In re Estate of Fries

exception to the Tort Claims Act, regardless of whether a
duty exists under the code. The district court erred when
it failed to dismiss claim (a). All five claims of negligence
should have been dismissed. Accordingly, the rulings of the
district court denying the city’s motions to dismiss were error
and the denial of the city’s consolidated motion for new trial
asking that the judgments in favor of appellees be vacated
is reversed. The judgments entered in favor of appellees are
vacated, and the causes remanded with directions to dismiss
the complaints.
R eveRsed and Remanded with
diRections to dismiss.
in Re estate of LyLe L. fRies , deceased.
maRgaRet fRies , appeLLant, v. K athLeen huRst,
peRsonaL R epResentative of the estate of
LyLe L. fRies , deceased, appeLLee , and
James fRies et aL., inteRvenoRs -appeLLees.
782 N.W.2d 596
Filed May 21, 2010. 	No. S-08-1189.
1. Decedents’ Estates: Appeal and Error. An appellate court reviews probate cases
for error appearing on the record made in the county court.
2. Decedents’ Estates: Judgments: Appeal and Error. When reviewing questions
of law in a probate matter, an appellate court reaches a conclusion independent of
the determination reached by the court below.
3. Statutes. The meaning of a statute is a question of law.
4. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
5. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all favorable
inferences deducible from the evidence.
6. Decedents’ Estates: Valuation. Under Neb. Rev. Stat. § 30-2314 (Reissue 2008),
the probate estate is augmented by first reducing the estate by specified obliga-
tions and liabilities and then increasing the estate by the value of specified prop-
erties and transfers.
IN Re eSTATe oF FRIeS 	887
Cite as 279 Neb. 887
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

7. Decedents’ Estates. The purpose of the concept of augmenting the probate estate
in computing the elective share is twofold: (1) to prevent the owner of wealth
from making arrangements which transmit his property to others by means other
than probate deliberately to defeat the right of the surviving spouse to a share
and (2) to prevent the surviving spouse from electing to a share of the probate
estate when the spouse has received a fair share of the total wealth of the dece-
dent either during the lifetime of the decedent or at death by life insurance, joint
tenancy assets, and other nonprobate arrangements.
8. Decedents’ Estates: Intent: Wills. The combined effect of the statutory elective
share and augmented estate concepts is intended to protect the surviving spouse
of a decedent against donative inter vivos transfers by devices which would
deprive the survivor of a “fair share” of the decedent’s estate and at the same time
prevent the surviving spouse from receiving more than such share by allowing the
acceptance of certain transfers and insurance proceeds and also yet elect against
the will.
9. Statutes. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
10. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
11. ____: ____. When construing a statute, an appellate court must look to the
statute’s purpose and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would defeat it.
12. Statutes: Intent: Appeal and Error. In construing a statute, an appellate court
looks to the statutory objective to be accomplished, the evils and mischiefs sought
to be remedied, and the purpose to be served.
13. Decedents’ Estates. Under Neb. Rev. Stat. § 30-2314(a)(1)(i) (Reissue 2008), a
transfer under which the decedent retained at death the possession or enjoyment
of, or the right to income from, the property does not require that the decedent’s
right to possession of, enjoyment of, or income from the property be recorded in
the instrument of transfer.
14. ____. Under Neb. Rev. Stat. § 30-2314(a)(1)(i) (Reissue 2008), a decedent retains
possession or enjoyment of, or the right to income from, property when it is
understood that the decedent will retain such an interest despite the transfer. And
such an understanding need not be express; it can be implied from the circum-
stances surrounding the transfer.
15. Summary Judgment. on a motion for summary judgment, the question is not
how a factual issue is to be decided, but whether any real issue of material
fact exists.
Appeal from the County Court for Hall County: david a.
Bush, Judge. Reversed and remanded with directions.
Andrew J. Hoffman, of Krotter Hoffman, P.C., L.L.o., and
Jason D. Mielak, of Fehringer, Mielak & Fehringer, P.C.,
L.L.o., for appellant.
888 	279 NebRASKA RePoRTS

