- 470 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

In re Estate of Nelda M. Akerson, deceased. 

Ronald E. Akerson, Personal Representative of 

the Estate of Nelda M. Akerson, deceased, 

appellee, v. Hamilton County, Nebraska, 

and Hamilton Manor Board of Trustees, 

appellants, and State of Nebraska, 

intervenor-appellee.

___ N.W.2d ___

Filed June 11, 2021. No. S-20-668.

1. Decedents’ Estates: Appeal and Error. In the absence of an equity 

question, an appellate court, reviewing probate matters, examines for 

error appearing on the record made in the county court.

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

appearing 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.

3. Wills: Trusts. The interpretation of the words in a will or a trust pre

sents a question of law.

4. Decedents’ Estates: Judgments: Appeal and Error. When reviewing 

questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

5. Decedents’ Estates: Appeal and Error. The probate court’s factual 

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

clearly erroneous.

6. Wills: Intent. The cardinal rule in construing a will is to ascertain and 

effectuate the testator’s intent if such intent is not contrary to the law.

7. ____: ____. To arrive at a testator’s or testatrix’s intention expressed in 

a will, a court must examine the will in its entirety, consider and liberally interpret every provision in the will, employ the generally accepted 

literal and grammatical meanings of words used in the will, and assume 

that the maker of the will understood words stated in the will.

Nebraska Supreme Court Online Library

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

08/13/2021 08:11 AM CDT
- 471 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

8. Wills: Charities. Courts will view with favor donations by will for 

charitable purposes, and will endeavor to carry them into effect, where 

the same can be done consistently with the rules of law.

9. Decedents’ Estates: Real Estate: Title. In Nebraska, title to both real 

and personal property passes immediately upon death to the decedent’s 

devisees or heirs, subject to administration, allowances, and a surviving 

spouse’s elective share.

10. Wills: Death. The provisions of a will take effect and become operative 

at the time of the death of the testator, unless the will expressly provides 

for vesting at a later time.

11. ____: ____. A will always speaks from the date of the testator’s death, 

because the testator could always modify the distributions prior to his or 

her death.

12. Wills: Interest: Time: Intent. Neb. Rev. Stat. § 30-24,102 (Reissue 

2016) provides that general pecuniary devises bear interest at the legal 

rate beginning 1 year after the first appointment of a personal represent

ative until payment, unless a contrary intent is indicated by the will.

13. Wills: Interest. A will is an instrument in writing. Therefore, when 

interest is required to be paid on a pecuniary devise pursuant to Neb. 

Rev. Stat. § 30-24,102 (Reissue 2016), the legal rate of interest called 

for is 12 percent per annum, as required by Neb. Rev. Stat. § 45-104 

(Reissue 2010).

Appeal from the County Court for Hamilton County: Frank 

J. Skorupa, Judge. Reversed and remanded with direction.

Andre R. Barry, Jennie A. Kuehner, and John F. Zimmer, 

of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for 

appellants.

Daniel E. Klaus and Timothy F. Clare, of Rembolt Ludtke, 

L.L.P., for appellee.

Douglas J. Peterson, Attorney General, and Shereece DendySanders for intervenor-appellee.

Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg, 

JJ.

Funke, J.

The probate court found that an $875,000 charitable bequest 

to a nursing home facility lapsed, and the court ordered the 
- 472 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

funds to be distributed to the residuary of the estate. Because 

we conclude that the bequest did not lapse, we reverse, and 

remand with direction.

BACKGROUND

Nelda M. Akerson was a lifelong resident of Hamilton 

County, Nebraska. She died in June 2017 at age 85. Her will, 

executed in June 2011, was admitted to probate in January 2018, 

and Ronald E. Akerson (Ronald), the nephew of Akerson’s late 

husband, was appointed personal representative for the estate. 

The residuary of Akerson’s estate was divided one half to 

Ronald and one half to various other relatives. The relevant 

article of Akerson’s will stated:

I give the sum of Eight Hundred Seventy-five Thousand 

and no/100 Dollars ($875,000.00) to HAMILTON 

MANOR, Aurora, Nebraska, for its unrestricted use, as 

determined by its Board of Directors.

The charitable bequests in this paragraph shall bear no 

portion of the costs of administration nor estate or inher

itance tax.

