In re Estate of Muncillo

Because Dinslage committed a Class IIIA felony, the trial
court could have sentenced her to up to 5 years’ imprison-
ment.27 But, despite a substantial criminal record, the court
elected to sentence Dinslage to probation. The court did not
abuse its discretion in imposing the maximum term of incar-
ceration as a condition of Dinslage’s probation.
CONCLUSION
For the foregoing reasons, we affirm.
A ffirmed.
27 See Neb. Rev. Stat. § 28-105 (Reissue 2008).
in re estAte of fAuniel f. muncillo, deceAsed.
christine muncillo, Appellee , And G reGory muncillo,
AppellAnt, v. A nGelA muncillo And BArBArA l.
hosford, personAl representAtive of the
estAte of fAuniel f. muncillo,
deceAsed, Appellees.
789 N.W.2d 37
Filed October 8, 2010. 	No. S-09-1224.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Decedents’ Estates: Appeal and Error. Absent an equity question, an appel-
late court reviews probate matters for error appearing on the record made by the
county court.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
4. Decedents’ Estates: Appeal and Error. The probate court’s factual findings have
the effect of a verdict and will not be set aside unless clearly erroneous.
5. Decedents’ Estates: Final Orders. Proceedings under the Nebraska Probate
Code are special proceedings within the meaning of Neb. Rev. Stat. § 25-1902
(Reissue 2008).
6. Final Orders: Words and Phrases. A substantial right under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) is an essential legal right, not a mere technical right.
7. Final Orders: Words and Phrases: Appeal and Error. A substantial right under
Neb. Rev. Stat. § 25-1902 (Reissue 2008) is not affected when that right can be
effectively vindicated in an appeal from the final judgment.
IN Re eSTATe OF mUNCILLO 	669
Cite as 280 Neb. 669
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

8. Decedents’ Estates: Executors and Administrators: Final Orders: Appeal and
Error. A probate court’s denial of an application for the appointment of a special
administrator, brought pursuant to Neb. Rev. Stat. § 30-2457(2) (Reissue 2008),
is a final, appealable order within the meaning of Neb. Rev. Stat. § 25-1902
(Reissue 2008).
9. Decedents’ Estates: Executors and Administrators. A special administrator
should not be appointed every time a potential beneficiary disagrees with the
personal representative’s administration decisions, absent some showing that
the personal representative is not lawfully fulfilling his or her duties under the
Nebraska Probate Code.
10. Decedents’ Estates: Executors and Administrators: Proof. A showing that the
personal representative is not lawfully fulfilling his or her duties necessitates, at
minimum, an allegation that the personal representative is perpetrating fraud, has
colluded with another to deprive the estate of a potential asset, is conflicted to
properly administer the estate, or cannot act to preserve the estate, or the exis-
tence of some other equitable circumstance, plus some evidence of the personal
representative’s alleged dereliction of duty.
Appeal from the County Court for Douglas County: crAiG
Q. mcdermott, Judge. Affirmed.
Daniel W. Ryberg for appellant.
Jason m. Bruno and Laura K. Woods, of Sherrets, Bruno &
Vogt, L.L.C., for appellee Angela muncillo.
Donald C. Hosford, Jr., for appellee Barbara L. Hosford.
heAvicAn, 	c.J., 	WriGht, 	connolly, 	G errArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
G errArd, J.
At the time of Fauniel F. muncillo’s death, she had three
bank accounts, listing her daughter, Angela muncillo, either
as the joint owner or as the payable-on-death beneficiary.
Her other children, Christine muncillo and Gregory muncillo,
objected to the distribution of the accounts to Angela, claim-
ing that her signatures on the account agreements had been
obtained by undue influence. Christine and Gregory applied
for the appointment of a special administrator to pursue the
accounts for the estate, claiming that the appointed personal
representative was not pursuing the matter. However, the county
court determined that the accounts were nonprobate assets and
that the personal representative could adequately protect the
670 	280 NeBRASKA RePORTS

