In re Estate of Sheila Foxley Radford, deceased.
Mary Radford, appellant. Provident Trust Company et al., appellees.
Statutes: Appeal and Error. 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
Trusts: Equity: Appeal and Error. 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.
Evidence: Appeal and Error. 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. 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.
Judgments: Records: Appeal and Error.
Meaningful appellate review requires a record that elucidates
the factors contributing to the lower court's decision.
Evidence: Records: Pleadings: Appeal and
Error. 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.
Evidence: Records: Appeal and Error. 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.
Trial: Testimony: Evidence. At a hearing,
testimony must be under oath and documents must be admitted
into evidence before being considered by the trial court.
Neb. 749] 8. Trial: Stipulations:
Judgments: Time. 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.
Pleadings: Evidence: Waiver. Judicial
admissions and stipulations constitute a substitute for
evidence, thereby waiving or dispensing with the need to
produce evidence by conceding for the purpose of litigation
that a proposition of fact is true.
Pleadings: Evidence. Judicial admissions
must be unequivocal, deliberate, and clear, and not the
product of mistake or inadvertence.
Pleadings: Intent. An admission does not
extend beyond the intendment of the admission as clearly
disclosed by its context.
Judicial Notice: Evidence. Judicial notice
of an adjudicative fact is a species of evidence.
Judicial Notice: Records: Appeal and Error.
Papers requested to be judicially noticed must be marked,
identified, and made a part of the record. Testimony must be
transcribed, properly certified, marked, and made a part of
the record. The trial court's ruling should state and
describe what it is the court is judicially noticing.
Otherwise, a meaningful review of its decision is impossible.
Judicial Notice: Rules of the Supreme Court:
Evidence. A court will take judicial notice of its
own records. However, under Neb. Evid. R. 201(2), Neb. Rev.
Stat. § 27-201(2) (Reissue 2016), judicially noticing
its own proceedings and judgment is proper only where the
same matters have already been considered and determined.
Pleadings: Evidence: Records: Presumptions.
In the absence of a bill of exceptions, an appellate court
presumes that any issue of fact raised by the pleadings
received support from the evidence.
Records: Pleadings: Appeal and Error. When a
transcript, containing the pleadings and order in question,
is sufficient to present the issue for appellate disposition,
a bill of exceptions is unnecessary to preserve an alleged
error of law regarding the proceedings under review.
Pleadings: Proof. Pleadings alone are not
proof but mere allegations of what the parties expect the
evidence to show.
Pleadings: Trial: Evidence. Pleadings and
their attachments which are not properly admitted into
evidence cannot be considered by the trial court.
Records: Pleadings. An application and its
attachments are not evidence, and the allegations therein
remain controverted facts until proved by evidence
incorporated in the bill of exceptions.
Records: Appeal and Error. It is incumbent
upon the appellant to present a record supporting the errors
assigned; absent such a record, [297 Neb. 750]an appellate
court will affirm the lower court's decision regarding
Records: New Trial: Appeal and Error. When a
record is deficient through no fault of the appellant, an
appellate court will remand for a new trial if the deficiency
in the record prevents the court from providing the appellant
meaningful appellate review of the assignments of error.
Evidence: Proof: Presumptions: Appeal and
Error. When, on appeal, an appellant argues that the
evidence is insufficient on a point for which the appellee
bore the burden of proof, an appellate court will not presume
there was evidence before the lower court, when the filed
bill of exceptions indicates that no evidence was offered.
from the County Court for Douglas County: Stephanie R.
Hansen, Judge. Reversed and remanded for further proceedings.
Richard A. DeWitt and Steven G. Ranum, of Croker, Huck,
Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for
Jeffrey J. Blumel and Kelsey M. Weiler, of Abrahams, Kaslow
& Cassman, L.L.P., for appellee Brigid Radford.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
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
that the county court had insufficient evidence upon which it
could base its findings. Accordingly, we reverse, and remand
for a new ...