In re Trust Created by Augustin ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/24/2019 08:05 AM CDT
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IN RE TRUST CREATED BY AUGUSTIN
Cite as 27 Neb. Ct. App. 593
In Trust Created by Henry F.
re
Augustin, deceased.
Scott Augustin, appellee, v. K irtus Augustin,
Trustee, appellant, and Rocky
Augustin, appellee.
In
Trust Created by Norval H.
re
Augustin, deceased.
Scott Augustin, appellee, v. Rocky Augustin
and K irtus Augustin, individually and as
Cotrustees, appellants.
In Trust Created by Henry F.
re
Augustin, deceased.
K irtus Augustin, Trustee, appellant, and
Rocky Augustin, appellee, v. Scott
Augustin, appellee.
In Trusts Created by Elnora Augustin and
re
Norval H. Augustin, deceased.
K irtus Augustin and Rocky Augustin, individually
and as Cotrustees, appellants, v. Scott
Augustin, individually and as
Cotrustee, appellee.
___ N.W.2d ___
Filed September 24, 2019. Nos. A-16-1182 through A-16-1185.
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.
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IN RE TRUST CREATED BY AUGUSTIN
Cite as 27 Neb. Ct. App. 593
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. Appeal and Error. In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches its own
independent conclusions concerning the matters at issue.
4. Wills: Trusts. The interpretation of the words in a will or a trust pre­
sents a question of law.
5. Trusts. Removal of a trustee under the Nebraska Uniform Trust Code is
a special proceeding and affects a substantial right.
6. Parties: Words and Phrases. Necessary parties are parties who have
an interest in the controversy, and should ordinarily be joined unless
their interests are separable so that the court can, without injustice,
proceed in their absence. Indispensable parties are parties whose interest
is such that a final decree cannot be entered without affecting them or
that termination of controversy in their absence would be inconsistent
with equity.
7. Parties. The inclusion of a necessary party is within the trial court’s
discretion. However, there is no discretion as to the inclusion of an
indispensable party.
8. Parties: Words and Phrases. All persons interested in the contract or
property involved in an action are necessary parties, whereas all persons
whose interests therein may be affected by a decree in equity are indis-
pensable parties.
9. Jurisdiction: Parties: Waiver. The absence of an indispensable party to
a controversy deprives the court of subject matter jurisdiction to deter-
mine the controversy and cannot be waived.
10. Trusts: Jurisdiction: Parties. A court does not have subject matter
jurisdiction over a request to terminate a trust or remove a trustee in the
absence of an indispensable party.
11. Equity. Under the doctrine of unclean hands, a person who comes into
a court of equity to obtain relief cannot do so if he or she has acted
inequitably, unfairly, or dishonestly as to the controversy in issue.
12. Trusts. A trust terminates at the time at which it becomes the duty of the
trustee to wind up administration of the trust, and not at the time when
that winding up period is actually accomplished.
13. Trusts: Time. The Nebraska Uniform Trust Code provides statutory
options for a trustee to seek relief during the winding up period follow-
ing the expiration or termination of a trust by its own terms.
14. Trusts. Regardless of how a trust may terminate, Neb. Rev. Stat.
§ 30-3836(b) (Reissue 2016) authorizes a trustee or beneficiary to
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IN RE TRUST CREATED BY AUGUSTIN
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commence a proceeding to approve or disapprove a proposed modi-
fication or termination under Neb. Rev. Stat. §§ 30-3837 to 30-3842
(Reissue 2016).
15. Trusts: Courts: Equity: Jurisdiction. County courts may apply equi-
table principles to matters within probate jurisdiction, including trusts,
and such courts have full power to make orders, judgments, and decrees
and to take all other actions necessary and proper to administer justice
in the matters which come before them.
16. Trusts: Time. The period for winding up the trust is the period after
the time for termination of the trust has arrived and before the trust is
terminated by the distribution of the trust property.
17. Trusts: Intent. The objective of the rule allowing judicial modification
or deviation and the intended consequences of its application are not to
disregard the intention of a settlor. The objective is to give effect to what
the settlor’s intent probably would have been had the circumstances in
question been anticipated.
18. Trusts: Courts. The Nebraska Uniform Trust Code allows a beneficiary
or trustee to petition a county court to consider modification or termina-
tion of a trust which has expired or terminated pursuant to its own terms
but remains in the winding up period, including the possible modifica-
tion of or deviation from dispositive terms.
19. Trusts. When a trustee unduly delays distributions from a trust, the
trustee has breached a duty of care owed to a beneficiary, and the viola-
tion of that duty is a breach of trust.
20. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
21. Trusts. A trust which is revocable when made remains revocable during
the settlor’s lifetime; however, a revocable trust necessarily becomes
irrevocable upon the settlor’s death.
22. Trusts: Courts. Neb. Rev. Stat. § 30-3837 (Reissue 2016) authorizes
a court to modify a trust without the consent of all beneficiaries, but
it can only do so if the modification is not inconsistent with a mate-
rial purpose of the trust and any nonconsenting beneficiary would be
adequately protected.
23. Trusts: Courts: Equity. Neb. Rev. Stat. § 30-3838 (Reissue 2016)
broadens the court’s ability to apply equitable deviation to modify
a trust.
24. Trusts: Courts: Equity: Intent. The application of equitable deviation
allows a court to modify the dispositive provisions of a trust as well
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IN RE TRUST CREATED BY AUGUSTIN
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as its administrative terms. The purpose of equitable deviation is not
to disregard the settlor’s intent but to modify inopportune details to
effectuate better the settlor’s broader purpose.
25. Trusts: Intent. Under the equitable deviation doctrine, the objective is
not to disregard the intention of the settlor, but to give effect to what
the settlor’s intent probably would have been had the circumstances in
question been anticipated.
Appeals from the County Court for Polk County: Stephen
R.W. Twiss, Judge. Affirmed in part, vacated in part, and in part
reversed and remanded for further proceedings.
Richard A. DeWitt and David J. Skalka, of Croker, Huck,
Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for
appellants.
Jacqueline M. Tessendorf and Ryan G. Tessendorf, of
Tessendorf and Tessendorf, P.C., for appellee Scott Augustin.
R iedmann and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Brothers Kirtus Augustin and Rocky Augustin were oppos-
ing parties to their younger brother, Scott Augustin, in five
separate lawsuits filed in the county court for Polk County.
Scott was the initiator of two actions in which he sought to ter-
minate family trusts, remove the trustees, order an accounting,
and have certain farmland distributed in accordance with spe-
cific language in the trusts and their father’s will. Kirtus and
Rocky were the initiators of two actions in which they sought
to modify the trusts based on an alleged agreement between the
brothers to preserve the farmland in the trusts or in a business
entity for another 10 years so they could continue their joint
farming operation or, alternatively, to distribute the farmland
in separate parcels in fee simple title rather than as tenants in
common. They filed a separate action seeking amounts due
from Scott for his share of costs associated with the joint farm-
ing operation.
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IN RE TRUST CREATED BY AUGUSTIN
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Kirtus and Rocky appeal from the county court’s decision
as to four of those actions, in which the county court con-
cluded in each case that (1) the trusts had terminated by their
own terms upon the death of the brothers’ father; (2) there
was insufficient evidence to modify the trusts, and further,
the brothers’ sister, Pamela Shorney (Pamela), was a neces-
sary party for any modification action; (3) Scott did not file
his actions with unclean hands; (4) there was no agreement
to continue the farming operation another 10 years; (5) there
was a breach of trust by the trustees; (6) it was necessary to
remove the trustees, order an accounting, and appoint a suc-
cessor trustee; and (7) statutory language permitted the trustees
to allocate the property other than as tenants in common, but
there was insufficient evidence to approve the division of the
disputed farmland as proposed by Kirtus and Rocky.
The five lawsuits were consolidated for trial, and the four
appeals have been consolidated for disposition in this court. We
affirm in part, vacate in part, and in part reverse and remand
for further proceedings.
II. BACKGROUND
Kirtus, Rocky, and Scott farmed with their father, Norval
H. Augustin, until his death in April 2010, and they main-
tained a joint farming operation for a period of time thereafter.
Norval’s father, Henry F. Augustin, died in 1989, and Norval’s
wife, Elnora Augustin, died in 2001. In addition to their own
separate properties, the brothers jointly farmed over 500 acres
of land held in the trusts established by their grandfather and
their parents. Scott, the youngest of the brothers, wanted to
farm independently of his brothers following their father’s
death; he wanted the farmland that had been held in trust for
the three brothers to be distributed so that he could do that.
However, Kirtus and Rocky wanted to continue the joint
farming operation and leave the real property at issue in the
trusts or hold it in a separate business entity for another 10
years. Alternatively, rather than distribute the farmland to the
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brothers as tenants in common as indicated in the trusts and by
appointment in their father’s will, they wanted to distribute the
disputed farmland in separate parcels titled in fee simple and
equitably allocate those parcels between them. In July 2015,
after further problems developed between the brothers, the
underlying lawsuits were filed. Their sister, Pamela, was not
named as a party in any of the litigation, nor did she partici-
pate in the consolidated trial. Kirtus, Rocky, Scott, and Pamela
will be collectively referred to as “the siblings.”
1. Trusts
The trusts involved in the present appeals are (1) the grand-
father’s trust, titled the “Henry F. Augustin Revocable Trust
(Amended and Restated),” executed on January 7, 1980, and
amended on December 30, 1981, and June 7, 1987 (Henry
Trust); (2) the father’s trust, titled the “Norval H. Augustin
Amended and Restated Revocable Trust,” executed on January
27, 1993, and amended on March 8, 1995, and August 25,
1999 (Norval Trust); and the mother’s trust, titled the “Elnora
Augustin Amended and Restated Revocable Trust,” dated
January 27, 1993 (Elnora Trust).
(a) Henry Trust
Kirtus is the sole trustee of the Henry Trust; the siblings
are beneficiaries of this trust. The real estate in the Henry
Trust relevant here includes an 80-acre parcel (Henry 80)
and a 160-acre parcel. The Henry Trust authorized Norval
to exercise a limited power of appointment with regard to
these properties, which Norval did through his “Last Will
and Testament of Norval H. Augustin” and his “First Codicil
to Will of Norval H. Augustin” (First Codicil). In the First
Codicil, Norval “appoint[ed] the entire interest . . . in the real
property legally described as [the Henry 80] in equal shares,
outright and free of trust, to my three sons, KIRTUS, ROCKY
and SCOTT . . . , or their issue per stirpes.” Norval then
appointed the 160-acre parcel to Kirtus and Pamela as trustees,
with the property to be held for Pamela’s benefit during her
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IN RE TRUST CREATED BY AUGUSTIN
Cite as 27 Neb. Ct. App. 593
lifetime, and upon her death, the land would be transferred in
equal shares to her then-living issue. Norval further authorized
Kirtus and Pamela to distribute the 160-acre property outright
and free of trust to Pamela if they, as trustees of that parcel,
determined the trust was no longer necessary, appropriate, or
in Pamela’s best interests, and “the trust shall thereupon ter-
minate.” The 160-acre parcel was not at issue in the underly-
ing proceedings, and only the Henry 80 in which the brothers
were given equal shares, “outright and free of trust,” was at
issue. The Henry 80 is immediately south and adjacent to
another 80-acre parcel contained in the Norval Trust and the
Elnora Trust. The parties referred to the Henry 80 and the 80
acres immediately north of it as the “Homeplace”; however,
our reference to the Homeplace will mean the 80 acres con-
tained only in the Norval Trust and the Elnora Trust.
