In re Henry B. Wilson, Jr., Revocable Trust , 300 Neb. 455 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/17/2018 01:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
In Henry B. Wilson, Jr., R evocable Trust
re
Dated June 27, 2002.
Lou A nn Goding, appellant, v. Roger A. Wilson
and Roseann M. Wilson, Cotrustees of the
Henry B. Wilson, Jr., R evocable Trust
Dated June 27, 2002, appellees.
___ N.W.2d ___
Filed July 13, 2018. No. S-15-1014.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
2. Judgments: Appeal and Error. 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. Decedents’ Estates: Trusts: Equity: Appeal and Error. The removal
of a trustee is a question of equity, and therefore an appellate court
reviews de novo the question of whether a trustee was properly removed.
4. Pleadings. The issues in a given case will generally be limited to those
which are pled.
5. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
6. Courts: Judgments: Appeal and Error. Upon further review from
a judgment of the Nebraska Court of Appeals, the Nebraska Supreme
Court will not reverse a judgment which it deems to be correct sim-
ply because its reasoning differs from that employed by the Court
of Appeals.
Petition for further review from the Court of Appeals, Moore,
Chief Judge, and R iedmann and Bishop, Judges, on appeal
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
thereto from the County Court for Sherman County, Tami K.
Schendt, Judge. Judgment of Court of Appeals affirmed.
Nicole Seckman Jilek, Robert M. Schartz, and Thomas J.
Malicki, of Abrahams, Kaslow & Cassman, L.L.P., and, on
brief, Jeffrey J. Blumel, for appellant.
Larry W. Beucke, of Parker, Grossart, Bahensky, Beucke,
Bowman & Symington, L.L.P., and Sheila A. Bentzen and
Anthony M. Aerts, of Rembolt Ludtke, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
Funke, J.
This matter concerns the administration of the “Henry B.
Wilson, Jr., Revocable Trust Dated June 27, 2002” (Henry’s
Trust or Trust), and the related issue of the administration of
three subtrusts created by Henry’s Trust upon his death. Henry
B. Wilson, Jr.’s daughter, Lou Ann Goding (Lou Ann), filed
suit, asserting the mismanagement of Henry’s Trust, and fol-
lowing a trial, the county court for Sherman County removed
the cotrustees of Henry’s Trust. Lou Ann appealed, asserting
several errors, including that the county court failed to remove
the cotrustees of her subtrust.
In a memorandum opinion, the Nebraska Court of Appeals
interpreted the county court’s order to have removed the
cotrustees of Lou Ann’s subtrust and concluded that there
was no error in need of correction.1 Upon further review, we
determine the Court of Appeals erred in interpreting the county
court’s order to have removed the cotrustees of the subtrusts.
However, our ultimate conclusion on the judgment is the same.
Therefore, although our reasoning differs from that of the
Court of Appeals, we affirm.
1
See In re Henry B. Wilson, Jr., Revocable Trust, Nos. A-15-1014,
A-15-1015, 2017 WL 5608085 (Neb. App. Nov. 21, 2017) (selected for
posting to court website).
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
BACKGROUND
Henry died on December 23, 2010. He was preceded in
death by his wife, Eleanor Wilson, and was survived by three
adult children, Lou Ann, Roseann Wilson, and Roger Wilson.
During their lifetimes, Henry and Eleanor created an estate
plan which included revocable trusts and pour-over wills. After
Henry’s death, Roseann and Roger were named successor
cotrustees of Henry’s Trust and copersonal representatives of
Henry’s estate.
The documents for Henry’s Trust and Eleanor’s trust pro-
vided that upon the death of the last surviving spouse, real
property interests within each trust were to be distributed to
three separate and unequal subtrusts in the name of each of
their children: the “Lou Ann Goding Trust,” the “Roger A.
Wilson Trust,” and the “Roseann M. Wilson Trust.” Henry’s
Trust and Eleanor’s trust also distributed the residue of their
respective trusts in equal shares to their three children. The
three separate and unequal subtrusts had identical language
regarding trust management. In relevant part, the instructions
for the Lou Ann Goding Trust directed the trustee of the sub-
trust, “Until the death of my said daughter, LOUANN [sic]
GODING, the trustee shall pay the net income from the trust in
convenient installments (at least annually) to my said daughter
so long as my said daughter shall live.”
At the time of Henry’s death, Henry’s Trust owned approxi-
mately 4,200 acres of land. In accordance with the Trust’s
language, in December 2011, the successor trustees transferred
real estate previously owned by Henry’s Trust and Eleanor’s
trust to the three subtrusts. However, no other steps were
taken to administer the three subtrusts, such as opening sepa-
rate bank accounts, obtaining federal tax identification num-
bers, or filing tax returns. The cotrustees continued to operate
Henry’s Trust for convenience as opposed to separately operat-
ing the subtrusts.
