State v. Pickinpaugh

and costs should be awarded at the trial level, we reduce the
district court’s award by $10,000 and thereby award the sum
of $17,457.46.
Counsel for the appellees has filed a motion for fees and
costs in this court. Without repeating what we have done, we
believe it fair to say that in this appellate proceeding, includ-
ing the appellees’ cross-appeal, the appellees lost far more than
was upheld, and their cross-appeal was largely unsuccessful.
An award of fees, here as in the trial court, is discretionary.
We decline to award fees and costs and, therefore, overrule the
appellees’ motion for an award of such.
A ffirmed in pArt, reversed in pArt,
And in pArt vAcAted And set Aside .
stAte of nebrAskA, Appellee , v.
Jeffery pickinpAugh , AppellAnt.
762 N.W.2d 328
Filed January 20, 2009. 	No. A-08-499.
1. Courts: Appeal and Error. Both a district court and a higher appellate court
generally review appeals from a county court for error appearing on the record.
2. Motions to Suppress: Appeal and Error. A trial court’s ruling on a motion to
suppress is to be upheld on appeal unless its findings of fact are clearly errone-
ous. In determining whether a trial court’s findings on a motion to suppress are
clearly erroneous, an appellate court does not reweigh the evidence or resolve
conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact
and takes into consideration that it observed the witnesses.
3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a
motion to suppress is denied pretrial and again during trial on renewed objection,
an appellate court considers all the evidence, both from trial and from the hear-
ings on the motion to suppress.
4. Judgments: Appeal and Error. Regarding matters of law, an appellate court
has an obligation to reach a conclusion independent of that of the trial court in a
judgment under review.
5. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
in connection with which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the court below.
6. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and
Error. Determinations of reasonable suspicion to conduct an investigatory stop
and probable cause to perform a warrantless search are reviewed with a two-
stage standard in which the ultimate determinations of reasonable suspicion
StAte v. pICkINpAugh 	329
Cite as 17 Neb. App. 329
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

and probable cause are reviewed de novo and findings of fact are reviewed for
clear error, giving due weight to the inferences drawn from those facts by the
trial judge.
7. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention, something more than an inchoate
and unparticularized suspicion or “hunch,” but less than the level of suspicion
required for probable cause.
8. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. A reasonable suspicion to stop a vehicle cannot be found when there
is no factual foundation explaining the source of the information being relayed
between officers.
9. Investigative Stops: Probable Cause. When the information providing the fac-
tual basis for an investigatory stop is furnished by another person, it must contain
sufficient indicia of reliability.
10. Criminal Law: Eyewitnesses: Presumptions. A detailed eyewitness report of
a crime by an informant provides its own indicia of reliability because a citizen
informant who has personally observed the commission of a crime is presumed
to be reliable.
11. Constitutional Law: Miranda Rights: Self-Incrimination. the safeguards of
Miranda v. Arizona, 384 u.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694 (1966),
were intended to protect the Fifth Amendment right against self-incrimination by
countering the compulsion that inheres in custodial interrogation.
12. Miranda Rights. Miranda v. Arizona, 384 u.S. 436, 86 S. Ct. 1602, 16 L. ed.
2d 694 (1966), implicates only statements that are both testimonial in nature and
elicited during custodial interrogation.
13. Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Field sobriety
tests may be justified by a police officer’s reasonable suspicion based upon spe-
cific articulable facts that the driver is under the influence of alcohol or drugs.
14. Drunk Driving: Investigative Stops: Police Officers and Sheriffs: Probable
Cause. A police officer has a reasonable suspicion that a driver of a lawfully
stopped vehicle is under the influence of alcohol, and therefore an officer can
detain the driver after the traffic stop, where the officer observed that the driver’s
eyes were watery and bloodshot, the officer detected a strong odor of alcohol on
the driver’s breath, and the driver admitted to consuming alcoholic beverages.
15. Investigative Stops: Miranda Rights. the results of field sobriety tests are not
testimonial in nature, and Miranda warnings are not required before field sobriety
tests are administered.
16. Drunk Driving: Police Officers and Sheriffs: Blood, Breath, and Urine Tests.
Neb. Rev. Stat. § 60-6,197 (Reissue 2004) does not require that a person be
arrested specifically for driving under the influence prior to being required to
submit to a chemical test if the person has already been arrested for another crime
or if the investigating officer has reasonable grounds to believe the person was
driving a vehicle under the influence of alcohol.
Appeal from the District Court for Wayne County, robert
b. ensz, Judge, on appeal thereto from the County Court for
330 	17 NeBRASkA AppeLLAte RepoRtS