(b) Norval Trust and
Elnora Trust
The Norval Trust and the Elnora Trust were mirror trusts,
meaning the language in the trusts was identical except for
one referencing Norval and the other referencing Elnora.
Each trust contained an undivided one-half interest in the
real property at issue here, separate from the Henry 80. Upon
the death of the first spouse (in this case, Elnora), two trusts
were created for the surviving spouse (Norval): “The Marital
Trust” and “The Family Trust.” The Marital Trust was to be
composed of cash, securities, and other property having a
value equal to the maximum marital deduction, but adjustable
for other tax purposes. The Family Trust was to consist of the
balance of the trust estate after assets were selected for The
Marital Trust. The surviving spouse was to receive all the net
income from The Marital Trust. The surviving spouse also had
the authority to reach the principal in the trust, as well as with-
draw all or part of the principal in The Marital Trust. Upon the
surviving spouse’s death, the entire remaining principal of The
Marital Trust was to be paid over, conveyed, and distributed
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in the manner the surviving spouse may have appointed in his
or her will. If the power of appointment was not exercised,
then the entire remaining principal of The Marital Trust was
to be used to first pay taxes from the increased value resulting
from the inclusion of The Marital Estate assets in the surviv-
ing spouse’s estate, and the balance was to be added to and
become part of The Family Trust; it was to be administered as
if it had been an original part of The Family Trust. The Family
Trust was to be held for the benefit of the surviving spouse
and the children primarily for medical care, education, sup-
port, and maintenance. Upon the surviving spouse’s death, the
entire remaining principal of The Family Trust was to be paid
over, conveyed, and distributed in accordance with the surviv-
ing spouse’s power of appointment in his or her will, and any
remaining property was to be distributed as set forth thereaf-
ter, which we address below. The three brothers were named
cotrustees of the trusts; and according to the trusts, “the vote
of the Trustees for any action . . . must be by majority action
of the Trustees.” The siblings are all remainder beneficiaries
under the trusts, but only the brothers are beneficiaries of the
farmland at issue.
The parties referred to the disputed farmland as “Big Jisa,”
“Little Jisa,” “Homeplace,” and “Staroscik.” These four prop-
erties are all located in Polk County, Nebraska, on two sec-
tions of land (Section 6 and Section 7). Section 6 is directly
north of Section 7. Big Jisa consists of 160 acres in the
northwest quarter section of Section 6. Little Jisa consists of
80 acres immediately south of Big Jisa. Staroscik consists of
the northwest quarter (160 acres) of Section 7; Kirtus lives in
the southwest corner of Staroscik. The Homeplace consists of
80 acres located in the north half of the southeast quarter of
Section 7. As previously noted, the Henry 80 is immediately
south of the Homeplace. And although not at issue here, there
are another 80 acres immediately north of the Homeplace
owned by RKS Farms, Inc., a company owned by the brothers
for the purpose of running their joint farming operation.
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The Norval Trust and the Elnora Trust provided each of the
siblings with specific parcels of real property: Kirtus received
a small tract of land on Staroscik, Rocky received a small
tract of land on Little Jisa, and Scott received land separate
from the trust ground at issue which, according to Scott, was
“roughly a mile and a half” south of the Homeplace. Pamela
was also granted an acre of land. The trusts then directed that
“[a]ll other farmland held by the Trust shall be distributed
to the three sons of the Grantor in equal shares as tenants in
common.” Each trust then states, “The remainder of the Trust
property shall be distributed in equal shares to the Grantor’s
children, outright and free of trust.” There is nothing in the
record to indicate that prior to his death, Norval exercised
any power of appointment granted to him with regard to the
Elnora Trust. Therefore, the terms of the Elnora Trust and the
terms of the Norval Trust control the distribution of the dis-
puted farmland.
2. July 2011 Meeting
On June 15, 2011, attorney Richard A. DeWitt sent the broth-
ers a letter regarding “Norval Augustin Trust Administration.”
The letter described the remaining steps to finalize the inherit­
ance tax process and inquired about the division of personal
property. DeWitt indicated that “[u]pon completion of these
items, administration of the Trust can be completed and the
Trust assets (basically farmland) can be distributed.” The let-
ter goes on to state, “As written, the Trust provides for dis-
tribution of farmland to each of you in undivided one-third
interests.” DeWitt recommended either the brothers divide the
farmland into separate parcels such that each brother would
own 100 percent of his parcel or, alternatively, the brothers
could form a limited liability company with equal interests and
the farmland could be transferred into that company. DeWitt
reminded the brothers that as trustees, they each had an equal
say in the administration of the trust, and that decisions could
be made by a “two-thirds majority vote.”
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IN RE TRUST CREATED BY AUGUSTIN
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The brothers and their wives met at DeWitt’s office on July
12, 2011. According to Scott, after some initial small talk
about “dishes and stuff,” Scott brought up getting the land
out of the trust and splitting it up, and “they immediately got
hostile about that and we were arguing about that back and
forth.” Scott claimed that Rocky “slid . . . over this LLC,
which we knew nothing about,” and Rocky told them they
had to sign it. Scott said he told them he and his wife would
not sign it but would take it home and take it to their lawyer
to look over. Meanwhile, they continued to talk about “the
LLC” and what they wanted in it. Scott acknowledged that
his brothers expressed wanting to continue farming the trust
ground for 10 years, but at no time did Scott agree to farm
together for another 10 years. Kirtus testified that Scott and
Scott’s wife said they wanted to farm for 5 more years and
then retire; Kirtus told them he wanted to farm for 20 years.
Kirtus proposed that they go with a 10-year agreement, and he
testified that he believed Scott agreed with farming 10 years
before splitting up the trust ground. According to Kirtus, “We
was going to continue farming for ten more years and then
after the ten years, we was going to divide the ground up and
the machinery. That is what I believed when we walked out
of that door.” Rocky testified that “Kirt[us] stood up and he
come up with an idea of wanting to farm for 20 years, but that
was too much. So, we come up with a plan of doing it for ten
years. And everyone in there did agree to this.” Both of the
older brothers acknowledged that there was nothing in writing
about a 10-year agreement.
According to DeWitt, there were two areas of discussion
at the July 2011 meeting in his office: finalizing the division
of tangible personal property and “what [were] we going to
do with the land going forward.” DeWitt recalled that Scott
expressed a desire to farm independently and farm with his
son. Scott wanted to have “individual ownership of his share
of the farmland.” Kirtus and Rocky were concerned that doing
that would “force them out of farming, because there wouldn’t
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be economical units left if there was a forced breakup at that
time.” There was then discussion of “when would they be ready
to retire.” Kirtus said in maybe 20 years, and “Scott said that’s
too long. And then ten years was suggested.” DeWitt recalled
that Scott said “he could live with ten” and that “Rocky and
Kirtus said they could live with ten.” DeWitt believed the three
brothers had reached an agreement to continue farming for
10 years and then divide it up. DeWitt stated he had not yet
prepared a limited liability company operating agreement for
that meeting; his letter to the brothers, which enclosed a draft
operating agreement, was dated December 7, 2011. That letter
referred to special provisions they had discussed, including a
commitment to retain ownership of the farmland for 10 years
and a commitment at the end of 10 years to sell the farmland.
DeWitt thought that Kirtus and Rocky had signed the operating
agreement, but that Scott had not.
Following the July 2011 meeting at DeWitt’s office, Scott
and his wife talked about buying their own farm equipment,
and later “that fall,” Scott spent approximately $900,000 for
his own farm equipment. Scott started farming with his son in
2012. With the exception of 1 year, Scott continued to pay his
one-third share of input expenses for farming the trust prop-
erty, and he received his one-third share of the grain harvested.
Scott, however, discontinued paying his one-third share of the
annual personal property and real estate taxes for the trust
property after 2011.
3. Lawsuits
As conflict between the brothers escalated, Scott filed
a petition pursuant to the Nebraska Uniform Trust Code
(NUTC), Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue
2016 & Cum. Supp. 2018), in July 2015 to terminate the Henry
Trust (cases Nos. PR15-18 in county court and A-16-1182
on appeal). He claimed that he had made repeated demands
to terminate the trust, to distribute trust assets, and for a full
accounting. He alleged the trust had not been administered
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effectively, including the failure to distribute the Henry 80 to
the beneficiaries. Scott requested that “the Co-Trustees” be
removed (only Kirtus was trustee) and that a successor trustee
be appointed. He asked for the distribution of all trust assets,
a full accounting, the termination of the trust, and for attorney
fees and costs.
Scott also filed a petition to terminate the Norval Trust
(cases Nos. PR15-19 in county court and A-16-1183 on appeal),
which was subsequently amended to include the Elnora Trust.
His allegations and requests for relief were similar to those
claimed in the Henry Trust action.
In October 2015, Kirtus and Rocky filed a petition to
modify the Henry Trust (cases Nos. PR15-25 in county court
and A-16-1184 on appeal). The petition acknowledged that
Norval appointed the entire interest in the Henry 80 in equal
shares, outright and free of trust, to the brothers. However, the
petition requested that the court enforce an “agreement and
partnership” between the brothers related to this property, and
to modify the trust to continue to own and administer the prop-
erty until December 31, 2021, or to transfer ownership of the
property “to the parties’ partnership to be held and not further
transferred until December 31, 2021.” Alternatively, the peti-
tion sought the court’s authorization to allow Kirtus, as trustee,
to distribute to Scott “sole fee simple title to a portion of the
[Henry 80] having a value equal to approximately one-third of
the value of the entirety . . . in full satisfaction of his beneficial
interest in the Trust’s real estate.”
Kirtus and Rocky also filed a petition to modify or declare
rights to the Norval Trust and the Elnora Trust (cases Nos.
PR15-26 in county court and A-16-1185 on appeal). This
petition contained allegations similar to those contained in
their Henry Trust action, and also sought modification of the
trusts to hold the properties in these trusts or transfer owner-
ship to “the parties’ partnership” until December 31, 2021.
Alternatively, it sought an order declaring that the terms of
the trusts authorized the trustees to distribute sole fee simple
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title of the real estate to individual beneficiaries, as well as an
order permitting the trustees to do so.
Also in October 2015, Kirtus, Rocky, and RKS Farms filed a
complaint in the county court against Scott (case No. CI15-156)
alleging that the brothers were “parties to an oral cash-rent
year-to-year farm lease” with the Norval Trust and the Elnora
Trust, which requires the brothers to annually pay the trusts
“an amount equal to the real estate taxes and expenses” related
to the trusts. At the time of the complaint, it was alleged that
Scott had failed to pay to the trusts $31,895.30, which was his
one-third share of the real estate taxes owed to the trusts that
he stopped paying in 2011. The complaint further requested
that the court declare void a notice to terminate that Scott had
delivered to Kirtus, Rocky, and RKS Farms. The notice was
given “for the purpose of terminating” their “tenancy” and
stated that they were to “vacate and surrender possession” to
Scott. The properties listed included lands held by the trusts
and RKS Farms.
4. R elationship Problems
Scott testified at trial that he asked his brothers if they could
split up the trust ground after their father passed away because
he wanted to make his own decisions on how to farm it and
make improvements so he could “make more money with the
same piece of ground.” When he asked Rocky about it, Rocky
would get “hostile” toward Scott and verbally abuse him until
Scott “back[ed] off and let it go.”
Scott paid the cash rent due for the trust ground in 2010.
