequently incurred over $120,000 in attorney fees and 

costs related to that administration and also to protect Gilbert’s 

estate. They also alleged that before Gilbert’s death, Jim said 

he had heard that Gilbert had made a will leaving his estate 
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to Jim, and that Jim had ample opportunity to investigate 

whether such a will existed. They also alleged the amended 

petition was frivolous and sought attorney fees.

In June 2016, the court issued an order sustaining the objectors’ motion for summary judgment. According to the court’s 

findings, documents that were gathered up from Gilbert’s home 

after his death were placed in storage totes. Julie took two of 

these totes home with her to Chicago without the personal 

representatives reviewing the documents first, but other totes 

remained in Gilbert’s house. The court noted that Julie had 

found an old ledger in which Gilbert noted an expense for a 

“‘farm will.’” But the court found that Jim had failed to show 

evidence that anyone had taken Gilbert’s will to illegally suppress it past the expiration of the statute of repose. It sustained 

the objectors’ motion for summary judgment and dismissed 

Jim’s amended application because it was filed past the deadline in § 30-2408.

ASSIGNMENT OF ERROR

Jim assigns that the district court erred in sustaining the 

objectors’ motion for summary judgment.

STANARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law.1 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.2

1 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).

2 Id.
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[3] Statutory interpretation presents a question of law.3

[4] Appellate courts independently review questions of law 

decided by a lower court.4

ANALYSIS

Jim posits three arguments as to why the court erred in 

denying the formal probate of Gilbert’s will. First, he contends 

that § 30-2408’s 3-year statute of limitations is not applicable 

because the initial probate proceeding had not been fully completed. Second, he contends that the will was deliberately suppressed by one of the heirs and that therefore equitable estoppel bars the application of the 3-year statute of limitations. 

Third, he contends the 3-year statute of limitations should be 

equitably tolled.

Section 30-2408 provides, in relevant part, the following:

No informal probate or appointment proceeding or 

formal testacy or appointment proceeding, other than a 

proceeding to probate a will previously probated at the 

testator’s domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after 

the decedent’s death, except . . . (4) an informal probate or appointment or a formal testacy or appointment proceeding may be commenced thereafter if no 

formal or informal proceeding for probate or proceeding concerning the succession or administration has 

occurred within the three-year period, but claims other 

than expenses of administration may not be presented 

against the estate. These limitations do not apply to 

proceedings to construe probated wills or determine 

heirs of an intestate.

3 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

4 Id.
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District Court Did Not Err in Determining

§ 30-2408 Barred Admission of Gilbert’s

Will to Formal Probate

At common law, no definite time is prescribed within which 

a will is to be proved after the death of the testator, and the 

right to prove a will is not barred by the lapse of any time, 

however great.5

[5,6] Nonetheless, under the Uniform Probate Code, the 

general rule is that no appointment or testacy proceeding may 

be commenced more than 3 years after the death.6 The statute 

of limitations is self-executing and ordinarily begins to run 

upon the decedent’s death.7

The record is clear that Jim’s 2015 application was a petition for formal testacy which was filed more than 3 years 

after Gilbert’s death. The record is also clear that a prior 

proceeding for informal probate was pending at the time of 

Jim’s 2015 application. The parties, however, disagree as to 

whether the prior proceeding for informal probate must have 

been fully completed or whether it was sufficient that it was 

merely commenced.

Jim contends that if a prior proceeding has been filed, that 

proceeding must have fully adjudicated the rights of the parties. In making that contention, he relies on the Nebraska 

comment to § 30-2408 which states that prior proceedings 

adjudicate finally the rights of the parties.8 Therefore, Jim 

contends that such prior proceedings must be fully completed to act as a bar to the exception in subsection (4) of 

§ 30-2408.

The objectors contend that the prior proceeding must have 

been merely commenced. In making that contention, they 

rely upon § 3-106 of the Uniform Probate Code, which binds 

5 95 C.J.S. Wills § 559 (2011).

6 31 Am. Jur. 2d Executors and Administrators § 230 (2012).

7 Id.

8 See § 30-2408 (Reissue 1989) (statutory comment).
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interested parties to orders of the court, after proper notice, 

in proceedings to construe probated wills or determine heirs 

which concern estates that have not been and cannot now be 

opened for administration.9 The comment to § 3-106 sets forth 

that that language of § 3-106—coupled with the exceptions to 

the limitations provisions in § 3-108 of the Uniform Probate 

Code, from which § 30-2408 was derived, that permit proceedings to construe wills and to determine heirs of intestates 

to be commenced more than 3 years after death—clarifies the 

purpose of the draftsmen to offer a probate proceeding to aid 

the determination of rights of inheritance of estates that were 

not opened for administration within the time permitted by 

§ 3-108.10

[7] In interpreting the various sections of the Nebraska 

Probate Code, this court may examine the comments to the 

code.11 Upon reading the comments to § 30-2408, we find 

it is clear that the enactment of § 30-2408 was intended to 

establish a basic limitation period of 3 years within which it 

may be determined whether a decedent left a will and to commence administration of his estate.12 Further, the comment to 

§ 30-2408 regarding subsection (4) indicates that the time limitation is not applicable if no prior formal or informal probate 

proceeding has occurred.13

We held in In re Estate of Nemetz14 that § 30-2408 “permits 

an informal appointment proceeding to be commenced more 

than 3 years after the decedent’s death ‘if no formal or informal 

proceeding for probate or proceeding concerning the succession 

or administration has occurred within the three-year period.’” 

