In re Ervin W. Blauhorn Revocable Trust

256 	275 Nebraska reports
should not have waited 5 days to remove Collette’s gastric
band. that claim must be supported by expert opinion. Without
it, the plaintiffs did not rebut the defendants’ prima facie case
that they did not breach the standard of care during the 5-day
span at issue.
For those reasons, I conclude that the plaintiffs failed to
show a genuine issue of material fact precluding judgment as a
matter of law, and I concur in the judgment.
I n re ervIn W. B lauhorn revocaBle T rusT.
orvIlle B lauhorn , T rusTee , appellee , v .
nancy l. cockle eT al ., appellanTs .
746 N.W.2d 136
Filed March 21, 2008. 	No. s-06-531.
1. Trusts. the interpretation of the terms of a trust is a question of law.
2. Appeal and Error. regarding matters of law, an appellate court has an obligation
to reach a conclusion independent of that of the trial court.
3. Decedents’ Estates: Taxation: Appeal and Error. an appellate court reviews
estate tax apportionment proceedings de novo on the record.
4. Statutes: Appeal and Error. statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
5. Taxation: Intent. Congress’ general intent with respect to the federal estate tax
is that it be governed by state law and that absent contrary congressional enact-
ments, state law govern the allocation of tax burden.
6. Statutes: Appeal and Error. statutory language is to be given its plain and ordi-
nary meaning. an appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unambiguous.
7. Affidavits. supporting and opposing affidavits shall be made on personal knowl-
edge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
appeal 	from 	the 	County 	Court 	for 	Merrick 	County:
lInda s. casTer senff, Judge. affirmed.
Joseph H. Murray, p.C., L.L.o., of Germer, Murray & Johnson,
for appellants.
steven e. Guenzel, of Johnson, Flodman, Guenzel & Widger,
for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

heavIcan , 	c.J., 	W rIghT, 	connolly , 	gerrard , 	sTephan ,
M ccorMack , and MIller -lerMan , JJ.
heavIcan , c.J.
I. INtroDUCtIoN
the primary issue presented by this case is the interpreta-
tion of the revocable trust of ervin W. blauhorn. In particular,
this court is faced with the question of whether ervin’s trust
specifically waived the apportionment of the estate tax against
the beneficiaries of property received from the estate of ervin’s
wife, bonnie blauhorn.
II. FaCts
the facts of this case are generally undisputed. this appeal
centers on the revocable trusts of ervin and bonnie, a married
couple. there were no children born of ervin and bonnie’s
marriage; however, the couple had many nieces and neph-
ews. ervin’s sister had married bonnie’s brother, and five
children were born of that marriage. these five individuals—
Nancy L. Cockle, Janet M. bridges, ronald L. scharvin,
Linda k. Frank, and kathleen a. Felker (referred to collectively
as the scharvins)—are related to both ervin and bonnie by
blood and are the appellants in this action. In addition, ervin
had at least 13 other nieces and nephews. It appears that these
13 individuals, collectively the blauhorns, were related by
blood only to ervin.
ervin and bonnie set up their estate plan by the use of a
qualified terminable interest property (QtIp) trust that qualified
for the marital deduction. the purpose behind this plan was to
avoid federal estate tax liability upon the death of the first of
the couple. However, this tax would later be imposed on the
estate of the surviving spouse.
bonnie died on January 27, 1997. Her credit shelter and
QtIp trust provided generally that ervin would receive the
income from the trust property during his life and that at his
death, the property would go to the scharvins. ervin and Janet
were the copersonal representatives of bonnie’s estate and
cotrustees of bonnie’s trusts. No federal estate tax was due
upon bonnie’s death.
