Chebatoris v. Moyer

by an appropriate objection during trial.14 during his cross-
examination of m.C., Schmidt’s counsel did not ask specific
questions pertaining to possible prior abuse by other persons,
but he did elicit m.C.’s admission that she understood the dif-
ference between appropriate and inappropriate touching by
an adult long before she reported abuse by Schmidt. during
his cross-examination of K.S., Schmidt’s counsel was able to
elicit her testimony regarding prior inappropriate touching by
a cousin, over the State’s relevance objection. Thus, Schmidt’s
counsel was able to confront m.C. and K.S. with certain evi-
dence which was the subject of the State’s motion in limine.
Based upon the principles discussed above, we agree with
the reasoning and conclusion of the Court of Appeals that the
district court’s ruling on the State’s motion in limine, and its
subsequent reaffirmance of that ruling in response to evidence
offered by Schmidt in his case in chief, did not deprive Schmidt
of his constitutional right of confrontation.
IV. CONCLUSION
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals affirming the convictions and sen-
tences entered by the district court.
A ffirmEd .
14 State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v.
Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
dAvid v. chEbAtoris , spEciAl A dministrAtor of thE
E stAtE of shAron l. moyEr , dEcEAsEd , AppEllAnt ,
v . J ohn brAdlEy moyEr Et Al ., AppEllEEs .
757 N.W.2d 212
Filed November 7, 2008. 	No. S-07-892.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appel-
late court resolves the questions of law independently of the trial court’s
conclusions.
4. Conveyances: Deeds. A conveyance of land may occur in a document that is not
formally drafted as a deed.
5. Deeds: Parties: Intent. The duty of the Nebraska Supreme Court with respect to
a deed of land is to carry out the true intent of the parties.
6. Conveyances: Parties: Intent. The particular words of a conveyance are unim-
portant if the intention of the parties can be determined.
7. Conveyances: Parties: Intent: Equity. In construing instruments conveying
property, equity concerns itself with the substance and not the form of the trans-
action, and the particular form or words of a conveyance are unimportant if the
intention of the parties can be ascertained.
8. Contracts. A court is required to construe a document as a whole and to give
effect to each part, if possible.
Appeal from the district Court for Otoe County: rAndAll l.
rEhmEiEr, Judge. Affirmed.
Timothy 	J. 	Buckley, 	of 	Adams 	& 	Sullivan, 	P.C., 	for
appellant.
Joseph F. Bachmann and Jeanette Stull, of Perry, Guthery,
haase & Gessford, P.C., L.L.O., for appellees.
hEAvicAn , 	c.J., 	W right , 	connolly , 	gErrArd , 	stEphAn ,
mccormAck , and millEr -lErmAn , JJ.
hEAvicAn, C.J.
I. INTROdUCTION
david V. Chebatoris, special administrator for the estate of
Sharon L. moyer (moyer), appeals the decision of the district
court for Otoe County, Nebraska. The underlying dispute
arose over moyer’s creation of a revocable trust. The special
administrator alleged that moyer had not properly transferred
ownership of her real and personal property to the trust and
that the property should instead be considered part of the intes-
tate estate. The district court determined that the property had
been transferred to the trust by the trust document itself, and
granted summary judgment to John Bradley moyer (Brad) and
daniel moyer (dan). We affirm.
734 	276 NeBRASKA RePORTS