Wayne County, donnA f. tAylor, Judge. Judgment of District
Court affirmed.
Justin J. Cook, of Lincoln Law, L.L.C., for appellant.
Jon Bruning, Attorney general, and Nathan A. Liss for
appellee.
inbody, Chief Judge, and sievers and moore, Judges.
sievers, Judge.
Jeffery pickinpaugh was convicted of driving under the
influence of alcohol and sentenced to 6 months’ probation with
several conditions. his driver’s license was also revoked for 60
days. the district court affirmed the county court’s order, and
pickinpaugh appealed to this court. For the reasons set forth
herein, we affirm. pursuant to our authority under Neb. Ct. R.
App. p. § 2-111(B)(1), we have ordered this case submitted for
decision without oral argument.
FACtuAL AND pRoCeDuRAL BACkgRouND
on 	March 	16, 	2007, 	pickinpaugh 	was 	pulled 	over 	at
4:30 a.m. by officer gerald klinetobe of the Wayne police
Department. klinetobe had received a call from dispatch
saying a citizen, Javon McNeal, witnessed a one-car acci-
dent involving a utility pole. McNeal identified pickinpaugh’s
vehicle as the vehicle that hit the pole and provided officers
with the license plate number of the car. McNeal followed
pickinpaugh’s vehicle after such accident and continued to do
so until klinetobe arrived so she could point out the vehicle
to the officer. klinetobe noticed that there was damage to the
passenger-side front fender of pickinpaugh’s vehicle and that
the license plate on his car matched the one given earlier by
McNeal. klinetobe then signaled pickinpaugh to pull over,
and pickinpaugh pulled into a church parking lot. klinetobe
asked pickinpaugh whether he had hit a utility pole, and he
answered in the affirmative. klinetobe noticed pickinpaugh
had bloodshot and watery eyes, slurred speech, and an odor
of alcohol. pickinpaugh admitted that he had “quite a few”
drinks that evening. klinetobe began to administer field sobri-
ety tests, but at that time, there was a group of people
StAte v. pICkINpAugh 	331
Cite as 17 Neb. App. 329

gathering in the parking lot of the church to leave for a trip,
and pickinpaugh refused to do the tests in front of them.
klinetobe arrested pickinpaugh for leaving the scene of an
accident and the “pending investigation” for driving under the
influence, handcuffed him, and transported him to the police
station to conduct the field sobriety tests. pickinpaugh failed
all three tests klinetobe had him perform. About 11⁄2 hours
after the initial stop, pickinpaugh submitted to a chemical test,
which showed he had .135 of a gram of alcohol per 210 liters
of breath.
pickinpaugh was charged with driving while under the influ-
ence of alcohol, a violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2004) with the penalty prescribed by Neb. Rev. Stat.
§ 60-6,197.03(1) (Cum. Supp. 2006), a Class W misdemeanor.
pickinpaugh was also charged with failure to stop following an
accident involving property damage, a Class II misdemeanor
and violation of Neb. Rev. Stat. § 60-696 (Cum. Supp. 2006).
pickinpaugh filed a motion to suppress/motion in limine on
July 12, 2007, for suppression of all observations made of and
statements by pickinpaugh, results of his chemical test, and
any derivative evidence, because his arrest violated his Fourth
and Fifth Amendment rights and the officer lacked reason-
able grounds to believe pickinpaugh was operating a motor
vehicle while under the influence of alcohol. the county court
for Wayne County overruled this motion. the county court
conducted a bench trial on october 1, made findings of fact,
and found pickinpaugh guilty of driving under the influence of
alcohol but not guilty of failure to stop following an accident,
because the State failed to show damage to the pole as required
by the statute. pickinpaugh was sentenced to 6 months’ pro-
bation with conditions, a fine, and a driver’s license suspen-
sion for 60 days. pickinpaugh appealed to the district court
for Wayne County, and the conviction was affirmed on April
16, 2008. pickinpaugh appeals the district court’s ruling to
this court.
ASSIgNMeNtS oF eRRoR
pickinpaugh assigns as error (1) the county court ruling that
allowed the testimony of the arresting officer regarding the
332 	17 NeBRASkA AppeLLAte RepoRtS

