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In re Estate of Radford

Supreme Court of Nebraska

September 15, 2017

In re Estate of Sheila Foxley Radford, deceased.
v.
Mary Radford, appellant. Provident Trust Company et al., appellees.

         1. 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 below.

         2. 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.

         3. 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.

         4. Judgments: Records: Appeal and Error. Meaningful appellate review requires a record that elucidates the factors contributing to the lower court's decision.

         5. 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.

         6. 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.

         7. 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.

         [297 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.

         9. 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.

         10. Pleadings: Evidence. Judicial admissions must be unequivocal, deliberate, and clear, and not the product of mistake or inadvertence.

         11. Pleadings: Intent. An admission does not extend beyond the intendment of the admission as clearly disclosed by its context.

         12. Judicial Notice: Evidence. Judicial notice of an adjudicative fact is a species of evidence.

         13. 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.

         14. 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.

         15. 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.

         16. 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.

         17. Pleadings: Proof. Pleadings alone are not proof but mere allegations of what the parties expect the evidence to show.

         18. Pleadings: Trial: Evidence. Pleadings and their attachments which are not properly admitted into evidence cannot be considered by the trial court.

         19. 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.

         20. 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 those errors.

         21. 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.

         22. 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.

         Appeal 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 appellant.

          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.

          FUNKE, J.

         I. NATURE OF CASE

         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 ...


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