In re Estate of Panter, 187 Neb. 615

Summary

The Supreme Court of Nebraska affirmed dismissal of a petition seeking to vacate a decree admitting a will and codicil to probate. The court held that, although the petitioner alleged undue influence and misleading conduct, he failed to plead facts showing diligence because the probate notice identified both the will and codicil and should have prompted further inquiry.

Holdings

1. A party seeking to vacate a judgment or decree must plead not only that the decree was obtained through the adversary's fraud, but also that the failure to obtain a just decision was not attributable to the petitioner's own fault or negligence.
2. Notice that a will and codicil are being offered for probate is sufficient to put an interested person on inquiry concerning the contents or changes to the testamentary instruments.
3. Johnson v. Richards does not save Flint's pleading because, unlike the petitioners in Johnson, Flint alleged no circumstances demonstrating diligence or explaining his failure to investigate.

Questions Presented

1. Whether a petition to vacate a decree admitting a will to probate must allege that the petitioner's failure to obtain a just decision was not caused by the petitioner's own fault or negligence.
2. Whether notice that a will and codicil would be offered for probate imposed a duty of inquiry sufficient to defeat Flint's claim of fraud or undue influence based on his lack of knowledge of the 1966 instruments.
3. Whether Flint's pleading was sufficient to withstand a general demurrer.

Disposition

affirmed