In re Estate of McKillip

IN RE ESTATE OF McKILLIP 	367
Cite as 284 Neb. 367
I n re estate of ronald e. McKIllIp, deceased.
cInthIa s. shIelds, appellee, v. sandra
K. McconvIlle, appellant, and
laura K laus, appellee.
820 N.W.2d 868
Filed September 21, 2012. 	No. S-11-822.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
2. Partition: Equity: Appeal and Error. A partition action is an action in equity
and is reviewable by an appellate court de novo on the record.
3. Decedents’ Estates: Appeal and Error. Equity questions arising in appeals
involving the Nebraska Probate Code are reviewed de novo.
4. Jurisdiction: Appeal and Error. It is the power and duty of an appellate court
to determine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken.
6. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a spe-
cial proceeding.
7. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right made on summary
application in an action after a judgment is rendered.
8. Final Orders: Words and Phrases. A substantial right under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) is an essential legal right.
9. Final Orders: Appeal and Error. A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing a claim or
defense that was available to an appellant before the order from which an appeal
is taken.
10. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Reissue 2008)
include those legal rights that a party is entitled to enforce or defend.
11. 	Final Orders: Appeal and Error. A substantial right is not affected when that
right can be effectively vindicated in an appeal from the final judgment.
12. Partition. Under Nebraska’s partition statutes, the partition of the subject prop-
erty may take one of two forms: (1) partition in kind, where the property is
physically divided, or (2) partition by sale, where the property is sold and the sale
proceeds are divided.
13. ____. As between a partition in kind or sale of land for division, the courts will
favor a partition in kind, since this does not disturb the existing form of inherit-
ance or compel a person to sell his property against his will, which, it has been
said, should not be done except in cases of imperious necessity.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

368 	284 NEBRASKA REPORTS
14. Partition: Presumptions: Proof. It is generally held that until the contrary is
made to appear, the presumption prevails that partition in kind is feasible and
should be made, and that the burden is on those who seek a sale of the prop-
erty in lieu of partition in kind to show the existence of a statutory ground for
such sale.
15. Partition. A sale in partition cannot be decreed merely to advance the interests of
one of the owners, but before ordering a sale, the court must judicially ascertain
that the interests of all will be promoted.
16. ____. The generally accepted test of whether a partition in kind would result in
great prejudice to the owners is whether the value of the share of each in case of
a partition would be materially less than the share of the money equivalent that
could probably be obtained for the whole.
17. Jurisdiction: Appeal and Error. Once an appellate court acquires equity juris-
diction, it can adjudicate all matters properly presented and grant complete relief
to the parties.
18. Decedents’ Estates: Executors and Administrators: Appeal and Error. An
executor is not required to give bond when the executor appeals in a representa-
tive capacity, but if he or she appeals to protect his or her individual interest, a
bond is required, the same as any litigant.
Appeal from the County Court for Red Willow County:
anne paIne, Judge. Reversed in part, and in part vacated and
remanded for further proceedings.
Terrance O. Waite, David P. Broderick, and Patrick M. Heng,
of Waite, McWha & Heng, and J. Bryant Brooks, of Mousel,
Brooks, Garner & Schneider, P.C., L.L.C., for appellant.
G. Peter Burger, of Burger & Bennett, P.C., for appellee
Cinthia S. Shields.
heavIcan, c.J., WrIght, connolly, MccorMacK, MIller-
lerMan, and cassel, JJ.
WrIght, J.
NATURE OF CASE
This is an action for partition of the real property in the
estate of Ronald E. McKillip. At the time of his death, McKillip
owned four tracts of land in Red Willow County, Nebraska. His
will left the property in his estate to his three daughters, “share
and share alike.” The probate court confirmed ownership of the
real estate to the daughters in equal shares.
One daughter brought an action to partition the real estate,
and the county court appointed a referee. The referee determined