IN re ervIN W. bLaUHorN revoCabLe trUst 	257
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258 	275 Nebraska reports
on December 17, 1997, ervin executed a will, as well as
the ervin W. blauhorn revocable trust agreement, which was
subsequently amended on three occasions. pursuant to this will
and trust, the blauhorns were to inherit ervin’s property. ervin
died on December 26, 2001. at some point during the admin-
istration of ervin’s estate, the scharvins were asked to pay a
portion of the tax due from the estate, but refused to do so.
the scharvins based this refusal on article X of ervin’s trust
agreement, which they argued evinced an intention on ervin’s
part to waive any right of reimbursement against the scharvins.
article X provides:
all the debts against settlor’s estate shall be paid as
soon after settlor’s death as can conveniently be done.
County inheritance tax shall be payable from the share
of each beneficiary. Federal or state estate tax payable by
settlor’s estate shall be allocated as follows with no right
of reimbursement from any recipient or beneficiary of any
such property whether or not such property passes under
this Will. First the amount of the exemption equivalent
for the unified credit available under the Internal revenue
Code at the time of settlor’s death shall be subtracted
from the amount devised to the residual heirs of settlor’s
estate. then the federal and state estate tax shall be allo-
cated among the remaining beneficiaries according to the
remaining balance received.
on april 10, 2003, ervin’s trustee filed a petition to register
and interpret the trust, requesting the county court to order the
scharvins to reimburse the trust $97,189 for federal estate tax
paid and $11,644.55 for inheritance tax paid. on December
20, 2005, the county court granted the trustee’s request with
respect to the federal estate tax and entered judgment in favor
of the trust for $97,189. this amount was calculated by sub-
tracting from ervin’s actual tax liability the amount of tax that
would have been owed by ervin’s estate had his estate not also
included bonnie’s assets. then, on april 12, 2006, the county
court entered an order determining the state inheritance tax
owed by the various beneficiaries of both ervin’s and bonnie’s
estates (i.e., the scharvins and the blauhorns). the scharvins
appeal, and the trust cross-appeals.

III. assIGNMeNts oF error
on appeal, the scharvins argue, renumbered and restated,
that the county court erred in (1) ordering the scharvins to
reimburse the trust for federal estate tax paid, (2) considering
the affidavit of Clifford Messner, (3) ordering the scharvins to
reimburse the trust for Nebraska inheritance tax paid, (4) grant-
ing the trust’s motion for summary judgment, and (5) denying
the scharvins’ motion for summary judgment.
on cross-appeal, the trust argues that the county court should
have awarded prejudgment interest.
Iv. staNDarD oF revIeW
[1,2] the interpretation of the terms of a trust is a ques-
tion of law.1 regarding matters of law, an appellate court has
an obligation to reach a conclusion independent of that of the
trial court.2
[3] an appellate court reviews estate tax apportionment pro-
ceedings de novo on the record.3
[4] statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.4
v. aNaLYsIs
1. ervIn ’ s T rusT dId noT specIfIcally WaIve
allocaTIon of T ax
(a) Federal estate tax
In their first assignment of error, the scharvins argue the
county court erred in ordering them to reimburse the trust for a
portion of the federal estate tax paid by the trust. We note at the
outset that the Nebraska estate tax is not at issue in this appeal.
the scharvins argue that article X of ervin’s trust agreement
waived any right of recovery against them and that instead,
the full estate tax should be paid by the blauhorns as bene-
ficiaries under ervin’s trust. In particular, the scharvins draw
1 see, In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007); Smith
v. Smith, 246 Neb. 193, 517 N.W.2d 394 (1994).
2 see Smith v. Smith, supra note 1.
3 see In re Estate of Detlefs, 227 Neb. 531, 418 N.W.2d 571 (1988).
