## Facts

- Janet McClymont Hannan, a Virginia resident, executed a will in Alexandria, Virginia, on March 13, 1977.
- Janet had five children, including her son James Hannan.
- In January 1977, James adopted his wife’s adult daughter, Mary Elizabeth Glover, who was 35 years old at the time.
- James died in May 1977, leaving no children other than Glover.
- Janet died on April 2, 1982, and her will was admitted to probate in Virginia later that month.
- Janet’s will divided her residuary estate equally among her living children and the “issue” of any deceased child, per stirpes.
- In the Virginia probate proceedings, Glover sought a ruling that she was James’s “issue” and therefore entitled to take his share.
- The Virginia litigation ended with the Virginia Supreme Court holding that, under Virginia law, “issue” (absent a contrary indication in the will) carried its common-law meaning and did not include adopted children.
- Janet’s estate included real property located in Nebraska, leading to a separate ancillary probate proceeding in Phelps County, Nebraska.
- The Nebraska county court concluded that Virginia’s ruling did not control distribution of Nebraska real estate and held that Nebraska law governed; under Nebraska law, “issue” includes adopted children, so Glover was entitled to James’s per stirpes share of the Nebraska land.
- The district court affirmed.
- The Nebraska Court of Appeals reversed, reasoning that the testator’s probable intent should be measured by Virginia’s definition because Virginia was Janet’s domicile when she executed her will.
- Glover sought further review in the Nebraska Supreme Court.

## Issues

1. In an ancillary probate involving Nebraska real property devised under a Virginia domiciliary’s will, does Nebraska apply Nebraska law (the law of the land’s location) or Virginia law (including Virginia’s prior construction of “issue”) to determine who takes the Nebraska real estate?
2. If Nebraska law applies, does the term “issue” in Janet’s will include James’s adopted daughter, entitling Glover to take James’s per stirpes share of the Nebraska property?

## Decision

- The Nebraska Supreme Court reversed the Nebraska Court of Appeals and remanded with directions to affirm the district court’s judgment.
- Nebraska law governs the transfer and distribution of real property located in Nebraska, including the meaning given to class-gift terms in a will as applied to Nebraska land.
- Under Nebraska law, an adopted child is treated as the child of the adopting parent for inheritance and class-gift purposes; adopted persons are included within terms such as “issue” unless the will clearly shows a different intent.
- Because Janet’s will did not clearly exclude adopted children, Glover qualified as James’s “issue” for purposes of the Nebraska real estate and was entitled to the share James would have taken.

## Legal Principles

- An appellate court reviews probate cases for error on the record made in the county court; questions of law are reviewed independently.
- The law of the state where real property is situated controls the rights of parties in that property and the methods of its transfer, including devise by will.
- A prior construction of a will by courts of the decedent’s domicile may govern distribution of property administered there, but it does not control distribution of land in another state when the situs state applies its own law to determine who takes the land.
- Under Nebraska law, adopted children stand in the same parent-child relationship to the adoptive parent as biological children for purposes of inheritance and class-gift terminology.
- When a will uses clear and unambiguous language, a court must give effect to that language and should not rewrite the disposition based on external assumptions about the testator’s intent.

## Conclusion

Estate of Hannan v. Glover holds that Nebraska applies the law of the land’s location to determine who takes Nebraska real estate under a nonresident decedent’s will, even if the decedent’s domicile has construed the same will differently for other property. Because Nebraska treats adopted persons as “issue” in class gifts absent a clear exclusion in the will, Glover—adopted by the decedent’s son—was entitled to take her adoptive father’s per stirpes share of the Nebraska property.


Estate of Hannan v. Glover, 523 N.W.2d 672 (1994)