In re Trust of Shire , 299 Neb. 25 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE TRUST OF SHIRE
Cite as 299 Neb. 25
In re Trust of Jennie Shire, deceased.
Wells Fargo Bank, National Association,
Successor Trustee, appellee, and Shirley
Smith Gronin, beneficiary, appellant,
v. Unknown/Undiscovered H eirs
et al., appellees.
___ N.W.2d ___
Filed February 16, 2018. No. S-17-263.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
2. Evidence: 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 on the matters at issue.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
5. Statutes. Absent anything to the contrary, statutory language is to be
given its plain meaning, and a court will not look beyond the stat-
ute or interpret it when the meaning of its words is plain, direct, and
unambiguous.
6. Legislature: Statutes. When the Legislature provides a direct reference
to a section of a uniform law code when adopting that code, it incorpo-
rates the comments explaining that section.
7. Trusts: Proof. Under Neb. Rev. Stat. § 30-3837(b) (Reissue 2016), the
party seeking a modification of a trust must affirmatively demonstrate
that all beneficiaries have consented to the modification.
8. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
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IN RE TRUST OF SHIRE
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intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
9. Trusts. Under Neb. Rev. Stat. § 30-3837(b) (Reissue 2016), the issue
of consent for unknown beneficiaries is governed by Neb. Rev. Stat.
§§ 30-3825 and 30-3826 (Reissue 2016).
10. Trusts: Intent. At common law, a trust can be modified upon the con-
sent of the settlor and all the beneficiaries, regardless of whether the
purpose of the trust is satisfied, or upon the consent of all beneficiaries
if not inconsistent with the trust’s purpose.
11. Statutes: Legislature: Intent: Appeal and Error. In construing a stat-
ute, an appellate court should consider the statute’s plain meaning in
pari materia and from its language as a whole to determine the intent of
the Legislature.
12. Statutes: Intent. The construction of a statute which restricts or removes
a common-law right should not be adopted unless the plain words of the
statute compel it.
13. Trusts: Courts: Intent. Under Neb. Rev. Stat. § 30-3837(e) (Reissue
2016), for the interests of nonconsenting beneficiaries to be adequately
protected, the court must determine that modification will not affect
those interests and impose safeguards to prevent them from being
affected, when deemed necessary.
14. Appeal and Error. An issue not presented to or decided by the trial
court is not appropriate for consideration on appeal.
Appeal from the County Court for Lancaster County: Holly
J. Parsley, Judge. Affirmed.
Daniel E. Klaus, of Rembolt Ludtke, L.L.P., for appellant.
John C. Hurd and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellee Wells Fargo Bank.
Chris Blomenberg, of McHenry, Haszard, Roth, Hupp,
Burkholder & Blomenberg, P.C., L.L.O., for appellees
Unknown/Undiscovered Heirs.
J.L. Spray, of Mattson Ricketts Law Firm, for appellees
Robert Banner et al.
Heavican, C.J., Cassel, Stacy, K elch, and Funke, JJ.
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299 Nebraska R eports
IN RE TRUST OF SHIRE
Cite as 299 Neb. 25
Funke, J.
This appeal concerns a petition for trust proceeding, filed
by the trustee, Wells Fargo Bank (Wells Fargo), to provide
increased disbursements from the trust of Jennie Shire (Trust)
to the remaining lifetime beneficiary, Shirley Smith Gronin.
The county court for Lancaster County ruled that a modifi-
cation of the terms of the Trust was not authorized by the
Nebraska Uniform Trust Code.1 We affirm.
BACKGROUND
The Trust was created by the last will and testament of
Shire, executed on September 10, 1947. Paragraph IV of
Shire’s will provided that the Trust would be funded with
$125,000 and that the trustees would pay $500 monthly to
Shire’s daughter, Ruth Banner Gronin (Ruth), during her life
and to Shire’s granddaughter, Gronin, upon Ruth’s death and
Gronin’s attaining the age of 25 years. Further, paragraph IV
states: “Upon the death of the survivor of [Ruth and Gronin],
the balance of the trust fund (including any addition from
Paragraph V) shall be added to the residue of my estate and be
distributed, as provided in Paragraph VI.”
Gronin was born in 1945. Shire died in 1948. After Ruth
passed away in 1983, the monthly $500 payments from the
Trust were made to Gronin.