4 In re Interest of Kevin K., 274 Neb. 678, 742 N.W.2d 767 (2007).
IN re ervIN W. bLaUHorN revoCabLe trUst 	259
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260 	275 Nebraska reports
our attention to the following language in article X: “[t]ax pay-
able by settlor’s estate shall be allocated as follows with no right
of reimbursement from any recipient or beneficiary of any such
property whether or not such property passes under this Will.”
some background as to the estate law principles at play is
helpful to a full understanding of the issue presented by this
case. prior to 1981, the Internal revenue Code permitted a
maximum marital deduction of 50 percent of the value of the
estate to the first spouse to die.5 this deduction was only avail-
able if the surviving spouse was given control over the disposi-
tion of the marital property at the time of the surviving spouse’s
death.6 this all changed with the economic recovery tax act
of 1981, which essentially created the QtIp trust.7 In discussing
the need for the QtIp trust, the 11th Circuit has observed:
as divorce and remarriage rates rose, Congress became
increasingly concerned with the difficult choice facing
those in second marriages, who could either provide for
their spouse to the possible detriment of the children of a
prior marriage or risk under-endowing their spouse to pro-
vide directly for the children. In the economic recovery
tax act of 1981, Congress addressed this problem by
creating the QtIp exception to the terminable property
rule. according to the House of representatives report,
the QtIp trust was designed to prevent a decedent from
being “forced to choose between surrendering control of
the entire estate to avoid imposition of estate tax at his
death or reducing his tax benefits at his death to insure
inheritance by the children.”8
the current allowance for QtIp trusts is found in I.r.C.
§§ 2044 and 2056(b)(7)(b) (2000).
as the facts above indicate, bonnie and ervin’s estate plan
employed a QtIp trust. bonnie, as the first to die, left a life
interest in her property to ervin with the remainder interest
5 Matter of Will of Adair, 149 N.J. 591, 695 a.2d 250 (1997).
6 Id.
7 Id.
8 Estate of Shelfer v. C.I.R., 86 F.3d 1045, 1049 (11th Cir. 1996).

to the scharvins. No tax was paid on bonnie’s estate. When
ervin died, his property was left to the blauhorns, while the
life interest he held in bonnie’s property was extinguished and
the scharvins received full ownership of the property. tax was
owed (and eventually paid) by ervin’s estate. It is reimburse-
ment for a portion of this tax which is at issue in this case.
section 2207a of the Internal revenue Code is instru-
mental in answering this question. that section provides in
relevant part:
(a) Recovery with respect to estate tax
(1) In general
If any part of the gross estate consists of property the
value of which is includible in the gross estate by reason
of section 2044 (relating to certain property for which
marital deduction was previously allowed), the decedent’s
estate shall be entitled to recover from the person receiv-
ing the property the amount by which—
(a) the total tax under this chapter which has been
paid, exceeds
(b) the total tax under this chapter which would have
been payable if the value of such property had not been
included in the gross estate.
(2) Decedent may otherwise direct
paragraph (1) shall not apply with respect to any prop-
erty to the extent that the decedent in his will (or a revo-
cable trust) specifically indicates an intent to waive any
right of recovery under this subchapter with respect to
such property.9
prior to 1997, § 2207a(a)(2) provided only that “Decedent
may otherwise direct by will[.] paragraph (1) shall not apply
if the decedent otherwise directs by will.”10
[5] as an initial matter, we note that Congress’ general intent
with respect to the federal estate tax is that it be governed by
state law and that absent contrary congressional enactments,
9 I.r.C. § 2207a(a) (2000).
10 I.r.C. § 2207a(a)(2) (1994).
IN re ervIN W. bLaUHorN revoCabLe trUst 	261
Cite as 275 Neb. 256

262 	275 Nebraska reports
state law governs the allocation of tax burden.11 However, we
conclude that § 2207a directly applies to the question pre-
sented by this appeal and, as such, is a contrary congressional
enactment. as a result, we conclude that § 2207a preempts
any applicable state law to the extent that state law might pur-
port to deal with the payment of federal estate tax attributable
to QTIP.12
Under § 2207a, ervin’s estate is entitled to recover from
the scharvins the tax paid by the estate that would not have
been owed had bonnie’s property not been included in ervin’s
estate. but § 2207a does provide an exception for ervin that
if he, by will or trust, “otherwise direct[ed]” by “specifically
indicat[ing] an intent to waive any right of recovery under this
subchapter,” then no recovery is allowed.