The rent consisted of whatever was due for real estate and
personal property taxes. Scott did not pay the 2011 or subse-
quent years’ rent because it was “the only leverage [he] had”
to “break the land up.” He was concerned that if he paid the
rent, his brothers would “use it against [him]” to suggest he
was “going along with all this all the time.” But Scott did
not like “the way this [was] working.” Scott was willing to
pay the rent as soon as the ground was split up. Funds for his
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share of the 2011 through 2014 taxes had been placed into his
attorney’s trust account. On cross-examination, Scott acknowl-
edged that the trust had to pay his share of the rent and that if
it had not, the taxes would have become delinquent, the county
treasurer would have charged 14-percent interest, and the land
could have gone into foreclosure. However, Scott’s position
was that “there was enough money in the trust to more than
take care of that.” According to Scott, as of October 6, 2015,
the Norval Trust bank account balance was $142,727. Scott
stated that he and his siblings were all beneficiaries of that
account and therefore were each entitled to 25 percent of that
balance. Scott testified that he asked either Kirtus or Rocky for
his share of the money in that account, but he was never paid
his share.
In 2015, the year the lawsuits were filed, further issues
arose between the parties. Kirtus explained at trial that RKS
Farms is a corporation owned by the three brothers, started
back in 1977. They would run all the expenses of their farm-
ing operation through RKS Farms, which would then pay the
bills and then bill each brother. Scott’s wife had been prepar-
ing grain settlement spreadsheets for RKS Farms from 2007
until the end of 2014, after which the “books disappeared.”
Kirtus testified that he and Rocky took that responsibility
away from Scott’s wife in January 2015 because she would
not give them the information they needed, such as “what was
in the bins.” She would take all the receipts home and “we’d
never see them again.” Kirtus said he made sure Scott still
received financial and accounting information for the joint
farming operation and RKS Farms; he gave him a copy of all
the receipts for RKS Farms, bank statements, and receipts and
bills every month. Kirtus acknowledged that in January 2015,
he went into Norval’s house and “removed all of the books and
the computer”; he had not notified Scott and his wife that he
had “a problem with how they were keeping the books.” Kirtus
testified that he and Scott “always got along,” but that “Scott
and Rock[y] had issues.”
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On another occasion, Scott was unable to get into the shop
located on the Homeplace. The locks on the shop, house, and
fuel pump had been changed, as well as a padlock on a shed
they were renting. Scott was unable to get his “equipment or
machinery out of those shops.” According to Scott, his broth-
ers “always made sure that they had something in the way or
they had the keys.” They removed the keys out of the trac-
tors and pickups; Scott “never had access to the equipment
anymore” and could no longer access the fuel barrels on the
Homeplace. In the summer of 2015, when Scott tried to get
grain from the grain bins located on trust property, his brothers
refused to give him the keys to his own truck and the auger
that Scott needed to haul his grain out. It was at this time that,
according to Scott, Rocky tore Scott’s shirt and “slapped [him]
around.” Kirtus and Rocky denied there was ever a physical
altercation between Rocky and Scott. After DeWitt made the
brothers give Scott keys to the house again later in the sum-
mer, the brothers changed the security code on the shed so that
when Scott opened the door, an alarm would go off. Kirtus tes-
tified that they changed the security code so that if something
came up missing in the shop, they “wouldn’t go blame Scott
for it.” Also, according to Kirtus, the security code was not on
during the day, just in the evenings. Scott testified that he did
not think his father would have expected him “to put up with
this,” because “[l]ife is just too short.”
Kirtus acknowledged changing the lock on the Homeplace
shop, but claimed Scott could have asked for a new key but did
not. He agreed the shop was trust property. He also acknowl-
edged changing the security code; he did not provide Scott the
new code because “he never asked.” Kirtus also acknowledged
changing the locks on the fuel barrels, which were also owned
by the trust. He claimed, that like the shop lock, the lock was
old and needed to be changed. He agreed that he did not give
Scott the keys to the locks until he was told by his attorney to
do so, but claimed that if Scott had asked, he would have given
the keys to him.
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Scott acknowledged that in August 2015, he unilaterally
closed the RKS Farms checking account. He explained that he
did this because of a $90,000 “rolling loan” the brothers could
get through the account and that Scott would have no control
over such a loan. Scott did not notify his brothers in advance
that he was closing the account because he did not want to
take the risk of them borrowing $90,000, with Scott then being
liable for it. That same month, Scott also delivered a “Notice
of Termination” to his brothers and RKS Farms. It directed
them to vacate and surrender possession to the various trust
properties “at the end of the lease term,” and it stated that the
notice was being given to them “for the purpose of terminating
[their] tenancy.” Scott acknowledged receiving his share of the
grain and not paying for his share of rent and expenses, but he
claimed this was necessary because if he paid the rent he owed,
that would somehow be used against him.
5. Expert Witnesses
(a) Jeffrey Pirruccello
Jeffrey Pirruccello, a tax lawyer and shareholder with an
Omaha, Nebraska, law firm, testified on Scott’s behalf. He
holds an “inactive CPA certificate,” and his primary practice
areas include tax, as well as estate planning and estate admin-
istration. At the time of trial, he had been practicing law for
almost 40 years. Pirruccello had reviewed the Henry Trust, the
Norval Trust, the Elnora Trust, and Norval’s will and codicil.
He explained the difference between a mandatory distribution
of property using language such as “‘shall be distributed’” and
language retaining property for the benefit of a beneficiary, as
used in an “ongoing or continuing trust.” Pirruccello testified
that the Norval Trust and the Elnora Trust were “mirror trusts”
in that the language in the trusts was identical except for one
referencing Norval and the other referencing Elnora.
Referring to page 8 of each parent’s trust, Pirruccello said
there was a mandatory distribution of “other unspecified farm-
land after specific farmland had been addressed to the three
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sons as tenants in common.” He pointed out the distinction in
Norval’s will and First Codicil where he exercises his power
of appointment (for the lands in the Henry Trust) between the
“ongoing, continuing trust for land for the daughter [Pamela]
as well as an outright distribution of land from the grand-
father’s estate.” Pirruccello noted that when wills and trust
instruments say “‘shall distribute,’” or words to that effect, that
means it is to be distributed “immediately upon death or sub-
ject to administration or it can be upon some contingency, but
that essentially means, as here, that it would be outright, free
and clear of trust to the recipients that are designated.”
Pirruccello also testified that when property is transferred by
a trust, it is not itself a taxable event. He stated, “[T]he mere
transfer of property by operation of law at the death from the
decedent to a beneficiary is not a taxable transaction. It’s not
a sale or exchange.” He also discussed “like-kind exchanges”
for property distributed from a trust. As an example, he agreed
that if real estate is transferred from a trust to three people
as tenants in common and is then sold, each of those tenants
in common would owe one-third of the tax incurred from
the sale unless one or more of them took action to set up a
“like-kind exchange.”
(b) DeWitt
DeWitt testified that he graduated from law school in 1975
and began working for the Augustin family “[a]lmost right
out of law school.” In addition to testifying about the July
2011 meeting and his preparation of the limited liability com-
pany operating agreement, DeWitt said the general benefits
and purposes of the types of revocable trusts used for Henry,
Norval, and Elnora was “[b]y and large, probate avoidance,”
and “to take optimum use of the federal estate tax, marital
deduction and credit with the objective of eliminating any
federal estate tax at the death of the first spouse to die and
deferring all the tax on the combined estates until the death
of the survivor.” DeWitt testified that it “is typical of farm
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families” to have a “strong desire to focus on preserving the
family farm to keep it in the family and pass down from one
generation to the next. It’s kind of a way of life almost more
than economics.”
(c) Carmen Standley
Carmen Standley testified on behalf of Kirtus and Rocky.
She is a Nebraska licensed certified public accountant and is
a shareholder at a Lincoln, Nebraska, company where she has
worked for 18 years. Standley has prepared RKS Farms’ tax
returns, Kirtus’ and Rocky’s corporate and personal tax returns,
and the trusts’ tax returns. Standley was asked to assume cer-
tain values for the trusts’ real estate in order to calculate an
approximate income tax liability in the event the properties
were transferred to the brothers as tenants in common and then
sold in a partition sale. She used values of $1.6 million for the
Henry 80 and the Homeplace (respectively, basis of $68,000
and $319,375), $1.884 million for Big Jisa and Little Jisa
(basis of $652,000), and $1.244 million for Staroscik (basis of
$423,000). Assuming the fair market values and basis for each
property as noted, Standley calculated that the sale of the trust
properties would result in a capital gain of $3,265,625. She
calculated this to result in an $822,975 total tax liability, or
$274,325 per brother.
6. Proposals for Splitting Land
It was Scott’s position at trial that if he did not get the
Homeplace, he was going to pursue his partition action
(already filed in district court) and have all of the trust ground
sold. Scott initially suggested to his brothers that he take
the entirety of Big Jisa and Little Jisa, which was more than
one-third of the trusts’ real estate. He was willing to “pay the
difference.” Kirtus remembered this, and he also remembered
telling Scott he did not want to break the trust up. Scott sub-
sequently proposed that he receive the Homeplace, the Henry
80, and the 80 acres owned by RKS Farms, which is adjacent
to the Homeplace.
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According to Kirtus, age 58 at trial, the brothers have been
farming together since 1978. He wanted to farm for another
20 years. Rocky, age 60 at trial, wanted to continue farm-
ing another 10 to 15 years. Kirtus said that if Scott “was to
sell this, Rock and I would be out of a job.” Kirtus admitted
that prior to Scott’s filing any lawsuits, Scott had told him
he wanted to “‘break up the trust.’” But it was Kirtus’ posi-
tion that their father, Norval, would have wanted the three of
them to continue farming. According to Kirtus, Norval “would
have told us, you guys, get your head out of your — and get
together and you can make it work. This is dumb.” Kirtus tes-
tified that he did not want to transfer the trust property out as
tenants in common because his father and grandfather wanted
“to keep this farm ground in the family.” However, Kirtus said
that if the court determined he had the authority or granted him
the authority, he would distribute Big Jisa (160 acres) to Scott
(estimated value of $1.28 million). They would sell Little Jisa
and use proceeds from that sale to equalize what would be
owed to Scott in light of the value of the remaining proper-
ties that Kirtus and Rocky would be keeping. After paying an
equalization to Scott from the Little Jisa proceeds, the remain-
ing Little Jisa moneys would be divided equally. According
to Kirtus’ calculations, he and Rocky would be keeping the
Henry 80, the Homeplace, and Staroscik for a total value of
$2.844 million, or $1.422 million each. Rocky acknowledged
that the Homeplace and the Henry 80 have the best ground of
all the property held in the trusts.
7. R eopening of Case
Trial took place on February 29 and March 1, 2016. Scott
filed a “Motion to Reopen Case and Present Additional
Evidence” on May 16; the matter was heard on June 9. Scott
testified that following trial, he drove by Kirtus’ place and
saw survey stakes. Scott subsequently learned that Kirtus had
recorded a trustee’s deed on March 1 (the second day of trial).
It had been signed by Kirtus on December 29, 2015. The deed
gave Kirtus title to approximately 3 acres of trust real estate
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consisting of irrigated farm ground adjacent to Kirtus’ house.
Kirtus claimed, by affidavit, that he purchased the tract for
$17,500 on January 7, 2016, and that the purchase price was
based on an appraisal. Kirtus attached only one page of the
appraisal to his affidavit, and it indicates that the 3 acres are
certified irrigated land, but that the client requested that it be
called dryland for purposes of the appraisal. Kirtus’ affidavit
indicated that Rocky approved the transaction; however, Rocky
did not participate in the execution of the trustee’s deed—only
Kirtus had signed the deed.
