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304 Nebraska Report

IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

In re Estate of Sheila Foxley Radford, de

Provident Trust Company et al., appel

v. Mary Radford, appella

___ N.W.2d ___

Filed October 4, 2019. No. S-18-863.

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 proce

Michael J. Decker for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/04/2019 08:07 AM CDT
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IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

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

and, Freudenberg, J

Funke, 

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.
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304 Nebraska Report

IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

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 $200,000 transfer in 2007 should be 

treated as an advancement of inheritance and counted against 

Mary’s share of the residuary.

The county court held an initial hearing on this application 

and issued an order. However, we reversed, and remanded for 

a new hearing because the record was insufficient for appellate review.1

 Following remand, the county court held an 

additional hearing on the application and issued another order. 

In this order, the court applied § 30-2350 of the Nebraska 

Probate Code to the $200,000 payment. The court found 

that the 2007 note Mary executed satisfied the requirement 

of § 30-2350 that “the devisee acknowledge[] in a writing 

contemporaneous with the gift that it is in satisfaction [of 

the devise].” As such, the payment was an advancement of 

Mary’s inheritance under Sheila’s will and trust even though 

Sheila amended her will and trust after the payment and 

Mary’s note acknowledging the payment. The court valued 

the gift at $200,000, which was the value at the time of the 

devise in 2007, and, accordingly, reduced Mary’s one-sixth 

share of the residuary.

1 In re Estate of Radford, 297 Neb. 748, 901 N.W.2d. 261 (2017).
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IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

ASSIGNMENTS OF ERROR

Mary assigns, restated, that the county court erred by (1) 

applying § 30-2350 of the Nebraska Probate Code to a trust; 

(2) finding Sheila intended the $200,000 payment to be treated 

as an ademption of Mary’s interest; (3) finding the payment 

was an ademption of Mary’s interest when the payment was 

made prior to the trust being amended; and (4) finding that the 

May 30, 2007, note satisfied the requirements of § 30-2350.

STANDARD OF REVIEW

[1] 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.2

 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.3

[2] The probate court’s factual findings have the effect of a 

verdict and will not be set aside unless clearly erroneous.4

[3] 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.5

ANALYSIS

As an initial matter, we must address whether § 30-2350 is 

applicable because Sheila utilized a trust for the distribution of 

her assets. Mary argues that § 30-2350 is inapplicable because 

Sheila’s will devised her assets to her trust and her trust designated Mary’s distribution.

Ademption by satisfaction is defined by § 30-2350, which 

provides in part:

2 In re Estate of Etmund, 297 Neb. 455, 900 N.W.2d 536 (2017).

3 Id.

4 Id.

5 Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
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IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person 

in whole or in part only if the will provides for deduction 

of the lifetime gift, or the testator declares in a writing 

contemporaneous with the gift that it is to be deducted 

from the devise or is in satisfaction of the devise, or the 

devisee acknowledges in a writing contemporaneous with 

the gift that it is in satisfaction.

A testator is a maker of a will, and a devise is a testamentary 

disposition of real or personal property by a will.6

In defining a devisee as any person designated in a will to 

receive a devise, the Nebraska Probate Code addresses the possibility of a will making a distribution to a trust which makes 

further distributions to beneficiaries of the trust. Specifically, 

§ 30-2209(8) provides that “[i]n the case of a devise to an 

existing trust or trustee, or to a trustee or trust described by 

will, the trust or trustee is the devisee and the beneficiaries are 

not devisees.”

Such a distribution scheme is used here. Sheila’s will directs 

that upon her death her assets are to be transferred to her trust. 

The trust, in turn, provides that the trustee is to use these 

and any other assets held by the trust to pay certain expenses 

associated with Sheila’s death and distribute the remainder 

to Sheila’s children with a one-sixth distribution to each of 

Mary, William, and Christopher and a one-half distribution to 

Brigid. Therefore, under the plain language of § 30-2209(8), 

Sheila’s trust is the devisee as the designated recipient of the 

assets of the estate and Mary, as a beneficiary of the trust, is 

not a devisee.