IN RE ESTATE OF McKILLIP 	369
Cite as 284 Neb. 367
that a partition in kind of the real estate was not possible and
recommended a public sale. Although the personal representa-
tive objected to the report of the referee, the court approved
the report and concluded that the real estate could not be par-
titioned in kind “without great prejudice to the owners.” The
court ordered the referee to sell the real estate, and the personal
representative timely appealed.
SCOPE OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.
State v. State Code Agencies Teachers Assn., 280 Neb. 459, 788
N.W.2d 238 (2010).
[2] A partition action is an action in equity and is review-
able by an appellate court de novo on the record. Channer v.
Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005).
[3] 	Equity 	questions 	arising 	in 	appeals 	involving
the Nebraska Probate Code are reviewed de novo. In re
Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d
700 (2011).
FACTS
At the time of his death, McKillip was survived by three
daughters: Sandra K. McConville, Cinthia S. Shields, and
Laura Klaus. McKillip’s will left his estate to his daughters
“share and share alike.” The estate included four tracts of
real estate valued at $565,000 in the amended inventory, as
well as cash and certificates of deposit in excess of $720,380.
McConville was named personal representative of the estate.
Tract 1 is a 5-acre rural residential property with a house on
it. The property is close to McCook, Nebraska, and shares a
water well with tract 2. Tract 1 was valued at $190,000 by the
court. The amended inventory valued the property at $196,000,
as adjusted for roof repairs.
Tract 2 consists of pastureland (62.74 acres) and cropland
(19.49 acres). It was valued at $102,000. Tract 2 could be
developed as a subdivision or rural lots. Tracts 1 and 2 are
adjoining, and a well on tract 1 is used to water livestock on
tract 2.

370 	284 NEBRASKA REPORTS
Tract 3 is about 6 miles from the Kansas state line. It con-
tains mostly cropland, but also some marginal pastureland.
Water for livestock is available from a neighboring property.
Tract 3, which consists of approximately 161 acres, was valued
at $124,000.
Tract 4 is 2 miles north of the Kansas state line and a few
miles southwest of tract 3. Tract 4, which totals approximately
240 acres, consists of dryland fields and pastureland. A wind-
mill and two dams provide water for livestock. It was valued
at $143,000.
On October 14, 2010, Shields filed in Red Willow County
Court a complaint for partition of the real estate. Shields
alleged that she, McConville, and Klaus were owners of the
real estate but could not agree on an equitable division of the
property or how to collectively manage it. McConville, as both
a defendant and the personal representative of the estate, filed
an answer alleging that a physical partition of the estate was
possible and was in the best interests of the parties.
At a hearing, the county court confirmed ownership of the
real estate in the three sisters. In a written order, the court
found that Shields was entitled to partition of the real estate
and it appointed a referee to make the partition and report his
findings to the court. In his report, the referee noted that there
was a great deal of animosity among the sisters and that no
division of the real estate would result in an equitable partition
for reasons including the differing land values and uses.
McConville objected to the referee’s report, and a hear-
ing was held. The referee testified that an in-kind distribu-
tion could not be equitably made. He noted that Shields had
requested tracts 1 and 2, but stated that granting her request
would have led to an unequal distribution of the value of the
real estate. A significant factor in the referee’s decision to rec-
ommend a public sale was that “[t]hese people obviously can’t
see eye to eye on anything.”
Shields testified she wanted a “fair” distribution of the real
estate. Klaus testified that she wanted her share of the prop-
erty in kind and that she believed the land could be equitably

