Provident Trust Co. v. Radford (In re Estate of Radford), S-16-415.

CourtSupreme Court of Nebraska
Writing for the CourtFunke, J.
Citation297 Neb. 748,901 N.W.2d 261
Parties IN RE ESTATE OF Sheila Foxley RADFORD, deceased. Provident Trust Company et al., appellees, v. Mary Radford, appellant.
Docket NumberNo. S-16-415.,S-16-415.
Decision Date15 September 2017

297 Neb. 748
901 N.W.2d 261

IN RE ESTATE OF Sheila Foxley RADFORD, deceased.

Provident Trust Company et al., appellees,
Mary Radford, appellant.

No. S-16-415.

Supreme Court of Nebraska.

Filed September 15, 2017.

Richard A. DeWitt and Steven G. Ranum, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, for appellant.

Jeffrey J. Blumel and Kelsey M. Weiler, of Abrahams, Kaslow & Cassman, L.L.P., Omaha, for appellee Brigid Radford.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Funke, J.


Mary Radford appeals from a county court order concerning the distribution of the Sheila Foxley Radford Trust (Trust). Applying Neb. Rev. Stat. § 30-2350 (Reissue 2016), the court ruled that a gift from Sheila Foxley Radford to Mary, which preceded the Trust's restatement but was acknowledged by Mary as an inheritance in a contemporaneous writing, was in satisfaction of Mary's inheritance from the Trust.

We find that the county court had insufficient evidence upon which it could base its findings. Accordingly, we reverse, and remand for a new hearing on the trustee's motion for direction.

297 Neb. 751


In November 2015, Provident Trust Company, trustee for the Trust, filed an application for direction asking whether the doctrine of ademption by satisfaction applied to Sheila's gift to Mary, which it alleged Mary had contemporaneously acknowledged as an inheritance under § 30-2350. Attached to the application were copies of the Trust document, Sheila's will, and Mary's handwritten note.

The trustee set forth the following factual allegations in the application. On May 30, 2007, Mary signed a handwritten note stating: "This letter acknowledges that Sheila Radford, also known as ‘mom’, is affording me $200,000 for purchase of a home and is recognized by me as inheritance. I sign here recognizing that this is true." On June 11, Sheila wire-transferred $200,000 from her bank account to a title company, stating, "re: Mary Radford." Then, on April 6, 2010, Sheila updated her will and amended and restated the Trust. Sheila's will contained a "pour-over" provision for the Trust. The Trust's residuary was to be distributed among Sheila's four children upon her death: one-half to appellee, Brigid Radford, and one-sixth each to Mary, William Radford, and Christopher Radford. However, the Trust's restatement made no mention of the gift to Mary. Sheila passed away on October 5, 2014.

At hearings on the case, the trustee did not appear, but was represented by legal counsel. Mary appeared telephonically as a self-represented litigant. Neither party submitted any exhibits, no witnesses were sworn, nor was any testimony adduced. Instead, counsel asked the court "to take judicial notice of the record," to which the court responded that it would "take judicial notice of the record." Further, the trustee's counsel made several statements which summarized the issues presented by the application, relevant legal authority, and the facts. Counsel's statements included the following: On May 30, 2007, Mary signed a handwritten note "basically" stating: "Sheila Radford, also known as ‘Mom,’ is affording me $200,000 for purchase of a home and is recognized by me as

297 Neb. 752

an inheritance. I sign here recognizing this as true." Counsel further stated, "There was a wire transfer. Money was given at that time. So, that actually happened." When discussing the issue of ademption by satisfaction, counsel stated that "if she'd already gotten that $200,000," then the court would "take it away." Counsel stated that

901 N.W.2d 267

3 years later, the will and Trust were "done" and that Sheila's will contained a "pour-over" provision for the Trust. The Trust's residuary was to be distributed among Sheila's four children upon her death: one-half to Brigid, and one-sixth each to Mary, William, and Christopher.

After her statements, the trustee's attorney added, "I don't think there was any dispute as to the facts of the order of things or anything like that, right, Mary?" Mary replied, "No, there isn't." Mary then told the court about conversations with Sheila shortly before her death regarding Sheila's intent for the Trust's devises.

The court's order stated: "At the hearing, the court was advised that the facts are not in dispute and the sole issue is to resolve a question of law." Nevertheless, the order's statement of facts was more comprehensive than what counsel presented at the hearing and was buttressed by the facts contained in the application.

The court determined that § 30-2350 required it to consider Mary's contemporaneous writing acknowledgment and disregard parol evidence concerning the gift or its effect. Accordingly, the court ruled that the gift was an advancement of inheritance under § 30-2350 and reduced Mary's share of the residuary from the Trust accordingly. Under the court's decision, Mary was not entitled to any distribution from the Trust because a one-sixth share of the residuary was less than $200,000. Mary appealed.


Mary assigns, restated, that the court erred in (1) applying § 30-2350 to a trust, (2) finding that the doctrine of ademption by satisfaction—whether under the common law or

297 Neb. 753

§ 30-2350—applies to a gift made before the execution of the trust instrument, (3) disregarding Sheila's intent to give Mary a one-sixth interest in the Trust—as expressed in the plain language of the trust instrument; and (4) determining that Mary's share of the Trust should be adeemed by the gift.


Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.1

Absent an equity question, an appellate court reviews trust administration matters for error appearing on the record; but where an equity question is presented, appellate review of that issue is de novo on the record.2 In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions on the matters at issue.3 When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.4



Before assessing Mary's assignments of error, it is necessary to determine the scope of the evidence set forth in the record. Generally, meaningful appellate

901 N.W.2d 268

review requires a record that elucidates the factors contributing to the lower court's decision.5

297 Neb. 754

An appellate record typically contains the bill of exceptions, used to present factual evidence to an appellate court, and the transcript, used to present pleadings and orders of the case to the appellate court.6 A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.7

In the instant case, a bill of exceptions was prepared by the county court and was considered by us on appeal. The bill of exceptions shows that at the trial level, no exhibits were entered into evidence, nor did any witnesses testify under oath. We have previously recognized, in other matters, that at a hearing, " ‘testimony must be under oath and documents must be admitted into evidence before being considered’ " by the trial court.8

However, the trial court's statement at the hearing, that it would "take judicial notice of the record," and its statement in its order, that it was "advised that the facts are not in dispute," suggest that the court relied on substitutes for exhibit evidence. Accordingly, we must consider whether the bill of exceptions elucidates any substitute evidence which contributed to the lower court's decision either through judicial notice or as a result of a stipulation or admission by the parties. Absent a complete bill of exceptions, we must determine whether the transcript is sufficient to support the court's judgment.

(a) Parties Neither Stipulated to Nor Admitted Facts That Would Have Obviated Need for Evidence in This Case

Neb. Ct. R. § 6-1404 permits parties to make informal oral stipulations in open court during trial without the

297 Neb. 755

requirement of reducing the stipulation to a writing signed by the parties or counsel for the parties. "While no particular form of stipulation is required when made orally in open court, except that it be noted in the minutes, its terms must be definite and certain in order to render the proper basis for a judicial decision."9

In regard to stipulations to factual issues, we have stated:

"An express

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