II. BACKGROUNd
On October 8, 2004, moyer, the decedent, created a revo-
cable living trust, with Ron moyer (Ron) as cotrustee. moyer
died intestate November 15. The declaration of trust was filed
with the Otoe County register of deeds on december 14.
moyer purported to fund the trust with both real and personal
property that she had described in “Appendix ‘A’” attached to
the trust document.
Paragraph 1.3 of the trust document states that “SeTTLOR
desires to create a trust and is concurrently herewith trans-
ferring certain properties to this trust which are set forth
on Appendix ‘A’ attached hereto.” Paragraph 1.4 states that
“TRUSTee agrees to hold the property described on Appendix
‘A’ together with all investments, reinvestments and additions
thereto in trust in accordance with the provisions of this
Agreement.” Appendix “A” describes three parcels of land, two
in Otoe County, Nebraska, and one in Iowa, and lists a variety
of personal effects, including bank accounts. The trust instru-
ment also gave detailed instructions as to the distribution of the
trust property upon the death of the settlor, moyer.
The trust document named moyer’s three sons as benefi-
ciaries. Brad was the named beneficiary of the real estate in
Nebraska, and dan was to receive all of the tools, equipment,
and machinery included in the trust assets and used in the agri-
cultural operation at the time of moyer’s death, as well as most
of the land in Iowa. A third son, Chris moyer, was to receive a
tract of land in Iowa if he could fulfill certain requirements set
forth in the trust document. The disposition of the Iowa land is
not at issue in this case.
After moyer’s death, the special administrator was appointed
to administer moyer’s intestate estate. meanwhile Ron, acting
in accordance with the trust document, sold the land in Otoe
County to Brad on September 19, 2005. The deed was filed
with the Otoe County register of deeds on November 2. Brad
then conveyed the real property to db Ag Land, LLC, and that
deed was also filed on November 2. Brad and dan also took
possession of moyer’s personal property.
The special administrator filed a claim in equity on October
5, 2006, alleging that neither the real property nor the personal
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property described in the trust document had been properly
conveyed by the settlor to the trustee and that therefore the
trust was wholly unfunded upon moyer’s death. If true, all
property mentioned in the trust document would be a part of
the intestate estate.
The special administrator requested that the district court
impose a constructive trust on defendants and require an
accounting for any income received from the property, and
also requested that the court quiet title to the real property
in Otoe County. The special administrator also asked that the
court require dan and Brad to turn over any of moyer’s per-
sonal property in their possession. defendants cross-claimed,
stating that the instrument of trust effectively conveyed the
real and personal property to the cotrustees. defendants moved
for summary judgment, and the special administrator did
the same.
The district court ultimately sustained defendants’ motion
for summary judgment, relying on the definition of a deed
contained in Neb. Rev. Stat. § 76-203 (Reissue 2003) and the
methods for creating a trust under Neb. Rev. Stat. § 30-3827
(Reissue 2003). The court determined that under those statutes,
the trust agreement acted as, and was sufficient to constitute,
a deed of conveyance. having determined that the trust instru-
ment properly conveyed both real and personal property, the
district court sustained defendants’ cross-claim and quieted title
in the Otoe County real estate to db Ag Land.
III. ASSIGNmeNTS OF eRROR
The special administrator assigns that the district court erred
in finding that (1) the “Sharon L. moyer Revocable Trust”
document was sufficient to convey legal title to moyer’s real
property to the trustee of the trust and (2) the trust document
was sufficient to transfer moyer’s personal property to the
trustee of the trust.
IV. STANdARd OF ReVIeW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
736 	276 NeBRASKA RePORTS

drawn from those facts and that the moving party is entitled to
judgment as a matter of law.1
[2,3] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence.2 When reviewing questions of law, an appellate
court resolves the questions of law independently of the trial
court’s conclusions.3
V. ANALYSIS
1. trAnsfEr of rEAl propErty to trust
[4] We first turn to the question of whether the Sharon L.
moyer Revocable Trust document was sufficient to convey
legal title to moyer’s real property to the trustee of the trust.
A conveyance of land may occur in a document that is not
formally drafted as a deed.4 In Matter of Estate of Severson,5
the Iowa Supreme Court stated that “[t]he fact that an instru-
ment is not captioned ‘deed’ does not deprive it of legal effect
as a conveyance of real estate, provided it is otherwise valid
as such a conveyance.” The court noted that any writing may
be effective as a legal conveyance if it names the grantor
and grantee, contains words of grant, describes the land, and
is delivered.6
Although the transfer of real property would have been
best memorialized by a separate document, we nevertheless
1 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
2 Id.
3 See Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).
4 See, Jorgensen v. Crandell, 134 Neb. 33, 277 N.W. 785 (1938); Neneman
v. Rickley, 110 Neb. 446, 194 N.W. 447 (1923). See, also, Samuel v. King,
186 Or. App. 684, 64 P.3d 1206 (2003); In re Estate of Powell, 83 Cal.
App. 4th 1434, 100 Cal. Rptr. 2d 501 (2000); Taliaferro v. Taliaferro, 260
Kan. 573, 921 P.2d 803 (1996); Matter of Estate of Severson, 459 N.W.2d
473 (Iowa 1990).
5 Matter of Estate of Severson, supra note 4, 459 N.W.2d at 476.
6 Id.
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conclude that moyer’s trust agreement operates as a deed trans-
ferring real property. Section 76-203 defines a deed as “every
instrument in writing by which any real estate or interest
therein is created, aliened, mortgaged or assigned, or by which
the title to any real estate may be affected in law or equity.”
Neb. Rev. Stat. § 76-211 (Reissue 2003) lists the minimal
requirements for an instrument to qualify as a deed, including
that it be signed by the grantor or grantors, and be acknowl-
edged or proved and recorded.
moyer’s 	trust 	document 	satisfies 	each 	of 	the 	statutory
requirements for a deed of real property. moyer signed the
trust agreement as the settlor of the trust, thus satisfying the
requirement of signature by the grantor of the property. moyer
and Ron also signed the agreement as cotrustees, indicat-
ing their acceptance of the trusteeship. The agreement was
acknowledged by a notary public and was filed with the regis-
ter of deeds, albeit after moyer’s death.
The trust agreement also purports to affect interests in
land, as required by § 76-203, by stating in paragraph 1.3 that
“SeTTLOR desires to create a trust and is concurrently here-
with transferring certain properties to this trust which are set
forth on Appendix ‘A’ attached hereto.” Although the special
administrator contends that this language is insufficient to
demonstrate the settlor’s present intent to convey the property,
we find this argument unpersuasive. The language of the trust
document is unambiguous and clearly demonstrates that moyer
desired to transfer her property to the trust.
(a) equitable Principles Apply
[5-7] We find further support for our conclusion in equity.
The duty of this court is to carry out the true intent of the par-
ties.7 The particular words of a conveyance are unimportant if
the intention of the parties can be determined.8 In construing
instruments conveying property, equity concerns itself with
the substance and not the form of the transaction, and the
7 Mackiewicz v. J.J. & Associates, 245 Neb. 568, 514 N.W.2d 613 (1994).
8 Koehn v. Koehn, 164 Neb. 169, 81 N.W.2d 900 (1957).
738 	276 NeBRASKA RePORTS