8. County Court’s Order
On December 2, 2016, the county court entered an identical
16-page order in each of the five consolidated cases. The order
first addressed Kirtus and Rocky’s claim that Scott should be
barred from any relief on the basis of “unclean hands” because
Scott refused to pay rent, sent an unauthorized “Notice of
Termination,” closed the RKS Farms’ checking account with-
out notice, and failed to pay his share of 2015 farm expenses.
The county court found that “Scott’s actions were not fraudu-
lent, illegal, or unconscionable under the circumstances,” and
therefore, he did not act with “unclean hands.”
The county court next pointed out that pursuant to
§ 30-3836(a) of the NUTC, a trust can terminate or expire pur-
suant to its terms, and that a trustee is required to distribute the
trust property to the designated beneficiaries upon the termi-
nation of the trust. It concluded that the Henry Trust, Norval’s
will and First Codicil, the Norval Trust, and the Elnora Trust
clearly state that all assets of the trusts were to be distributed
upon the death of Norval. The court stated, “Following the
distribution of all of the assets of the Trusts, there would be
no purpose of the Trusts remaining to be achieved. As such,
the Trusts terminated upon the death of Norval . . . pursuant to
section 30-3836(a) of the NUTC.”
The county court then discussed the older brothers’ request
that the court modify the trusts to follow the terms of the
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alleged agreement between the brothers during the July 2011
meeting to continue farming the trust real estate for 10 more
years. The court concluded:
The evidence shows that Scott did not agree to modify
the Trusts to defer distribution of the real estate for ten
years or to continue to farm the trust real estate with his
brothers for ten years. . . . If there was an oral agree-
ment with clear, satisfactory, and unequivocal terms that
Kirtus and Rocky now seek to enforce, there was no
reason for DeWitt to draft a limited liability company
agreement after the meeting. . . . The evidence was clear
that Scott did not sign the operating agreement drafted
by DeWitt. Kirtus confirmed that Scott has wanted to
terminate the Trusts since 2011. . . . In addition, even if
the court was convinced that [the brothers] had agreed
to modify the Trusts, there was no evidence presented to
the court that the fourth beneficiary of the Trusts, Pamela
. . . , had consented to the modifications as required by
section 30-3837(b).
Regarding the request by Kirtus and Rocky to modify the
trusts to authorize distribution of sole fee simple title to sepa-
rate parcels of the real estate to individual beneficiaries (rather
than distribute the property as tenants in common), the court
concluded modification was not necessary, finding:
Notwithstanding the terms of Article XI of the Norval
and Elnora Trusts, section 30-3881[(a)](22) of the NUTC
authorizes a trustee to “make distributions in divided or
undivided interests, allocate particular assets in propor-
tionate or disproportionate shares, value the trust property
for those purposes, and adjust for resulting differences in
valuation.” As such, the requested relief is already autho-
rized under the NUTC.
Pursuant to the dispositive provisions of the Norval
and Elnora Trusts and the First Codicil to Norval’s Will,
it is clear that Norval wanted his three sons treated
equally with respect to the distribution of farm real estate
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and personal property used in the farm operation. To the
extent a request to modify the Trusts was made by Kirtus
or Rocky with regard to the distribution proposal made by
Kirtus at trial, the court finds that there is not sufficient
evidence upon which the court can determine the equality
of the proposal. As such, the request to modify the Trusts
to approve the distribution proposal is denied.
Regarding Scott’s requests to remove trustees, the county
court found that the brothers, as cotrustees of the Norval
Trust and the Elnora Trust, and Kirtus, as trustee of the Henry
Trust, “have failed to prudently administer the Trusts” and
that the trusts terminated upon the death of Norval in April
2010. It went on to state that the cotrustees failed to distribute
the assets of the trusts and wind up the administration of the
trusts. The court further found:
In addition, the evidence reflects that Kirtus and Rocky
have abused their majority control over the affairs of the
Norval and Elnora Trusts and that Kirtus has abused his
control over the affairs of the Henry Trust in violation of
the duty of impartiality by failing to manage and distrib-
ute the trust property with due regard for the interests of
all of the beneficiaries. Their personal interest in continu-
ing the farming operation has clearly been favored over
their duties as trustees.
Kirtus has violated the duty of loyalty with regard to
the sale of a three acre tract of real estate located on a
parcel held in the Norval and Elnora Trusts to himself.
The Trustee’s Deed was executed by Kirtus, as Trustee,
on December 29, 2015, but not recorded until March 1,
2016. Not only was the conveyance made without any
notice to Scott, a Co-Trustee, and beneficiary of both
Trusts, it appears that the purchase price may not be
the fair market value of the real estate. . . . In addition,
although Kirtus claims that Rocky approved the transac-
tion, the Trustee’s Deed was not executed by a majority
of the Co-Trustees.
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The county court concluded that Kirtus “has committed a
series of breaches that justify his removal as the Trustee of the
Henry Trust.” The court removed Kirtus as trustee of the Henry
Trust and ordered him “to account, and to deliver the Trust
property within his possession as Trustee, to the Successor
Trustee within thirty (30) days of the appointment of the
Successor Trustee.”
The county court also found that there was a lack of cooper-
ation among the cotrustees of the Norval Trust and the Elnora
Trust justifying their removal. The court stated:
Although the evidence supports a finding that the
Co-Trustees have committed a series of breaches that
justify removal, it is not necessary for the court to
find that the lack of cooperation involves a breach of
trust. . . . The evidence clearly shows that the administra-
tion of the Norval and Elnora Trusts has been affected
by the inability of the Co-Trustees to get along and work
together in their personal lives and in the administration
of the Trusts.
Kirtus, Rocky, and Scott were removed as cotrustees and
ordered “to account, and to deliver the Trust property within
their possession as Co-Trustees, to the Successor Trustee within
thirty (30) days of the appointment of the Successor Trustee.”
Regarding the appointment of a successor trustee, the county
court stated:
Pursuant to the removal of Kirtus as Trustee of the
Henry Trust and the removal of Kirtus, Rocky, and Scott
as Co-Trustees of the Norval and Elnora Trusts as ordered
herein, a vacancy in the trusteeship of the Trusts exists
under section 30-3860 of the NUTC. . . . The Trusts at
issue do not designate a Successor Trustee under the
present circumstances. As such, the next order of prior-
ity would be by unanimous agreement of the qualified
beneficiaries. The qualified beneficiaries of the Trusts are
Kirtus, Rocky, Scott, and Pamela . . . . In the event the
qualified beneficiaries are unable to unanimously agree
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to a person to be appointed as Successor Trustee by the
court, the court will determine the person to be appointed
Successor Trustee of the Trusts at issue.
The county court noted that Pamela was not given notice of
the present proceedings and that as a qualified beneficiary, she
was entitled to notice and an opportunity to be heard regard-
ing the appointment of a successor trustee; a later hearing was
scheduled for that purpose.
As to the case not appealed, the county court entered
judgment in favor of the Norval Trust and against Scott for
$41,692.30 for his share of rent and personal property taxes
for 2011 through 2015, with interest to accrue at 2.498 percent.
Also, with regard to the “Notice of Termination” Scott sent in
August 2015 to Rocky, Kirtus, and RKS Farms purporting to
terminate their leases with the trust real estate, the court con-
cluded Scott was not authorized to do so and thus found such
notice to be “void and of no effect.”
III. ASSIGNMENTS OF ERROR
In cases Nos. A-16-1182 (case No. PR15-18) and A-16-1184
(case No. PR15-25), Kirtus appeals from the two underlying
actions related to the Henry Trust. In cases Nos. A-16-1183
(case No. PR15-19) and A-16-1185 (case No. PR15-26),
Kirtus and Rocky appeal from the two underlying actions
related to the Norval Trust and the Elnora Trust. The errors
assigned on appeal in each case can be consolidated and
restated as claims that the county court erred by (1) terminat-
ing the trusts, ordering the distribution of assets other than
real estate, and removing the trustees without notice being
given to Pamela, a beneficiary of all the trusts; (2) failing to
find Scott was barred from obtaining equitable relief on the
basis of unclean hands; (3) terminating the trusts; (4) failing
to find that the brothers entered into an agreement to continue
farming together for 10 years before distributing the trusts’
real estate, and thus, the court erred in failing to modify the
trusts as requested; (5) finding a breach of trust and removing
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the trustees and ordering them to account for and deliver trust
property to a successor trustee; and (6) determining there was
insufficient evidence to order an equitable distribution of the
real estate.
Unless otherwise indicated, references to appellants’ and
appellee’s briefs will be to page numbers contained in submis-
sions filed under case No. A-16-1183.
IV. 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. In re Henry B. Wilson, Jr.,
Revocable Trust, 300 Neb. 455, 915 N.W.2d 50 (2018). When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id. In a review de novo on the record,
an appellate court reappraises the evidence as presented by the
record and reaches its own independent conclusions concern-
ing the matters at issue. In re Estate of Hedke, 278 Neb. 727,
775 N.W.2d 13 (2009).
[4] The interpretation of the words in a will or a trust pre­
sents a question of law. In re Estate of Forgey, 298 Neb. 865,
906 N.W.2d 618 (2018).
V. ANALYSIS
1. Jurisdiction
These appeals arise from actions brought pursuant to the
NUTC, § 30-3801 et seq. As an initial matter, we note that
Scott filed a motion for summary dismissal of these appeals;
he claimed this court lacked jurisdiction because the county
court’s December 2, 2016, order did not dispose of all the
issues and was therefore not a final, appealable order. We over-
ruled the motion without prejudice to consider the jurisdiction
issue following briefing and submission to the court.
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In support of his position, Scott relies on In re
Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469
(2017). In that case, reference is made to an unpublished case
from this court docketed as case No. A-15-968, in which a
county court entered an order stating that a party would be
removed as successor trustee upon the appointment of a new
successor trustee. The Supreme Court noted that this court dis-
missed the appeal from the trust case for lack of jurisdiction,
“no doubt for the lack of a final order because of the reserved
appointment of a successor trustee.” In re Conservatorship
of Abbott, 295 Neb. at 518, 890 N.W.2d at 478. The circum-
stances in In re Conservatorship of Abbott are distinguish-
able from the present cases because, here, the trustees were
immediately removed in the December 2, 2016, order, and a
trustee vacancy was immediately created; however, in In re
Conservatorship of Abbott, the trustee was not immediately
removed and would remain trustee until the appointment of a
successor trustee.
[5] We find In re Trust of Rosenberg, 269 Neb. 310, 693
N.W.2d 500 (2005), to be more instructive. In that case, a
county court removed an individual as trustee, and the indi-
vidual did not timely appeal from that order. Rather, the former
trustee waited several months until further action was taken by
the county court and another order was subsequently entered.
The Nebraska Supreme Court held that the removal of a trustee
under the NUTC is a special proceeding and that further, the
removal of a trustee under §§ 30-3814 and 30-3862 affects a
substantial right. The Supreme Court stated:
We have held that a proceeding under Neb. Rev. Stat.
§ 30-2454 (Reissue 1995) to remove a personal rep-
resentative for cause is a special proceeding within
the meaning of § 25-1902 and therefore is a final
order and is appealable, even though it may not termi-
nate the action or constitute a final disposition of the
case. . . . “[G]iven the scope of the personal representa-
tive’s power over the interests of the beneficiaries and
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other interested parties in an estate, the right conferred
by § 30-2454 to petition the county court to remove the
personal representative for cause is a substantial right.”
[Citation omitted.] The same can be said of proceedings
to remove a trustee.
In re Trust of Rosenberg, 269 Neb. at 315, 693 N.W.2d at 504.
