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In re Estate of Radford

Supreme Court of Nebraska

October 4, 2019

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

         1. Decedents' Estates: Judgments: Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

         2. Decedents' Estates: Appeal and Error. The probate court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous.

         3. 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.

         4. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         5. ___ .A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

          Appeal from the County Court for Douglas County: Stephanie R. Hansen, Judge. Reversed and remanded for further proceedings.

          Michael J. Decker for appellant.

          [304 Neb. 206] Robert M. Schartz, Howard J. Kaslow, and M. Tyler Johnson, of Abrahams, Kaslow & Cassman, L.L.P., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik and, Freudenberg, JJ.

          Funke, J.

         Mary Radford appeals the county court's decision on an application for direction which found that money Sheila Foxley Radford gave Mary prior to Sheila's death was an ademption of Mary's interest in Sheila's trust. On appeal, Mary challenges the application of the ademption statute, Neb. Rev. Stat. § 30-2350 (Reissue 2016), to the trust. Alternatively, Mary claims the court erred in finding it was Sheila's intent to have the money be an ademption of Mary's interest. Mary additionally challenges the determination that an ademption could be made prior to an amendment of the trust and that a document created prior to the amended trust in which Mary acknowledged the money was "inheritance" constituted an ademption. For the reasons stated herein, we reverse, and remand to the county court for further proceedings.

         BACKGROUND

         Sheila died testate as a resident of Douglas County, Nebraska, in October 2014. At the time of her death, Sheila had four living children, including Mary, William Radford, Christopher Radford, and Brigid Radford. In 1996, Sheila had executed a "pour-over" will and a trust agreement for the distribution of her assets.

         In May 2007, Sheila agreed to provide Mary $200, 000 for the purchase of a home. On May 30, Mary signed a handwritten note stating: "This letter acknowledges that Sheila ... is affording me $200, 000 for purchase of a home and is recognized by me as inheritance." On June 11, a wire transfer of $200, 000 was processed from Sheila's bank account to Mary's account. Mary alleges it was not her understanding that this payment would be counted against her share of the trust.

          [304 Neb. 207] In April 2010, Sheila amended and restated her trust. As applicable, Sheila amended the residuary distribution from an equal distribution among her four children to a one-sixth distribution to each of Mary, William, and Christopher and a one-half distribution to Brigid. Sheila additionally updated her will. Neither the updated will nor the amended trust made any mention of the $200, 000 transfer from Sheila to Mary.

         After Sheila's death, William found the May 30, 2007, note in Sheila's apartment. While the note was not in the box holding Sheila's trust and will documents, it was found in a file also containing a receipt of the wire transfer in a cabinet in which Sheila kept financial papers. These documents were brought to the attention of Provident Trust Company, the trustee of Sheila's trust, who filed an application for direction to determine whether the $200, ...


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