IN RE ESTATE OF McKILLIP 	371
Cite as 284 Neb. 367
divided without a sale. She did not believe that she could suc-
cessfully bid on the property if it were sold.
McConville testified she wanted the land to stay in the
family. To her, the land meant more than money. McConville
proposed an in-kind distribution in which tract 4 would be
combined with 19.49 acres of dryland crop ground from tract 2
for a total appraised value of $181,980, which would be given
to one sister. Another sister would get the rest of tract 2 com-
bined with tract 3, for a total appraised value of $187,020. The
third sister would receive tract 1, which had an appraised value
of $190,000. McConville claimed this distribution would keep
each share of the property within a half percent of 331⁄3 percent
of the total value of the land based on the appraised value. She
testified that a referee’s sale would put undue financial burden
on the estate, costing over $25,000.
The court determined that physical partition of the real
estate was not possible without great prejudice to the own-
ers. It approved the referee’s report and ordered the referee
to sell the land at public sale. McConville appealed, and the
court set a supersedeas bond of $50,000, which McConville
posted. After the appeal was perfected, the referee filed a
motion for fees and costs. The court awarded referee fees and
costs of $3,691.93, payable from the assets of the estate. We
moved the case to our docket under our statutory authority to
regulate the dockets of the appellate courts. See Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
McConville 	assigns, 	summarized 	and 	restated, 	that 	the
county court erred (1) in adopting the referee’s report and
ordering partition by sale instead of a partition in kind and fail-
ing to consider personal assets from the estate in effectuating
a partition in kind; (2) in appointing a referee to conduct the
partition rather than the personal representative; (3) in requir-
ing the personal representative to post a supersedeas bond;
(4) in ordering the sisters to pay referee fees, because the fees
were ordered after the appeal was filed; and (5) in excluding
portions of Shields’ deposition.

372 	284 NEBRASKA REPORTS
ANALYSIS
fInal order
[4,5] It is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irre-
spective of whether the issue is raised by the parties. See In
re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).
Generally, for an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken. State v. Riensche, 283 Neb. 820, 812
N.W.2d 293 (2012).
Shields asserts that this appeal may be premature. Thus, we
first address whether the county court’s order directing the ref-
eree to sell the real estate is a final order.
In the case at bar, we are presented with the partition of real
property in an estate proceeding. All the assets of the estate
were left to McKillip’s daughters, “share and share alike.”
Thus, a partition in a probate proceeding is only one phase of
the administration of the estate. It is part of the distribution of
the assets in the estate.
[6,7] Our case law has established that a proceeding under
the Nebraska Probate Code is a special proceeding. In re Estate
of Potthoff, supra. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court
may review are (1) an order that affects a substantial right
and that determines the action and prevents a judgment, (2)
an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right
made on summary application in an action after a judgment
is rendered. Big John’s Billiards v. State, 283 Neb. 496, 811
N.W.2d 205 (2012).
We review the partition action in this case pursuant to
§ 25-1902(2). In In re Estate of Rose, 273 Neb. 490, 730
N.W.2d 391 (2007), we considered whether a determination by
the probate court regarding a family allowance and the inclu-
sion of certain property in an augmented estate was a final
order. The county court had retained jurisdiction to determine
the size of the augmented estate. We concluded the court’s
order was made during a special proceeding but that it did not

IN RE ESTATE OF McKILLIP 	373
Cite as 284 Neb. 367
affect a substantial right. Because the size of the augmented
estate had not yet been determined, we held that the rights
affected in the court’s order could be considered in an appeal
from the final judgment establishing the augmented estate.
We reached a different result in In re Estate of Potthoff,
supra. In that case, the fundamental issue was the computa-
tion of the probate estate. During the probate proceedings, a
question arose as to whether notices to sever joint tenancies
in property held by the deceased and his estranged wife were
effective to sever the joint tenancies. The court found the
notices were not effective and awarded the estranged wife all
property held by her and the deceased in joint tenancy. The
daughter appealed from the order.
In concluding that the order was final and appealable, we dis-
tinguished our holding in In re Estate of Rose, supra, because
the order of the probate court in In re Estate of Potthoff, supra,
resolved the separate issue whether the deceased’s interest
in the property was part of the probate estate. Following the
court’s order, there was nothing left to decide on that issue.
We recognized that the rights of the parties could not be effec-
tively considered in an appeal from the judgment in which the
probate estate was finally completed. We stated that it was
not uncommon for the probate of an estate to remain open for
years and that if that occurred, by the time the probate estate
was finally settled, the property in question may have been
disposed of or its value substantially reduced.
[8-11] In the case at bar, if the order for partition affects
a substantial right of the devisees, then it is a final order. A
substantial right under § 25-1902 is an essential legal right.
Big John’s Billiards v. State, supra. And a substantial right is
affected if an order affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to an
appellant before the order from which an appeal is taken. Id.
Substantial rights under § 25-1902 include those legal rights
that a party is entitled to enforce or defend. Id. A substantial
right is not affected when that right can be effectively vin-
dicated in an appeal from the final judgment. In re Estate of
Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007).