Therefore, the Supreme Court concluded that the order remov-
ing the trustee in In re Trust of Rosenberg was a final order
and that the former trustee’s attempt to appeal her removal was
not timely because she did not file her appeal within 30 days
of the order removing her as trustee.
In the present matters, the county court removed Kirtus as
trustee of the Henry Trust and removed Kirtus, Rocky, and
Scott as cotrustees of the Norval Trust and the Elnora Trust,
immediately upon entry of the December 2, 2016, order. The
county court stated that these removals resulted in a vacancy
in the trusteeship of the trusts under § 30-3860. In accordance
with In re Trust of Rosenberg, supra, we conclude that the
county court’s December 2 order resolved all issues, including
the immediate removal of the trustees, and was a final, appeal-
able order.
2. Was Pamela Necessary Party?
Kirtus and Rocky claim that the county court had jurisdic-
tion to interpret the trusts regarding the real estate at issue and
obligations on distributions of that real estate, as well as their
claim regarding the 10-year farming agreement. However, they
contend that without their sister, Pamela, being a party to the
proceedings, the court did not have jurisdiction over Scott’s
requests to terminate the trusts and remove the trustees. They
argue, “[Pamela] undisputedly does not have an interest in
the Trusts’ real estate at issue, but she definitely has an inter-
est in the Trusts’ administration. She further has an interest
in the Trusts’ personal property.” Brief for appellants at 28.
Kirtus and Rocky point out that they raised this issue at the
commencement of trial, suggesting to the county court that
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the requests for relief regarding the trusts’ real estate and
modifications to the trusts regarding real estate were prop-
erly before the court, but not Scott’s requests to terminate the
trusts, remove trustees, or distribute personal property because
Pamela was an interested party as to those issues but was not
given notice.
We agree with Kirtus and Rocky that certain, but not all,
matters litigated and determined by the county court required
including Pamela as an indispensable party. Neb. Rev. Stat.
§ 25-323 (Reissue 2016) is entitled “Necessary parties; brought
into suit; procedure.” Section 25-323 provides in part:
The court may determine any controversy between
parties before it when it can be done without prejudice to
the rights of others or by saving their rights; but when a
determination of the controversy cannot be had without
the presence of other parties, the court must order them
to be brought in.
[6-8] The language of § 25-323 tracks the traditional dis-
tinction between necessary and indispensable parties. Midwest
Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894
N.W.2d 221 (2017). The Nebraska Supreme Court addressed
that distinction, explaining:
“‘“Necessary parties[]” [are parties] who have an interest
in the controversy, and should ordinarily be joined unless
their interests are separable so that the court can, with-
out injustice, proceed in their absence[.] “Indispensable
parties[]” [are parties] whose interest is such that a final
decree cannot be entered without affecting them, or that
termination of controversy in their absence would be
inconsistent with equity.’
“. . . The inclusion of a necessary party is within the
trial court’s discretion. . . . However, there is no discretion
as to the inclusion of an indispensable party.”
Id. at 90, 894 N.W.2d at 236. Therefore, the first clause of
§ 25-323 makes the inclusion of necessary parties discretion-
ary when a controversy of interest to them is severable from
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their rights. See Midwest Renewable Energy v. American
Engr. Testing, supra. “The second clause, however, mandates
the district court order indispensable parties be brought into
the controversy.” Id. at 90, 894 N.W.2d at 236. All persons
interested in the contract or property involved in an action are
necessary parties, whereas all persons whose interests therein
may be affected by a decree in equity are indispensable
parties. See Midwest Renewable Energy v. American Engr.
Testing, supra.
[9] The absence of an indispensable party to a controversy
deprives the court of subject matter jurisdiction to determine
the controversy and cannot be waived. Id. When a lower court
lacks the power, that is, the subject matter jurisdiction, to
adjudicate the merits of a claim, issue, or question, an appel-
late court also lacks the power to determine the merits of
the claim, issue, or question presented to the lower court. Id.
When it appears that all indispensable parties to a proper and
complete determination of an equity cause were not before
the court, an appellate court will remand the cause for the
purpose of having such parties brought in. See id. Necessary
parties are parties who have an interest in the controversy,
and should ordinarily be joined unless their interests are sepa-
rable so that the court can, without injustice, proceed in their
absence. Id.
We conclude that even if Pamela may have been a nec-
essary party in matters related specifically to the farmland
in dispute, she was not an indispensable party. Therefore,
requiring her to be included in the proceedings for such
matters was discretionary to the county court. See Midwest
Renewable Energy v. American Engr. Testing, supra. Pamela’s
interest under all trusts was sufficiently separable from the
controversies related to the disputed farmland at issue in the
underlying lawsuits, and her rights were sufficiently protected
without being a party to those specific controversies. It was
not an abuse of discretion for the county court to proceed
without Pamela as a party and to make determinations as to
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(1) the interpretation of the trusts and other issues specific
to the disputed farmland in which Pamela had no interest,
(2) whether Scott filed his actions with unclean hands, (3)
whether the trustees breached their duties with regard to their
handling of the disputed farmland, (4) whether the brothers
reached an agreement as to the disputed farmland, and (5)
whether the brothers could distribute the disputed farmland
in separate parcels in fee simple rather than as tenants in
common. The court’s determination of these litigated issues
could be reached without impacting Pamela’s rights under
the trusts, other than, as discussed later, any modification
of the trusts that would delay distribution of her interests or
possibly diminish those interests. Pamela had no interest in
the division or ownership of the disputed farmland and had
no apparent involvement in how the trustees administered
or managed the disputed farmland. Thus, any determinations
made in that regard would not have required her presence nor
impacted her rights under the trusts. The county court had
jurisdiction over such matters, and we will therefore address
the errors assigned related to the court’s determinations as to
those particular issues.
[10] On the other hand, we conclude that Pamela, as a
qualified beneficiary of all trusts at issue, was an indispen­
sable party with regard to (1) Scott’s request to terminate the
trusts and (2) his request to remove the trustees (along with
associated requests for accounting and appointment of suc-
cessor trustee). The absence of an indispensable party to a
controversy deprives the court of subject matter jurisdiction to
determine the controversy, and it cannot be waived. Midwest
Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894
N.W.2d 221 (2017). A court does not have subject matter juris-
diction over a request to terminate a trust or remove a trustee
in the absence of an indispensable party; thus, the county
court lacked jurisdiction over these requests. See, Markham
v. Fay, 74 F.3d 1347 (1st Cir. 1996) (generally, beneficiaries
are indispensable parties in actions seeking to collect tax or
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other debt from trust corpus or seeking to terminate trust, and
exception exists when trustee represents beneficiaries’ interests
fully and without conflict); Koch v. Koch, 226 Neb. 305, 411
N.W.2d 319 (1987) (real property conveyed to father as trustee
for his minor children required inclusion of minor children
as necessary parties in litigation involving real property in
which they had interest); Roth v. Lehmann, 741 S.W.2d 860
(Mo. App. 1987) (ordering removal of trustee impacts rights
of each beneficiary, and beneficiaries are necessary parties to
suit seeking such removal); 76 Am. Jur. 2d Trusts § 603 (2016)
(whether beneficiaries of trust are necessary parties to suit may
depend upon terms of trust and effect of suit on their equitable
interests, and nature of particular suit is one of principle ele-
ments bearing on whether it is necessary to make beneficiar­
ies parties).
While the county court correctly determined that Pamela
would be necessary to the process of appointing a successor
trustee, she should have also been included and provided an
opportunity to be heard with regard to Scott’s requests for a
court order terminating the trusts and removing the trustees,
as well as the related requests for an accounting, appointment
of a successor trustee, and delivery of trust property to a suc-
cessor trustee when appointed. There was no evidence before
the court regarding the status of Pamela’s real estate interest
under the Henry Trust (as appointed in First Codicil), and the
evidence suggests she had not yet received her remainder inter-
est from her parents’ trusts. Therefore, a court order terminat-
ing the trusts, removing the trustees, ordering an accounting,
and appointing a successor trustee could have a prejudicial
effect on Pamela’s interests through additional delays and
costs which could adversely impact her remaining interests in
the trusts. Pamela’s interest in the trusts should be taken into
account by the county court when determining the best option
available to it to address the breach of trust between the broth-
ers (addressed later). See § 30-3890 (remedies for breach of
trust include, among other things, compelling performance;
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compelling trustee to redress breach by paying money, restor-
ing property, or other means; ordering accounting; appointing
special fiduciary; suspending trustee; removing trustee; and
ordering any other appropriate relief).
Because Pamela was an indispensable party as to Scott’s
requests to terminate the trusts, remove the trustees, order
an accounting, and appoint a successor trustee, but was not
brought into the proceedings, the county court was without
subject matter jurisdiction to address these particular matters.
We are mindful, however, that the county court did not enter
an order terminating the trusts; rather, it merely interpreted
the trusts as terminating by their own terms. As we discuss
later, such an interpretation was within the court’s jurisdic-
tion. Therefore, as to those matters over which it did not have
jurisdiction, we vacate those portions of the county court’s
order which (1) removed Kirtus as trustee of the Henry Trust,
(2) removed the three brothers as trustees of the Norval Trust
and the Elnora Trust, (3) ordered an accounting for the trusts
and delivery of trust property to a successor trustee once
appointed, (4) created a vacancy in the trusteeships, and (5)
directed the appointment of a successor trustee. As discussed
later in this opinion, we agree with the county court that a
breach of trust occurred in relation specifically to the disputed
farmland; Pamela was not a necessary or indispensable party to
that controversy. However, on remand, any determination with
regard to an appropriate remedy for that breach of trust must
include Pamela as a party (cannot be waived) and an opportu-
nity to be heard (discretionary to Pamela).
We now address the errors Kirtus and Rocky assign to
the county court’s order over which the county court had
jurisdiction.
3. Unclean H ands
Kirtus and Rocky argued to the county court that Scott
should have been barred from relief under the doctrine of
unclean hands; they raise the same issue on appeal. Although
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we have concluded the county court did not have jurisdiction
to address some of the relief requested by Scott, his other
claims, related to distribution of the disputed farmland as ten-
ants in common and the breach of trust by the trustees as to
that farmland, were appropriate for consideration by the county
court. We therefore consider this assigned error.
[11] Under the doctrine of unclean hands, “a person who
comes into a court of equity to obtain relief cannot do so if
he or she has acted inequitably, unfairly, or dishonestly as to
the controversy in issue.” Farmington Woods Homeowners
Assn. v. Wolf, 284 Neb. 280, 289, 817 N.W.2d 758, 767
(2012). “Generally, conduct which forms a basis for a finding
of unclean hands must be willful in nature and be considered
fraudulent, illegal, or unconscionable.” Id.
We agree with the county court that Scott did not act with
unclean hands. While it is understandable that Scott’s conduct
in some instances may have been frustrating to his older broth-
ers, or perhaps unfairly burdened them, it was not fraudulent
or illegal, nor so reprehensible that it could be deemed uncon-
scionable. Scott explained his reasoning for not paying his
share of the taxes owed on the disputed property, which could
be used against his position that he wanted to farm separately,
and he testified that the amounts to cover those taxes had been
set aside in his attorney’s trust account. Plus, he was owed
a one-quarter distribution of the Norval Trust bank account
($142,727), which had not yet been disbursed and could have
been used to cover his share of those taxes. With regard to his
issuance of the “Notice of Termination,” while he was with-
out authority to do so, it is evident that this was done out of
frustration when Scott was otherwise unable to receive the dis-
tribution of farmland to which he was entitled under the plain
language of the trusts and the First Codicil. And as for closing
the brothers’ joint farming bank account without notice to his
older brothers, while perhaps not advisable, Scott’s explana-
tion was not unreasonable (concern about brothers’ ability to
access $90,000 “rolling loan”).
