Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/08/2019 09:05 AM CST




                                                        - 315 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                             BRINKMAN v. BRINKMAN
                                                Cite as 302 Neb. 315




                    Nicole Brinkman, appellant, v. Seth Michael Brinkman
                        and K imberly M illus, Personal R epresentative
                          of the Estate of M ichael R. Brinkman and
                            as parent and next best friend of Seth
                            Michael Brinkman, a minor, appellees.
                                                    ___ N.W.2d ___

                                        Filed February 22, 2019.   No. S-18-476.

                1.	 Judgments: Jurisdiction. A jurisdictional issue that does not involve a
                    factual dispute presents a question of law.
                2.	 Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when
                    different state courts have concurrent original jurisdiction over the same
                    subject matter, basic principles of judicial administration require that
                    the first court to acquire jurisdiction should retain it to the exclusion of
                    another court.
                3.	 Jurisdiction. The rule of jurisdictional priority does not apply unless
                    there are two cases pending at the same time.
                4.	 Jurisdiction: Dismissal and Nonsuit. The doctrine of jurisdictional
                    priority does not apply if the first action terminates, is resolved, or is
                    disposed of before the second action commences.
                5.	 Jurisdiction. Two pending cases fall under the doctrine of jurisdictional
                    priority only when they involve the same “whole issue.” In other words,
                    the two actions must be materially the same, involving the substantially
                    same subject matter and the same parties.
                6.	 Constitutional Law: Courts: Jurisdiction. Because a district court’s
                    general jurisdiction emanates from the Nebraska Constitution, it cannot
                    be legislatively limited or controlled.
                7.	 Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. The
                    county courts have concurrent original jurisdiction with the district
                    courts in common-law and equity actions relating to decedents’ estates.
                8.	 Decedents’ Estates: Wills: Declaratory Judgments: Courts. The
                    district court has the power in a declaratory judgment action to
                                    - 316 -
             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                         BRINKMAN v. BRINKMAN
                            Cite as 302 Neb. 315

     construe a will and make a determination of interests of beneficiaries
     in the estate.
 9.	 Wills: Courts. The county court has the limited power to construe a will
     for the benefit of the executor in carrying out the terms of the will.
10.	 Courts: Jurisdiction. County courts can acquire jurisdiction only
     through legislative enactment.
11.	 Decedents’ Estates: Wills: Courts: Jurisdiction. A county court has
     complete equity powers as to all matters within its probate jurisdiction.
     This includes the authority to construe a will when necessary to enable
     the settlement of an estate properly.
12.	 Courts: Jurisdiction. While jurisdictional priority is not a matter of
     subject matter or personal jurisdiction, courts should enforce the juris-
     dictional priority doctrine to promote judicial comity and avoid the con-
     fusion and delay of justice that would result if courts issued conflicting
     decisions in the same controversy.
13.	 Actions: Courts: Jurisdiction: Public Policy. The rule of jurisdictional
     priority is based on the public policies of avoiding conflicts between
     courts and preventing vexatious litigation and a multiplicity of suits.
14.	 Courts: Jurisdiction. When a subsequent court decides a case already
     pending in another court with concurrent subject matter jurisdiction, it
     errs in the exercise of its jurisdiction.

   Appeal from the District Court for Douglas County:
Leigh A nn R etelsdorf, Judge. Reversed and remanded with
directions.
 Ryan P. Watson and Jeffrey A. Wagner, of Schirber &
Wagner, L.L.P., for appellant.
   Joseph D. Thornton, of Smith Peterson Law Firm, L.L.P.,
for appellees.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Freudenberg, J.
                     NATURE OF CASE
   The daughter of a testator sought a declaration of her
rights under her father’s will as an alleged devisee, claiming
to be entitled to one-half of the residual share of her father’s
                             - 317 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                    BRINKMAN v. BRINKMAN
                       Cite as 302 Neb. 315

testamentary estate under a residuary clause in the decedent’s
will. The estate asserted that the decedent unambiguously
disinherited the daughter by excluding her name in the defini-
tion of “‘children’” or “‘issue,’” while expressly including
the decedent’s younger son’s name and “all children of mine
born or adopted after the execution hereof.” After both parties
moved for summary judgment, the district court found that
the terms of the will were clear and unambiguous and that the
daughter was expressly disinherited by the will’s provisions.
Based on these findings, the court granted the estate’s motion
for summary judgment. The daughter appeals.