374 	284 NEBRASKA REPORTS
Deciding when an order affects a substantial right has been
“a source of trouble because the substantial right require-
ment has never had any real content.” See John P. Lenich,
What’s So Special About Special Proceedings? Making Sense
of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 284
(2001). “[I]t is much more efficient to review orders affecting
the disposition of the estate’s assets before those assets leave
the estate.” Id. at 292.
In the context of multifaceted special proceedings that are
designed to administer the affairs of a person, the word
“case” means a discrete phase of the proceedings. An
order that ends a discrete phase of the proceedings affects
a substantial right because it finally resolves the issues
raised in that phase.
Id. at 295.
The county court’s order directing the referee to sell the
property would affect the right of the devisees to receive the
real estate in kind and would force them to sell their interests
in the land. The distribution of the real estate is a discrete
phase of the probate proceedings and would finally resolve
the issues in that phase of the probate of the estate. It could be
months before an appeal from the order of confirmation would
be finally resolved. In the interim, distribution of the assets of
the estate would have to wait until that phase of the probate
was finally resolved regarding distribution of the real estate.
The sale of the real estate would diminish the right of the devi-
sees to have the real estate distributed in kind.
While it may have been possible for the parties to appeal
after a sale and confirmation, judicial economy, if nothing
else, requires resolution of this issue before a sale is held. To
delay review of the order of sale until after the sale and its
confirmation would be a waste of judicial resources and would
significantly delay completion of the probate of the estate.
Distribution of the real estate is a major issue in the resolu-
tion of these proceedings. The assets of the estate belong to
McKillip’s three daughters. Distribution of the real estate is the
major source of contention among them. Resolving the distri-
bution of the real estate will finally settle the issues raised in
this phase of the probate.

IN RE ESTATE OF McKILLIP 	375
Cite as 284 Neb. 367
Shields relies upon Peterson v. Damoude, 95 Neb. 469, 145
N.W. 847 (1914), to support her argument that there is no final
order in this case. In Peterson, the partition action was not
a special proceeding but was commenced under what is now
codified at chapter 25 of the Nebraska Revised Statutes. The
only question related to the partition itself, and there was no
final order until the sale of the property had been confirmed by
the court. Peterson was a civil partition action not involved in
a probate proceeding.
In Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655
(1950), two sisters each owned a one-half interest in certain
farmland as tenants in common. It was not a probate matter.
One sister alleged the property must be sold because partition
in kind was not possible without great prejudice to the owners.
The other sister claimed the real estate could and should be
partitioned in kind without great prejudice to the owners. The
partition was commenced under chapter 25 of the Nebraska
Revised Statutes and was not a special proceeding.
In this special (probate) proceeding, the rights of the devi-
sees to retain the real estate in kind is a substantial right that is
affected by the order to sell the property. Therefore, the order
is a final, appealable order.
partItIon by sale or I n KInd
We proceed to consider the merits of the personal repre-
sentative’s claim that the property should be divided in kind.
A partition of property within a probate action is an equi-
table proceeding. See Channer v. Cumming, 270 Neb. 231,
699 N.W.2d 831 (2005). Equity questions arising in appeals
involving the Nebraska Probate Code are reviewed de novo.
In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794
N.W.2d 700 (2011). Accordingly, this court conducts a de novo
review of the county court’s decision to partition the property
by sale.
Neb. Rev. Stat. § 30-24,109 (Reissue 2008) provides:
When two or more . . . devisees are entitled to dis-
tribution of undivided interests in any real or personal
property of the estate, the personal representative or one
or more of the . . . devisees may petition the court . . . to