Thomas L. Kovanda, of Anderson, Vipperman, Kovanda &
Wetzel, for appellee.
Mark Porto and Ronald S. Depue, of Shamberg, Wolf,
McDermott & Depue, for intervenors-appellees.
heavican, 	c.J., 	wRight, 	connoLLy, 	geRRaRd, 	stephan,
mccoRmacK, and miLLeR-L eRman, JJ.
geRRaRd, J.
Lyle and Margaret Fries were married in 1991. At the time
of marriage, Lyle owned three parcels of land (the Properties).
In 1993, Margaret executed quitclaim deeds on the Properties
in favor of Lyle. Lyle then conveyed the Properties to his chil-
dren from a previous marriage. After Lyle died, Margaret chose
to take an elective share of his augmented estate. The issue in
this case is whether the value of the Properties should be part
of Lyle’s augmented estate. We conclude that there is a genu-
ine issue of material fact as to whether the Properties should
be included in the augmented estate for calculating Margaret’s
elective share, and we reverse the county court’s summary
judgment dismissing Margaret’s claim.
bACKgRoUND
Lyle and Margaret were married in 1991 and remained mar-
ried until Lyle’s death in 2006. At the time they were married,
Lyle owned the Properties—three separate parcels of land
located in Howard County, totaling approximately 224 acres.
on November 16, 1993, Margaret executed quitclaim deeds
for each of the Properties, transferring her interest to Lyle. on
December 2, Lyle recorded the quitclaim deeds and separately
signed and caused to be recorded joint tenancy warranty deeds
of the Properties for the benefit of his children from a prior
marriage, namely, James Fries, William Fries, Dennis Fries,
Daniel Fries, and Kathleen Hurst (the children). Kathleen is
the personal representative of Lyle’s estate; James, William,
Dennis, Daniel, and Kathleen, individually, are intervenors in
this case. We will refer to the personal representative and inter-
venors collectively as the “appellees.”
IN Re eSTATe oF FRIeS 	889
Cite as 279 Neb. 887

In the deed transferring the Properties to the children, Lyle
retained no legal interest in the Properties. Nevertheless, Lyle
continued to perform management functions for, receive income
from, and pay taxes on the Properties until his death. Lyle’s last
will and testament provided that both Margaret and the chil-
dren were to receive certain assets belonging to Lyle, but there
was no mention of the Properties.
After Lyle died, Margaret filed a petition in the county
court for an elective share of Lyle’s augmented estate. In her
petition, Margaret claimed that the Properties were part of
Lyle’s augmented estate and requested that the court award
her a spousal elective share of 50 percent of the Properties.
Kathleen, as personal representative of the estate, and the
children, as intervenors, objected. Margaret and the appellees
filed cross-motions for partial summary judgment concerning
whether the Properties should be included in the augmented
estate. The county court sustained the appellees’ motion, and,
after other proceedings that are not pertinent to our analysis
of this appeal, the court dismissed Margaret’s petition for
an elective share as augmented by the Properties. Margaret
now appeals.
ASSIgNMeNTS oF eRRoR
Margaret assigns, consolidated and restated, that the county
court erred in determining that there was no genuine issue of
material fact as to whether Lyle retained at death the posses-
sion or enjoyment of, or right to income from, the Properties.
Margaret also argues that she did not consent in writing to
the December 2, 1993, transfer of the Properties from Lyle to
his children.
STANDARD oF ReVIeW
[1-3] An appellate court reviews probate cases for error
appearing on the record made in the county court.1 but when
reviewing questions of law in a probate matter, an appellate
court reaches a conclusion independent of the determination
1 In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716
N.W.2d 681 (2006).
890 	279 NebRASKA RePoRTS

reached by the court below.2 The meaning of a statute is a
question of law.3
[4,5] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law.4 In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all favorable infer-
ences deducible from the evidence.5
ANALYSIS
genuine issue whetheR LyLe R etained at death
possession oR enJoyment of, oR R ight to
income fRom , the pRopeRties
[6] Under Neb. Rev. Stat. § 30-2313(a) (Reissue 2008),
a surviving spouse has a right to take an elective share of a
decedent’s estate “in any fraction not in excess of one-half
of the augmented estate under the limitations and conditions
hereinafter stated.” At issue in this appeal is the application of
Neb. Rev. Stat. § 30-2314 (Reissue 2008), which establishes
the content of a decedent’s augmented estate. Under § 30-2314,
the probate estate is augmented by first reducing the estate by
specified obligations and liabilities and then increasing the
estate by the value of specified properties and transfers.6 The
augmented estate also includes several categories of inter vivos
transfers made by the decedent.7
[7,8] The purpose of the concept of augmenting the pro-
bate estate in computing the elective share is twofold: (1) to
2 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
3 INA Group v. Young, 271 Neb. 956, 716 N.W.2d 733 (2006).
4 Schuyler Co-op Assn. v. Sahs, 276 Neb. 578, 755 N.W.2d 802 (2008).
5 Id.
6 In re Estate of Chrisp, supra note 2.
7 See, § 30-2314; In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563
(1999).
IN Re eSTATe oF FRIeS 	891
Cite as 279 Neb. 887

