In re Estate of Radford, 297 Neb. 748

Background

Sheila Radford made a $200,000 gift to her daughter Mary in 2007; Mary signed a handwritten note acknowledging the gift and calling it an "inheritance."
Sheila restated her trust (and will with a pour-over clause) in 2010; the restated trust made no mention of the $200,000 gift and left the residuary to four children (Brigid 1/2, Mary 1/6, William 1/6, Christopher 1/6).
Provident Trust Company, as trustee, filed an application for direction after Sheila’s 2014 death, asking whether the 2007 gift adempted Mary’s 1/6 trust share under Neb. Rev. Stat. § 30-2350.
At the county court hearing the trustee’s counsel summarized facts and asked the court to take judicial notice of the record; no exhibits were admitted, no witnesses sworn, and no testimony under oath was taken. Mary participated by telephone and did not affirmatively adopt counsel’s factual statements as a formal stipulation.
The county court concluded the gift constituted an advancement/ademption by satisfaction under § 30-2350, reducing Mary’s trust share to zero; Mary appealed.
The Nebraska Supreme Court held the county court lacked a proper evidentiary record to support its findings and reversed and remanded for a new hearing so evidence could be properly presented.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Neb. Rev. Stat. § 30-2350 (advancement/ademption by satisfaction) applies to reduce a beneficiary’s interest in a trust when there is a contemporaneous writing acknowledging a pre‑instrument gift	Mary: § 30-2350 should not be applied to defeat the plain terms of the trust; trustee hadn’t proved the elements with admissible evidence	Trustee: Mary’s 2007 handwritten acknowledgment qualifies under § 30-2350 as contemporaneous writing showing the gift was an advancement, so Mary’s trust share should be reduced	Not decided on merits — trial court applied § 30-2350 but Supreme Court vacated because the record lacked admissible evidence to support that finding; remanded for evidentiary hearing
Whether the county court properly treated counsel’s unsworn statements and pleadings (and Mary’s non‑specific agreement) as substitutes for evidence or judicial admissions	Mary: Counsel’s statements and her brief reply did not constitute a clear, deliberate judicial admission or stipulation to dispense with evidence	Trustee: Argument implicitly that facts were undisputed and hence could be taken as established without formal exhibits/testimony	Held: Counsel’s statements and Mary’s response were not definite, unequivocal judicial admissions or stipulations; they did not obviate the need for admissible evidence
Whether the court may take judicial notice of unspecified documents in its own file instead of formally marking and admitting them into evidence	Trustee: Court may judicially notice the record and consider the attached documents	Mary: The court must identify and make each noticed document part of the record before relying on them	Held: Court erred by failing to mark, identify, and admit each document it purported to judicially notice; judicial notice was improper as used and left no admissible evidence in the record
Whether the appellate court should affirm given appellant’s incomplete record	Trustee (respondent): Absence of evidence in bill of exceptions supports affirmance	Mary (appellant): Deficiency in record was through no fault of appellant; trustee had burden to produce evidence	Held: Because the trustee (moving party) failed to present evidence and the deficient record was not Mary’s fault, case remanded for new hearing rather than affirmed

Key Cases Cited

Hargesheimer v. Gale, 294 Neb. 123 (procedural-record requirement for meaningful appellate review)
In re Robert L. McDowell Revocable Trust, 296 Neb. 565 (standards for appellate review of trust administration and equity issues)
Reicheneker v. Reicheneker, 264 Neb. 682 (judicial admissions are a substitute for evidence and must be clear and deliberate)
Strunk v. Chromy-Strunk, 270 Neb. 917 (requirements and limits for judicial notice and identification of noticed records)
In re Interest of N.M. and J.M., 240 Neb. 690 (a court may not judicially notice its own records to supply controverted facts that were never determined)
Hynes v. Good Samaritan Hosp., 285 Neb. 985 (remand appropriate where record is deficient and prevents meaningful appellate review)