376 	284 NEBRASKA REPORTS
make partition. [T]he court shall partition the property in
the same manner as provided by the law for civil actions
of partition.
[12] Under Nebraska’s partition statutes, the partition of the
subject property may take one of two forms: (1) partition in
kind, where the property is physically divided, or (2) partition
by sale, where the property is sold and the sale proceeds are
divided. Channer v. Cumming, supra.
[13] In Channer, we noted that this court has long expressed
a preference for partition in kind.
“‘As between a partition in kind or sale of land for divi-
sion, the courts will favor a partition in kind, since this
does not disturb the existing form of inheritance or com-
pel a person to sell his property against his will, which,
it has been said, should not be done except in cases of
imperious necessity.’”
270 Neb. at 239, 699 N.W.2d at 837-38, quoting Trowbridge v.
Donner, supra. See, also, Nordhausen v. Christner, 215 Neb.
367, 338 N.W.2d 754 (1983) (noting preference exists but stat-
ing it can be overcome).
[14,15] It is generally held that until the contrary is made
to appear, the presumption prevails that partition in kind is
feasible and should be made, and that the burden is on those
who seek a sale of the property in lieu of partition in kind to
show the existence of a statutory ground for such sale. See
Trowbridge v. Donner, supra. A sale in partition cannot be
decreed merely to advance the interests of one of the owners,
but before ordering a sale, the court must judicially ascertain
that the interests of all will be promoted. See id.
In this case, there was no dispute as to what property con-
stituted the assets in the estate. There was no dispute as to the
value of the real estate, and there was no claim that the value
of the real estate as one parcel was greater than the value of
the sum of the individual tracts. There was evidence that two of
the devisees, McConville and Klaus, wanted to retain the real
estate for personal and sentimental reasons. Shields requested
a partition and testified that she wanted the distribution of the
real estate to be fair.

IN RE ESTATE OF McKILLIP 	377
Cite as 284 Neb. 367
[16] The statutory ground for a sale is a showing that parti-
tion cannot be made without great prejudice to the parties. See
Neb. Rev. Stat. §§ 25-2181 and 25-2183 (Reissue 2008). The
generally accepted test of whether a partition in kind would
result in great prejudice to the owners is whether the value of
the share of each in case of a partition would be materially
less than the share of the money equivalent that could prob-
ably be obtained for the whole. Trowbridge v. Donner, 152
Neb. 206, 40 N.W.2d 655 (1950) (citing 40 Am. Jur. Partition
§ 83 (1942)).
Whether partition in kind will result in great prejudice to
the parties requires comparing two amounts. The first is the
amount an owner would receive if the property were divided in
kind and the owner then sold his portion of the property. The
second is the amount each owner would receive if the entire
property were sold and the proceeds were divided among the
owners. If the first amount is materially less than the second
amount, great prejudice has been shown. See id.
The appraiser testified that sale of the real estate as a whole
would not bring a greater amount than sale of the tracts indi-
vidually. The tracts had different uses, and the value of the
tracts would not be enhanced by being sold together. Only
tracts 1 and 2 were contiguous. Tracts 3 and 4 were south of
McCook near the Kansas border and were not contiguous. The
tracts would typically be sold separately.
The referee’s report was based in significant part upon
his determination that the devisees could not agree about
anything. The burden was on Shields to show by a prepon-
derance of the evidence that partition in kind would result
in great prejudice to the devisees. She did not prove that the
land would be more valuable if the tracts were sold together.
Shields testified she did not believe the land could be divided
so that her father’s land remained in the family, but that is not
competent evidence that the real estate should be sold. She
has not rebutted the presumption that the real estate should be
distributed in kind.
McConville and Klaus testified it was their opinion that the
land could be equitably divided in kind and that this was their