Hamilton Manor was a nursing home facility in Aurora, 

Nebraska, owned by Hamilton County and operated through 

the Hamilton Manor Board of Trustees (board of trustees), 

under Neb. Rev. Stat. § 23-3501 et seq. (Reissue 2012 & Cum. 

Supp. 2020). In 1963, the voters of Hamilton County approved 

a bond issue for the construction of the nursing home. The 

facility opened in 1965. According to an affidavit submitted 

by Ronald, Akerson wanted to gift money to Hamilton Manor, 

because she appreciated the rehabilitation services she and her 

sister received there.

In 2009, Hamilton Manor experienced financial difficulties. The board of trustees explored the possibility of changing 

Hamilton Manor’s operating structure to a “501(c)(3) nonprofit” corporation in an effort to raise additional funds for the 

facility. In August 2009, articles of incorporation for an entity 

named “Hamilton Manor Rehabilitation & Care Center” (the 

corporation) were filed with the Nebraska Secretary of State. 
- 473 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

The purpose of the corporation was to “construct, maintain[,] 

and promote a nursing home and elderly care facility in Aurora 

. . . and to promote services for senior citizens in Hamilton 

County.” The board of trustees ultimately decided not to convert Hamilton Manor to a nonprofit corporation, and as such, 

Hamilton Manor remained owned by Hamilton County.

Around 2012, Hamilton County began loaning money to 

Hamilton Manor to aid in its operation. By July 2016, Hamilton 

County had loaned Hamilton Manor a total of $925,500. On 

July 22, 2016, Hamilton County executed loan extension agreements with “Hamilton Manor Rehabilitation and Care Center,” 

“a County owned Nursing Home Facility, located in Aurora, 

Hamilton County, Nebraska.” Per the agreements, the loans 

were due on July 22, 2021.

Due to Hamilton Manor’s continued financial difficulties, 

Hamilton County and the board of trustees sought alternative 

solutions. In December 2016, Hamilton County and Hamilton 

Manor, through its board of trustees, entered into a “Consulting 

and Bed Transfer Agreement” (the Agreement) with Quality 

Care Solutions, LLC (QCS), a Nebraska for-profit company 

principally located in Aurora. Under the Agreement, QCS 

was to construct a new nursing home in Aurora by March 1, 

2018. The initial consulting phase of the project in which QCS 

agreed to consult with Hamilton Manor on the day-to-day 

operations of the facility was to continue until the new facility became operational, at which point Hamilton Manor would 

transfer its licenses to operate 60 nursing home beds to QCS. 

The Agreement stated that the board of trustees “intend[ed] to 

continue to operate and manage the [nursing facility] until such 

time as [QCS] has constructed a new 60-bed nursing home” 

and that “Hamilton Manor shall continue to be licensed as a 

nursing facility and certified for participation in the Medicare 

and Medicaid programs in the name of and under the authority of Hamilton Manor and the [board of trustees].” The board 

of trustees agreed to close its facility and cease all operations 

upon the opening of the new facility. Hamilton County agreed 
- 474 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

to demolish the old nursing home building within a reasonable time following the opening of the new facility and to not 

operate a senior care facility on the property for 20 years. The 

Agreement would terminate upon mutual agreement of the 

parties, a material breach of the agreement by either party, or 

QCS’ inability to obtain the necessary regulatory approval or 

declaration of bankruptcy.

As of June 6, 2017, Hamilton Manor continued to operate as 

a skilled nursing facility. Thereafter, QCS completed construction of the new facility, consistent with the March 2018 timeline provided under the Agreement. By April 2018, Hamilton 

County ceased operating Hamilton Manor and transferred its 

bed licenses to QCS. Hamilton County demolished Hamilton 

Manor, and on June 27, 2019, sold the real property on which 

Hamilton Manor sat for $275,000. The board of trustees continues to exist and operates a separate checking account in the 

name of Hamilton Manor for the purpose of winding up the 

nursing home business.

