In re Estate of Stuchlik -- supplemental opinion

392 	290 NEBRASKA REPORTS
I n re estate of edward J. stuchlIk, Jr., deceased, and I n re
trust created by edward J. stuchlIk, Jr., deceased.
John e. stuchlIk, appellant, v. M argaret stuchlIk,
personal representatIve and cotrustee, and
kenneth stuchlIk, cotrustee, appellees.
861 N.W.2d 682
Filed March 20, 2015. 	No. S-13-1118.
suppleMental opInIon
Appeal from the County Court for Saunders County: patrIck
r. McderMott, Judge. Supplemental opinion: Former opinion
modified. Motions for rehearing overruled.
Paul R. Elofson, of Fitzgerald, Schorr, Barmettler & Brennan,
P.C., L.L.O., for appellant.
Richard L. Rice and Andrew C. Pease, of Crosby Guenzel,
L.L.P., for appellees.
heavIcan, c.J., wrIght, connolly, stephan, MccorMack,
MIller-lerMan, and cassel, JJ.
per curIaM.
Case No. S-13-1118 is before this court on the motions for
rehearing filed by the appellant and the appellees regarding our
opinion in In re Estate of Stuchlik.1 We overrule the motions,
but we modify the opinion as follows:
In the section of the opinion titled “II. BACKGROUND,”
under 	the 	subheading 	“4. actIvItIes 	of 	cotrustees,” 	we
withdraw the first and second paragraphs2 and substitute the
following:
After 	Stuchlik’s 	death, 	Margaret, 	as 	the 	surviving
joint tenant, conveyed her interest in the residence she
shared with Stuchlik—which was property different from
the “home place”—to Edward, Voboril, and Kenneth as
tenants in common, subject to a life estate granted to
1 In re Estate of Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014).
2 Id. at 678-79, 857 N.W.2d at 64.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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IN RE ESTATE OF STUCHLIK 	393
Cite as 290 Neb. 392
Margaret. As the warranty deed states, “[Margaret], a
single person, Grantor, in consideration of One Dollar
($1.00) and other good and valuable consideration, con-
veys to Grantees, [Edward, Voboril, and Kenneth], as
tenants-in-common, an undivided one-half interest in and
to the following described real estate . . . .” The warranty
deed then purports to convey the residence from Margaret
to Edward, Voboril, and Kenneth.
In 	January 	2013, 	Margaret, 	Kenneth, 	and 	Edward
entered the home place premises without the consent of
John. They were accompanied by a county sheriff’s dep-
uty who testified that he did so “through a civil standby
that [he] was requested to do sometime at the beginning
of this year.” The county sheriff’s deputy testified that he
was directed by the sheriff to accompany Margaret and
her two children “to make sure that there’s no sort of
altercation between the two parties.” Margaret, Kenneth,
and Edward entered the residence and changed the locks.
Since the retaking of the home place, Margaret, Kenneth,
and Edward have indicated to John that they intend to
demolish the residence. John alleges that Margaret’s and
Kenneth’s treatment of his personal property in the resi-
dence constituted a conversion.
In the section of the opinion designated “V. ANALYSIS,”
under the subheadings “2. reMoval as cotrustees,” “(a)
Contract for Wills or Oral Trust,” and “(i) Contract for
Wills,” we withdraw the first paragraph3 and substitute the
following:
The county court did not err in finding that even if
there was enough evidence to support a contract for
wills, such a contract was not relevant to this action.
John argues that Margaret had entered into a contract
for wills with Stuchlik before his death and that the two
had contracted to equally divide the trust between their
three sons. However, as the county court recognized, the
proper case for a breach of a contract for wills is not a
probate action against the decedent’s estate, but, rather, is
3 Id. at 684, 857 N.W.2d at 67.

394 	290 NEBRASKA REPORTS
an action for breach of contract or an action against the
breaching party’s estate. Therefore, a contract for wills is
wholly irrelevant to this action to remove cotrustees.
Under those same subheadings, we withdraw the third para-
graph4 and substitute the following:
The county court found that the evidence of a letter
from Margaret and Stuchlik directing Bromm on the divi-
sion of the estate was merely the evidence of an intent
to have mutual wills, and not an agreement to will. The
court found that the language in the will did not raise a
presumption of a contract for wills. However, the court
did not need to make either determination.
In the section of the opinion designated “V. ANALYSIS,”
under 	the 	subheadings 	“2. 	reMoval as 	cotrustees,” 	“(a)
Contract for Wills or Oral Trust,” and “(ii) Oral Trust,” we
withdraw the second and third paragraphs5 and substitute the
following:
The county court found that there was no evidence of
such oral trust. Given our standard of review in these pro-
ceedings, we must give weight to the court’s evidentiary
findings. We do not reweigh evidence, but consider evi-
dence in the light most favorable to the successful party
and resolve evidentiary conflicts in favor of the success-
ful party.13
Because we find that the county court did not err in
finding that an existence of a contract for wills or an oral
trust would be irrelevant to the removal of a trustee, we
find no merit to John’s arguments that the court erred in
not allowing discovery on the matter, erred in granting
attorney-client privilege, or erred in failing to review
Bromm’s testimony in camera for relevancy.
The remainder of the opinion shall remain unmodified.
forMer opInIon ModIfIed.
MotIons for rehearIng overruled.
4 Id.
5 Id. at 685-86, 857 N.W.2d at 68.