In Re Estate of Hannan
246 Neb. 828, 523 N.W.2d 672, 1994 Neb. LEXIS 222 (1994)
Rule of Law:
The law of the state where real property is situated (lex rei sitae) exclusively governs the right of parties to that property and the construction of will provisions devising it, specifically prevailing over the law of the testator's domicile.
Facts:
- James Hannan adopted his wife's 35-year-old daughter, Mary Elizabeth Glover, in January 1977.
- Shortly after the adoption, James's mother, Janet McClymont Hannan, executed her will in Virginia, her place of residence.
- James Hannan died in May 1977, leaving Glover as his only child.
- Janet Hannan died in 1982, owning real property located in Phelps County, Nebraska.
- Janet's will directed her residual estate to be divided among her surviving children and the 'issue' of her deceased children.
- The real property in Nebraska was sold by stipulation, with Glover's potential share held in escrow pending the legal determination of her rights.
- Under Virginia law, the term 'issue' excludes adopted children in this context, whereas Nebraska law includes them.
Procedural Posture:
- The Circuit Court for the City of Alexandria, Virginia admitted the will to probate.
- The Virginia Supreme Court held that under Virginia law, Glover was not 'issue' and could not inherit.
- An ancillary probate proceeding was filed in Phelps County Court, Nebraska, to settle the Nebraska real estate.
- The Phelps County Court ruled that Nebraska law applied and Glover was entitled to a 20-percent share.
- The District Court for Phelps County affirmed the county court's order.
- The Nebraska Court of Appeals reversed the district court, holding that Virginia definitions should apply based on testator intent.
- Glover filed a petition for further review with the Nebraska Supreme Court.
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Issue:
Does Nebraska law, which defines 'issue' to include adopted children, or Virginia law, which excludes them, govern the interpretation of a Virginia resident's will regarding the devise of real property located in Nebraska?
Opinions:
Majority - Justice Fahrnbruch
Yes, Nebraska law governs the definition of 'issue' for the devise of Nebraska real estate. The court reasoned that Nebraska strictly adheres to the rule that the law of the situs (where the property is located) controls all rights to real property and the methods of its transfer. While Nebraska allows for reciprocity with other states' probate rulings, Virginia does not offer such reciprocity; therefore, Nebraska applies its own law. Under the Nebraska Probate Code, the term 'issue' unambiguously includes adopted children. Because the statutory definition is clear, the court is not required to interpret the testator's intent based on her Virginia domicile, but must instead give force to the clear meaning of the word under Nebraska law.
Analysis:
This decision reinforces the doctrine of lex rei sitae (law of the situs), prioritizing state sovereignty over real property within its borders above the likely intent of a non-resident testator. By refusing to apply Virginia's definition of 'issue,' the court highlights a significant consequence of estate planning across state lines: the same word in a single will can mean different things in different states, potentially leading to 'fragmented' estate distribution. The ruling serves as a caution that statutory definitions in the state where land is located will override the common law or statutory presumptions of the testator's home state unless the will explicitly defines terms otherwise.
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