As noted, Akerson died in June 2017. Her will was admitted to probate in January 2018. In the fall of 2018, Ronald, 

as personal representative, recognized the $875,000 charitable 

bequest to Hamilton Manor in the estate’s federal estate tax 

and Nebraska inheritance tax filings. On the federal estate 

tax return, Ronald asserted that there were no plans to contest 

or have interpreted any of the charitable devises made under 

the will. In the inheritance tax filing, Ronald listed Hamilton 

Manor as a charitable beneficiary of Akerson’s estate in the 

amount of $875,000. But in September 2019, Ronald petitioned the probate court of Hamilton County for construction 

of Akerson’s will, asking that the court find the charitable 

bequest to Hamilton Manor had failed and order the proceeds 

to be administered as part of the residue of the estate. Ronald’s 

petition incorrectly stated that Hamilton Manor was a nonprofit 

corporation. Hamilton County and the board of trustees filed a 

response stating that they owned and operated Hamilton Manor 

and claiming that the bequest vested upon Akerson’s death. 
- 475 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

Pursuant to Neb. Rev. Stat. § 30-2342.01 (Reissue 2016), the 

State of Nebraska intervened on the side of Hamilton County 

and the board of trustees.

The matter was tried to the county court on stipulated facts. 

On August 14, 2020, the court issued its written order finding 

that the bequest to Hamilton Manor lapsed. The court found 

that on December 1, 2016, approximately 6 months prior to 

Akerson’s death, Hamilton County and the board of trustees 

entered into the Agreement with QCS. The court found that 

in April 2018, Hamilton Manor ceased operating as a nursing home facility. The court found that “the bequest was not 

to the [c]orporation,” because Akerson “did not specifically 

identify any corporation in the bequest to Hamilton Manor.” 

But then, the court found that the purpose of the corporation 

was to “‘construct, maintain and promote a nursing home and 

elderly care facility in Aurora, Hamilton County, Nebraska,’” 

and that “[w]hen the [c]orporation entered into the Agreement, 

that specific purpose no longer existed.” The court quoted 

language from In re Estate of Harrington,

 1 stating that “‘the 

bequest at bar was in effect a gift to the objects and purposes 

of plaintiff corporation, and not to the corporation itself.’” 

The court found that “prior to [Akerson’s] death, Hamilton 

Manor ceased to exist.” The court ordered the $875,000 to be 

distributed to Akerson’s heirs in accordance with the will’s 

residuary clause.

Hamilton County and the board of trustees filed this timely 

appeal. We moved this case to our docket on our motion.

ASSIGNMENTS OF ERROR

Hamilton County and the board of trustees assign, restated, 

that the probate court erred in (1) finding that the bequest 

lapsed when Hamilton Manor was operating on the date of 

death, although there was an agreement in place under which 

the facility would close at a future date; (2) distributing the 

1 In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949).
- 476 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

bequest under the will’s residuary clause, in contravention 

of § 30-2342.01; and (3) failing to distribute the bequest to 

Hamilton County and the board of trustees with interest under 

Neb. Rev. Stat. § 30-24,102 (Reissue 2016).

STANDARD OF REVIEW

[1,2] In the absence of an equity question, an appellate 

court, reviewing probate matters, examines for error appearing on the record made in the county court. 2 When reviewing 

a judgment for errors appearing 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. 3

[3,4] The interpretation of the words in a will or a trust 

presents a question of law. 4 When reviewing questions of law 

in a probate matter, an appellate court reaches a conclusion 

independent of the determination reached by the court below. 5

[5] The probate court’s factual findings have the effect of a 

verdict and will not be set aside unless clearly erroneous. 6

ANALYSIS

Devise Did Not Lapse

The issues for disposition are whether the probate court 

erred in finding that the charitable bequest to Hamilton Manor 

lapsed and, if so, whether Hamilton County and the board of 

trustees, as the political subdivisions that own and operate 

Hamilton Manor, are entitled to interest.

Initially, we note that Akerson’s will bequeathed the monies 

to “HAMILTON MANOR . . . for its unrestricted use, as determined by its Board of Directors.” However, the record is clear 

2 In re Estate of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

3 Id.

4 Id.

5 Id.

6 Id.
- 477 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

that Hamilton Manor is operated by a board of trustees as is 

required by statute. Despite this misnomer, none of the parties 

dispute that Hamilton Manor is the beneficiary identified by 

Akerson under the relevant will provision. Additionally, though 

the probate court indicated in its order that the corporation 

entered into the Agreement with QCS, the record clearly shows 

that Hamilton Manor through its board of trustees was party to 

the Agreement, and not the corporation.

