Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:14 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
In re Estate of Gilbert R. Fuchs, deceased.
Jim R. Fuchs, Copersonal R epresentative of the
Estate of Gilbert R. Fuchs, deceased, appellant,
and Joseph M. Fuchs, Copersonal R epresentative
of the Estate of Gilbert R. Fuchs, deceased,
appellee, v. Julie K. A lbin 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 limita-
tions is self-executing and ordinarily begins to run upon the dece-
dent’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.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
8. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation 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 pre-
cludes 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 inten-
tion, 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 ele-
ments 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, specula-
tion, 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: M ark A.
Johnson, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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,
K elch, 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 pro-
bate 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 intes-
tate 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 fam-
ily farm. Both homes were in a state of disarray, with papers
strewn all about.
Gilbert did not keep his important documents well orga-
nized, 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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297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 repre-
sentative. 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 appli-
cation 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 par-
ties 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 objec-
tors’ 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 sup-
press 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 dead-
line 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 appel-
late 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
[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 com-
pleted. Second, he contends that the will was deliberately sup-
pressed by one of the heirs and that therefore equitable estop-
pel 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 relat-
ing to an estate in which there has been a prior appoint-
ment, may be commenced more than three years after
the decedent’s death, except . . . (4) an informal pro-
bate or appointment or a formal testacy or appoint-
ment proceeding may be commenced thereafter if no
formal or informal proceeding for probate or proceed-
ing 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
District Court Did Not Err in Determining
§ 30-2408 Barred A dmission 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 peti-
tion 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 par-
ties. 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 com-
pleted 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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IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 pro-
ceedings 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 com-
mence administration of his estate.12 Further, the comment to
§ 30-2408 regarding subsection (4) indicates that the time limi-
tation 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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IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 legis-
lation 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 administra-
tion 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 regard-
ing 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 [dece-
dent’s] death.”18
[8,9] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation 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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IN RE ESTATE OF FUCHS
Cite as 297 Neb. 667
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 proceed-
ing 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 construc-
tive, 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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IN RE ESTATE OF FUCHS
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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 equi-
table 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 sys-
tem 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 limi-
tations can be equitably extended, Jim presented insufficient
evidence to invoke the doctrine of equitable estoppel. No evi-
dence was presented that the objectors committed any action
which would have amounted to a false representation or con-
cealment 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 cre-
ate material issues of fact for the purposes of summary judg-
ment; 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
R ejecting Jim’s A rgument
of Equitable Tolling
[13-15] Jim also contends that the doctrine of equitable toll-
ing should overcome the objectors’ motion for summary judg-
ment. 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 cir-
cumstance 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 dili-
gence 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 consid-
ered 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 dili-
gent 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 pro-
ceedings. 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.
A ffirmed.