interests of the estate. The county court denied the appointment
of a special administrator, and Gregory appeals. For the follow-
ing reasons, we affirm the judgment of the county court.
BACKGROUND
Fauniel died on march 14, 2009. Fauniel’s attorney, Barbara
L. Hosford, petitioned for formal probate, a determination of
heirs, and the appointment of a personal representative to rep-
resent Fauniel’s estate. The court admitted Fauniel’s will and a
later codicil to formal probate. The will and codicil provided
that Angela, Christine, and Gregory would share Fauniel’s
estate in equal shares. The court appointed Hosford as personal
representative of the estate.
At the time of her death, Fauniel owned three bank accounts,
which contained a total of over $260,000. Fauniel had three
corresponding account agreements with the bank, each specify-
ing the type of account and whether there existed a payable-
on-death beneficiary. One of the account agreements was a
multiple-party account, listing Fauniel and Angela as co-owners
with rights of survivorship. The other agreements were single-
party accounts in Fauniel’s name with Angela designated as the
payable-on-death beneficiary.
Hosford petitioned the county court for review of Fauniel’s
bank account agreements to determine whether the accounts
were subject to probate. Christine then filed an objection to
the distribution of any funds from the accounts, alleging that
the designation of Angela as beneficiary or joint owner was the
result of undue influence. Christine sought a constructive trust
for the account funds and claimed that she was entitled to one-
third of those amounts. Hosford then filed a motion to dismiss
her petition for review of the account agreements. The court
dismissed Hosford’s petition without prejudice.
Angela brought a separate but related action against Christine
in the district court, alleging that Christine’s interference with
the accounts prevented Angela’s lawful access to the funds.
Gregory apparently filed a petition in intervention in the district
court case. In the county court, Christine and Gregory filed an
application for the appointment of a special administrator
to pursue the bank accounts as estate assets, as Hosford had
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Cite as 280 Neb. 669

dismissed her petition for review of the accounts and was no
longer pursuing the matter. Upon questioning by the court as
to whether Christine and Gregory were intimating that Hosford
was not in a position to properly collect and maintain the estate
assets, Christine and Gregory noted that Hosford could become
a witness in the district court case and asserted that Hosford
“may not feel comfortable in handling it herself.”
The county court denied Christine and Gregory’s application
to appoint a special administrator, finding that a special admin-
istrator was not necessary because Hosford could adequately
protect the assets of the estate. The court noted that Hosford
regularly appeared in probate court and that the court found her
to be forthright, straightforward, and honest. Gregory appeals
from the order denying the application for the appointment of
a special administrator.
ASSIGNmeNT OF eRROR
Gregory assigns that the county court erred in denying the
application for the appointment of a special administrator.
STANDARD OF ReVIeW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
[2-4] Absent an equity question, an appellate court reviews
probate matters for error appearing on the record made by the
county court.2 When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.3 The probate court’s
factual findings have the effect of a verdict and will not be set
aside unless clearly erroneous.4
1 Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d
465 (2010).
2 See In re Estate of Cooper, 275 Neb. 322, 746 N.W.2d 663 (2008).
3 In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009); In re Estate
of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).
4 See id.
672 	280 NeBRASKA RePORTS