At the time of trial, Gronin was also receiving monthly
payments of $564 from Social Security and $88.38 from a
casino pension plan. Her total monthly income was $1,152.38.
Further, she had two bank accounts, each with a negligible bal-
ance. She testified that neither she nor Ruth had ever been able
to save any money, because their income never exceeded their
living expenses.
A trust officer for Wells Fargo testified that as of September
26, 2016, the Trust had a principal balance of $981,874.58.
He further testified that the expected annual return for the
1
Neb. Rev. Stat. § 30-3801 et seq. (Reissue 2016 & Supp. 2017).
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IN RE TRUST OF SHIRE
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Trust, before fees and taxes, ranged from 6.40 percent to 8.10
percent. Consequently, the Trust could expect income and
appreciation to be between approximately $64,000 and $81,000
annually. Evidence was also adduced that based on the rate of
inflation, the present value of a $500 payment in 1948 would
be either $4,997 or $5,400.29 today.
Before filing the petition, Wells Fargo attempted to identify
potential heirs of the beneficiaries identified in paragraph VI
of Shire’s will. In its petition, Wells Fargo specifically identi-
fied 12 individuals and entities that may have an interest in
the residuary and requested the court to notify them of the
proceeding. The petition requested that the court determine the
beneficiaries under paragraph VI, which was bifurcated from
the present proceeding and set for later consideration.
The following known beneficiaries were present at the
hearing on the Trust’s modification: six individual benefi-
ciaries participated by counsel, one individual beneficiary
participated pro se, and the Nebraska Attorney General’s
office participated on behalf of charitable beneficiaries. At
Wells Fargo’s request, the court appointed an attorney to
represent the “Unknown/Undiscovered Heirs,” if any, of the
beneficiaries under paragraph VI of Shire’s will (unknown
beneficiaries).
After the hearing, the parties had the opportunity to submit
posttrial briefs. Counsel for the unknown beneficiaries was
the only party that opposed Wells Fargo’s motion. Neither the
assistant attorney general nor the pro se beneficiary submitted
any brief supporting or opposing the modification of the Trust.
Counsel for the six beneficiaries submitted a brief which con-
cluded: “On behalf of our clients, we respectfully request the
Court enter an Order adjusting the monthly distribution to . . .
Gronin consistent with the Trustee’s evidence in such a fashion
so as to not jeopardize the corpus of the Trust.” No other ben-
eficiaries expressed consent or an objection.
In February 2017, the court ruled that the requested modifi-
cation of the trust was not warranted. Specifically, it ruled that
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IN RE TRUST OF SHIRE
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the plain language of the Trust did not permit an increased
distribution; § 30-3837(b) did not authorize a modification,
because not all beneficiaries had consented; § 30-3837(e)
did not permit a modification, because increasing Gronin’s
annual payments would have a detrimental effect on the
Trust’s residue, which would not adequately protect the non-
consenting beneficiaries; and § 30-3838 did not allow a
modification, because there was not an unanticipated change
in circumstances.
Gronin filed a timely appeal. We removed the case to
our docket on our own motion pursuant to our authority to
regulate the caseloads of the Nebraska Court of Appeals and
this court.2
ASSIGNMENTS OF ERROR
Gronin assigns, restated, that the court erred in concluding
that modification of the Trust, to provide increased disburse-
ments to her, was not appropriate under § 30-3837(b) and (e)
and the doctrine of deviation. Gronin also assigns, restated,
that the court erred in concluding that her current living
circumstances were not unanticipated by Shire and that the
purpose of the Trust did not include providing a reasonable
income to Gronin.
STANDARD OF REVIEW
[1,2] 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.3 In a review de novo on
the record, an appellate court reappraises the evidence as pre-
sented by the record and reaches its own independent conclu-
sions on the matters at issue.4
2
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
3
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
4
Id.
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IN RE TRUST OF SHIRE
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[3,4] Statutory interpretation presents a question of law.5
We independently review questions of law decided by a
lower court.6
ANALYSIS
Beneficiaries Did Not Unanimously
Consent to Modification
Gronin and Wells Fargo argue that we should interpret
§ 30-3837(b), requiring the “consent of all of the benefici­
aries,” to allow a modification when no known beneficiary
has objected to the modification after receiving notice of
it. Regarding unknown beneficiaries, they argue that—based
on the Comments and Recommendations for Enactment of
a Nebraska Uniform Trust Code7—we should follow Neb.