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4. County Court’s Interpretation
of Trusts
We have already explained that the county court was with-
out subject matter jurisdiction to entertain Scott’s requests to
formally terminate all trusts, since Pamela was an indispen­
sable party on such matters and had not been included in the
underlying actions. However, as acknowledged by Kirtus and
Rocky, the county court did have “jurisdiction to interpret
the Trusts regarding [the disputed] real estate” and to “direct
resolution” as to the trustees’ “power and obligations on dis-
tribution of [the disputed] real estate.” Brief for appellants
at 29. Likewise, it was also appropriate for the county court
to review and interpret the content of the trust documents to
determine whether Scott was entitled to the distribution of the
disputed farmland, as he alleged in his petitions, and whether
that farmland should have been expeditiously distributed upon
Norval’s death.
As set forth by statute, a “judicial proceeding involving a
trust may relate to any matter involving the trust’s adminis-
tration, including a request for instructions and an action to
declare rights.” § 30-3812(c). The NUTC was enacted in 2003
and became operative on January 1, 2005, and except as oth-
erwise provided in the NUTC, it applies to all trusts created
before, on, or after the operative date and all judicial proceed-
ings concerning trusts commenced after the operative date. See
In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638
(2007). Also, “[t]he common law of trusts and principles of
equity supplement the [NUTC], except to the extent modified
by the code or another statute of this state.” § 30-3806. See,
e.g., In re Trust of Hrnicek, 280 Neb. 898, 792 N.W.2d 143
(2010) (although NUTC did not contain specific remedy of
retention as allowed in probate code, right of retainer lies in
equity, and § 30-3806 provides for common law of trusts and
principles of equity).
In considering the county court’s interpretation of the
trusts, we note that the NUTC states that “a trust terminates to
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the extent the trust is revoked or expires pursuant to its terms,
no purpose of the trust remains to be achieved, or the pur-
poses of the trust have become unlawful, contrary to public
policy, or impossible to achieve.” § 30-3836(a). As observed
by the county court, the NUTC provides that “upon the occur-
rence of an event terminating or partially terminating a trust,
the trustee shall proceed expeditiously to distribute the trust
property to the persons entitled to it, subject to the right of the
trustee to retain a reasonable reserve for the payment of debts,
expenses, and taxes.” § 30-3882(b).
The county court concluded that pursuant to the express
terms of the trusts,
it is clear that all of the assets of the Trusts were to be
distributed upon the death of Norval . . . . Following
distribution of all of the assets of the Trusts, there would
be no purpose of the Trusts remaining to be achieved. As
such, the Trusts terminated upon the death of Norval . . .
pursuant to section 30-3836(a) of the NUTC.
Notably, the county court did not formally order the termina-
tion of the trusts as requested by Scott; rather, based upon its
interpretation of the trusts’ content, the court concluded the
trusts had terminated by their own terms upon Norval’s death.
[12] The interpretation of the words in a will or a trust
presents a question of law. In re Estate of Forgey, 298 Neb.
865, 906 N.W.2d 618 (2018). We agree with the county court’s
conclusion that all assets of the trusts were to be distributed
upon Norval’s death, and thus, the trusts terminated by their
own terms upon his death. Recently, the Nebraska Supreme
Court pointed out that a trust’s termination is not determined
by the final distribution of trust property. In In re Estate of
Barger, 303 Neb. 817, 931 N.W.2d 660 (2019), the settlor
of a family trust was still alive at the time a court order was
entered terminating the family trust. However, the stock cer-
tificates of two corporations used by the settlor for the family
farming operation were never transferred from the terminated
trust back to the settlor. It was argued that the trust was not
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terminated, since the trustees had not transferred the property
to the settlor prior to her death. The Nebraska Supreme Court
disagreed, stating that “[a] trust terminates at the time at which
it becomes the duty of the trustee to wind up administration
of the trust, and not at the time when that winding up period
is actually accomplished.” Id. at 838, 931 N.W.2d at 676.
Further, “After a trust has been terminated, a trustee must
expeditiously exercise the powers appropriate to wind up the
administration of the trust and distribute the trust property to
the persons entitled to it.” Id. at 838-39, 931 N.W.2d at 676.
Therefore, after a trust terminates, a trustee continues to “have
a nonbeneficial interest in the trust for timely winding up the
trust and distributing its assets.” Id. at 839, 931 N.W.2d at 676.
But after the trust is terminated, a trustee’s powers are “limited
to those that are reasonable and appropriate to the expeditious
distribution of the trust property and preserving the trust prop-
erty pending the winding up and distribution of that property.”
Id. See, also, Ovrevik v. Ovrevik, 242 Ga. App. 95, 527 S.E.2d
586 (2000) (distribution of trust property is entirely separate
matter from fulfillment of purpose of trust; having determined
purpose of trust was fulfilled, court properly terminated trust
and ordered distribution of trust property in accordance with
terms of trust).
In the present case, there is no question the disputed farm-
land was to be distributed upon Norval’s death. Norval’s First
Codicil appointed the Henry 80 “in equal shares, outright
and free of trust, to [his] three sons, KIRTUS, ROCKY and
SCOTT.” The Norval Trust (as mirrored in the Elnora Trust)
set forth specific distributions of real estate to each child, and
then it stated that “[a]ll other farmland held by the Trust shall
be distributed to the three sons of the Grantor in equal shares
as tenants in common” and that “[t]he remainder of the Trust
property shall be distributed in equal shares to the Grantor’s
children, outright and free of trust.” The Henry Trust (second
Amendment, article III, paragraph 5(b)) also stated that sub-
ject to any appointment made by Norval, then upon the death
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of Henry, his wife, and Norval, “the trustee shall distribute the
Trust assets, as then constituted, in equal shares to [Norval’s]
children or their issue per stirpes.” By the express language
of the First Codicil and the trusts, the disputed farmland (and
remainder of all trust property) should have been distributed in
accordance with these terms upon Norval’s death. Therefore,
all trusts at issue terminated by their own terms upon Norval’s
death, and at that time, it became the duty of the trustees to
wind up the administration of the trust. See In re Estate of
Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).
[13-15] Having agreed with the county court’s interpretation
that the trusts terminated by their own terms upon Norval’s
death, we now consider whether the trustees’ powers during the
winding up and distribution period authorized them to seek a
modification of the trusts or the alternative relief they sought.
In other words, when a trust has terminated by its own terms
but remains in the winding up period with the trust property
not yet distributed, can that trust be modified based upon an
agreement of the beneficiaries or, in certain circumstances,
even without such an agreement? We conclude the NUTC pro-
vides statutory options for a trustee to seek such relief during
the winding up period following the expiration or termination
of a trust by its own terms. To explain, we first return to the
full text of § 30-3836, which provides as follows:
(UTC 410)(a) In addition to the methods of termina-
tion prescribed by sections 30-3837 to 30-3840, a trust
terminates to the extent the trust is revoked or expires
pursuant to its terms, no purpose of the trust remains to be
achieved, or the purposes of the trust have become unlaw-
ful, contrary to public policy, or impossible to achieve.
(b) A proceeding to approve or disapprove a proposed
modification or termination under sections 30-3837 to
30-3842, or trust combination or division under section
30-3843, may be commenced by a trustee or beneficiary.
The settlor of a charitable trust may maintain a proceed-
ing to modify the trust under section 30-3839.
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Notably, within § 30-3836(a), it indicates that a trust can ter-
minate to the extent it expires pursuant to its own terms or it
can be terminated by the court as provided by §§ 30-3837 to
30-3840; however, regardless of how a trust may terminate,
§ 30-3836(b) authorizes a trustee or beneficiary to commence
a proceeding to approve or disapprove a proposed modifica-
tion or termination under §§ 30-3837 to 30-3842. There is no
language in § 30-3836 to suggest that a trust which terminates
by its own terms, but which remains in the winding up period,
is not eligible for relief under the statutory options identified in
§ 30-3836(b), specifically, § 30-3837 (modification or termina-
tion of noncharitable irrevocable trust by consent), § 30-3838
(modification or termination because of unanticipated circum-
stances or inability to administer trust effectively), § 30-3839
(cy pres), § 30-3840 (modification or termination of uneco-
nomic trust), § 30-3841 (reformation to correct mistakes), and
§ 30-3842 (modification to achieve settlor’s tax objectives). In
fact, the need to compel termination, or to request modifica-
tion or application of other equitable principles, may not be
discovered or become necessary until after a settlor’s death
while the trust is in the winding up period and before the final
distribution of trust property. See, e.g., In re Estate of Forgey,
298 Neb. 865, 883, 906 N.W.2d 618, 633 (2018) (trust called
for distribution of trust assets upon death of grantor, but trustee
failed to do so for 20 years; in fashioning a remedy, Nebraska
Supreme Court noted that county courts may apply equitable
principles to matters within probate jurisdiction, including
trusts, and that “[s]uch courts have full power to make orders,
judgments, and decrees and to take all other actions necessary
and proper to administer justice in the matters which come
before them”).
[16] We note that the ability to apply equitable principles
or modify or terminate a trust after a trust has terminated by
its own terms is also supported by the Restatement (Second)
Trusts § 344, comment a. at 191 (1959), which provides:
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By “the time for the termination of the trust” is meant the
time at which it becomes the duty of the trustee to wind
up the trust. Ordinarily this time is at the expiration of
the period for which the trust is created. . . . Although
the time for the termination of the trust has arrived in
accordance with the terms of the trust, the trustee does
not thereby necessarily cease to be the trustee, but he
continues to be trustee until the trust is finally wound
up. The period for winding up the trust is the period
after the time for termination of the trust has arrived
and before the trust is terminated by the distribution of
the trust property. This period may properly be longer
or shorter, depending upon the circumstances. Where the
estate is large, where property not readily saleable has
to be sold, where the ascertainment of the beneficiaries
entitled to distribution or the amounts to which they are
entitled is difficult, the period of winding up the trust
may properly be longer than it would be in the absence
of these circumstances.
(Emphasis supplied.) See, also, Estate of Nicholas, 177 Cal.
App. 3d 1071, 223 Cal. Rptr. 410 (1986) (trust continues for
purpose of winding up; period for winding up trust is period
after time for termination has arrived and before trust is termi-
nated by distribution of trust property; and winding up process
involves distribution and conveyance of trust property to those
entitled to it). Restated, a trust may expire or terminate by its
own terms, thereby triggering the period for winding up the
trust; the winding up period continues to exist until the trust
is fully terminated by distribution of the trust property. If, as
in this case, the trustees fail to distribute the property once the
purpose of the trust was fulfilled, a court can enter an order
fully terminating the trust with directions to distribute the
trust property in accordance with the terms of the trust, see
Ovrevik v. Ovrevik, 242 Ga. App. 95, 527 S.E.2d 586 (2000),
or, if appropriate, enter an order modifying (or reforming) the
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trust terms, see §§ 30-3837 to 30-3842. However, as discussed
previously, due to Pamela not being included as a party, the
county court did not have jurisdiction to enter an order termi-
nating the trusts and directing distribution of the trusts’ assets,
nor an order modifying the trusts.