                        BACKGROUND
   The testator, Michael R. Brinkman, died on December
23, 2016, leaving two known children, Nicole Brinkman and
Seth Michael Brinkman. The testator’s will was admitted for
probate, naming Kimberly Millus as personal representative.
Millus is Seth’s mother, but not Nicole’s mother. Nicole is the
older of the two children.
   The relevant portions of the will are as follows:
                            ARTICLE I.
        The references in this Will to my “son” refer to my son,
     SETH MICHAEL BRINKMAN. The references in this
     Will to my “children” and/or my “issue” shall include my
     son, SETH MICHAEL BRINKMAN, and all children of
     mine born or adopted after the execution hereof.”
        ....
                           ARTICLE IV.
        I give and bequeath all right, title and interest I may
     own at the time of my death, if any, in any automobile,
     furniture and furnishings, including pictures and works of
     art, articles of domestic use or adornment of every kind
     and character, recreational equipment, personal effects
     used by me about my person or home, and any collec-
     tions or memorabilia, wheresoever located as provided in
     the last dated writing in existence at the time of my death
                              - 318 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                     BRINKMAN v. BRINKMAN
                        Cite as 302 Neb. 315

      signed by me which describes such item and distributee
      with reasonable certainty. To the extent any of said items
      are not so disposed of, I give said property to my son.
      To the extent any of such items are not so distributed,
      I direct my personal representative to sell or dispose of
      such items by such method and manner as my personal
      representative deems to be in the best interests of my
      estate, and any proceeds realized therefrom shall become
      a part of the residue of my estate.
                             ARTICLE V.
         I give the residue of my estate to my issue, per stirpes.”
(Emphasis supplied.)
   Nicole is not mentioned by name within the will.
   Nicole filed the present action seeking a declaration that she
was entitled to an undivided one-half interest in the estate, less
personal effects. She argued that though article I provided the
term “‘issue’” to “include” Seth, it did not expressly exclude
Nicole as “‘issue.’” (Emphasis supplied.) She later moved for
summary judgment, asserting that she was not expressly disin-
herited or disinherited by implication.
   Seth and Millus, on behalf of the estate, filed a resistance
and counter-motion for summary judgment, arguing that the
will was not subject to interpretation because it was not ambig-
uous. Alternatively, Seth and Millus argued that if the will was
ambiguous, Nicole was nonetheless expressly disinherited from
taking under the testator’s will.
   The district court granted the estate’s motion for summary
judgment. The court found that the language of the will was
clear and unambiguous. The district court further found that
it was clear that “issue” as used in article V was to be given
the meaning set forth in article I and that article I defined
“‘issue’” to mean Seth and any children born or adopted after
the execution of the will. Because no children were born or
adopted after the execution of the will, the court read “issue”
in article V to mean only Seth. The court further found that
Nicole was expressly disinherited by these provisions of the
                                    - 319 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                           BRINKMAN v. BRINKMAN
                              Cite as 302 Neb. 315

will. The court concluded that based on the clear terms of the
will, the entire residue of the estate passed to only Seth and
that Nicole was not entitled to a one-half interest in the residue
of the estate.

                 ASSIGNMENTS OF ERROR
   Nicole assigns that the district court erred in finding that (1)
the will was not ambiguous and (2) she was expressly disinher-
ited from her father’s will.