However, in that case, since no prior probate proceeding had 

9 Unif. Probate Code § 3-106, 8 (part II) U.L.A. 35 (2013).

10 Id., comment.

11 Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).

12 See § 30-2408 (Reissue 1989) (statutory comment).

13 See id.

14 In re Estate of Nemetz, 273 Neb. 918, 921, 735 N.W.2d 363, 367 (2007).
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been commenced, we were not required to consider whether an 

informal proceeding had occurred.

In In re Estate of Harris,

15 the Montana Supreme Court also 

considered the effect of a will offered for probate more than 

3 years after the decedent’s death. Montana is a state that has 

adopted the Uniform Probate Code, and it has enacted legislation nearly identical to our § 30-2408. The Montana court 

found the admission of the late-offered will was not barred 

by the 3-year statute of limitations under the exception that 

no proceedings concerning succession or estate administration had occurred within the 3-year period of the decedent’s 

death.16 In doing so, the court noted that this exception was 

not applicable if “there has been any other proceeding regarding succession or estate administration during the three-year 

period.”17 Later, when applying the exception, the court noted 

that “[n]o other proceedings had been opened since [decedent’s] death.”18

[8,9] Statutory language 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.19 It is not within the 

province of a court to read a meaning into a statute that is not 

warranted by the language; neither is it within the province of 

a court to read anything plain, direct, or unambiguous out of 

a statute.20

The Legislature has not defined “occur”; thus, we look to 

the commonly understood, everyday definition of the word. 

According to Black’s Law Dictionary, “occur” means “[t]o 

happen; to meet one’s eye; to be found or met with; to present 

15 In re Estate of Harris, 379 Mont. 474, 352 P.3d 20 (2015).

16 Id.

17 Id. at 477, 352 P.3d at 23.

18 Id. at 480, 352 P.3d at 25.

19 Clarke, supra note 3.

20 State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
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itself; to appear; hence, to befall in due course; to take place; 

to arise.”21 The definitions in another dictionary are: “1: to be 

found or met with: appear 2: to come into existence: happen 3: 

to come to mind.”22

The plain and ordinary reading of § 30-2408 indicates that 

a will may be probated only if no prior formal or informal 

proceeding for probate has occurred. The plain and ordinary 

reading of § 30-2408 does not indicate that the prior proceeding must have been completed. As a result, the district court 

did not err in determining that Jim’s application to probate 

Gilbert’s will was time barred.

District Court Did Not Err in Determining

That Jim Failed to Prove Elements

of Equitable Estoppel

[10] Equitable estoppel is a bar which precludes a party 

from denying or asserting anything to the contrary of those 

matters established as the truth by his or her own deeds, acts, 

or representations.23

[11] The elements of equitable estoppel are, as to the party 

estopped: (1) conduct which amounts to a false representation 

or concealment of material facts, or at least which is calculated 

to convey the impression that the facts are otherwise than, and 

inconsistent with, those which the party subsequently attempts 

to assert; (2) the intention, or at least the expectation, that 

such conduct shall be acted upon by, or influence, the other 

party or other persons; and (3) knowledge, actual or constructive, of the real facts.24 As to the other party, the elements are: 

(1) lack of knowledge and of the means of knowledge of the 

truth as to the facts in question; (2) reliance, in good faith, 

upon the conduct or statements of the party to be estopped; 

21 Black’s Law Dictionary 1080 (6th ed. 1990).

22 Merriam Webster’s Collegiate Dictionary 802 (10th ed. 2001).

23 Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).

24 Id.
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and (3) action or inaction based thereon of such a character 

as to change the position or status of the party claiming the 

estoppel, to his or her injury, detriment, or prejudice.25

The district court found that there was no evidence that 

anyone intentionally concealed the will from the family. More 

specifically, it found that there was no evidence presented 

to demonstrate the person or persons who sent the will to 

Joseph had any intention of illegally suppressing the will 

beyond the 3-year statute of limitations. As a result, the court 

found that Jim failed to meet his factual burden to show equitable estoppel.

The record before us indicates that Gilbert owned the two 

homes at the time of his death. It is undisputed that all of the 

parties had access to his homes before and/or after his death 

and that each of the children, with the assistance of others, 

searched the home for important documents, such as a will, 

deeds, or car titles.

All parties agree that Gilbert lacked an efficient filing system for his important documents. The evidence indicates that 

he had papers strewn about his home and that he often kept 

important documents in his vehicles.