The predominating issue for resolution is whether the 

Agreement caused the bequest to Hamilton Manor to lapse 

prior to Akerson’s death. If a beneficiary organization has 

ceased to exist at the time the will goes into effect, the legacy 

lapses. 7

Hamilton County and the board of trustees argue that 

because Hamilton Manor was actively operating as a nursing home on the date of Akerson’s death, the devise vested 

on that date, and that such vesting was not invalidated by the 

terms of the Agreement that Hamilton Manor would close at 

a future date. The State agrees with Hamilton County and the 

board of trustees and argues that pursuant to the provisions 

of Akerson’s will, Akerson intended Hamilton Manor, by and 

through Hamilton County and the board of trustees, to receive 

the $875,000. Hamilton County, the board of trustees, and the 

State argued in the alternative that if the bequest did lapse, 

then the court should apply the doctrine of cy pres and award 

the funds to a similar charity in Hamilton County rather than 

to Akerson’s heirs.

Ronald argues that the court correctly found that the 

Agreement rendered the bequest to Hamilton Manor ineffectual. Ronald contends that on the date of Akerson’s death, 

Hamilton Manor was no longer carrying out the charitable 

objectives and purposes for which the bequest was given, and 

that the bequest’s failure is akin to the failure of a condition 

subsequent.

7 In re Estate of Joseph, 62 N.Y.S.2d 197 (1946); In re Matter of Walker, 

185 Misc. 1046, 53 N.Y.S.2d 106 (1944).
- 478 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

[6-8] Resolution of this matter is dictated by the intent of 

Akerson under her will, as well as provisions of the Nebraska 

Probate Code. 8 The cardinal rule in construing a will is to 

ascertain and effectuate the testator’s intent if such intent is not 

contrary to the law. 9 Section 30-2341 states: “The intention of 

a testator as expressed in [her] will controls the legal effect of 

[her] dispositions.” To arrive at a testator’s or testatrix’s intention expressed in a will, a court must examine the will in its 

entirety, consider and liberally interpret every provision in the 

will, employ the generally accepted literal and grammatical 

meanings of words used in the will, and assume that the maker 

of the will understood words stated in the will. 10 Courts will 

view with favor donations by will for charitable purposes, and 

will endeavor to carry them into effect, where the same can be 

done consistently with the rules of law. 11

Initially, we establish that Akerson’s will created a gift, or 

devise, to Hamilton Manor that is charitable in nature. Under 

the relevant provision, Akerson gave $875,000 to Hamilton 

Manor, “for its unrestricted use.” Immediately thereafter, 

Akerson referred to the devise to Hamilton Manor, and other 

devises contained in the same article, as “charitable bequests.” 

Additionally, under Nebraska law, nonprofit nursing homes are 

classified as charitable institutions. 12 Thus, Akerson intended to 

leave $875,000 to Hamilton Manor as a charitable gift.

8 Neb. Rev. Stat. §§ 30-401 to 30-406, 30-701 to 30-713, 30-2201 to 

30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, and 30-4201 to 

30-4210 (Reissue 2016 & Cum. Supp. 2020).

9 In re Estate of Barger, supra note 2; In re Estate of Johnson, 260 Neb. 91, 

615 N.W.2d 98 (2000).

10 Id.

11 Allebach v. City of Friend, 118 Neb. 781, 226 N.W. 440 (1929); Gould v. 

Board of Home Missions, 102 Neb. 526, 167 N.W. 776 (1918); St. James 

Orphan Asylum v. Shelby, 60 Neb. 796, 84 N.W. 273 (1900). See Garwood 

v. Drake University, 188 Neb. 605, 198 N.W.2d 336 (1972).

12 Bethesda Foundation v. County of Saunders, 200 Neb. 574, 264 N.W.2d 

664 (1978); Evangelical Lutheran Good Samaritan Soc. v. County of 

Gage, 181 Neb. 831, 151 N.W.2d 446 (1967).
- 479 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

We next determine whether the charitable gift lapsed. The 

undisputed timeline is that Hamilton County and the board of 

trustees entered into the Agreement on December 1, 2016. The 

Agreement provided for consultation services, the construction of a new nursing facility, and the closing of Hamilton 

Manor, all by March 2018. Akerson died on June 6, 2017. 