[4,5] As quoted above, § 30-2350 solely uses “devise” 

and “devisee” to identify an applicable distribution and the 

applicable party to whom the distribution is made when considering whether ademption by satisfaction applies. 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 

6 Neb. Rev. Stat. § 30-2209(7) and (49) (Reissue 2016).
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IN RE ESTATE OF RADFORD

Cite as 304 Neb. 205

province of a court to read anything plain, direct, or unambiguous out of a statute.7

 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.8

Accordingly, under its plain language, § 30-2350 provides 

ademption only for devisees under a will. Because Mary is 

not a devisee under Sheila’s will, the $200,000 payment cannot be a § 30-2350 ademption.

Not only does the plain language of §§ 30-2209(8) and 

30-2350 compel this conclusion, it is strengthened by the 

Legislature’s choice not to adopt the model act section that 

would have incorporated § 30-2350 into the Nebraska Uniform 

Trust Code.9 At the time the Nebraska Uniform Trust Code 

was adopted in 2003,10 the model act included a section stating 

that “[t]he rules of construction that apply . . . to the interpretation of and disposition of property by will also apply as 

appropriate to the interpretation of the terms of a trust and the 

disposition of the trust property.”11 The intent of the Legislature 

is expressed by omission as well as by inclusion.12 Had the 

Legislature desired to apply § 30-2350 to trusts, it could have 

adopted § 112 of the model act. But it did not. Nor will we do 

so by judicial fiat in the guise of statutory interpretation. This 

leads to Brigid’s alternative argument.

Regardless of the applicability of § 30-2350 as written, 

Brigid argues we should apply the doctrine of ademption by 

satisfaction to beneficiaries of trusts utilized in estate planning. Brigid argues that Nebraska has long recognized the 

7 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 

(2019).

8 Id.

9 Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & Cum. Supp. 

2018).

10 See § 30-3801.

11 See Unif. Trust Code § 112, 7C U.L.A. 453 (2006) (model act promulgated 

in 2000).

12 Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
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doctrines of advancement and ademption by satisfaction and 

that because trusts are more commonly being utilized in estate 

planning schemes, it is necessary to extend the doctrine of 

ademption by satisfaction to such trusts to align and provide 

more consistency in the treatment of estate planning.

It is unclear on what authority Brigid is asking to expand 

ademption to beneficiaries of trusts. Brigid cites § 30-2350 

and Neb. Rev. Stat. § 30-2310 (Reissue 2016)—the statute 

governing advancements in intestate estates—as well as cases 

applying or discussing prior incarnations of those statutes.13

We initially note the instant case does not involve a question 

of advancement because advancements occur when a decedent 

dies intestate, but Sheila died testate. On expanding the definition of ademption, as discussed above, the applicable language 

of § 30-2350 and the definitions of its terms in § 30-2209 

specifically excludes ademption from applying to the beneficiaries of a devisee trust. The Legislature chose to include 

the limiting definition in the statute, and we decline to ignore 

this provision.

Because Mary was a beneficiary under the trust and not a 

devisee under the will, Sheila’s payment of $200,000 to Mary 

could not constitute an ademption by satisfaction. Accordingly, 

the county court erred in applying the $200,000 payment 

against Mary’s share under the trust. We reverse, and remand 

to the county court for further proceedings consistent with 

this opinion.

CONCLUSION

The county court erred in finding the payment from Sheila to 

Mary constituted an ademption of Mary’s share under Sheila’s 

trust. We reverse, and remand for further proceedings.

 Reversed and remanded

further proceedin

13 See, In re Estate of McFayden, 235 Neb. 214, 454 N.W.2d 676 (1990); 

Lodge v. Fitch, 72 Neb. 652, 101 N.W. 338 (1904); Boden v. Mier, 71 Neb. 

191, 98 N.W. 701 (1904).