378 	284 NEBRASKA REPORTS
preference. They wanted a partition in kind for sentimental and
personal reasons. Klaus’ testimony indicates that the devisees
had different financial means and that a sale would not provide
her with an equal opportunity to purchase the property.
McConville presented a proposal for distribution in kind,
which was rejected by the court:
1. Separate 19.49 acres of dryland cropground from
Tract #2, at its appraised value of $2,000.00 per acre, and
combine it with Tract #4 for distribution to one of the
owners. Combined appraised value of Tract #4 with the
19.49 acres from Tract #2 is $181,980.00.
2. Combine Tract #2, less the 19.49 acres, with Tract #3
for distribution to one of the owners. Combined appraised
value of Tract #3 and Tract #2 (less the 19.49 acres) is
$187,020.00.
3. Distribution of Tract #1 to one of the owners.
Appraised value of Tract #1 is $190,000.00.
McConville’s proposed distribution was evidence that it was
possible to convey the real estate to each sister in shares close
to equal in value.
Shields failed to sustain her burden to establish that partition
in kind could not be had without great prejudice to the parties.
We therefore conclude that a partition in kind is feasible and
that the county court erred in accepting the referee’s report and
ordering partition by sale.
reMedy
[17] Since the county court erred in ordering the sale of
the property, this court may consider an appropriate remedy
for the partition in kind of the real estate. A partition action is
an action in equity. Channer v. Cumming, 270 Neb. 231, 699
N.W.2d 831 (2005). Equity questions arising in appeals involv-
ing the Nebraska Probate Code are reviewed de novo. In re
Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d
700 (2011). Once this court acquires equity jurisdiction, it can
adjudicate all matters properly presented and grant complete
relief to the parties. Mogensen v. Mogensen, 273 Neb. 208, 729
N.W.2d 44 (2007).

IN RE ESTATE OF McKILLIP 	379
Cite as 284 Neb. 367
We therefore proceed to apply equitable principles to the
partition of the real property to resolve the dispute. The facts
necessary for a partition in kind are not in dispute. The
appraiser’s valuation of the property is not contested, nor is his
testimony that sale of the tracts as a whole would not bring a
greater amount than sale of the tracts individually. All the prop-
erty, both real and personal, is to be divided equally among
the sisters.
We reject McConville’s proposed distribution in kind for
the following reasons: Tracts 1 and 2 should not be separated.
Separating 19.49 acres is not practical and would create more
problems than it would solve. A well on tract 1 provides water
to tract 2, and separating tracts 1 and 2 would require arrange-
ments for tract 2 to continue to utilize the well on tract 1 or
would necessitate the expense of drilling a new well on tract 2,
which may not be feasible.
Accordingly, tracts 1 and 2 should be awarded to one of
the devisees. Tract 3 should be awarded to another devisee
along with cash from the estate. Tract 4 should be awarded
to the remaining devisee along with cash from the estate. The
amended inventory of the estate shows that tracts 1 and 2 are
valued at a total of $298,000 ($196,000 and $102,000 respec-
tively). (We employ the figures from the amended inventory
to account for $6,000 in roof repair to the house on tract 1 not
covered by the appraisal.) Tract 3 is valued at $124,000, and
tract 4 is valued at $143,000.
The estate contains cash assets in the amount of $720,380.42,
and the will directs that the personal property be divided
among the devisees. For purposes of this partition, each sister
should receive $298,000 in real estate or a combination of real
estate and cash from the estate to equalize the distribution.
This is accomplished by awarding one sister tracts 1 and 2,
one sister tract 3 and $174,000 in cash assets, and the third
sister tract 4 and $155,000 in cash assets. Following these
distributions, each sister will have received $298,000 from the
estate, either in real estate or real estate and cash. Cash assets
of $391,380.42 will remain in the estate for later distribution
along with other assets of the estate.