Rev. Stat. §§ 30-24,123 and 30-24,124 (Reissue 2016) of
Nebraska’s Uniform Probate Code and permit the lack of
objection by known beneficiaries with a commonality of inter-
est with unknown beneficiaries to satisfy the statutory require-
ment. They argue that the objection by the attorney appointed
to represent the unknown beneficiaries was only theoretical
and should not bar application of this subsection here, because
all residuary beneficiaries share a common interest.
The unknown beneficiaries argue that the plain language
of § 30-3837(b) requires the consent of all beneficiaries and
does not permit a commonality of interest representation for
unknown beneficiaries.
Section 30-3837(b) provides, in relevant part, that “[a] non-
charitable irrevocable 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.”
[5,6] Absent anything to the contrary, statutory language
is to be given its plain meaning, and a court will not look
5
Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017).
6
Id.
7
See, 2002 Neb. Laws, L.R. 367; Comments and Recommendations for
Enactment of a Nebraska Uniform Trust Code (2002).
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IN RE TRUST OF SHIRE
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beyond the statute or interpret it when the meaning of its
words is plain, direct, and unambiguous.8 We have held that
when the Legislature provides a direct reference to a section
of a uniform law code when adopting that code, it incorpo-
rates the comments explaining that section.9
The Legislature has incorporated the comment to § 411 of
the Uniform Trust Code (UTC) to § 30-3837, upon which it
was modeled.10 In the UTC comment to § 411, subsection (b)
is described as requiring “unanimous consent,” while subsec-
tion (e) is described as being the applicable procedure “when
the consent of less than all of the beneficiaries is available.”11
[7] Based on the plain language of § 30-3837(b) and the
comment to § 411, the party seeking a modification of a trust
must affirmatively demonstrate that all beneficiaries have con-
sented to the modification. Gronin and Wells Fargo’s argument
that this requirement is satisfied when no known beneficiary
has objected after receiving notice of a modification is not sup-
ported by either the plain language of the statute or the com-
ment to § 411.
The language of § 30-3837(b), however, is not clear regard-
ing the effect of potential unidentified beneficiaries, who might
not even exist, on the consent requirement. But the comment to
§ 411 provides that “[t]he provisions of Article 3 on representa-
tion, virtual representation, and the appointment and approval
of representatives appointed by the court apply to the determi-
nation of whether all beneficiaries have signified consent under
this section.”12
The Nebraska Uniform Trust Code also contains the provi-
sions of article 3 of the UTC. Section 30-3825 provides:
8
Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).
9
See, e.g., In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017);
Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894
N.W.2d 221 (2017).
10
See § 30-3837.
11
Unif. Trust Code § 411, 7C U.L.A. 499 (2006).
12
Id.
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IN RE TRUST OF SHIRE
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(UTC 304) Unless otherwise represented, a minor,
incapacitated, or unborn individual, or a person whose
identity or location is unknown and not reasonably ascer-
tainable, may be represented by and bound by another
having a substantially identical interest with respect to the
particular question or dispute, but only to the extent there
is no conflict of interest between the representative and
the person represented.
(Emphasis supplied.) Further, § 30-3826 states:
(UTC 305) (a) If the court determines that an interest
is not represented under sections 30-3822 to 30-3826,
or that the otherwise available representation might be
inade­quate, the court may appoint a representative to
receive notice, give consent, and otherwise represent,
bind, and act on behalf of a minor, incapacitated, or
unborn individual, or a person whose identity or location
is unknown. A representative may be appointed to repre-
sent several persons or interests.
(b) A representative may act on behalf of the individual
represented with respect to any matter arising under the
Nebraska Uniform Trust Code, whether or not a judicial
proceeding concerning the trust is pending.
(c) In making decisions, a representative may consider
general benefit accruing to the living members of the
individual’s family.
(Emphasis supplied).
[8,9] These provisions comprehensively resolve any consent
issues concerning individuals who cannot consent on their own
behalf. Components of a series or collection of statutes pertain-
ing to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.13 Based on the comment to § 411
13
County of Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751,
896 N.W.2d 887 (2017).
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IN RE TRUST OF SHIRE
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and our well-established principle of statutory construction,
we must determine the issue of consent for unknown benefici­
aries in § 30-3837(b) pursuant to §§ 30-3825 and 30-3826.