prevent the owner of wealth from making arrangements which
transmit his property to others by means other than probate
deliberately to defeat the right of the surviving spouse to a
share and (2) to prevent the surviving spouse from electing
to a share of the probate estate when the spouse has received
a fair share of the total wealth of the decedent either during
the lifetime of the decedent or at death by life insurance,
joint tenancy assets, and other nonprobate arrangements.8 The
combined effect of the statutory elective share and augmented
estate concepts is intended to protect the surviving spouse of
a decedent against donative inter vivos transfers by devices
which would deprive the survivor of a “fair share” of the
decedent’s estate and at the same time prevent the surviving
spouse from receiving more than such share by allowing the
acceptance of certain transfers and insurance proceeds and
also yet elect against the will.9
In her first assignment of error, Margaret argues that the
value of the Properties should be included in the augmented
estate pursuant to § 30-2314(a)(1), which provides, in relevant
part, that the augmented estate includes
[t]he value of property transferred by the decedent at
any time during marriage . . . for the benefit of any per-
son other than a bona fide purchaser or the surviving
spouse, but only to the extent to which the decedent did
not receive adequate and full consideration in money or
money’s worth for such transfer, if such transfer is . . . :
(i) Any transfer under which the decedent retained at
death the possession or enjoyment of, or right to income
from, the property.
It is undisputed that the Properties were not transferred to a
bona fide purchaser or surviving spouse and that they were not
transferred for adequate and full consideration. And there is
very little question that the record presents a genuine issue of
material fact as to whether, at the time of his death, Lyle actu-
ally had possession of the Properties and disposition of their
8 In re Estate of Myers, supra note 7.
9 Id.
892 	279 NebRASKA RePoRTS

income. The dispute is over whether those facts are enough to
satisfy § 30-2314(a)(1)(i).
The appellees argue that the plain language of the statute
limits the property included in the augmented estate to that
in which the decedent retained an interest under a “transfer”
document. In other words, the appellees argue that a “transfer”
is the legal instrument by which the property is conveyed and
that a decedent retains possession or enjoyment of, or right to
income from, property “under” the “transfer” only if the legal
instrument secures the decedent’s right to possession, enjoy-
ment, or income. And in this case, the warranty deed transfer-
ring the Properties from Lyle to his children did not.
[9,10] but absent a statutory indication to the contrary,
we give words in a statute their ordinary meaning.10 And
§ 30-2314(a)(1)(i) does not include the word “document” or
even require a writing evidencing the transfer. An appellate
court will not read into a statute a meaning that is not there.11
A transfer encompasses “[a]ny mode of disposing of or parting
with an asset or an interest in an asset.”12 What is significant
for purposes of § 30-2314(a)(1)(i) is whether the parties to the
transfer intended the decedent to functionally retain posses-
sion or enjoyment of, or the right to income from, the prop-
erty—not whether the written instrument of transfer reflects
that intent.
[11,12] And when construing a statute, an appellate court
must look to the statute’s purpose and give to the statute
a reasonable construction which best achieves that purpose,
rather than a construction which would defeat it.13 We look to
the statutory objective to be accomplished, the evils and mis-
chiefs sought to be remedied, and the purpose to be served.14
The statutory comments to § 30-2314 specifically state that
10 In re Estate of Chrisp, supra note 2.
11 Id.
12 black’s Law Dictionary 1636 (9th ed. 2009) (emphasis supplied).
13 TracFone Wireless v. Nebraska Pub. Serv. Comm., ante p. 426, 778 N.W.2d
452 (2010).
14 Id.
IN Re eSTATe oF FRIeS 	893
Cite as 279 Neb. 887