The Agreement came to fruition in April 2018, at which time 

Hamilton Manor closed and transferred its bed licenses to 

QCS. Under this set of facts, in accordance with well-settled 

Nebraska law, we conclude that Akerson’s gift to Hamilton 

Manor vested on the date of her death.

[9-11] In Nebraska, title to both real and personal property 

passes immediately upon death to the decedent’s devisees or 

heirs, subject to administration, allowances, and a surviving 

spouse’s elective share. 13 The provisions of a will take effect 

and become operative at the time of the death of the testator, 

unless the will expressly provides for vesting at a later time. 14

“‘[T]he prevailing rule is that the fact that a [charitable] 

organization named as a beneficiary in a will discontinues 

its active functions after the execution of the will does 

not impair its right to take the gift so long as its identity, 

whether corporate or associative, continues without dissolution until the death of the testator.’” 15

A will always speaks from the date of the testator’s death, 

because the testator could always modify the distributions prior 

to his or her death. 16

13 § 30-2401; Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

14 See, In re Estate of Barger, supra note 2; Carr v. Carr, 173 Neb. 189, 112 

N.W.2d 786 (1962); Covenant Presbytery v. First Baptist Church, 2016 

Ark. 138, 489 S.W.3d 153 (2016).

15 In re Estate of Lind, 314 Ill. App. 3d 1055, 1058, 734 N.E.2d 47, 49, 248 

Ill. Dec. 339, 341 (2000). See, also, In re Boston Regional Medical Center, 

Inc., 410 F.3d 100 (2005) (applying Massachusetts law); In re Estate of 

MacPherson, 14 Cal. App. 3d 450, 92 Cal. Rptr. 574 (1970); Old Colony 

Trust Co. v. Winchester Home, 324 Mass. 258, 85 N.E.2d 622 (1949).

16 In re Estate of Barger, supra note 2.
- 480 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

At the time of Akerson’s death, Hamilton Manor still operated as a skilled nursing facility and was capable of receiving 

the gift. Section 23-3504(2) states that a board of trustees 

appointed by a county board “[m]ay accept property by gift, 

devise, bequest, or otherwise and may carry out any conditions connected to the receipt of any gift, devise, or bequest.” 

However, the fact that Hamilton Manor was capable of receiving the gift does not end our analysis. An organization must 

also be capable of using the charitable gift for its intended 

purpose and be willing to do so. 17

The language used by Akerson in her will leads us to conclude that she made the gift with a general charitable purpose 

to benefit Hamilton Manor. In ascertaining Akerson’s intent, 

we note that Akerson gifted Hamilton Manor the funds “for 

its unrestricted use, as determined by its [board of trustees].” 

In doing so, Akerson used no words of qualification or limitation, nor did she provide for an alternative disposition of the 

gift should Hamilton Manor cease to exist. These absences 

qualify as evidence of a general charitable intent. 18 Further, the 

Restatement (Third) of Trusts states that charitable purposes 

include the promotion of health, governmental or municipal 

purposes, and other purposes that are beneficial to the community. 19 Nonprofit nursing homes and hospitals classify as charitable institutions. 20 Therefore, so long as Hamilton Manor was 

willing and able, at the time of Akerson’s death, to use the charitable gift for the general promotion of health and governmental 

services in Hamilton County, then the gift would not lapse.

Here, as of the date of Akerson’s death, even though Hamilton 

Manor was scheduled to close approximately 9 months later, it 

is uncontested that Hamilton Manor still provided the services 

17 In re Boston Regional Medical Center, Inc., supra note 15.

18 Wood v. Lincoln General Hospital Assn., 205 Neb. 576, 288 N.W.2d 735 

(1980).