                  STANDARD OF REVIEW
  [1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.1

                            ANALYSIS
   [2] Though not originally raised by the parties, follow-
ing their submission of supplemental briefing at our request,
an issue of jurisdictional priority was identified. We do not
reach the merits of Nicole’s assignments of error, because we
conclude that the county court had jurisdictional priority over
the district court in this matter. It is undisputed that a probate
action pertaining to the will at issue was brought in county
court before Nicole brought her declaratory judgment action in
district court seeking interpretation of the same will, and that
probate action is still pending in county court. Under the doc-
trine of jurisdictional priority, when different state courts have
concurrent original jurisdiction over the same subject matter,
basic principles of judicial administration require that the first
court to acquire jurisdiction should retain it to the exclusion of
another court.2
   [3-5] This rule of jurisdictional priority does not apply
unless there are two cases pending at the same time.3 The

 1	
      Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).
 2	
      Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
 3	
      Id.
                                       - 320 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                           BRINKMAN v. BRINKMAN
                              Cite as 302 Neb. 315

doctrine further does not apply if the first action terminates,
is resolved, or is disposed of before the second action com-
mences.4 Additionally, two pending cases fall under this doc-
trine only when they involve the same “‘“whole issue.”’”5
In other words, the two actions must be materially the same,
involving the substantially same subject matter and the
same parties.6
   Nicole conceded during oral argument that the probate of
the will began in the county court and remained pending when
Nicole brought her declaratory judgment action regarding the
construction of the will in district court. Both the probate and
the declaratory judgment actions involve the construction of
the same will and a determination of the rights of the parties
based on the will’s meaning. The cases involve substantially
the same parties.
   Thus, there were two pending cases involving substantially
the same subject matter and parties in two different courts. The
only dispute presented by the parties concerning the elements
of jurisdictional priority is whether the county and the district
courts have concurrent original jurisdiction.
   The estate argues that the county court has exclusive origi-
nal jurisdiction over the construction of the will and that the
district court lacks subject matter jurisdiction over such mat-
ters. We disagree.
   The estate relies on Neb. Rev. Stat. §§ 24-517(1) and
30-2211 (Reissue 2016). Section 24-517 provides in pertinent
part: “Each county court shall have the following jurisdiction:
(1) Exclusive original jurisdiction of all matters relating to
decedents’ estates, including the probate of wills and the con-
struction thereof . . . .” Section 30-2211(a) provides in part:
“To the full extent permitted by the Constitution of Nebraska,
the [county] court has jurisdiction over all subject matter

 4	
      Id.
 5	
      Id. at 464, 855 N.W.2d at 596.
 6	
      Id.
                                     - 321 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                           BRINKMAN v. BRINKMAN
                              Cite as 302 Neb. 315

relating to (1) estates of decedents, including construction of
wills and determination of heirs and successors of decedents,
and estates of protected persons . . . .”
    We have held, however, that the Legislature’s purported
grant of exclusive original jurisdiction to the county court in
matters relating to decedents’ estates “‘is of suspect consti-
tutionality insofar as it relates to matters that would involve
either the chancery or common-law jurisdiction of the district
courts.’”7 This is because the district court’s jurisdiction over
such matters emanates from the Nebraska Constitution.
    [6,7] Neb. Const. art. V, § 9, states: “The district courts shall
have both chancery and common law jurisdiction, and such
other jurisdiction as the Legislature may provide . . . .” We
have held that because a district court’s general jurisdiction
emanates from the Nebraska Constitution, it cannot be legisla-
tively limited or controlled.8 Thus, in a long line of cases, we
found that the county courts have concurrent original jurisdic-
tion with the district courts in common-law and equity actions
relating to decedents’ estates.9
    [8] In this case, Nicole filed her complaint in district court
seeking declaratory relief. Specifically, she sought a declara-
tion of her rights under the decedent’s will. Neb. Rev. Stat.
§ 25-21,150 (Reissue 2016) specifically allows such an action,
providing in pertinent part: “Any person . . . under a . . . will
. . . may have determined any question of construction or valid-
ity arising under the instrument . . . and obtain a declaration
of rights, status or other legal relations thereunder.” And we
have held that the district court has the power in a declaratory