transfers within the meaning of subsection (a)(1) “are transfers
by the decedent during his lifetime which are essentially will
substitutes, arrangements which give him continued benefits
or controls over the property.”15 one of the purposes of the
augmented estate provisions, as noted above, is to prevent the
surviving spouse’s right to an elective share to be defeated by
a decedent’s arrangements to transfer property outside pro-
bate. That purpose could hardly be well served if enforcement
of the surviving spouse’s rights depended upon a decedent’s
being foolish enough to record his or her intent in a written
legal instrument.
Moreover, as noted by the Legislature, the augmented estate
resembles the gross estate for federal estate tax purposes.16 The
language “possession or enjoyment of, or right to income from,
the property” is almost identical to language in the Internal
Revenue Code that defines a decedent’s gross estate.17 And
courts have emphasized that this language “describes a broad
scheme of inclusion in the gross estate, not limited by the form
of the transaction, but concerned with all inter vivos transfers
where outright disposition of the property is delayed until the
transferor’s death.”18
Therefore, to satisfy that language, “[t]he donor’s interest
need not be reserved by the instrument of transfer, nor need
it be legally enforceable.”19 It is well settled that the terms
“enjoy” and “enjoyment,” as used in various estate tax stat-
utes, are not terms of art, but connote substantial present eco-
nomic benefit rather than technical vesting of title or estates.20
And in the case of real property, the terms “possession” and
15 See § 30-2314 (Reissue 1975) (statutory comment). Accord Unif. Probate
Code, prior art. II, § 2-202, comment, 8 (part I) U.L.A. at 299 (1998).
16 Working Papers and Preliminary Interim Study Report on a Revised
Nebraska Probate Code, L.b. 354, Judiciary Committee, 83rd Leg. (Aug.
30, 1973).
17 See I.R.C. § 2036(a)(1) (2006).
18 Guynn v. United States, 437 F.2d 1148, 1150 (4th Cir. 1971).
19 Id., citing McNichol’s Estate v. C.I.R., 265 F.2d 667 (3d Cir. 1959).
20 United States v. Byrum, 408 U.S. 125, 92 S. Ct. 2382, 33 L. ed. 2d 238
(1972).
894 	279 NebRASKA RePoRTS

“enjoyment” have been interpreted to mean “the lifetime use of
the property.”21 The language encompasses an interest retained
pursuant to an understanding or arrangement, which need not
be express, but may be implied from all the circumstances sur-
rounding the transfer.22
So, for purposes of determining whether a decedent retained
“possession or enjoyment of, or right to income from, the prop-
erty,” a transferor retains the enjoyment of property if there is
an express or implied agreement at the time of the transfer that
the transferor will retain the present economic benefits of the
property, even if the retained right is not legally enforceable.23
And a transferor retains the right of enjoyment of property if,
at the time of transfer, there was an express or implied agree-
ment that the interest or right would later be conferred.24
For instance, in Guynn v. United States,25 the decedent, an
81-year-old woman, conveyed a residence to her daughter, but
remained in the residence without an express agreement that
entitled her to do so, paid no rent to the daughter, and paid
for improvements and certain expenses to the residence. The
decedent’s daughter testified that the decedent’s remaining in
the property was not discussed, because it was understood by
all involved that she would stay in the property until her death.
The Fourth Circuit noted that “[f]rom every outward indication,
[the decedent’s] relationship to the property was no differ-
ent after the transfer to her daughter than before. Conversely,
[the daughter’s] possession and economic enjoyment of the
property was totally postponed until her mother’s death.”26
Therefore, the Fourth Circuit held that the evidence estab-
lished an implied understanding that the decedent would retain
21 Estate of Tehan v. C.I.R., 89 T.C.M. (CCH) 1374 (2005). See, Byrum,
supra note 20; Estate of Maxwell v. C.I.R., 3 F.3d 591 (2d Cir. 1993).
22 Guynn, supra note 18, citing Skinner’s Estate v. United States, 316 F.2d
517 (3d Cir. 1963).
23 Estate of Reichardt v. Commissioner, 114 T.C. 144 (2000).
24 Kimbell v. U.S., 371 F.3d 257 (5th Cir. 2004); Estate of Reichardt, supra
note 23.
25 Guynn, supra note 18.
26 Id. at 1150.
IN Re eSTATe oF FRIeS 	895
Cite as 279 Neb. 887