An estate proceeding was opened in county court to address
assets that were not identified in Henry’s Trust, did not have
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
a beneficiary, or were not payable on death to the Trust. An
estate inventory was filed on December 28, 2011, and an
inheritance tax worksheet and receipt were all signed “right at
the end of December.” According to the attorney who prepared
Henry’s estate plan and drafted Henry’s will and Henry’s Trust,
the estate was ready to close at that point, but it had not been
closed because of the pending litigation.
In separate cases, Lou Ann filed petitions for the removal of
Roseann and Roger as copersonal representatives of Henry’s
estate and cotrustees of Henry’s Trust, and the matters were
consolidated for trial.
County Court
In the trust case, the county court concluded that Roseann
and Roger had breached their fiduciary duties as cotrustees
of Henry’s Trust, under Neb. Rev. Stat. § 30-3875 (Reissue
2016), by failing to keep accurate records, commingling assets,
and not keeping the cotrustees’ property separate from Henry’s
Trust property. The court also found the cotrustees breached
their fiduciary duties under Neb. Rev. Stat. § 30-3878 (Reissue
2016) by failing to keep beneficiaries of the Trust reasonably
informed about the administration of the Trust and of the mate-
rial facts necessary for them to protect their interests. Finally,
the county court determined the cotrustees breached their fidu-
ciary duties by using the Trust assets to pay for personal
expenses, failing to maintain the subtrusts created by Henry’s
Trust as separate trusts, and failing to pay the income from the
Trust to Lou Ann.
The county court found the foregoing breaches qualified
as serious breaches under Neb. Rev. Stat. § 30-3862 (Reissue
2016) and that it was in the best interests of the administra-
tion of the Trust to remove Roseann and Roger as cotrustees
of Henry’s Trust. The county court removed the cotrustees
(except for their duty to provide an accounting), ordered an
accounting, surcharged the cotrustees $73,675.88 for payments
made from the assets of the Trust for personal expenses and
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
expenses that were not the responsibility of the Trust, and
awarded attorney fees in the amount of $20,000 in favor of
Lou Ann and against the cotrustees, jointly and severally. The
court also appointed an attorney as a successor trustee.
In the estate case, the county court found that under the
terms of Henry’s will, any residue of Henry’s estate poured
over into the Trust and that the Trust was the only beneficiary
of the estate. As a result, the court found that all of Lou Ann’s
claims for unaccounted property and for damages were claims
for the Trust administration and not the estate proceeding.
Accordingly, the county court dismissed Lou Ann’s peti-
tion for the termination of appointment and the removal of the
coper­sonal representatives, appointment of a successor per-
sonal representative, an accounting, and a surcharge. The court
also overruled Lou Ann’s objection to the inventory. The court
ordered the copersonal representatives to file a final account-
ing, a schedule of distribution, and a formal petition for com-
plete settlement of the estate within 30 days.
Court of A ppeals
Lou Ann assigned 14 errors to the county court’s order,
consolidated and restated as follows: As to the Trust case,
Lou Ann assigned that the court erred in (l) failing to sur-
charge Roseann and Roger for various amounts paid from the
Trust, (2) making a mathematical error in the total surcharge
amount ordered, (3) failing to remove Roseann and Roger as
cotrustees of her subtrust, (4) failing to award amounts due
to Lou Ann under the Trust, (5) excluding certain testimony
and exhibits, (6) making an insufficient award of attorney
fees and costs, and (7) ordering beneficiaries of the Trust to
pay the successor trustee’s fee if there are insufficient assets
in the Trust. As to the estate case, Lou Ann assigned that
the court erred in (1) failing to remove Roseann and Roger
as copersonal representatives of the estate, (2) not assessing
a surcharge, and (3) overruling Lou Ann’s objection to the
estate’s inventory.
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
Upon considering each of Lou Ann’s assignments of error,
the Court of Appeals modestly increased the surcharge to the
cotrustees for amounts paid from the Trust, but affirmed the
county court’s order in all other respects. The court further
determined that the county court’s removal of Roseann and
Roger as cotrustees and appointment of a successor trustee
applied to Henry’s Trust and Lou Ann’s separate subtrust and
that therefore, no correction was needed.
