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St. Mary's Church v. Tomek

Supreme Court of Nebraska
Oct 22, 1982
325 N.W.2d 164 (Neb. 1982)

Summary

holding that attorney who drafted will owed no duty to alleged beneficiaries of the will's residuary clause, and thus, alleged beneficiaries could not maintain negligence action

Summary of this case from Noble v. Bruce

Opinion

No. 82-230.

Filed October 22, 1982.

Attorney and Client. A lawyer owes a duty to his client to use reasonable care and skill in the discharge of his duties but ordinarily this duty does not extend to third parties.

Appeal from the District Court for Butler County: WILLIAM H. NORTON, Judge. Affirmed.

Douglas R. Milbourn of Tessendorf, Milbourn, Fehringer Bothe, P.C., for appellants.

William J. Mueller of Sodoro, Daly Sodoro, for appellees.

Heard before KRIVOSHA, C.J., HASTINGS, and CAPORALE, JJ., and RIST, D.J., and COLWELL, D.J., Retired.


Plaintiffs-appellants, St. Mary's Church of Schuyler and St. Anthony's Church of Columbus, seek reversal of the trial court's orders which sustained the demurrers of defendants-appellees, William E. Tomek, John G. Tomek, and Tomek and Tomek, to plaintiffs' amended petition, dismissed same upon plaintiffs' election to stand thereon, and denied plaintiffs' motion for new trial. We affirm.

The operating petition alleges defendants negligently prepared the last will and testament of the decedent, Emil L. Kavan, by failing to accurately express decedent's wishes, as the proximate result of which plaintiffs have been damaged. It is alleged that the decedent instructed defendants to so prepare his will as to distribute the residue of his estate to plaintiffs, share and share alike. The petition also alleges the conclusion that plaintiffs were beneficiaries of the attorney-client relationship entered into between defendants and decedent. Defendants demurred on the grounds the amended petition failed to state a cause of action and that it contained a misjoinder of causes of action, arguing that both tort and contract causes were combined as one.

The will in question included the following provision: "After the payment of all taxes, expenses of administration and proper charges allowed against my estate that have been paid I direct that the rest residue and remainder of the money in my bank account be paid equally among Saint Mary's Church, Schuyler, Nebraska and Saint Anthony's Church, Columbus, Nebraska." Because of a dispute among plaintiffs and decedent's heirs as to the meaning of this language, an action to construe the will was brought in the county court. That court ruled the clause to be ambiguous, found it to not be a general residuary clause, and ordered that the residuary estate (approximately $410,000) pass to the heirs. On appeal, the District Court reversed the judgment of the county court, ruled the language created a residuary clause, and ordered the residuary estate be paid to plaintiffs in equal shares. Thereafter, the heirs threatened an appeal to this court. Thereupon, plaintiffs negotiated a settlement for the sum of $60,000. They now seek to recover that sum, together with attorney fees and expenses incurred and yet to be incurred.

We have recently held that a lawyer owes a duty to his client to use reasonable care and skill in the discharge of his duties, but ordinarily this duty does not extend to third parties. Ames Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980). We conclude that rule is applicable to the facts of this case.

In view of the foregoing determination we need not consider defendants' argument that the amended petition contains a misjoinder of causes.

AFFIRMED.


Summaries of

St. Mary's Church v. Tomek

Supreme Court of Nebraska
Oct 22, 1982
325 N.W.2d 164 (Neb. 1982)

holding that attorney who drafted will owed no duty to alleged beneficiaries of the will's residuary clause, and thus, alleged beneficiaries could not maintain negligence action

Summary of this case from Noble v. Bruce

In St. Mary's Church v. Tomek, 212 Neb. 728, 325 N.W.2d 164 (1982), we said that as a general rule the duty to exercise reasonable care and skill which a lawyer owes his client ordinarily does not extend to third parties.

Summary of this case from Lilyhorn v. Dier
Case details for

St. Mary's Church v. Tomek

Case Details

Full title:ST. MARY'S CHURCH OF SCHUYLER, A NEBRASKA NONPROFIT CORPORATION, AND ST…

Court:Supreme Court of Nebraska

Date published: Oct 22, 1982

Citations

325 N.W.2d 164 (Neb. 1982)
325 N.W.2d 164

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