While Gronin and Wells Fargo argue that we should rely on
a reference contained in the Comments and Recommendations
for Enactment of a Nebraska Uniform Trust Code, we have
not previously considered whether that source is incorporated
into the sections of the Nebraska Uniform Trust Code. The
Comments and Recommendations for Enactment of a Nebraska
Uniform Trust Code was created as a result of an interim
study by the Legislature’s Banking, Commerce and Insurance
Committee, as required by L.R. 367. Accordingly, we con-
sider the Comments and Recommendations for Enactment of
a Nebraska Uniform Trust Code to be legislative history. In
further support of this conclusion, we note that unlike the
comments to the UTC, the Legislature did not reference the
Comments and Recommendations for Enactment of a Nebraska
Uniform Trust Code in the text of the sections of the Nebraska
Uniform Trust Code.
In order for a court to inquire into a statute’s legislative his-
tory, the statute in question must be open to construction, and a
statute is open to construction when its terms require interpre-
tation or may reasonably be considered ambiguous.14 Because
§ 30-3837 is not ambiguous, we do not consider the language
of the Comments and Recommendations for Enactment of a
Nebraska Uniform Trust Code.
Here, Wells Fargo specifically identified 12 living indi-
viduals and entities that were known beneficiaries of the Trust.
The record contains a brief filed by six of these individual
beneficiaries, which affirmatively consent to the modification
therein. The record, however, does not contain any evidence
that the other known beneficiaries affirmatively consented to
the modification. Therefore, the court did not err in ruling that
no modification was warranted under § 30-3837(b).
14
Doe v. McCoy, 297 Neb. 321, 899 N.W.2d 899 (2017).
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Further, while the court could have allowed any unknown
beneficiaries to be represented and bound by the unanimous
consent of the known beneficiaries, under § 30-3825, the
court instead appointed a separate representative—upon Wells
Fargo’s motion—with the full authority to act on behalf of any
unknown beneficiaries, under § 30-3826. Therefore, the rep-
resentative’s objection to modification was not theoretical and
also precludes the application of this section.
Modification of Trust Would Not
H ave A dequately Protected
Nonconsenting Beneficiaries
Gronin and Wells Fargo contend that § 30-3837(e) applies
because the modification was not inconsistent with the purpose
of the Trust and it would adequately protect the nonconsent-
ing beneficiaries. Gronin argues that we should interpret the
term “‘adequate’” to mean sufficient, rather than absolute.15
Accordingly, an increase that does not affect the principal of
a trust would adequately protect the interests of nonconsent-
ing beneficiaries. Further, Gronin and Wells Fargo contend
that interpreting the subsection to preclude a modification
that only slows the growth of the principal would create an
absurd result.
The unknown beneficiaries argue that any increase in dis-
tributions to Gronin affects their interest in the future growth
of the Trust, even if it does not affect the Trust’s principal.
They argue that we should interpret the phrase “adequately
protected” to impose a high standard when a modification
would take money from one beneficiary for the benefit
of another.16
Subsection (e) of § 30-3837 provides:
If not all of the beneficiaries consent to a proposed
modification or termination of the trust under sub-
section (a) or (b) of this section, the modification or
15
Brief for appellant at 23.
16
Brief for appellees unknown beneficiaries at 5.
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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.
In this case, subsection (a) is not applicable because it
would require the consent of Shire, who died in 1948.17 As
decided above, subsection (b) is also not applicable because
there was not unanimous consent of the beneficiaries. In order
to satisfy the second requirement of subsection (e), there must
be a showing that the interests of nonconsenting beneficiaries
will be adequately protected by a modification—which has not
been met.
The comment to § 411 indicates that subsection (e) is “simi-
lar to Restatement (Third) of Trusts Section 65 cmt. c (Tentative
Draft No. 3, approved 2001), and Restatement (Second) of
Trusts Sections 338(2) & 340(2) (1959).”18
[10] These sections of the Restatements adopted the com-
mon-law principle that a trust can be modified upon the
consent of the settlor and all the beneficiaries, regardless of
whether the purpose of the trust is satisfied, or upon the con-
sent of all beneficiaries if not inconsistent with the trust’s pur-
pose.19 However, regarding holders of contingent interests that
do not consent, the Restatements depart from the common law
by permitting a modification that is neither inconsistent with
the settlor’s intent nor prejudicial to the nonconsenting benefi-
ciaries’ interests.20
17
See § 30-3837(a).