In doing so, the Court of Appeals relied on language from
the trial court’s order which stated that the cotrustees breached
their fiduciary duties by “failing to maintain the sub trusts cre-
ated by the Trust as separate trusts and by failing to pay the
income from the Trust to Lou Ann.” The Court of Appeals
determined that “[a]lthough the county court was unwilling
to consider evidence specific to the administration of the sub-
trusts, its conclusion that the cotrustees should be removed as
cotrustees stemmed from breaches of their fiduciary duties to
Henry’s Trust and their responsibilities to the subtrusts.”2
The Court of Appeals further noted that the plain language
of Henry’s Trust did not distinguish between the trustee of the
Trust and the subtrusts and that when referencing the subtrusts,
the document states that “‘[t]he trustee shall hold, administer,
and distribute all of the trustee’s right, title, and interest in
and to the following described real property.’”3 In addition,
the court noted that there were no separate appointment proce-
dures or processes related to the subtrusts.
Consequently, the Court of Appeals determined that the
county court’s removal of Roseann and Roger as cotrustees and
appointment of a successor trustee applied to Henry’s Trust
and to Lou Ann’s separate subtrust.
ASSIGNMENTS OF ERROR
Roseann and Roger petitioned for further review of the trust
case only. They assign, restated, that the Court of Appeals
2
Id. at *9.
 3
Id. at *10.
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
erred (1) in interpreting the county court’s order to mean that
the removal of Roseann and Roger as cotrustees and appoint-
ment of a successor trustee applied to Henry’s Trust and
Lou Ann’s separate subtrust; (2) by exceeding its authority,
because the issue of removing the cotrustees of Lou Ann’s
subtrust was not before or considered by the county court;
and (3) in considering Lou Ann’s assignment of error that the
county court failed to remove Roseann and Roger as cotrust-
ees of her subtrust, because that issue was raised for the first
time on appeal.
STANDARD OF REVIEW
[1-3] Absent an equity question, an appellate court reviews
trust administration matters for error appearing on the record;
but where an equity question is presented, appellate review of
that issue is de novo on the record.4 When reviewing a judg-
ment 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 unreason-
able.5 The removal of a trustee is a question of equity, and
therefore an appellate court reviews de novo the question of
whether a trustee was properly removed.6
ANALYSIS
Roseann and Roger argue the Court of Appeals’ reading of
the county court’s order with respect to Lou Ann’s subtrust
is incorrect. They contend that the county court’s order pro-
vided a clear statement that “[t]he administration of the sub
trusts [is] not an issue properly before this Court” and that
Lou Ann’s petition concerned only Henry’s Trust and did not
4
In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018); In re Estate of
Radford, 297 Neb. 748, 901 N.W.2d 261 (2017); In re Estate of Robb, 21
Neb. Ct. App. 429, 839 N.W.2d 368 (2013).
5
In re Estate of Hasterlik, 299 Neb. 630, 909 N.W.2d 641 (2018); In re
Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
6
See In re Estate of Robb, supra note 4.
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
include any allegations about the subtrusts or request that the
cotrustees be removed from the subtrusts.
Lou Ann argues that Roseann and Roger are the cotrustees
of all of the trusts and that “the Court of Appeals did not mis-
interpret the trial court order as removing Roseann and Roger
as cotrustees of the subtrusts.”7 Lou Ann contends that the
cotrustees had notice that the administration of the subtrusts
was at issue, because a single document created Henry’s Trust
and the subtrusts and because Lou Ann attached the docu-
ment to her petition. She argues the evidence showed that the
cotrustees commingled the affairs of Henry’s Trust and the
subtrusts and treated them as one trust. Lou Ann claims the
Court of Appeals merely affirmed the county court’s order and
“made no change to the trial court order” and “did not modify
the county court’s order in any manner.”8
We are mindful that, with respect to this narrow issue, Lou
Ann took a contrary position in her appeal from the county
court. In her appellate brief, Lou Ann argued that “the trial
court failed to remove the Co-Trustees as trustees from the Lou
Ann Trust”9 and assigned as error that “[t]he trial court erred
in failing to remove the Co-Trustees as trustees of the Lou
Ann Trust sub-trust . . . .” It is thus apparent that prior to the
Court of Appeals’ opinion, Lou Ann believed that the county
court did not remove the cotrustees of her subtrust, and thus,
she requested the Court of Appeals to grant her relief that the
county court did not grant.
We agree with Roseann and Roger that the Court of Appeals’
interpretation that the county court’s order removed the cotrust-
ees of Lou Ann’s subtrust was incorrect. The petition filed
by Lou Ann identifies Roseann and Roger as the cotrustees
of Henry’s Trust. Further, the petition seeks the removal of
Roseann and Roger as cotrustees. However, the pleadings
7
Brief for appellant in response to petition for further review at 4.
8
Id. at 2 and 3.
9
Brief for appellant at 41-42.
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
make no reference to the subtrusts created by Henry’s Trust or
to the removal of the cotrustees of the subtrusts.