“the possession or enjoyment” of the property for her lifetime
despite the transfer.27
[13,14] We find the foregoing reasoning persuasive, and
consistent with our own reading of the identical language of
§ 30-2314(a)(1)(i). We conclude that under § 30-2314(a)(1)(i),
a transfer “under which the decedent retained at death the
possession or enjoyment of, or right to income from, the prop-
erty” does not require that the decedent’s right to possession
of, enjoyment of, or income from the property be recorded
in the instrument of transfer. A decedent retains possession
or enjoyment of, or the right to income from, property when
it is understood that the decedent will retain such an interest
despite the transfer. And such an understanding need not be
express; it can be implied from the circumstances surrounding
the transfer.28
based on our review of the record, the circumstances of
this case could support such an implication. It is not disputed
that Lyle received income from the Properties, or that Lyle
paid taxes on that income and on the Properties themselves.
The evidence also establishes that Lyle used the Properties for
recreational purposes, like hunting and fishing, until he was
physically unable to do so, and held himself out to friends, ten-
ants, and government agencies as the owner of the Properties.
And more important, the personal representative testified that
when Lyle told her about his plan to transfer the Properties, she
asked about “the income and the tenants and he goes well, you
know, since I’ve always done it I would like to continue doing
that.” Some of the children continued paying Lyle rent to farm
the Properties, and the personal representative agreed that Lyle
“made the final decision” when it came to the Properties, up
until his death.
[15] granted, there is evidence in the record to the con-
trary—for instance, James averred that the children gave Lyle
the Properties’ income because they wanted to, not because
they had to, and that Lyle had never indicated that he expected
27 Id.
28 See id.
896 	279 NebRASKA RePoRTS

to receive that income. However, on a motion for summary
judgment, the question is not how a factual issue is to be
decided, but whether any real issue of material fact exists.29
The evidence in this case, taken in the light most favorable to
Margaret, could support an inference that Lyle was intended
to retain possession and enjoyment of, and the right to income
from, the Properties, despite their transfer to the children.
Therefore, the county court erred in concluding, as a mat-
ter of law, that the Properties should not be included in the
augmented estate. Upon further proceedings on remand, the
court should conduct an analysis based on the principles set
forth above.
genuine issue whetheR maRgaRet consented to
tRansfeR of the pRopeRties to the chiLdRen
As an alternative basis for summary judgment, the appel-
lees argue that the Properties are excluded from the augmented
estate because Margaret consented to their transfer. Central to
the appellees’ argument is § 30-2314(c)(2), which provides, in
pertinent part, that property otherwise includable in the aug-
mented estate should not be included if it was
transferred by the decedent to any person other than the
surviving spouse by any bill of sale, conveyance, deed, or
gift or by any other means of transfer either by an instru-
ment of transfer joined in by the surviving spouse of the
decedent or with the consent to transfer manifested before
or after death of the decedent by a writing signed by the
surviving spouse of the decedent before, contemporane-
ously with, or after the transfer[.]
The appellees contend that Margaret conveyed all of her inter-
ests in the Properties to Lyle when she executed the quitclaim
deeds in November 1993 and that because Lyle acquired the
Properties prior to his marriage to Margaret, the only interest
Margaret had in the Properties was a possibility of inheritance.
As a result, the appellees contend, the quitclaim deeds can only
be interpreted as Margaret’s consent to divest herself of any
inheritance interest in the Properties. We disagree.
29 Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006).
IN Re eSTATe oF FRIeS 	897
Cite as 279 Neb. 887

Here, it is undisputed that Margaret executed three quit-
claim deeds in favor of Lyle in November 1993. In all three
quitclaim deeds, after a legal description of the property, the
deed states, “gRANToR covenants with gRANTee that
gRANToR: 1. Is lawfully seized of such real estate; 2. Has
legal power and lawful authority to convey the same; 3.
Warrants that grantor will convey all interest that she pos-
sesses in said property to grantee.” The quitclaim deeds, how-
ever, do not set forth any intent by Margaret to give up her
rights to dissent from Lyle’s will or claim an elective share
of Lyle’s estate. Moreover, the record also contains evidence
indicating that Margaret did not intend to do so. Margaret
averred that in November 1993, Lyle presented three docu-
ments for her signature and
informed me that they were for tax purposes and asked
that I sign them. He did not discuss with me what they
were for or why I was signing them other then [sic] to
tell me that they were for tax purposes. . . . Nobody was
with Lyle when I signed these documents nor did he tell
me what he was planning to do subsequent to my signing.
It wasn’t until many years later, that I learned that these
documents were actually quitclaim deeds.
More important, Margaret did not sign the December 1993
deeds transferring title of the Properties to the children. And
contrary to the appellees’ assertion, Lyle’s later transfer of the
Properties to the children—not Margaret’s execution of the
quitclaim deeds—is the decisive transfer. Section 30-2314(c)(2)
clearly sets forth that the pertinent transfer is one in which
property is transferred by the decedent “to any person other
than the surviving spouse.” There is no evidence that Margaret
expressly manifested her consent—“by a writing signed” or
otherwise—to the transfer of the Properties to the children.
Margaret stated that she “had no knowledge of these deeds
and I never consented to them in writing, I never consented
to them verbally, or otherwise.” In fact, Margaret said that she
was unaware of the fact that Lyle executed joint tenancy war-
ranty deeds with the children, because Lyle continued to retain
all of the incidences of ownership and all of the benefits from
owning the property.
898 	279 NebRASKA RePoRTS