ANALySIS
WAs county court’s order finAl?
Before reaching the merits of this appeal, we settle a juris-
dictional matter. Angela argues that the order of the county
court denying the application for the appointment of a special
administrator is not a final, appealable order. We have deter-
mined that orders relating to the removal of a personal rep-
resentative qualify as final orders.5 However, we have yet to
address whether an order denying the appointment of a special
administrator is a final, appealable order.
Neb. Rev. Stat. § 25-1902 (Reissue 2008) defines three
types of final orders: (1) an order affecting a substantial right
in an action, when such order in effect determines the action
and prevents a judgment; (2) an order affecting a substantial
right made in a special proceeding; and (3) an order affecting
a substantial right made on summary application in an action
after judgment is rendered. We note that the order denying the
appointment of a special administrator did not determine an
action or prevent a judgment, nor was it an order made on sum-
mary application in an action after judgment was rendered. We
therefore address whether the order affected a substantial right
made in a special proceeding.
[5] A special proceeding entails civil statutory remedies not
encompassed in chapter 25 of the Nebraska Revised Statutes.6
Gregory and Christine’s application for the appointment of a
special administrator was brought pursuant to the Nebraska
Probate Code, specifically, Neb. Rev. Stat. § 30-2457 (Reissue
2008), located in chapter 30 of the Nebraska Revised Statutes.
Our law is clear that proceedings under the Nebraska Probate
Code are special proceedings within the meaning of § 25-1902.7
We therefore find that the order at issue here was made in a
special proceeding within the meaning of § 25-1902 and must
next answer whether the order affected a substantial right.
5 See, e.g., In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992).
See, also, In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894 (1989).
6 In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007).
7 In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007); In re
Estate of Rose, supra note 6.
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[6,7] A substantial right is an essential legal right, not a
mere technical right.8 We have noted that a substantial right
is not affected when that right can be effectively vindicated
in an appeal from the final judgment.9 But here, the denial of
the application for the appointment of a special administrator
cannot be effectively vindicated on appeal from the final judg-
ment in which the probate estate is finally established, and thus
affects an essential legal right.
[8] Under § 30-2457(2), an interested person has a right to
petition for a special administrator, who will be appointed if
necessary to preserve the estate or to secure its proper admin-
istration. If a probate court wrongfully denies the application
to appoint a special administrator, the petitioner’s right to have
a special administrator appointed cannot be vindicated upon
appeal from entry of the later final judgment. It is not uncom-
mon for the probate of an estate to remain open for years,10 and
a special administrator cannot go back in time and preserve
or administer the estate long after the application to appoint
has been denied. Because the denial of the application for the
appointment of a special administrator cannot be effectively
vindicated on appeal from the final judgment of the probate
court, it affects an essential legal right of the petitioner, and
thus affects a substantial right within the meaning of § 25-1902.
Accordingly, we conclude that the probate court’s ruling in this
case affected a substantial right of the appellant in a special
proceeding, and is therefore a final, appealable order within the
meaning of § 25-1902.
did county court err in denyinG
A ppellAnt’s A pplicAtion?
Gregory argues that the appointment of a special adminis-
trator is necessary to protect the estate pursuant to § 30-2457,
which reads, in relevant part:
A special administrator may be appointed:
. . . .
8 In re Estate of Rose, supra note 6.
9 In re Estate of Potthoff, supra note 7; In re Estate of Rose, supra note 6.
10 See In re Estate of Potthoff, supra note 7.
674 	280 NeBRASKA RePORTS