18
Unif. Trust Code, supra note 11, 7C U.L.A. 501.
19
See Hubbard v. Buddemeier, 328 Ill. 76, 159 N.E. 229 (1927). See, also,
Commissioner of Internal Revenue v. Bacher, 102 F.2d 500 (6th Cir.
1939); Smith v. Mass. Mutual Life Ins. Co., 116 Fla. 390, 156 So. 498
(1934).
20
See Hubbard, supra note 19.
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Comment c. to § 65 of the Restatement (Third) of Trusts21
states:
[I]f the court is satisfied that the best interests of the
beneficiaries as a whole would be served by a proposed
termination or modification and [the modification would
not be inconsistent with the material purpose of the
trust], a court may order a partial termination of the
trust (or other arrangement that might involve bonding,
insurance, or impounding of some trust property) in a
manner that will not prejudice the interests of noncon-
senting beneficiaries.
The referenced sections of the Restatement (Second) of
Trusts also both require that nonconsenting beneficiaries are
“not prejudiced” by a modification.22 The comments to these
sections indicate that absent unanimous consent, modifica-
tion is permitted only if it does not impact nonconsenting
benefici­aries.23 This is evidenced by the following illustration
to § 340:
8. A transfers land to B in trust to pay the rents and
profits to C for life and upon C’s death to convey the
land to D. If D does not consent or is under an incapac-
ity, C cannot insist that B convey to him a legal life
estate.24
That section of the Restatement provides an additional rel-
evant illustration:
11. A transfers securities worth $200,000 to B in
trust to pay each of several persons an annuity for life
and subject to such payments in trust for C. All of the
annuitants die except D who is entitled to an annuity of
$500. The court may order B to transfer to C a part of
21
Restatement (Third) of Trusts § 65, comment c. at 476 (2003).
22
Restatement (Second) of Trusts § 338(2) at 167 (1959). Accord id.,
§ 340(2).
23
Id., § 338, comment h.
24
Id., § 340, comment g., illustration 8 at 175.
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the securities, B retaining enough to constitute ample
security for the payment of D’s annuity.25
Accordingly, in departing from the common law to per-
mit modification without unanimous consent, the Restatements
have steadfastly protected the rights of nonconsenting ben-
eficiaries. For, even in instances where prejudice to a non-
consenting beneficiary are not foreseeable, a court maintains
authority to safeguard those beneficiaries from prejudice by
requiring, for example, bonding or insurance. As evidenced by
the illustrations, the exception to unanimous consent is narrow
in scope.
[11] In construing a statute, an appellate court should con-
sider the statute’s plain meaning in pari materia and from its
language as a whole to determine the intent of the Legislature.26
Further, as mentioned above, we must construe a statute in pari
materia with other sections of the same act and in light of
UTC comments when the Legislature has incorporated them.
Accordingly, in interpreting the phrase “adequately protected,”
we must consider the comment to § 411 of the UTC and both
§ 30-3837 and the entirety of the Nebraska Uniform Trust Act
as a whole.
First, while the comment to § 411 states that it is only simi-
lar to the Restatements’ provisions, rather than modeled after
them, this appears to be a result of § 411’s being more broad
and encompassing than any of the referenced sections in the
Restatements. Despite the use of the phrase “adequately pro-
tected” in § 30-3837(e), rather the Restatements’ phrase “not
prejudiced,” nothing in the statute or the comment to § 411
indicates that the change in terminology was intended to effec-
tuate a change in the meaning of the common-law principle
regarding the rights of nonconsenting beneficiaries.
Instead, we interpret the phrase “adequately protected” as
incorporating the safeguards discussed in the Restatements
25
Id., § 340, comment h., illustration 11 at 176.
26
State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).
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to prevent prejudice to nonconsenting beneficiaries. The
Restatements’ use of the phrase “not prejudiced” required the
additional explanation that modifications could be made by
a court if the nonconsenting beneficiaries’ rights would be
adequately protected with appropriate safeguards.27 Conversely,
the use of the phrase “adequately protected” clearly conveys a
court’s ability to modify a trust upon determining that it will
not likely harm nonconsenting beneficiaries’ interests, with or
without safeguards.
[12] The construction of a statute which restricts or removes
a common-law right should not be adopted unless the plain
words of the statute compel it.28 Therefore, because the statute
does not clearly convey that it intended to limit the rights that
nonconsenting beneficiaries had at common law and we can
reasonably construe the statute in a way that avoids limiting
such rights, we must do so.