Furthermore, the appellees’ construction of § 30-2314(c)(2)
is inconsistent with the purpose of the augmented estate stat-
utes. As mentioned above, the dual purpose of the elective
share provisions is to prevent a spouse from being denied
a fair share of the decedent’s estate and also to prevent the
surviving spouse from obtaining more than a fair share of the
estate when he or she has already received a share of the estate
through some other means. To achieve this purpose, the value
of certain property transferred by the decedent during marriage
is included in the decedent’s augmented estate.30
If, however, a spouse had agreed to the transfer, the value
of the transferred property is not included in the transferring
spouse’s augmented estate.31 Logically, when a spouse agrees
to a transfer of property that diminishes the eventual decedent’s
estate, the surviving spouse should not be allowed to reclaim
the value of the transferred property in the augmented estate.32
but that principle is not implicated if a transfer did not remove
the property from the decedent spouse’s estate, because the
consent of the surviving spouse to the transfer was not a con-
sent to any corresponding diminution in the estate.33 And the
transfer that is at issue here is the one that actually removed the
Properties from Lyle’s possession.
The appellees’ argument seems to be that the quitclaim
deeds should be read as evidence that Margaret consented to
the later transfers as well. That interpretation is strained, given
the evidence, and is certainly insufficient to establish consent
in writing to the later transfers as a matter of law, given the
paucity of evidence that Margaret was even informed of the
later transfers. The evidence establishes, at the very least, a
genuine issue of material fact regarding whether Margaret’s
execution of the quitclaim deeds to Lyle should be interpreted
as her written consent to the later transfer of the Properties
to the children. Therefore, we find no merit to the appellees’
30 See § 30-2314(a)(1).
31 See § 30-2314(c)(2).
32 Chappell v. Perkins, 266 Va. 413, 587 S.e.2d 584 (2003).
33 See id.
IN Re eSTATe oF FRIeS 	899
Cite as 279 Neb. 887

argument that the court’s summary judgment can be affirmed
based on that reasoning.
CoNCLUSIoN
The record establishes a genuine issue of material fact as to
whether it was understood that Lyle would retain possession
and enjoyment of, and income from, the Properties, despite
transferring them to his children. And the record does not
establish as a matter of law that Margaret consented in writing
to Lyle’s transfer of the Properties to his children. Therefore,
the county court erred in entering summary judgment and
dismissing Margaret’s petition for an elective share of Lyle’s
augmented estate. We reverse the judgment of the county court
and remand the cause for further proceedings consistent with
this opinion.
R eveRsed and Remanded with diRections.
in Re inteRest of siR messiah t., aLso Known as
siR messiah m., et aL., chiLdRen undeR 18 yeaRs of age .
state of neBRasKa , appeLLee , v.
yoLanda a., appeLLant.
782 N.W.2d 320
Filed May 21, 2010. 	No. S-09-749.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the trial court.
2. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
3. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
4. Constitutional Law: Due Process. Procedural due process includes notice to
the person whose right is affected by the proceeding; reasonable opportunity
to refute or defend against the charge or accusation; reasonable opportunity to
confront and cross-examine adverse witnesses and present evidence on the charge
or accusation; representation by counsel, when such representation is required by
the Constitution or statutes; and a hearing before an impartial decisionmaker.
5. Parental Rights: Proof. In Nebraska statutes, the bases for termination of paren-
tal rights are codified in Neb. Rev. Stat. § 43-292 (Supp. 2009). Section 43-292
900 	279 NebRASKA RePoRTS