[17] We also note that the Restatement (Third) of Trusts
§ 66 (2003) provides that if a trustee knows or should know of
circumstances that justify judicial action to modify an admin-
istrative or distributive provision of a trust because of circum-
stances not anticipated by the settlor, the trustee has a duty to
petition the court for appropriate modification of or deviation
from the terms of the trust. The possible imposition of such a
duty on a trustee further supports permitting a trustee to seek
modification under § 30-3838 even in those instances where a
trust may have terminated or expired by its own terms, but is
still pending the winding up and distribution of trust property.
Further, “The objective of the rule allowing judicial modifica-
tion (or deviation) and the intended consequences of its appli-
cation are not to disregard the intention of a settlor. The objec-
tive is to give effect to what the settlor’s intent probably would
have been had the circumstances in question been anticipated.”
Restatement (Third), supra, § 66, comment a. at 493. Keeping
in mind that the Uniform Trust Code was “drafted contem-
poraneously” with the drafting of the Restatement (Third) of
Trusts, see Ronald R. Volkmer, The Nebraska Uniform Trust
Code: Nebraska Trust Law in Transition, 37 Creighton L.
Rev. 61, 64 (2003), we do not read the NUTC to exclude from
possible modification or termination those trusts which may
have terminated by their own terms but remain in the winding
up period awaiting the final distribution and conveyance of
trust property.
[18] Accordingly, we agree with the county court’s inter-
pretation that the trusts terminated by their own terms. We
also conclude that the NUTC allows a beneficiary or trustee
to petition a county court to consider modification or termi-
nation of a trust which has expired or terminated pursuant to
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its own terms but remains in the winding up period, includ-
ing the possible modification of or deviation from dispositive
terms, as was sought here. We therefore proceed to address the
remaining errors assigned by Kirtus and Rocky related to their
requests to modify or deviate from the trusts’ terms, as well
as the error they assign to the county court’s determination
that they committed a serious breach of trust in their duties
as trustees.
5. Agreement to Continue
Farming Operations
The older brothers were aware that Scott wanted the dis-
puted farmland distributed and allocated among them, includ-
ing that he was withholding payment of his share of the rent
(taxes) until the land was split up. However, Kirtus and Rocky
contend that the disputed real estate had not been distributed
because they believed there was a 10-year agreement with
Scott “to maintain the real estate in trust and farm it with
him.” Brief for appellants at 32. But to maintain the disputed
farmland in the trusts contrary to the language of the trusts
and the First Codicil would have required modification of
the trusts, which was not previously done, nor was it capable
of being done in the present cases because Pamela was not a
party. However, Kirtus and Rocky argue that “an agreement
regarding the real estate alone . . . did not require [Pamela’s]
approval.” Brief for appellants at 38. We agree that the broth-
ers, without Pamela’s involvement, could have distributed
the land to their “partnership” or to a newly formed limited
liability company as their lawyer advised. But there was no
evidence they did either. We agree with the county court that
the “evidence was clear that Scott did not sign the operating
agreement drafted by DeWitt.” Not only did they not sign the
proposed operating agreement, and thus, there was no indica-
tion of an agreement to run it as a limited liability company,
but they never distributed the land at all, and thus, they also
demonstrated there was never an intention by all to run it as
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a partnership. Because they kept the disputed farmland in the
trusts, the only viable argument would have been that they
agreed to modify the trusts to keep the farmland in the trusts
for another 10 years, which they could not have done in July
2011 without Pamela’s consent (discussed further later) and
could not have done in the present matter without Pamela
included as a party. We find no error by the county court in its
conclusion on these matters.
6. Breach of Trust
Kirtus and Rocky contend that their “prior conduct and
reaction to Scott’s underlying petitions herein in no way
provide facts that justify the county court finding that they
committed a ‘serious breach of trust’ supporting their removal
under . . . § 30-3862.” Brief for appellants at 32. As previ-
ously discussed, the county court was without subject mat-
ter jurisdiction to remove the trustees because Pamela was
an indispensable party to such an action in light of her
interest in the trusts. This leaves for our consideration only
the issue of whether the county court properly determined
the brothers breached their duties as trustees with regard to
their actions specific to the disputed farmland. We find no
error in the county court’s findings and conclusions on this
limited issue.
In its order, the county court pointed out that all the trustees
failed to distribute assets and wind up the administration of
the trusts and that therefore, they failed to prudently adminis-
ter the trusts. Again, because Pamela was not a party to these
proceedings, these findings by the county court are limited to
matters pertaining to the disputed farmland. Keeping that in
mind, we note that the county court found that “Kirtus and
Rocky have abused their majority control” over their parents’
trusts and Kirtus “abused his control” over the Henry Trust
“in violation of the duty of impartiality by failing to man-
age and distribute the trust property with due regard for the
interests of all of the beneficiaries. Their personal interest
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in continuing the farming operation has clearly been favored
over their duties as trustees.”
The county court also found that Kirtus violated the duty
of loyalty regarding the sale to himself of the 3-acre tract of
land held in the parents’ trusts. The 3-acre tract was within
the Staroscik parcel and was adjacent to the 1½ acres already
owned by Kirtus on the southwest corner of that property. A
trustee’s deed was executed by Kirtus on December 29, 2015,
and recorded on March 1, 2016, which was the second day of
trial. The conveyance was made without notice to Scott, and
the purchase price was based on an appraisal in which the 3
acres of irrigated land was appraised as dryland, upon Kirtus’
request. And although Kirtus claimed Rocky approved the
transaction, the trustee’s deed was not executed by a majority
of the cotrustees. The court also found that there was a lack
of cooperation among the cotrustees and that the administra-
tion of the parents’ trusts was affected by the inability of the
cotrustees “to get along and work together in their personal
lives and in the administration of the Trusts.”
Even if the older brothers initially believed there was an
agreement to keep the disputed farmland in the trusts or oth-
erwise for another 10 years, the evidence did not support that
Scott agreed, nor that Pamela consented, to such a modifica-
tion of the trusts. Further, the older brothers’ behaviors toward
Scott (changing locks and security codes, removing keys from
equipment and trucks, removing books and computer from
Norval’s home, and taking over Scott’s wife’s bookkeeping
responsibilities); Rocky’s aggressive behavior toward Scott;
and Scott’s actions toward them (not paying his share of real
estate and personal property taxes, closing joint bank account,
and delivering termination notice) should have dispelled any
notion that there was any basis to delay distributing the trusts’
property and winding up the trusts.
[19] A trustee breaches a duty of care if he unduly delays
distributions. See In re Estate of Hedke, 278 Neb. 727, 775
N.W.2d 13 (2009). “A violation by a trustee of a duty the
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trustee owes to a beneficiary is a breach of trust.” § 30-3890(a).
Thus, when a trustee unduly delays distributions from a trust,
the trustee has breached a duty of care owed to a beneficiary,
and the violation of that duty is a breach of trust. Accordingly,
as to matters pertaining to the disputed farmland only, we
find no error in the county court’s determination that a breach
of trust occurred by Kirtus as trustee of the Henry Trust and
the three brothers as trustees for their parents’ trusts. These
findings and conclusions specific to a breach of trust involv-
ing the disputed farmland can be considered in the context of
the trustees’ actions with regard to the entirety of the trusts’
administration upon remand, with Pamela joined in such pro-
ceedings. When considered in that context and with all quali-
fied beneficiaries participating, an appropriate remedy can
be determined.
7. Equitable Distribution
of R eal Estate
This issue is at the heart of each of the four cases on appeal
before this court. Scott filed his actions seeking the distribu-
tion of the disputed farmland so that he could independently
farm with his son. Having been unable to reach an agreement
with his older brothers as to how to divide the farmland in
which they each owned an undivided one-third interest, he
filed his lawsuits, including a separate district court action to
partition the land. Kirtus and Rocky were concerned that a par-
tition action would necessarily force the sale of the disputed
farmland (valued at $4.728 million total) and require the pay-
ment of hefty capital gains taxes ($822,975 total or $274,325
per brother); they believed this would “force them out of
farming”—something their father would not have anticipated
or desired. As noted by DeWitt, it “is typical of farm families”
to have a “strong desire to focus on preserving the family farm
to keep it in the family and pass down from one generation to
the next. It’s kind of a way of life almost more than econom-
ics.” Kirtus and Rocky filed their actions seeking an order
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modifying the trusts or otherwise declaring their authority to
equitably distribute the farmland to each brother as separate
parcels with fee simple title, along with cash to equalize distri-
butions where needed.
In the petitions filed by Kirtus and Rocky, in addition to
the matters already discussed regarding modifying the trusts to
maintain the disputed property in the trusts (or business entity)
for another 10 years, they alternatively sought approval from
the county court to modify the manner in which the disputed
farmland could be distributed. They sought approval to equi-
tably allocate the farmland by distributing separate parcels of
land to the brothers in fee simple title rather than distributing
the properties as tenants in common. As they note on appeal,
in the event “their 10-year agreement was not upheld” by the
county court, they alternatively presented a “proposal for equi-
table distribution of a separate parcel to Scott and some cash.”
Brief for appellants at 39. The proposal was based on market
values of the disputed properties, and it provided each of the
brothers “an approximate equal amount of real estate but addi-
tional cash to Scott to make up the difference in values.” Id.
Kirtus and Rocky contend that their proposal “effectuates as
best as possible their ancestors’ intent to keep the farm in the
family and avoid an unnecessary almost-$900,000 tax obliga-
tion to the brothers.” Id. The county court declined to approve
the proposal based on insufficient evidence, and the older
brothers contend it was error for the court to not say what
“was missing” and to have “at least acknowledged” that their
proposal “would be a distribution consistent with the terms of
the Trusts and the law.” Id.
Kirtus and Rocky relied upon two statutory provisions in
the NUTC to support their request to allow the trustees to dis-
tribute the disputed farmland as separate parcels in fee simple
title: (1) § 30-3837 (modification or termination of nonchari-
table irrevocable trust by consent) and (2) § 30-3838 (modifi-
cation or termination because of unanticipated circumstances
or inability to administer trust effectively). Alternatively, they
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also sought confirmation from the court that the NUTC and
the language of the trusts authorized them to distribute the dis-
puted farmland as they proposed. The county court determined
it was unnecessary to consider any modification to the trusts
because it concluded, in essence, that § 30-3881(a)(22) permit-
ted the trustees to distribute the property other than as tenants
in common and that this could be done without modification
of the trusts. Therefore, the county court did not consider
Kirtus and Rocky’s request for relief under either § 30-3837 or
§ 30-3838. Further, the county court was unwilling to approve
Kirtus and Rocky’s proposed allocation and equalization based
on insufficient evidence. For the reasons that follow, we
reverse, and remand for further proceedings on this issue.
(a) Conclusion That Modification
Was Unnecessary
The county court stated that Kirtus and Rocky’s request to
modify the trusts to authorize distribution of sole fee simple
title and specific parcels of real estate to individual beneficiar­
ies was not necessary, explaining:
The requested modifications are not necessary.
Notwithstanding the terms of Article XI [trustee powers]
of the Norval and Elnora Trusts, section 30-3881[(a)](22)
of the NUTC authorizes a trustee to “make distributions
in divided or undivided interests, allocate particular assets
in proportionate or disproportionate shares, value the trust
property for those purposes, and adjust for resulting dif-
ferences in valuation.” As such, the requested relief is
already authorized under the NUTC.
Pursuant to the dispositive provisions of the Norval
and Elnora Trusts and the First Codicil to Norval’s Will,
it is clear that Norval wanted his three sons treated
equally with respect to the distribution of farm real estate
and personal property used in the farm operation. To the
extent a request to modify the Trusts was made by Kirtus
and Rocky with regard to the distribution proposal made
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by Kirtus at trial, the court finds that there is not suf-
ficient evidence upon which the court can determine the
equality of the proposal. As such, the request to modify
the Trusts to approve the distribution proposal is denied.