the question of whether a decedent “otherwise direct[ed]”
has previously been addressed by other jurisdictions. For exam-
ple, in Matter of Estate of Gordon,13 the court, in interpreting
the pre-1997 version of § 2207a, concluded that specific refer-
ence to QtIp was required in order to “‘otherwise direct . . .
by will.’” other jurisdictions have followed suit.14 our research
11 Riggs v. Del Drago, 317 U.s. 95, 63 s. Ct. 109, 87 L.e. 106 (1942).
12 see, e.g., Cleveland v. Compass Bank, 652 so. 2d 1134 (ala. 1994); In re
Estate of Klarner, 113 p.3d 150 (Colo. 2005); In re Probate of Will of Lee,
389 N.J. super. 22, 910 a.2d 634 (2006). Cf. Matter of Estate of Meyer, 702
N.e.2d 1078 (Ind. app. 1998) (finding that § 2207b dealing with reimburse-
ment resulting from retained life interest preempted state law).
13 Matter of Estate of Gordon, 134 Misc. 2d 247, 248, 510 N.Y.s.2d 815, 816
(1986).
14 see Firstar Trust Co. v. First Nat. Bank of Kenosha, 197 Wis. 2d 484, 541
N.W.2d 467 (1995). but see In re Estate of Miller, 230 Ill. app. 3d 141,
595 N.e.2d 630, 172 Ill. Dec. 269 (1992) (interpreting pre-1997 version
of § 2207a). Cf., In re Estate of Klarner, supra note 12 (where § 2207a
also preempted state estate tax, specific reference to QtIp trust or § 2207a
required in order to waive recovery of state estate tax); Matter of Will of
Adair, supra note 5, 149 N.J. at 604, 659 a.2d at 257 (under state statute,
court concluded generalized language regarding payment of tax was insuf-
ficient to “evidence[] an intent[] to exonerate”); Matter of Estate of Gordon,
supra note 13 (in addition to concluding that specific reference required
under § 2207a for federal estate tax, court concluded that such reference
was also required under state estate tax).

has revealed no cases interpreting the current, i.e., 1997, ver-
sion of § 2207a. We note, however, that the current version is
more specific than its predecessor with respect to waiver. We
conclude, therefore, that the 1997 amendment only reinforces
the correctness of prior decisions.
[6] In addition, a plain reading of the statute supports requir-
ing a specific reference to QtIp. statutory language is to be
given its plain and ordinary meaning. an appellate court will
not resort to interpretation to ascertain the meaning of statu-
tory words which are plain, direct, and unambiguous.15 section
2207a provides that “an intent to waive any right of recovery
under this subchapter” must be specifically made. (emphasis
supplied.) a plain reading of the language shows that some
reference to “this subchapter,” in other words, § 2207a(a), is
necessary in order to show a testator’s intent to waive the right
to recovery.16
the language of article X of ervin’s trust agreement, which
was signed after the effective date of the current version of
§ 2207a, indicated that there was to be no right of reimburse-
ment against recipients or beneficiaries. However, we conclude
that such was insufficient to waive the trust’s right of reimburse-
ment under that section. as is detailed above, this is so because
there was no reference to § 2207a, or even to the QtIp trust
or property, in article X, and thus no language “specifically
indicat[ing] an intent to waive any right of recovery under this
subchapter” as required by § 2207a. the county court did not
err in ordering the scharvins to reimburse the trust for a portion
of the federal estate tax paid by the estate, and the scharvins’
first assignment of error is without merit.
(b) affidavit of Clifford Messner
In their second assignment of error, the scharvins argue
that the county court erred in considering the affidavit of
Clifford Messner. Messner was an attorney for ervin’s estate.