Assuming, without deciding, that the 3-year statute of limitations can be equitably extended, Jim presented insufficient 

evidence to invoke the doctrine of equitable estoppel. No evidence was presented that the objectors committed any action 

which would have amounted to a false representation or concealment of the existence of Gilbert’s will; that the objectors 

had any knowledge, actual or constructive, of the existence of 

Gilbert’s will; or that the objectors had the intention, or at least 

the expectation, that the suppression of Gilbert’s will would 

influence Jim.

[12] Jim’s allegations of how the will was concealed and 

by whom are not sufficient to overcome the district court’s 

finding of summary judgment. Conclusions based on guess, 

25 Id.
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speculation, conjecture, or a choice of possibilities do not create material issues of fact for the purposes of summary judgment; the evidence must be sufficient to support an inference 

in the nonmovant’s favor without the fact finder engaging in 

guesswork.26 As a result, the denial of Jim’s claim of equitable 

estoppel was not error.

District Court Did Not Err in

Rejecting Jim’s Argument

of Equitable Tolling

[13-15] Jim also contends that the doctrine of equitable tolling should overcome the objectors’ motion for summary judgment. The doctrine permits a court to excuse a party’s failure 

to comply with the statute of limitations where, because 

of disability, irremediable lack of information, or other circumstance beyond his or her control, the plaintiff cannot be 

expected to file suit on time.27 Unlike the doctrine of equitable 

estoppel, equitable tolling requires no fault on the part of the 

defendant.28 Equitable tolling, however, does require due diligence on the part of the claimant.29

Jim is correct that we have considered the principle that a 

statute of limitations can be equitably tolled.30 In these cases, 

we were confronted with situations in which the claimant 

alleged that it was enjoined from bringing a claim by another 

court or governmental entity.

In Macke v. Jungels,

31 we held that it would be inequitable to 

allow the statute of limitations to run on a claim for damages 

26 Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).

27 Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996).

28 Id.

29 Id.

30 See Macke v. Jungels, 102 Neb. 123, 166 N.W. 191 (1918); Lincoln Joint 

Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943); and 

Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 276 Neb. 640, 756 

N.W.2d 280 (2008).

31 Macke, supra note 30.
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during the pendency of an action enjoining the defendant from 

bringing suit on that claim.

In Lincoln Joint Stock Land Bank v. Barnes,

32 defendants 

in a mortgage foreclosure appealed a decree of foreclosure in 

favor of the plaintiff. The foreclosure was commenced June 

7, 1928, and on December 17, 1930, the case was removed 

from the docket but remained pending with leave to reinstate 

pursuant to a federal court order restraining the plaintiff from 

proceeding further. The action was subsequently reinstated, 

and the defendants contended that the plaintiff was barred by 

the applicable statute of limitations. We concluded that the 

plaintiff having been restrained from proceeding further by a 

paramount authority, the period thereof should not be considered in computing the time for the statute of limitations to run 

and the plaintiff was not so barred.

In National Bank of Commerce v. Ham,

33 a bank filed an 

action against a defaulting borrower beyond the applicable 

statute of limitations. The bank argued that the statute of 

limitations had been tolled because the borrower had been 

subject to an automatic bankruptcy stay. We determined that 

equitable principles did not apply, because the bankruptcy 

code provided an extra 30 days to file an action if the claim 

expired before the automatic stay was lifted or the bankruptcy 

was dismissed. We found no inequity in requiring the bank to 

commence its action within 30 days following the termination 

or dismissal of the bankruptcy.

In Brodine v. Blue Cross Blue Shield,

34 an insured sued her 

insurance provider in federal court for benefits the provider 

had denied. While the federal case was pending, the 3-year 

statute of limitations in the contract expired. The federal 

action was ultimately dismissed by agreement of the parties. 

32 Barnes, supra note 30.

33 National Bank of Commerce v. Ham, 256 Neb. 679, 592 N.W.2d 477 

(1999).

34 Brodine v. Blue Cross Blue Shield, 272 Neb. 713, 724 N.W.2d 321 (2006).
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After the federal case was dismissed, the insured sued the 

insurer in state court. We concluded that that the applicable 

limitations period was not tolled during the pendency of the 

federal action.

In the instant case, Jim commenced the running of the 

statute of limitations by bringing the application for informal 

intestacy proceedings. In doing so, he alleged that after diligent search, no will was found, despite indications that he was 

aware Gilbert had a will. Further, he brought the application 

within 1 week of Gilbert’s death. It is difficult to believe that 

under the state of disarray of Gilbert’s homes and his lack of 

a filing system, any diligent search could have been completed 

within 1 week of his death. The record also shows that the 

objectors did not complete their efforts to clean out the house 

until well after the initial probate proceeding was implemented. 

Nothing in the record indicates that Jim was prevented from 

completing a more diligent search or awaiting the passage of 

additional time before he commenced his initial probate proceedings. Further, Jim was not prevented from bringing his 

subsequent claim by any paramount governmental authority. As 

a result, Jim is not entitled to an equitable tolling of the 3-year 

statute of limitations.

CONCLUSION

The trial court did not err by granting summary judgment in 

favor of the objectors.

Affirmed.