380 	284 NEBRASKA REPORTS
Because the county court did not partition the property in
kind, it did not consider which sister should receive which
tract. Accordingly, the cause must be remanded to the county
court with directions to distribute tract 1 and 2 to one sister,
tract 3 and $174,000 to one sister, and tract 4 and $155,000
to one sister in order to equalize the distributions of the real
estate using cash from the estate. If the parties cannot agree
as to which distribution should be made to each devisee,
the court is directed to have the clerk of the court number
the shares and then draw the names of the future owners by
lot. See Neb. Rev. Stat. §§ 25-2182 and 25-21,102 (Reissue
2008). Section 25-2182 gives a trial court the power to allot
particular portions of the land to particular individuals, and
unless so allotted, the shares may be drawn by lot, as provided
by § 25-21,102. See Trowbridge v. Donner, 152 Neb. 206, 40
N.W.2d 655 (1950).
requIrIng referee to
conduct partItIon
McConville claims the county court erred in appointing a
referee to conduct the partition. We disagree. The county court
did not err in appointing a referee to determine whether a parti-
tion was appropriate.
Partition of property can occur within a probate action under
§ 30-24,109. The words “partition” and “partitioned,” as used
in this section, mean partition in kind. Pursuant to this section,
Shields was permitted to request partition of the real estate dur-
ing the administration of the estate. Section 30-24,109 directs
the court to follow the procedures for partition in civil actions.
The court is required to appoint at least one referee. Neb. Rev.
Stat. § 25-2180 (Reissue 2008). The referee is then required
to report to the court if it appears to the referee that partition
in kind cannot be made without great prejudice to the owners.
§ 25-2181.
McConville’s reliance upon In re Estate of Kentopp, 206
Neb. 776, 295 N.W.2d 275 (1980), is misplaced. That case
did not prohibit the court from appointing a referee to deter-
mine whether the property should be partitioned in kind or
should be sold. See § 25-2180. However, it required that if

IN RE ESTATE OF McKILLIP 	381
Cite as 284 Neb. 367
the property were to be sold, the sale must be conducted by
the personal representative. The last sentence of § 30-24,109
addresses the sale of property that cannot be partitioned in
kind. Accordingly, the county court did not err in appointing
a referee to determine whether the real estate could be parti-
tioned in kind.
referee fees
McConville claims that the county court erred in award-
ing referee fees after the appeal of the court’s judgment was
taken to the Nebraska Court of Appeals. We agree. Once the
appeal was perfected in the partition action, the county court
was without jurisdiction to award attorney fees. See WBE
Co. v. Papio-Missouri River Nat. Resources Dist., 247 Neb.
522, 529 N.W.2d 21 (1995). The county court had no juris-
diction to enter the order for referee fees, and the order is
hereby vacated.
supersedeas bond
McConville assigns that the county court erred in requiring
her to post a supersedeas bond in order to appeal the action.
McConville is the personal representative of the estate. Neb.
Rev. Stat. § 30-1601(3) (Reissue 2008) states: “When the
appeal is by someone other than a personal representative . . .
the appealing party shall, within thirty days after the entry of
the judgment or final order complained of, deposit with the
clerk of the county court a supersedeas bond . . . .”
[18] McConville argues that as the personal representative,
she should not have been required to post bond. We conclude
that under the circumstances of this case, the personal repre-
sentative should not have been required to post a supersedeas
bond. However, the record discloses that McConville did not
obtain the bond as the personal representative but obtained
the bond in her own name. An executor is not required to give
bond when the executor appeals in a representative capac-
ity, but if he or she appeals to protect his or her individual
interest, a bond is required, the same as any litigant. See
In re Estate of Vetter, 139 Neb. 307, 297 N.W. 554 (1941).
Because McConville has prevailed in this action, the cost of

382 	284 NEBRASKA REPORTS
the supersedeas bond is taxed as an expense, and the cost is
payable by Shields.
CONCLUSION
In the case at bar, the real estate should be partitioned in
kind. Partition is an equitable action, and this court has the
authority to grant complete relief. Accordingly, we reverse the
judgment of the county court directing sale of the real estate
and remand the cause with directions that the court award
tracts 1 and 2 to one sister, tract 3 and $174,000 to another,
and tract 4 and $155,000 to the third in accordance with
our opinion.
The county court did not err in appointing a referee to deter-
mine if partition was required. However, the court did not have
jurisdiction to order payment of referee fees after the appeal
was perfected. Therefore, the October 14, 2011, order awarding
fees is vacated.
The county court did not err in requiring McConville to post
a supersedeas bond. Since McConville has prevailed in this
appeal, the cost of the bond is taxed to Shields.
The judgment of the county court is reversed, and the cause
is remanded thereto with directions for further proceedings
consistent with this court’s opinion.
reversed In part, and In part vacated and
reManded for further proceedIngs.
stephan, J., participating on briefs.