It appears the county court concluded that notwithstand-
ing the powers granted to the trustees under article XI of the
parents’ trusts, § 30-3881(a)(22) gave the trustees authority to
distribute the disputed farmland in a manner contrary to the
express language of the dispositive provisions of the trusts,
and that they could do so without a formal request to modify.
Article XI of the Norval Trust and the Elnora Trust con-
tains the “Long Form of Powers for Trustee,” authorizing the
trustee specific powers (set forth in subparts (1) through (29)),
along with any “other rights, powers, authority and privileges
granted by any other provision of this Trust Agreement or by
statute or general rules of law.” The county court concluded
that § 30-3881 gave the trustees the authority to distribute the
disputed farmland other than as tenants in common and that
therefore, the “requested modifications [were] not necessary.”
Section 30-3881(a) states, in relevant part:
Without limiting the authority conferred by section
30-3880, a trustee may:
....
(22) on distribution of trust property or the division or
termination of a trust, make distributions in divided or
undivided interests, allocate particular assets in propor-
tionate or disproportionate shares, value the trust property
for those purposes, and adjust for resulting differences
in valuation.
We disagree with the county court’s interpretation that
§ 30-3881(a)(22) can be applied to the disputed farmland in
this matter without a modification proceeding or possibly a
nonjudicial settlement agreement (described further below),
when the language of the trusts and the First Codicil specifi-
cally set forth how the disputed farmland was to be distributed.
The language of the parents’ trusts with regard to the disputed
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real estate is clear. Article VIII(3)(f) states, “All other farm-
land held by the Trust shall be distributed to the three sons of
the Grantor in equal shares as tenants in common.” And the
First Codicil appointed the Henry 80 to the three brothers “in
equal shares, outright and free of trust.”
To distribute the disputed farmland other than as tenants in
common would have required the consent of the three brothers
who were the named beneficiaries of that property; a nonju-
dicial settlement agreement may have been an option under
those circumstances. The NUTC provides that “interested per-
sons may enter into a binding nonjudicial settlement agreement
with respect to any matter involving a trust” so long as “it does
not violate a material purpose of the trust and includes terms
and conditions that could be properly approved by the court
under the [NUTC] or other applicable law.” § 30-3811(b) and
(c). Matters that may be resolved by a nonjudicial settlement
agreement include, for example, “the interpretation or con-
struction of the terms of the trust” and “the grant to a trustee
of any necessary or desirable power.” § 30-3811(d)(1) and
(3). Therefore, with the three brothers’ consent through a non-
judicial settlement agreement, and so long as the agreement
did not violate a material purpose of the trust and contained
terms the court could otherwise properly approve as provided
under the NUTC, the trustees could allocate the properties
in separate parcels in fee simple title and make adjustments
for differences in value as permitted by § 30-3881(a)(22) and
article XI of the trusts. Any interested person can request the
court to approve such an agreement and “determine whether
the agreement contains terms and conditions the court could
have properly approved,” § 30-3811(e), such as under the
modification statutes we discuss below. See, also, Unif. Trust
Code § 111, comment, 7D U.L.A. 101, 102 (2018) (comment
notes that while Uniform Trust Code recognizes that court may
intervene in administration of trust to extent its jurisdiction is
invoked by interested persons or as otherwise provided by law,
“resolution of disputes by nonjudicial means is encouraged”).
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However, without the consent of the three brothers to enter
into such an agreement under the requirements of § 30-3811
discussed above, it was necessary for the trustees to seek court
approval, as Kirtus and Rocky did, to modify the pertinent
dispositive provisions in the trusts and the First Codicil. Since
there was no consent to change those dispositive provisions,
modification was necessary to effectuate an allocation of the
properties other than as tenants in common, or “equal shares,”
as directed by the pertinent instruments.
[20] Although Scott did not raise this issue in a cross-
appeal, plain error may be noted by an appellate court on its
own motion. See Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d
282 (2007). Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, reputation,
and fairness of the judicial process. Id. The county court’s
erroneous interpretation of § 30-3881(a)(22) as applied here
amounts to plain error; this portion of the county court’s order
is reversed.
(b) Modification Pursuant to
§ 30-3837(b) or § 30-3838
[21] The NUTC provides a basis for modification of a
noncharitable irrevocable trust under § 30-3837 upon consent
of all of the beneficiaries so long as the modification is not
inconsistent with a material purpose of the trust; or, if all
of the beneficiaries do not consent, a modification may still
be approved under certain circumstances. We pause to note
that while § 30-3837 refers to a noncharitable irrevocable
trust, and the trusts at issue here were revocable when made,
the statute’s application is nevertheless appropriate because
of the death of the last surviving grantor/settlor, Norval. A
trust which is revocable when made remains revocable during
the settlor’s lifetime; however, a revocable trust necessarily
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becomes irrevocable upon the settlor’s death. See Unif. Trust
Code § 604, comment, 7D U.L.A. 232 (2018) (comment notes
this section regarding revocable trust only applies to revocable
trust that becomes irrevocable by reason of settlor’s death).
See, also, § 30-3880(c) (regarding trustee’s responsibility to
satisfy medical assistance claims for trustor whose “revocable
trust . . . has become irrevocable by reason of the death of
the trustor”); Grueff v. Vito, 229 Md. App. 353, 145 A.3d 86
(2016) (settlor’s death rendered revocable trust irrevocable);
Jameson v. Bain, 693 S.W.2d 676 (Tex. App. 1985) (when
valid inter vivos revocable trust is not revoked during lifetime
of trustor, it becomes irrevocable upon his death, terminates,
and becomes enforceable by beneficiary).
We first note that § 30-3837(a) is not applicable because it
can only apply while the settlor is still alive; it requires the
consent of the settlor. See In re Trust of Shire, 299 Neb. 25,
907 N.W.2d 263 (2018) (§ 30-3837(a) not applicable because
it requires consent of settlor who was deceased). As relevant
here, § 30-3837(b) then states:
A noncharitable irrevocable trust may be terminated upon
consent of all of the beneficiaries if the court concludes
that continuance of the trust is not necessary to achieve
any material purpose of the trust. A noncharitable irrev­
ocable trust may be modified upon consent of all of the
beneficiaries if the court concludes that modification is
not inconsistent with a material purpose of the trust.
Section 30-3837(e) further states:
If not all of the beneficiaries consent to a proposed modi-
fication or termination of the trust under subsection (a) or
(b) of this section, the modification or termination may be
approved by the court if the court is satisfied that:
(1) if all of the beneficiaries had consented, the trust
could have been modified or terminated under this sec-
tion; and
(2) the interests of a beneficiary who does not consent
will be adequately protected.
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[22] Although § 30-3837(e) authorizes a court to modify
a trust without the consent of all beneficiaries, it can only
do so if the modification is not inconsistent with a material
purpose of the trust and any nonconsenting beneficiary would
be adequately protected. See § 30-3837(b) and (e). This basis
for modifying the dispositive terms related to the disputed
farmland was not considered by the county court because
of its reliance instead on § 30-3881(a)(22), which we have
determined to be erroneous. Thus, we remand the cause for
further proceedings for the county court to consider whether
§ 30-3837(b) and (e) may permit Kirtus and Rocky to change
the manner of distribution of the disputed farmland from own-
ership as tenants in common of all the property to separate
parcels owned in fee simple.
[23-25] Likewise, § 30-3838 offers another alternative for
modification; it states, in relevant part:
(UTC 412)(a) The court may modify the administra-
tive or dispositive terms of a trust or terminate the trust
if, because of circumstances not anticipated by the set-
tlor, modification or termination will further the purposes
of the trust. To the extent practicable, the modification
must be made in accordance with the settlor’s prob-
able intention.
The comments to the Uniform Trust Code provide some guid-
ance as to this particular statute. See In re Trust Created by
Fenske, 303 Neb. 430, 930 N.W.2d 43 (2019) (comments to
Uniform Trust Code provide some guidance, and Legislature
directly referred to sections of code when adopting it, thereby
incorporating those comments). See, also, Unif. Trust Code
§ 106, comment, 7D U.L.A. 85, 86 (2018) (comment notes
that statutory text of Uniform Trust Code is “also supple-
mented by these Comments, which, like the Comments to any
Uniform Act, may be relied on as a guide for interpretation”).
Section 30-3838 broadens the court’s ability to apply equi-
table deviation to modify a trust. See Unif. Trust Code, supra,
§ 412, comment, 7D U.L.A. at 168 (comment notes application
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of equitable deviation and that subsection (a) allows court to
modify dispositive provisions of trust as well as its adminis-
trative terms; “purpose of the ‘equitable deviation’ authorized
by subsection (a) is not to disregard the settlor’s intent but to
modify inopportune details to effectuate better the settlor’s
broader purpose”). While it is necessary that there be circum-
stances not anticipated by the settlor before the court may
grant relief under § 30-3838(a), the circumstances may have
been in existence when the trust was created. See Unif. Trust
Code § 412, supra. Under the “‘equitable deviation’” doctrine,
the objective is not to disregard the intention of the settlor, but
to give effect to what the settlor’s intent probably would have
been had the circumstances in question been anticipated. See
Restatement (Third) of Trusts § 66, comment a. at 493 (2003).
Upon a finding of unanticipated circumstances, the court must
further determine whether a proposed modification or devia-
tion would tend to advance or detract from the trust purposes;
this inquiry is likely to involve a somewhat subjective process
of attempting to infer the relevant purpose or purposes of a
trust from the general tenor of its provisions and from the
nature of the beneficial interests, together with the family or
personal relationships involved in the trust. See Restatement
(Third), supra, § 66, comment b.
The older brothers contend their father “would not have
wanted the family farm sold” and would have “expected
his sons to work out their disputes between them and carry
on with farming together.” Brief for appellants at 15. They
suggest that if their father expected the land would be sold
rather than farmed, he would not have left Pamela “out of
sharing the proceeds of that sale.” Id. In other words, the
older brothers suggest that unanticipated circumstances have
arisen which warrant modification, or deviation, as to how the
disputed farmland should be distributed and that such a modi-
fication should be in accordance with their father’s probable
intention that the brothers continue farming together—or at
least keep the farmland in the family. Again, the county court
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did not address Kirtus and Rocky’s request for relief pursuant
to § 30-3838, and it should do so on remand, keeping in mind
the principles of equitable deviation set forth above.
VI. CONCLUSION
We affirm the county court’s order in all respects except
as follows:
We vacate, for lack of jurisdiction, those portions of the
county court’s order (1) removing the trustees, (2) ordering an
accounting and delivery of trust property to a successor trustee
upon appointment, (3) declaring that a vacancy was created in
the trusteeship of the trusts, and (4) determining that a succes-
sor trustee should be appointed.
We reverse the county court’s determination that
§ 30-3881(a)(22) gave the trustees the authority, without modi-
fication of the trusts, to distribute the disputed farmland other
than as tenants in common; we therefore remand the cause for
consideration of Kirtus and Rocky’s request for modification of
the trusts pursuant to §§ 30-3837(b) and (e) and 30-3838.
Although we affirm the county court’s determination that the
trustees engaged in a breach of trust specific to the disputed
farmland, the issue of an appropriate remedy for that breach
of trust is remanded for further consideration once Pamela is
included as a party.
A ffirmed in part, vacated in part, and
in part reversed and remanded
for further proceedings.
Welch, Judge, participating on briefs.