In re Estate of Radford ( 2019 )


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    10/04/2019 08:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
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    IN RE ESTATE OF RADFORD
    Cite as 
    304 Neb. 205
    In   re Estate of Sheila Foxley R adford, deceased.
    Provident Trust Company et al., appellees,
    v. M ary R adford, appellant.
    ___ 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, exam-
    ines 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 ques-
    tion 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 super-
    fluous or meaningless.
    Appeal from the County Court for Douglas County:
    Stephanie R. H ansen, Judge. Reversed and remanded for fur-
    ther proceedings.
    Michael J. Decker for appellant.
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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, 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 chal-
    lenges 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 addition-
    ally 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 acknowl-
    edged 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 liv-
    ing 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 handwrit-
    ten note stating: “This letter acknowledges that Sheila . . . is
    affording me $200,000 for purchase of a home and is recog-
    nized 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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    IN RE ESTATE OF RADFORD
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    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 hold-
    ing 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 appel-
    late 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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    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 appear-
    ing 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 inde-
    pendent 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 desig-
    nated 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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    Property which a testator gave in his lifetime to a per-
    son 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 pos-
    sibility 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 con-
    sidering 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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    province of a court to read anything plain, direct, or unambig-
    uous 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 can-
    not 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 inter-
    pretation 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 plan-
    ning. 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 defini-
    tion 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 bene­
    ficiaries 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.
    R eversed and remanded for
    further proceedings.
    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).