informant to establish reasonable suspicion for the stop, (2)
the district court ruling that evidence of the field sobriety tests
was admissible for purposes of supporting probable cause for
pickinpaugh’s arrest, and (3) the district court ruling that an
arrest for driving under the influence was not a prerequisite
before requiring pickinpaugh to submit to a chemical test of his
breath under Nebraska’s implied consent law.
StANDARD oF RevIeW
[1] Both a district court and a higher appellate court gener-
ally review appeals from a county court for error appearing
on the record. State v. Trampe, 12 Neb. App. 139, 668 N.W.2d
281 (2003).
[2] A trial court’s ruling on a motion to suppress is to be
upheld on appeal unless its findings of fact are clearly errone-
ous. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). In
determining whether a trial court’s findings on a motion to sup-
press are clearly erroneous, an appellate court does not reweigh
the evidence or resolve conflicts in the evidence, but, rather,
recognizes the trial court as the finder of fact and takes into
consideration that it observed the witnesses. Id.
[3] pickinpaugh moved to suppress all of the evidence
resulting from his arrest, including the results of the chemical
test, both pretrial and at the start of the october 1, 2007, bench
trial. When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from trial and from the hearings on the
motion to suppress. State v. Ball, 271 Neb. 140, 710 N.W.2d
592 (2006).
[4,5] Regarding matters of law, an appellate court has an
obligation to reach a conclusion independent of that of the
trial court in a judgment under review. State v. Bowers, 250
Neb. 151, 548 N.W.2d 725 (1996). Statutory interpretation
presents a question of law, in connection with which an appel-
late court has an obligation to reach an independent conclu-
sion irrespective of the decision made by the court below.
Big John’s Billiards v. Balka, 260 Neb. 702, 619 N.W.2d
444 (2000).
StAte v. pICkINpAugh 	333
Cite as 17 Neb. App. 329

ANALySIS
Reasonable Suspicion for Investigatory Stop.
[6] pickinpaugh alleges in his brief that the motion to sup-
press should not have been denied, because klinetobe did not
have reasonable suspicion to stop his vehicle, in that there was
no factual foundation to explain the information klinetobe
received from dispatch. he argues that absent reasonable sus-
picion for the investigatory stop, such stop was improper, and
the motion to suppress was improperly denied. thus, we must
determine whether there was reasonable suspicion using the
appropriate standard of review.
[D]eterminations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a war-
rantless search [are reviewed with] a two-stage standard in
which the ultimate determinations of reasonable suspicion
and probable cause are reviewed de novo and findings of
fact are reviewed for clear error, giving due weight to the
inferences drawn from those facts by the trial judge.
State v. Soukharith, 253 Neb. 310, 318, 570 N.W.2d 344,
352 (1997).
[7-10] Reasonable suspicion entails some minimal level of
objective justification for detention, something more than an
inchoate and unparticularized suspicion or “hunch,” but less
than the level of suspicion required for probable cause. State
v. Ellingson, 13 Neb. App. 931, 703 N.W.2d 273 (2005). A
reasonable suspicion to stop a vehicle cannot be found when
there is no factual foundation explaining the source of the
information being relayed between officers. State v. Mays, 6
Neb. App. 855, 578 N.W.2d 453 (1998), overruled on other
grounds, State v. Anderson, 258 Neb. 627, 605 N.W.2d 124
(2000). Several prior cases have dealt with the adequacy of
reports to find such factual foundation for reasonable suspicion
from citizen informants, as was the case with the information
from McNeal here.
“An investigatory stop must be justified by an objec-
tive manifestation, based upon the totality of the circum-
stances, that the person stopped has been, is, or is about
to be engaged in criminal activity.” State v. Ege, 227 Neb.
824, 826, 420 N.W.2d 305, 308 (1988) (citing United
334 	17 NeBRASkA AppeLLAte RepoRtS

