Martin v. Ullsperger

526 	284 NEBRASKA REPORTS
record. As stated above, the record does not clearly establish
that the district court impaneled an anonymous jury. It may be
inferred that the court impaneled a numbers jury and that at
the hearing on the motion to release juror information, defense
counsel was not asking for the names of the jurors but simply
wanted an opportunity to talk with the jurors and wanted the
court’s permission to release the names of the jurors. Thus, the
record does not support a plain error review.
CONCLUSION
In the case at bar, Nadeem waived any objection to the jury
that was impaneled. Plain error review was improper because
the record does not plainly show that the district court impan-
eled an anonymous jury. Therefore, we reverse the decision
of the Court of Appeals and remand the cause to the Court of
Appeals for further proceedings regarding Nadeem’s remaining
assignments of error.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
cassel, J., not participating.
JeRRy a. maRtin and leonaRd g. maRtin, appellants,
v. anna B. ullspeRgeR, individually, and
lonnie a. maRtin, individually, appellees.
822 N.W.2d 382
Filed October 19, 2012. 	No. S-11-1066.
1. Decedents’ Estates: Wills. An action seeking to revoke a beneficiary’s interest
under a no contest provision of a will requires a court to construe the will and
consider any governing statutes.
2. Wills: Trusts. The interpretation of the words in a will or a trust presents a ques-
tion of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
5. Decedents’ Estates: Wills: Partition: Time. After a probate court enters its final
decree closing an estate, a devisee cannot affect a testator’s restriction against a
partition. So a devisee’s partition action after the estate has been closed cannot be
a will contest that attacks the testator’s will.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

MARTIN v. ULLSPERGER 	527
Cite as 284 Neb. 526
Appeal from the District Court for Otoe County: R andall l.
R ehmeieR, Judge. Affirmed.
James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellants.
Richard H. Hoch, of Hoch, Partsch & Noerrlinger, for
appellees.
heavican, c.J., WRight, connolly, stephan, mccoRmack,
milleR-leRman, and cassel, JJ.
connolly, J.
SUMMARY
The parties are the surviving children of Lewis Martin, who
died in 1986. Under Lewis’ will, they are beneficiaries of a
joint life estate interest in farmland. The last surviving child
will inherit the remainder interest. The will provided that no
life tenant or remainderman could partition the property during
the existence of any life tenancy. Through a codicil, Lewis later
added a no contest provision, which disinherited any child who
contested his will.
After the probate court entered the final order in the pro-
bate proceeding, the appellees, Anna B. Ullsperger (Anna)
and Lonnie A. Martin, brought a partition action in district
court to divide the property. The court dismissed that action,
concluding that Anna and Lonnie were bound by the will’s
restriction against a partition because they had not contested
the will during the probate proceeding. The appellants, Jerry
A. Martin and Leonard G. Martin, then filed this declaratory
judgment. They claimed that Anna and Lonnie had forfeited
their inheritance by contesting the will through the partition
action. The court concluded that Anna and Lonnie’s partition
action was not a will contest because the will had already been
probated. It dismissed Jerry and Leonard’s declaratory judg-
ment action. We agree with the court and affirm. After an estate
is closed, a partition action cannot contest a will’s restriction
against partitions.