[4] The issues in a given case will generally be limited to
those which are pled.10 Lou Ann did not amend her petition
prior to trial or during trial to raise the claim of the removal of
the cotrustees of her subtrust, and the county court made the
following specific finding:
Roseann . . . and Roger . . . are the Co-Trustees of the . . .
Trust . . . . The Co-Trustees have administered the Trust
and sub-trusts created by the Trust since Henry[’s] Death
on December 23, 2010. The real estate that [Henry] had
transferred to the Trust prior to his death was deeded by
the Co-Trustees to the sub trusts on December 23, 2011.
The administration of the sub trusts are not an issue prop-
erly before this Court.
In addition, throughout the trial, the court excluded evi-
dence regarding the administration of the subtrusts as going
beyond the petition. For example, the court sustained objec-
tions to testimony on issues such as how the cotrustees might
have damaged Lou Ann’s subtrust and the extent of such dam-
age. In one instance, Lou Ann sought to introduce evidence
of the reasonable rental rates for a piece of land that was
deeded to Lou Ann’s subtrust. The court sustained Roseann
and Roger’s objection and limited the questioning to the time
period when Henry’s Trust owned the land. The court agreed
that Henry’s Trust did not own the land after the transfer in
2011 and excluded evidence of income generated in 2012
through 2014.
The county court’s order further stated that “the Co-Trustees
Roseann . . . and Roger . . . are removed as trustees of the . . .
Trust.” Thus, the county court determined that Lou Ann had
not sufficiently pled the issue of removing the cotrustees of
Lou Ann’s subtrust prior to trial. On appeal, Lou Ann requested
10
See In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469
(2017).
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
that the Court of Appeals remove the cotrustees of her subtrust
de novo, but the Court of Appeals did not do so. The Court of
Appeals found no error in need of correction, and Lou Ann did
not file a cross-petition for further review.
We also find persuasive Roseann and Roger’s argument
that the Court of Appeals’ interpretation creates an ambiguity
which leaves in limbo the status of the cotrustees of their own
respective subtrusts.
Lou Ann now argues the Court of Appeals limited its deci-
sion to only remove the cotrustees from Henry’s Trust and
her subtrust. In support of this contention, she references the
Court of Appeals’ statement that the “county court’s removal
of Roseann and Roger as cotrustees and appointment of a
successor trustee applied to Henry’s Trust and Lou Ann’s
separate subtrust.”11 However, the Court of Appeals also
stated that “the court’s removal of the cotrustees necessarily
applied to Roseann and Roger as cotrustees of the Trust and
the subtrusts.”12
As noted, in response to Roseann and Roger’s petition
for further review of the trust case, Lou Ann took the posi-
tion that the trial court order removed Roseann and Roger
as cotrustees of all of the subtrusts. Moreover, Lou Ann
filed a supplemental brief pursuant to Neb. Ct. R. App. P.
§ 2-102(H) (rev. 2015) which stated that the “Court of
Appeals did not misinterpret the county court’s order with
respect to the removal of the cotrustees of the subtrusts.”13
Therefore, the Court of Appeals’ opinion does indeed cre-
ate an ambiguity with respect to Roseann’s and Roger’s
subtrusts, and it granted Lou Ann relief beyond what she
had elected.
11
In re Henry B. Wilson, Jr., Revocable Trust, supra note 1, 2017 WL
5608085 at *10 (emphasis supplied).
12
Id. at *9 (emphasis supplied).
13
Supplemental brief for appellant in response to petition for further review
at 3 (emphasis supplied) (see § 2-102(H)).
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Nebraska Supreme Court A dvance Sheets
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST
Cite as 300 Neb. 455
[5] Upon further review, we find the county court did not
remove Roseann and Roger as cotrustees of the subtrusts.
Therefore, the Court of Appeals’ interpretation of the county
court’s order on this narrow issue was made in error. Because
we find merit to Roseann and Roger’s first assignment of
error, we need not address their remaining assignments of
error. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it.14
[6] While our reasoning differs from that employed by the
Court of Appeals, our ultimate conclusion that the county court
did not err is the same. Upon further review from a judgment
of the Court of Appeals, this court will not reverse a judgment
which it deems to be correct simply because its reasoning dif-
fers from that employed by the Court of Appeals.15
CONCLUSION
The county court’s determination that the administration of
the subtrusts was not an issue properly before the county court
was not in error. The Court of Appeals erred in its decision in
the trust case when it concluded that the county court removed
Roseann and Roger as cotrustees of Lou Ann’s subtrust and
appointed a successor trustee.
A ffirmed.
14
Nesbitt v. Frakes, ante p. 1, 911 N.W.2d 598 (2018).
15
State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).