 7	
      Ptak v. Swanson, 271 Neb. 57, 63, 709 N.W.2d 337, 341 (2006) (quoting
      In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985)).
 8	
      Id. (citing Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591
      N.W.2d 524 (1999), and In re Estate of Steppuhn, supra note 7).
 9	
      See id. (citing Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592
      N.W.2d 894 (1999), and Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d
      554 (1991)). See, also, In re Estate of Steppuhn, supra note 7.
                                      - 322 -
                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                            BRINKMAN v. BRINKMAN
                               Cite as 302 Neb. 315

judgment action to construe a will and make a determination of
interests of beneficiaries in the estate.10
   Nicole argues that the district court had exclusive original
jurisdiction over her declaratory judgment action and that the
county court lacks subject matter jurisdiction over the inter-
pretation of the decedent’s will. We likewise find no merit to
this contention.
   [9] Nicole relies on cases wherein we have said that district
courts have exclusive jurisdiction to construe wills. While this
court has held the district courts of this state have the exclu-
sive power to construe wills, we have also held that the county
court has the limited power to construe a will for the benefit of
the executor in carrying out the terms of the will.11
   [10,11] There is nothing in the Nebraska Constitution that
limits the Legislature’s ability to grant to the county courts
jurisdiction over the construction of wills. Article V, § 1, of the
Nebraska Constitution provides in part:
         The judicial power of the state shall be vested in a
      Supreme Court, an appellate court, district courts, county
      courts, in and for each county, with one or more judges
      for each county or with one judge for two or more coun-
      ties, as the Legislature shall provide, and such other
      courts inferior to the Supreme Court as may be created
      by law.
County courts can acquire jurisdiction only through legislative
enactment.12 As already set forth, the Legislature has provided
through §§ 24-517(1) and 30-2211 that county courts have the
power to construe wills. And it is well settled that the county
court has been given complete equity powers as to all mat-
ters within its probate jurisdiction.13 This has long included

10	
      See Father Flanagan’s Boys’ Home v. Graybill, 178 Neb. 79, 132 N.W.2d
      304 (1964).
11	
      See id.
12	
      Iodence v. Potmesil, supra note 9; In re Estate of Steppuhn, supra note 7.
13	
      See Youngson v. Bond, 69 Neb. 356, 95 N.W. 700 (1903).
                                        - 323 -
                  Nebraska Supreme Court A dvance Sheets
                          302 Nebraska R eports
                              BRINKMAN v. BRINKMAN
                                 Cite as 302 Neb. 315

the authority to construe a will when necessary to enable the
settlement of an estate properly.14
    We find that the county court and the district court had exer-
cisable concurrent jurisdiction over the construction of this will.
All of the elements of jurisdictional priority are present in this
case. Thus, the county court, as the first court to acquire juris-
diction, retained it to the exclusion of the district court unless
it deferred to the district court.15 Neb. Rev. Stat. § 30-2429.01
(Reissue 2016) provides that the district court may determine
whether a decedent left a valid will if there is an objection to
the probate of the will in county court and certain transfer pro-
cedures are followed. But this case was not transferred to the
district court pursuant to this section, nor does it involve the
validity of a will, but, rather, its construction.16
    [12-14] While jurisdictional priority is not a matter of sub-
ject matter or personal jurisdiction, courts should enforce the
jurisdictional priority doctrine to promote judicial comity and
avoid the confusion and delay of justice that would result if
courts issued conflicting decisions in the same contro­versy.17
The rule of jurisdictional priority is based on the public poli-
cies of avoiding conflicts between courts and preventing vexa-
tious litigation and a multiplicity of suits.18 A pragmatic jus-
tification for the rule is efficiency in that proceedings earlier
begun may be expected to be earlier concluded.19 When a
subsequent court decides a case already pending in another
court with concurrent subject matter jurisdiction, it errs in the
exercise of its jurisdiction.20

14	
      See   id.
15	
      See   Charleen J. v. Blake O., supra note 2.
16	
      See   § 30-2429.01.
17	
      See   Charleen J. v. Blake O., supra note 2.
18	
      Id.
19	
      Id.
20	
      See   id.
                             - 324 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                     BRINKMAN v. BRINKMAN
                        Cite as 302 Neb. 315

   Because the county court did not transfer the case or oth-
erwise relinquish its jurisdictional priority, the district court
improperly impinged on the county court’s jurisdictional pri-
ority in construing the will in this matter. The district court
erred in its exercise of jurisdiction, and we reverse the order
and remand this matter to the district court with directions to
dismiss the complaint without prejudice.
                          CONCLUSION
   We reverse, because we conclude that the county court has
jurisdictional priority over the district court in construing the
will in this matter.
                      R eversed and remanded with directions.