States v. Cortez, 449 u.S. 411, 101 S. Ct. 690, 66 L. ed.
2d 621 (1981)). the factual basis for the stop need not be
the officer’s personal observations alone, but may arise
from information provided by another person. Adams v.
Williams, 407 u.S. 143, 92 S. Ct. 1921, 32 L. ed. 2d
612 (1972); State v. Ege, supra. When the information
providing the factual basis for the stop is furnished by
another person, it must contain sufficient indicia of reli-
ability. State v. Ege, supra. A detailed eyewitness report
of a crime by an informant provides its own indicia of
reliability because a citizen informant who has personally
observed the commission of a crime is presumed to be
reliable. State v. Ege, supra.
State v. White, 15 Neb. App. 486, 493-94, 732 N.W.2d 677,
684 (2007).
Because we must evaluate all of the facts and circumstances
leading to pickinpaugh’s stop, we identify the specific informa-
tion available to klinetobe at the time. When klinetobe signaled
pickinpaugh to pull over, he had the following information:
he had a report from dispatch, based on a call from a citizen
informant, that there had been a one-car accident involving a
utility pole and that the vehicle had left the scene of the acci-
dent; he had observed damage to pickinpaugh’s vehicle—the
front passenger-side fender was dented and rubbing on the tire;
and McNeal was present at the scene to confirm that the car
in front of her was the one she had witnessed in the accident.
McNeal, properly characterized as a citizen informant, had
called the police to report an accident, identified herself, pro-
vided identifying information about the vehicle in the accident,
followed the vehicle in the accident until police arrived, and
pointed out the vehicle to the officer. If not an actual crime, she
certainly had witnessed suspicious behavior and was willing to
identify herself, provide details of the accident, and follow the
vehicle and identify such to the officer. therefore, based on
the circumstances of her report, her actions clearly support the
reliability of such report; plus, as a citizen informant, she is
presumed to be reliable.
pickinpaugh relies on State v. Mays, supra, where the court
found a lack of probable cause when the record failed to
StAte v. pICkINpAugh 	335
Cite as 17 Neb. App. 329

reflect from whom the police officer received the tip leading
to the stop of the defendant’s vehicle. this case can easily be
distinguished from the instant case because, as stated above,
McNeal did identify herself to dispatch and to klinetobe,
and thus, there is indicia of reliability, as well as a presump-
tion thereof, that is not present in cases involving anonymous
tips to the police. McNeal is clearly a citizen informant who
personally witnessed a crime and reported it, and thus she is
presumptively reliable. See State v. Detweiler, 249 Neb. 485,
544 N.W.2d 83 (1996).
there was clearly a sufficient factual basis for McNeal’s report
for klinetobe to perform an investigatory stop of pickinpaugh
based upon such report. thus, the investigatory stop was proper
because there was reasonable suspicion, and the motion to sup-
press evidence was properly denied. pickinpaugh’s argument
lacks merit.
Admission of Field Sobriety Tests.
[11] pickinpaugh argues that because he was in custody
and not advised of his Miranda rights, evidence of the field
sobriety tests conducted at the police station should have been
suppressed and, thus, inadmissible for purposes of supporting
probable cause for his arrest for driving under the influence.
pickinpaugh claims that the failure to advise him of his Miranda
rights violated his constitutional rights. klinetobe testified at
the suppression hearing that he did not advise pickinpaugh of
his Miranda rights until after the field sobriety and chemical
tests were administered and he was arrested. klinetobe also
testified that pickinpaugh was not free to leave and was in a
custodial situation, having already been arrested for leaving
the scene of the accident and transported to the police station,
when the field sobriety and chemical tests were administered.
the safeguards of Miranda v. Arizona, 384 u.S. 436, 86 S. Ct.
1602, 16 L. ed. 2d 694 (1966), were intended to protect the
Fifth Amendment right against self-incrimination by countering
the compulsion that inheres in custodial interrogation. State v.
Relford, 9 Neb. App. 985, 623 N.W.2d 343 (2001).
[12-14] Miranda, supra, implicates only statements that
are both testimonial in nature and elicited during custodial
336 	17 NeBRASkA AppeLLAte RepoRtS