528 	284 NEBRASKA REPORTS
BACKGROUND
In 1970, Lewis executed his original will and first codicil.
Lewis devised to his wife a life estate interest in the farmland.
He also devised to any child who survived his death a life
estate interest in the farmland, subject to his wife’s interest.
He devised the remainder interest in the farmland to his last
surviving child, who would become the sole owner. The sur-
viving children’s interests were subject to a partition restric-
tion in paragraph 7. It provided that the farmland “shall not be
subject to partition by any life tenant or remaindermen named
in this Will during the existence of any life tenancy in said
real estate.”
In 1980, Lewis executed a second codicil to his will. It
added the following no contest provision:
[I]f any of my eight children that I have provided for in
my Will contest the validity of said will, . . . his or her
share of my estate shall lapse and shall pass to my other
remaining children, share and share alike as their interests
are designated in my said will.
Two of Lewis’ eight children predeceased him. In 1987,
the county court issued the final order in the formal testacy
proceeding to distribute the estate’s assets and discharge the
personal representative.
In 2004, Anna, Lonnie, and Russel Martin (another surviv-
ing child) filed an action for an accounting against Jerry and
Leonard. They alleged that after the court admitted Lewis’
will to probate, Jerry served as the landlord of the property,
and that he turned over the farming operations to Leonard.
They alleged that Leonard never consulted them or accounted
to them for farm expenses and income. They asked the court
to determine each cotenant’s interest in the net farm income or
to order a sale of the property and divide the proceeds. Jerry
and Leonard’s answer showed that Jerry had kept the farm
records since his discharge as the personal representative of
Lewis’ estate and that Leonard had farmed the property as a
“crop share tenant” since Lewis’ death.
In 2006, the court approved a settlement of the account-
ing action. In the settlement, the parties agreed to enter a

MARTIN v. ULLSPERGER 	529
Cite as 284 Neb. 526
lease between Leonard as the farm tenant and the other three
siblings as landlords. Among other things, Jerry agreed to
maintain a separate bank account for the farm, to timely pro-
vide records of income and expenses to Anna and Lonnie, and
to pay them their share of farm income by a specified date
each year.
In 2008, Anna and Lonnie filed the partition action. In that
action, they stipulated that Lewis’ wife and two of his surviving
children had already died. So Lewis’ only surviving children
are his four children named as parties in the partition action
and the declaratory judgment action. The court dismissed Anna
and Lonnie’s partition action in 2009. Jerry and Leonard filed
their declaratory judgment action in 2011.
Jerry and Leonard alleged that Anna and Lonnie’s partition
action was a will contest that challenged the partition restric-
tion in paragraph 7. They claimed that because Anna and
Lonnie had contested the will without probable cause, they had
forfeited their share of the estate under the no contest provi-
sion. Jerry and Leonard sought a declaration that they owned
undivided life estates in the farmland unencumbered by the
lapsed interests of Anna and Lonnie.
Both sides moved for summary judgment. The court received
the records of the accounting action and the partition action
and took judicial notice of these proceedings. After reviewing
the evidence, the court determined that the partition action was
not a will contest:
[Anna and Lonnie] in the partition action forfeited their
right to contest the provisions of the Will by allowing the
Will to be probated. Once probated, the issues regarding
the contingent remainder interest of the parties became
indestructible and could not be partitioned and, in fact,
there was also a valid testamentary restriction on partition
existing which was enforceable as a result of the probate
of [Lewis’] Will. Essentially, Anna . . . and Lonnie . . .
had become bound by the terms of the Will in that they
had not contested the Will. Their partition action . . . did
not act as a contest of the Will, but was a separate legal
proceeding initiated by them which was dismissed by the

530 	284 NEBRASKA REPORTS
court for the reason in part that they were precluded from
now raising such issues which could have been raised in
the probate proceeding.
Accordingly, the court concluded that Anna and Lonnie had
not forfeited their inheritance by filing the partition action and
dismissed Jerry and Leonard’s declaratory judgment action.
The court overruled Jerry and Leonard’s subsequent motion for
a new trial or to alter or amend the order.
ASSIGNMENTS OF ERROR
Jerry and Leonard assign that the court erred in conclud-
ing that the partition action was not a will contest, granting
summary judgment for Anna and Lonnie, and overruling their
motion for a new trial or to alter or amend the order.
STANDARD OF REVIEW
[1-4] An action seeking to revoke a beneficiary’s inter-
est under a no contest provision of a will requires a court to
construe the will and consider any governing statutes. The
interpretation of the words in a will or a trust presents a ques-
tion of law.1 Statutory interpretation presents a question of
law.2 We independently review questions of law decided by a
lower court.3
ANALYSIS
Jerry and Leonard contend, for various reasons, that Anna
and Lonnie contested the will through their partition action and
therefore forfeited their inheritance. Anna and Lonnie argue
that the partition action cannot be a will contest because the
probate court had already closed the estate. We agree.
Generally, courts have held that the following types of
claims constitute will contests: “lack of testamentary capac-
ity, fraud, undue influence, improper execution, forgery, or a
subsequent revocation of the will by a later document.”4 These
1 Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005).
2 See Connelly v. City of Omaha, ante p. 131, 816 N.W.2d 742 (2012).
3 Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
4 See Annot., 3 A.L.R.5th 590, 590 (1992).