particular form or words of a conveyance are unimportant
if the intention of the parties can be ascertained.9 As noted
by the trial court, moyer’s intent was clearly to transfer the
property listed in Appendix “A” to the trust. We find that no
ambiguity exists in the trust document as to moyer’s wishes,
and that equitable principles support our determination that
the trust document was sufficient to transfer the real property
to the trust.
(b) Special Administrator’s Objections
The special administrator also contends, however, that the
trust document cannot act as a deed for two reasons: (1)
because a separate deed is necessary where the settlor is not
the sole trustee and (2) because the trust document fails to
name a grantee. We find the special administrator’s argu-
ments unpersuasive.
(i) Trust Document Fulfills Requirements
of Separate Deed
The special administrator acknowledges that it is not nec-
essary to transfer legal title to the trustee when the settlor is
the sole trustee, but contends that because moyer designated
a cotrustee, legal title in the real property should have been
reregistered in their names as cotrustees. As concluded above,
however, the trust document acted as a deed conveying prop-
erty, and legal title was transferred to the trust in the names of
moyer and Ron, the cotrustees.
(ii) Trust Document Does Not Fail
to Name Grantee
[8] The special administrator has also argued that because
paragraph 1.3 does not name the trustee as the grantee of the
property, the trust fails to convey legal title. however, a court
is required to construe a document as a whole and to give
effect to each part, if possible.10 Again, paragraph 1.3 provides
that “SeTTLOR desires to create a trust and is concurrently
9 Mackiewicz v. J.J. & Associates, supra note 7.
10 See In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004).
CheBATORIS v. mOYeR 	739
Cite as 276 Neb. 733

herewith transferring certain properties to this trust which are
set forth on Appendix ‘A’ attached hereto.” Paragraph 2.1 states
that “[t]he TRUSTee of this trust shall be: Appointee: Sharon
L. moyer and Ron moyer, as Co-Trustees.” Clearly, moyer’s
intention was to transfer the property listed on Appendix “A” to
the trust corpus, with moyer and Ron serving as cotrustees. As
such, a grantee can be discerned. The special administrator’s
arguments are without merit.
2. trAnsfEr of pErsonAl propErty to trust
The special administrator also argues that the trust docu-
ment was ineffective as to the transfer of moyer’s personal
property. Appendix “A” of the trust agreement lists the prop-
erty moyer “concurrently herewith transfer[red]” to the trust,
including “[a]ll bank accounts, investments, household goods,
personal effects, improvements, fixtures, tools, equipment and
machinery, including irrigation wells and equipment, all owned
or hereafter acquired by me, and all crops currently grow-
ing and to be grown on the above described real estate.” As
before, the special administrator contends that the transfer
was ineffective because moyer named a cotrustee in the trust
agreement. We note that the language of the agreement makes
clear the settlor’s intent to transfer her personal property to the
trust.11 We therefore conclude that as with the real property,
the trust document effectively transferred title to the personal
property. While the settlor’s intent in this instance is clear, we
note, as we did before with regard to the real property, that
a separate document may generally be helpful in clarifying a
settlor’s intent.
We find support for this conclusion in our own case law.
In In re Estate of West,12 we approved the transfer of personal
property via a trust document. And in Neneman v. Rickley,13
a case involving a prenuptial agreement, we approved of the
transfer of personal property without requiring a bill of sale
or formal deed. Other jurisdictions have similarly focused on
11 See, e.g., In re Estate of West, 252 Neb. 166, 560 N.W.2d 810 (1997).
12 Id.
13 Neneman v. Rickley, supra note 4.
740 	276 NeBRASKA RePORTS

a settlor’s intent and relaxed the formalities for transferring
personal property to a trust.14
The special administrator’s arguments regarding the transfer
of personal property are also without merit.
VI. CONCLUSION
The district court did not err in granting summary judgment
for Brad, dan, and db Ag Land. The trust agreement executed
by moyer fulfills the statutory requirements for a deed in
land, and the language is unambiguous. Similarly, the trust
document operated to transfer moyer’s personal property to
the trust. We therefore affirm the decision of the Otoe County
district Court.
A ffirmEd .
14 See, In re Estate of Washburn, 158 N.C. App. 457, 581 S.e.2d 148 (2003);
Samuel v. King, supra note 4. See, also, restatement (Third) of Trusts § 10
(2003).
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Cite as 276 Neb. 733