(2) in a formal proceeding by order of the court on the
petition of any interested person and finding, after notice
and hearing, that appointment is necessary to preserve the
estate or to secure its proper administration including its
administration in circumstances where a general personal
representative cannot or should not act. If it appears to
the court that an emergency exists, appointment may be
ordered without notice.
Under § 30-2457(2), Gregory must show that the appoint-
ment of a special administrator is necessary to preserve the
estate or to secure its proper administration. Gregory argues
that because the personal representative once questioned the
account agreements, but then demonstrated an “unwilling-
ness to pursue assets of the estate,” a special administrator
is necessary to protect estate assets.11 But the county court
determined that the bank accounts did not qualify as estate
assets because they transferred immediately to Angela upon
Fauniel’s death under Neb. Rev. Stat. § 30-2715 (Reissue
2008). Gregory does not contest this determination. Rather,
Gregory correctly notes that under Nebraska law, challenges
to the transfer of nonprobate assets like the accounts at issue
here must be brought in the district court. Gregory contends
that it is unclear whether he has standing to challenge the
accounts in the district court.
Before the adoption of the Nebraska Probate Code, we per-
mitted an heir to maintain an action to enforce an obligation
owed to the estate when an administrator refused to act.12 We
have not determined whether that exception is still permitted
after the adoption of the code.13 However, the issue of whether
Gregory has standing to pursue the bank accounts in district
court is not properly before us now, and therefore, we do not
address it. Rather, we address whether the county court erred in
refusing to appoint a special administrator.
11 Brief for appellant at 8.
12 See Prusa v. Everett, 78 Neb. 250, 113 N.W. 571 (1907).
13 In re Estate of Hedke, supra note 3.
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Gregory argues that because the personal representative is
unwilling to further pursue the accounts, and because Gregory
might not have standing to pursue the accounts in district
court, the county court erred when it denied the application
for the appointment of a special administrator. A similar ques-
tion was addressed by the montana Supreme Court in Matter
of Estate of Long.14 In that case, the appellant beneficiary
sought the appointment of a special administrator under the
montana equivalent of § 30-2457(2). Upon the decedent’s
death, her bank accounts transferred to her friends, the appel-
lees. The appellant claimed that the account documents nam-
ing the appellees as joint owners were procured by undue
influence. The appellant informed the personal representatives
of the decedent’s estate of the possible claim of undue influ-
ence. However, after reviewing the evidence, the personal
representatives declined to pursue the matter on behalf of the
estate. The appellant requested that a special administrator be
appointed to pursue the assets, but the probate court denied
the request.
The montana Supreme Court found that absent a showing
of fraud, collusion, conflict of interest, inability to act, or other
special equitable circumstance, a decision by the personal rep-
resentatives not to bring an action against decedent’s friends
was not grounds for the appointment of a special administrator
under the montana Probate Code. Matter of Estate of Long
also noted that the removal of the personal representative was
not warranted:
[The personal representatives] reviewed the information
made available by the appellant. Simply because appellant
did not agree with the co-personal representatives on what
to do about a potential claim does not mean, as the lower
court correctly concluded, that they improperly adminis-
tered the estate such that they should be removed and a
special administrator appointed.15
[9,10] We find the reasoning of Matter of Estate of Long to
be persuasive. A special administrator should not be appointed
14 Matter of Estate of Long, 225 mont. 429, 732 P.2d 1347 (1987).
15 Id. at 436-47, 732 P.2d at 1352.
676 	280 NeBRASKA RePORTS

every time a potential beneficiary disagrees with the personal
representative’s administration decisions, absent some showing
that the personal representative is not lawfully fulfilling his or
her duties under the code. We determine that such a showing,
at minimum, necessitates an allegation that the personal rep-
resentative is perpetrating fraud, has colluded with another to
deprive the estate of a potential asset, is conflicted to properly
administer the estate, or cannot act to preserve the estate, or
the existence of some other equitable circumstance, plus some
evidence of the personal representative’s alleged dereliction
of duty.
Gregory made no such showing. At the hearing on his
motion, Gregory presented the court with no evidence support-
ing his application. Gregory argued below that Hosford “will
become a witness, I believe, upstairs in the District Court and
perhaps, in being a witness, she may not feel comfortable in
handling it herself.” The record does not show that Gregory
ever unequivocally challenged the competency of the personal
representative, nor does it show that the personal representa-
tive in any way failed to adequately perform her duties. The
record reflects that Hosford was aware of the accounts, that she
petitioned for their review, that the account agreements were
produced, and that Hosford moved to dismiss her petition. The
most that can be extrapolated from the record is that Hosford
was aware of the accounts, obtained the account agreements,
and decided not to pursue the accounts as estate assets.
A putative beneficiary’s disagreement with a personal rep-
resentative over the proper course of action for a poten-
tial claim does not necessitate the appointment of a special
administrator, absent a showing of fraud, collusion, conflict
of interest, inability to act, or other special equitable circum-
stance. Absent such a showing, Gregory did not prove that
the appointment of a special administrator was “necessary to
preserve the estate” under § 30-2457(2). And because Gregory
produced no evidence of any of the aforementioned circum-
stances, we cannot say that the county court erred in denying
his application.
Because nothing in the record indicates that the appointment
of a special administrator is necessary to protect Fauniel’s
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Cite as 280 Neb. 669

estate, we cannot say that the county court’s decision to
deny the application was arbitrary, capricious, or unreasonable.
Gregory’s assignment of error is without merit.
CONCLUSION
The county court did not err in finding that a special admin-
istrator was not necessary to protect Fauniel’s estate. Therefore,
the county court’s judgment is affirmed.
A ffirmed.
678 	280 NeBRASKA RePORTS