MARTIN v. ULLSPERGER 	531
Cite as 284 Neb. 526
claims can all be characterized as a direct attack on the validity
of a will. We need not decide here whether a partition action
could ever be an indirect attack on a will that constitutes a
will contest because we conclude that Anna and Lonnie could
not attack the will after a court issued an order that closed
the estate.
We note that Neb. Rev. Stat. § 30-24,109 (Reissue 2008)
permits heirs to an undivided interest in property to seek a
partition before the formal or informal closing of an estate. But
here, Anna and Lonnie did not commence their partition action
until long after the county court had entered the final order in
the probate proceeding.
A contestant generally contests a will by filing a petition
objecting to the informal probate of the will or by asking the
court to set aside an informal probate. Either petition will result
in a formal testacy proceeding.5 “A formal testacy proceeding
is litigation to determine whether a decedent left a valid will.”6
In addition, if the proponent of a will petitions for a formal
testacy proceeding, any party who opposes the probate may
file objections.7
Lewis’ will was probated through a formal testacy proceed-
ing. But no one contested Lewis’ will before the county court
issued its final order closing the estate. And subject to appeal
and vacation, a formal testacy order “is final as to all persons
with respect to all issues concerning the decedent’s estate that
the court considered or might have considered incident to its
rendition relevant to the question of whether the decedent left
a valid will, and to the determination of heirs.”8
[5] Under these statutory provisions, the district court cor-
rectly concluded that Anna and Lonnie were bound by the
terms of the will because they had not contested it. After a
probate court enters its final order closing an estate, a devisee
cannot affect a testator’s restriction against a partition. So a
5 See Neb. Rev. Stat. §§ 30-2425, 30-2426, and 30-2429.01 (Reissue 2008).
6 § 30-2425.
7 Neb. Rev. Stat. § 30-2428 (Reissue 2008).
8 Neb. Rev. Stat. § 30-2436 (Reissue 2008).

532 	284 NEBRASKA REPORTS
devisee’s partition action after the estate has been closed can-
not be a will contest that attacks the testator’s will. Instead,
Lewis’ no contest provision had the effect of foreclosing such
actions and protecting his intent that the last heir standing
would inherit the farmland.
CONCLUSION
We conclude that the district court correctly determined
that Anna and Lonnie’s partition action was not a will contest
because it was filed after the estate was closed.
affiRmed.
floRal laWns memoRial gaRdens association,
a neBRaska coRpoRation, appellee, v.
BRuce c. BeckeR, appellant, and
linda BeckeR, appellee.
822 N.W.2d 692
Filed October 19, 2012. 	No. S-11-1077.
1. Accounting: Equity. An action for accounting may be one in law or one
in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate
court decides factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion independent of the trial
court’s determination.
3. Receivers: Corporations. Appointing a receiver for a corporation is a harsh and
drastic remedy, and is not one to be implemented lightly.
4. Receivers: Statutes: Notice. Under Nebraska law, a court’s ability to appoint a
receiver is governed by statute. The court can appoint a receiver only in specific
situations, and the court must provide notice to all interested parties.
5. Receivers: Notice. An order appointing a receiver must provide notice to all
interested parties, or the order is void.
6. Receivers: Final Orders. An order appointing a receiver is a final, appeal-
able order.
7. Corporations: Statutes. Corporations are creatures of statute, and they may be
dissolved only according to statute.
8. Receivers: Corporations. The general nature of a receiver’s task, unless
appointed in an action for corporate dissolution, is to preserve and protect the
property under his or her control.
9. ____: ____. Where there is no proper action for corporate dissolution, a court
does not have the power to bypass that requirement and effectively dissolve the