19 Restatement (Third) of Trusts § 28 (2003).

20 See, Bethesda Foundation, supra note 12; Evangelical Lutheran Good 

Samaritan Soc., supra note 12; Allebach, supra note 11.
- 481 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

of a skilled nursing facility. As such, the Agreement did not 

prevent Hamilton Manor from carrying out the general charitable objectives and purposes of the gift. As Hamilton County 

and the board of trustees point out, the Agreement established 

that Hamilton Manor intended to continue its normal operations until construction of a new 60-bed nursing facility was 

completed. The Agreement contemplated the possibility that 

construction of the new facility could not be completed and 

that the Agreement could be terminated.

Even if we assume for purposes of argument that termination 

was unlikely, and the facts regarding the Agreement supported 

the probate court’s conclusion that the charitable purposes 

of the gift became impossible to achieve, the Legislature has 

determined that a charitable gift will not fail under such circumstances. Section 30-2342.01(a) states that “no gift, devise 

. . . for . . . charitable, or benevolent purposes, which in other 

respects is valid under the laws of this state, shall be invalid 

or fail . . . by reason that it is . . . impossible to achieve.” In 

the words of § 30-2342.01(b), this court should “determine 

and order an administration or distribution of the gift [or] 

devise . . . in a manner as consistent as possible with the intent 

expressed in the document creating the gift [or] devise.”

“Legacies and devises to the uses of charity are entitled 

to peculiar favor and are regarded as privileged testaments, and will not be declared void if they can by any 

possibility, consistent with law, be considered as good. So 

courts of equity go to the length of their judicial power 

rather than that such a trust should fail.” 21

Favorably viewing Akerson’s charitable gift and endeavoring 

to carry it into effect, we conclude that under the undisputed 

facts, the gift did not fail, nor did it become impossible to 

execute in strict accordance with the charitable purposes and 

objectives of Akerson’s will. 22

21 Allebach, supra note 11, 118 Neb. at 787, 226 N.W. at 442.

22 See Wood, supra note 18, citing Trustees of Dartmouth College v. Quincy, 

357 Mass. 521, 258 N.E.2d 745 (1970). See, also, Garwood, supra note 11.
- 482 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

In finding that the gift lapsed, the probate court relied upon 

In re Estate of Harrington,

 23 but the case is distinguishable 

due to the language used in that will. In that case, the question 

before the court was whether a seminary was in existence on 

the date of the death of the testatrix within the meaning of the 

provisions of her will. In the part of the will in controversy, 

the testator devised property to the seminary “‘if in existence; 

but if not in existence at the death of the survivor of said 

testators,’” then to a church. 24 The seminary discontinued all 

theological education 3 years prior to the testatrix’s death, but 

remained an existing legal entity at the time of her death. The 

court held that the seminary was nonfunctioning at the time 

of the testatrix’s death and could not carry out the objects and 

purposes of the gift. But the court stated that the issue was not 

whether the gift had lapsed, because the testatrix provided for 

a contingency by giving the gift to a church.

In the present case, there is no language in Akerson’s will 

requiring that Hamilton Manor still be in existence at the time 

of her death. Even if there were such a provision, it would be 

satisfied because Hamilton Manor was in existence and operational on the date of Akerson’s death. Further, the recipients of 

the gift are “political subdivision[s] of the state of Nebraska, 

and the end of [their] existence cannot be safely asserted or 

even foreseen.” 25 Therefore, we disagree with the probate 

court’s conclusion that Hamilton Manor ceased to exist as of 

Akerson’s death. In fact, Hamilton Manor, as Akerson knew it, 

did exist at her death. And the board of trustees still maintains 

an active account for Hamilton Manor.

Ronald argues that the closing of Hamilton Manor a short 

time after Akerson’s death is similar to a breach of a condition 

subsequent, which was an argument at issue in Allebach v. 

City of Friend.

 26 However, Ronald’s argument is inapplicable 

23 In re Estate of Harrington, supra note 1.

24 Id. at 91, 36 N.W.2d at 582.

25 Allebach, supra note 11, 118 Neb. at 789-90, 226 N.W. at 443.

26 Allebach, supra note 11.
- 483 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

based on the language of the will at issue in Allebach. In that 

case, the testator gifted $10,000 to the city of Friend “‘to be 

used for the erection of a hospital.’” 27 The money was placed 

in a separate fund and was not used for the erection of a hospital within 4 years of receipt. The residuary beneficiary filed 

a petition contending that the city had forfeited the gift. In 

construing the will, the court found that the instruction to use 

the money to erect a hospital amounted to a condition subsequent, which must be carried out within a reasonable period of 

time. The court noted that a protracted delay in carrying out 

the purposes of the gift could amount to a refusal and cause 

the gift to revert. Ultimately, the court affirmed dismissal 

of the petition, finding that consummation of the purpose of 

the gift had not been delayed for an unreasonable amount 

of time.