In his affidavit, Messner averred that he was the attorney who
15 Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).
16 see, also, H.r. rep. No. 105-220 (1997), 105th Cong., 1st sess., reprinted
in 1997 U.s.C.C.a.N. 1129; 26 C.F.r. § 20-2207a-1(e) (2007).
IN re ervIN W. bLaUHorN revoCabLe trUst 	263
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264 	275 Nebraska reports
prepared the federal estate tax return for the estate. a copy of
that return was attached to the affidavit and indicated that a
total of $131,229 was paid in federal estate tax. also attached
to the affidavit was a copy of a federal estate tax return com-
pleted without the inclusion of bonnie’s property that passed
under her QtIp trust. that calculation shows the federal estate
tax due without the inclusion of bonnie’s property would have
been $34,040.
the scharvins contend that this affidavit and an unverified
allegation in the petition to register and interpret the trust are
the only evidence of the amount “supposedly due and owing
. . . for the federal estate tax.”17 the scharvins argue that while
Messner’s affidavit states that Messner is an attorney, “it does
not set forth his expertise in preparing federal estate tax returns
or indicate that the calculations were correctly made.”18 as
such, the scharvins argue that the affidavit was not competent
under Neb. rev. stat. § 25-1334 (reissue 1995).
[7] section 25-1334 provides in part that “[s]upporting and
opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify
to the matters stated therein.”
the scharvins’ argument is without merit. Messner, as the
attorney who actually completed the federal estate tax return for
the estate, was competent to testify to the amount he calculated
as being due on that return. In addition, Messner was compe-
tent to testify about the alternative calculation he performed
wherein he omitted bonnie’s property from the estate.
the scharvins’ complaint seems to be that there is nothing
to suggest that Messner’s calculations were correct. However,
Messner’s calculations were the only evidence of the tax
imposed upon the estate or of the amounts that would have
been due without the inclusion of bonnie’s property in the
estate. In opposing the trust’s motion for summary judgment,
the scharvins had the opportunity to enter into the record evi-
dence showing that Messner’s calculations were incorrect. No
17 brief for appellants at 16.
18 Id.

such evidence was introduced. as such, the county court did
not err in considering Messner’s affidavit. the scharvins’ sec-
ond assignment of error is also without merit.
(c) Nebraska Inheritance tax
In their third assignment of error, the scharvins argue that
the county court erred in assessing Nebraska inheritance tax
against them. We have considered the scharvins’ assignment of
error and conclude that it is without merit.
(d) remaining assignments of error
because the county court did not err in finding that the trust
was entitled to reimbursement for federal estate tax and inheri-
tance tax, we conclude that the two remaining assignments of
error—that the county court erred in granting the blauhorns’
motion for summary judgment while denying the scharvins’
motion—are without merit.
2. cross -appeal
ervin’s trustee has filed a purported cross-appeal in this case.
While the trustee’s cross-appeal is noted on the cover of the
brief and set forth in a separate division of the brief, the brief
submitted contains no assignments of error. Neb. Ct. r. of prac.
9D(4) (rev. 2006) requires that briefs on cross-appeal be “pre-
pared in the same manner and under the same rules as the brief
of appellant.” and rule 9D(1)(e) requires “[a] separate, concise
statement of each error a party contends was made by the trial
court . . . .” because the trust’s brief on cross-appeal does not
comply with our rules, we need not address the cross-appeal.
vI. CoNCLUsIoN
We conclude that the county court did not err in grant-
ing the trust’s motion for summary judgment and denying the
scharvins’ motion. the scharvins are required to reimburse the
trust for $97,189, and they are also required to pay a portion of
the inheritance tax as found by the county court. the order of
the county court is affirmed.
affIrMed .
IN re ervIN W. bLaUHorN revoCabLe trUst 	265
Cite as 275 Neb. 256