interrogation. State v. Bowers, 250 Neb. 151, 548 N.W.2d 725
(1996). therefore, both elements must be present for Miranda
warnings to be necessary, and our analysis proceeds on the
basis that pickinpaugh was in custody. Field sobriety tests may
be justified by a police officer’s reasonable suspicion based
upon specific articulable facts that the driver is under the influ-
ence of alcohol or drugs. State v. Royer, 276 Neb. 173, 753
N.W.2d 333 (2008). A police officer has a reasonable suspicion
that a driver of a lawfully stopped vehicle is under the influ-
ence of alcohol, and therefore an officer can detain the driver
after the traffic stop, where the officer observed that the driver’s
eyes were watery and bloodshot, the officer detected a strong
odor of alcohol on the driver’s breath, and the driver admitted
to consuming alcoholic beverages. See id. klinetobe’s adminis-
tration of field sobriety tests in this case was clearly warranted
and lawful. klinetobe—after witnessing pickinpaugh’s blood-
shot eyes and slurred speech, listening to his admission that he
had consumed alcohol that evening, and having the information
about his encounter with the light pole—had ample reasonable
suspicion to administer the field sobriety tests. klinetobe prop-
erly began to administer such tests as pickinpaugh was detained
in the church parking lot, but was disrupted, through no fault of
his own, by the crowd gathering there, and klinetobe arrested
pickinpaugh for leaving the scene of an accident. therefore,
pickinpaugh was in a custodial situation at the police station
when the field sobriety tests were performed.
[15] Despite the fact that pickinpaugh was in custody, we hold
that the results of his field sobriety tests were not testimonial in
nature and that Miranda warnings were not required before the
field sobriety tests were administered. evidence obtained from
a driver by testing body fluids in the implied consent context
is not testimonial or communicative in nature and does not fall
within the constitutional right against self-incrimination. State
v. Green, 229 Neb. 493, 427 N.W.2d 304 (1988). We note that
Miranda warnings are not required before a law enforcement
officer’s request that a driver submit to a chemical analysis
under Nebraska’s implied consent law. Id. See, also, Fulmer v.
Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986). that said, we
note that there is no precedent in Nebraska declaring whether
StAte v. pICkINpAugh 	337
Cite as 17 Neb. App. 329

the results of field sobriety tests are testimonial or nontesti-
monial in nature for purposes of Miranda, supra. We found
such tests to be nontestimonial, and therefore not subject to
Miranda safeguards, in State v. Bowers, No. A-94-1243, 1995
WL 749709 (Neb. App. Dec. 19, 1995) (not designated for per-
manent publication). the Nebraska Supreme Court examined
our decision on a petition for further review, but said it did
not need to decide whether the results were testimonial or not,
because the defendant in that case was not in a custodial situ-
ation for Miranda purposes, making the evidence of the tests
admissible in the absence of Miranda warnings. See State v.
Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996). But here, we
have a custodial situation.
other courts have specifically addressed this issue, and
many have determined that the results of field sobriety tests
are nontestimonial because they are considered observations of
the suspect’s physical condition and performance and do not
result in communication that revealed subjective knowledge by
the defendant. See, Vanhouton v. Commonwealth, 424 Mass.
327, 676 N.e.2d 460 (1997); State v. Zummach, 467 N.W.2d
745 (N.D. 1991); State v. Fasching, 453 N.W.2d 761 (N.D.
1990); State v. Marks, 644 N.W.2d 35 (Iowa App. 2002). See,
also, State v. Mellett, 642 N.W.2d 779 (Minn. App. 2002).
these courts have determined that Fifth Amendment protec-
tions provided by Miranda warnings are inapplicable to the
results of field sobriety tests because such are nontestimonial,
and we agree.
Furthermore, in State v. Royer, 276 Neb. 173, 753 N.W.2d
333 (2008), the Nebraska Supreme Court held that for an
investigating officer to conduct field sobriety tests, only rea-
sonable suspicion, not probable cause, was required, and we
have found that in this case, the officer had ample reason-
able suspicion that pickinpaugh was driving under the influ-
ence before the field sobriety tests were given. And because
we hold that field sobriety tests are nontestimonial in nature,
the fact that pickinpaugh was in custody when the tests were
actually administered does not mean that Miranda warnings
were a precondition to the admission in evidence of the tests.
Accordingly, we find the district court properly affirmed the
338 	17 NeBRASkA AppeLLAte RepoRtS