In the present case, however, Akerson’s gift to Hamilton 

Manor was unconditional, save for the requirement that the 

money be used for the facility’s general charitable purposes. 

The Agreement did not make it impossible for Hamilton Manor 

to carry out Akerson’s intent. Therefore, there is merit to 

Hamilton County and the board of trustees’ argument that the 

probate court erred in finding that the gift to Hamilton Manor 

lapsed. Because the gift can be carried out in accordance with 

Akerson’s intent, we do not need to consider the application of 

the doctrine of cy pres. 28

Interest

[12,13] Section 30-24,102 provides that general pecuniary 

devises bear interest at the legal rate beginning 1 year after the 

first appointment of a personal representative until payment, 

unless a contrary intent is indicated by the will. A will is an 

instrument in writing. Therefore, when interest is required to 

be paid on a pecuniary devise pursuant to this section, the legal 

rate of interest called for is 12 percent per annum, as required 

27 Id. at 783, 226 N.W. at 440.

28 See Allebach, supra note 11.
- 484 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

by Neb. Rev. Stat. § 45-104 (Reissue 2010). 29 In this case, 

Ronald was appointed personal representative on January 5, 

2018. As personal representative, Ronald recognized Hamilton 

Manor as a charitable beneficiary in the estate’s federal estate 

tax and Nebraska inheritance tax filings in the fall of 2018. The 

bequest to Hamilton Manor began bearing interest on January 

5, 2019. Ronald filed a petition for construction of will on 

September 27, 2019.

Ronald argues that a beneficiary’s right to interest is qualified. We have stated that charging a personal representative 

with interest would be inequitable when the delay in payment 

is caused by a will contest or through other litigation which 

prevents speedy distribution of the estate. 30 A personal representative is not ordinarily chargeable with interest, at least 

until a reasonable time has elapsed after the will contest or 

other litigation has been completed. 31 Hamilton County and 

the board of trustees argue that this exception is judicially created. However, they have not asked this court to overrule any 

precedent.

We agree with Hamilton County and the board of trustees 

that pursuant to the ordinary operation of § 30-24,102, an 

award of interest is appropriate in this case. The only evidence 

of delay in our record was caused by Ronald’s petition for 

construction of the will. Ronald had previously asserted in tax 

filings that the charitable bequest to Hamilton Manor would 

be unchallenged. In his petition, Ronald requested the court 

to find that the distribution to Hamilton Manor had failed 

and to order that the proceeds be administered as part of the 

residuary of the estate, of which Ronald held a one-half interest. Ronald alleged that this would be most consistent with 

Akerson’s intent, even though it is clear that Akerson intended 

to make this gift to charity and did not provide a provision for 

29 In re Estate of Peterson, 230 Neb. 744, 433 N.W.2d 500 (1988).

30 In re Estate of Kierstead, 128 Neb. 654, 259 N.W. 740 (1935).

31 In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989).
- 485 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE ESTATE OF AKERSON

Cite as 309 Neb. 470

an alternative disposition. Furthermore, we are observant of the 

provision in Akerson’s will in which she stated that she did not 

desire “any person whomsoever” to “in any way, directly or 

indirectly, [to] contest . . . the distribution of my estate for any 

reason.” Therefore, even if Ronald’s contention that the gift 

had lapsed was of pure intent, the law and the facts direct us to 

hold Ronald responsible to Hamilton County and the board of 

trustees for interest.

CONCLUSION

For the foregoing reasons, the decision of the probate court 

should be and is hereby reversed and the cause is remanded 

with direction to order that Akerson’s $875,000 charitable 

bequest be distributed to Hamilton County and the board of 

trustees, with interest accruing at 12 percent per annum commencing January 5, 2019.

Reversed and remanded with direction.

Miller-Lerman, J., participating on briefs.

Papik, J., not participating.