county court’s overruling of pickinpaugh’s motion to suppress
the field sobriety tests, because the Miranda warnings were not
required even if pickinpaugh was in custody.
Arrest for Driving Under Influence as Prerequisite
for Submission to Chemical Test Under
Implied Consent Law.
[16] pickinpaugh argues that he should have been arrested
for driving under the influence before being required to submit
to the chemical test and that therefore, the State did not fol-
low the proper procedures under Nebraska’s implied consent
law. this argument has no merit. Neb. Rev. Stat. § 60-6,197
(Reissue 2004) states in relevant part:
(4) Any person involved in a motor vehicle accident
in this state may be required to submit to a chemical test
of his or her blood, breath, or urine by any peace officer
if the officer has reasonable grounds to believe that the
person was driving or was in actual physical control of
a motor vehicle on a public highway in this state while
under the influence of alcoholic liquor or drugs at the
time of the accident.
As discussed above, pickinpaugh was clearly being investi-
gated for his role in a one-car accident earlier in the morning.
Such accident was reported by a citizen informant to dispatch
and klinetobe. As such, klinetobe clearly had statutory author-
ity to ask pickinpaugh to submit to a chemical test.
Furthermore, § 60-6,197(2) states that an officer can require
a person arrested for any offense arising out of acts alleged
to have been committed while driving under the influence to
submit to a chemical test if there are reasonable grounds to
believe the person was driving a vehicle under the influence
of alcohol. As detailed above, klinetobe’s observations of
pickinpaugh that morning clearly constitute reasonable grounds
for klinetobe to believe that pickinpaugh was operating a
vehicle under the influence of alcohol. In addition, klinetobe
had arrested pickinpaugh for the offense of failure to stop fol-
lowing an accident involving property damage. pickinpaugh’s
claim that he had to have been arrested for driving under the
influence is an incorrect statement of the law, and pickinpaugh
StAte v. pICkINpAugh 	339
Cite as 17 Neb. App. 329

had been arrested for an offense when the chemical test was
administered. As such, pickinpaugh’s assignment of error has
no merit, and the district court’s ruling affirming the county
court’s order was proper.
CoNCLuSIoN
Finding no merit to pickinpaugh’s assignments of error, we
affirm the findings of the district court.
A ffirmed.
in re guArdiAnship And conservAtorship of isAAc mcdowell
And mAriAnnA mcdowell , minor children.
cArolyn mcdowell rosenquist, AppellAnt, v.
rAul A mbriz-pAdillA et Al ., Appellees.
762 N.W.2d 615
Filed January 20, 2009. 	No. A-08-517.
1. Guardians and Conservators: Appeal and Error. A proceeding for the appoint-
ment of a guardian in a matter arising under the Nebraska probate Code is
reviewed for error on the record.
2. 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.
3. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the case and controversy before it.
4. Wills: Guardians and Conservators. Irrespective of the circumstances of the
parents’ deaths, under Nebraska law, the determination of who shall be guardian
and conservator is ultimately dependent upon the best interests of the children,
although a testamentary nomination of a guardian or conservator may have statu-
tory priority.
5. ____: ____. the testamentary appointment of a guardian will be upheld unless
the best interests of the child require otherwise.
Appeal from the County Court for Dawson County: cArlton
e. clArk, Judge. Affirmed.
John B. McDermott and Mark porto, of Shamberg, Wolf,
McDermott & Depue, for appellant.
340 	17 NeBRASkA AppeLLAte RepoRtS