Second, the context of § 30-3837 and the Nebraska Uniform
Trust Code implies that the phrase “adequately protected”
should not be construed to limit the rights of nonconsenting
beneficiaries. Section 30-3837 is focused on modifications
of trusts with the consent of the beneficiaries and the settlor,
either by actual consent or by being consistent with the purpose
of the trust. The context of this statute does not suggest that
a court may force a modification upon beneficiaries that will
negatively affect their interests.
The comment to § 411 sets forth that subsection (e) allows
the court to fashion an appropriate order protecting the inter-
ests of the nonconsenting beneficiaries while at the same
time permitting the remainder of the trust property to be
distributed without restriction. The order of protection for the
nonconsenting beneficiaries might include partial continua-
tion of the trust, the purchase of an annuity, or the valuation
and cash out of the interest. Additionally, a court may order
27
See Restatement (Third), supra note 21.
28
Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).
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a partial termination of the trust (or other arrangement that
might involve bonding, insurance, or impounding of some
trust property) in a manner that will not prejudice the interests
of nonconsenting beneficiaries.29
Further, the comment to § 411 explains that modification
may also be pursued through the UTC’s §§ 412 to 416 with-
out the need for beneficiary consent.30 The Legislature also
adopted these sections of the UTC by enacting §§ 30-3838
to 30-3842.
Section 30-3838(a), for example, permits modification of a
trust, without any consent requirement, “if, because of circum-
stances not anticipated by the settlor, modification or termina-
tion will further the purposes of the trust.” Both §§ 30-3837
and 30-3838 essentially require that a modification be con-
sistent with the terms of the trust. However, the difference
between the two statutes—to a nonconsenting beneficiary—is
that interests must be “adequately protected” versus a proof of
circumstances unanticipated by the settlor.
Interpreting the phrase “adequately protected” to mean that
a nonconsenting beneficiaries’ interests are not harmed too sig-
nificantly would create a lessened burden for modifying trusts
that is not focused on the cardinal rule of trust construction: the
settlor’s intent.31
[13] Accordingly, adopting the standard proposed by
Gronin and Wells Fargo would not be consistent or harmoni-
ous with the structure of § 30-3837 or the Nebraska Uniform
Trust Code. Therefore, for the interests of nonconsenting
beneficiaries to be adequately protected, the court must deter-
mine that modification will not affect those interests and
impose safeguards to prevent them from being affected, when
deemed necessary.
29
Restatement (Third), supra note 21.
30
Unif. Trust Code, supra note 11.
31
See In re Family Trust Created Under Akerlund Trust, 280 Neb. 89, 784
N.W.2d 110 (2010).
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Here, Wells Fargo requested a modification of the Trust’s
terms that would increase monthly distributions to Gronin.
However, any such increase would be at the direct expense
of the eight known and the unknown beneficiaries’ interests,
because they have an interest in both the principal of the Trust
and its future growth. Accordingly, the requested modification
cannot satisfy the requirement that the interests of noncon-
senting beneficiaries be adequately protected. Therefore, the
court did not err in determining that modification was not
appropriate under this subsection.
Gronin and Wells Fargo are correct in arguing that an
appellate court should try to avoid, if possible, a statutory
construction that would lead to an absurd result.32 However, a
construction is not absurd simply because it is narrow. Under
our construction, subsection (e) still permits modification or
termination of trusts as envisioned in the Restatements.
For example, in the context of the Trust, there are two sce-
narios where this subsection could apply. First, the terms of
the Trust could have been modified to allow Gronin to receive
the $500 monthly payment before Ruth’s death if both women
consented and Ruth was otherwise taken care of, even if the
residuary beneficiaries did not consent.
Second—similar to illustration 11 above33—if only one
residuary beneficiary of the Trust remained, then a court could
modify or partially terminate the Trust to provide that benefi-
ciary a portion of the residuary before Gronin’s death, without
her consent, if the court determined it was not inconsistent
with the Trust’s terms and the remainder of the principal was
sufficient to fund Gronin’s monthly payments. In that case, the
court could require the beneficiary to obtain insurance or post
a bond to ensure that Gronin’s interests would be adequately
protected in the event of unlikely circumstances.
32
See Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 875 N.W.2d 421
(2016).
33
See Restatement (Second), supra note 21, § 340, comment h.
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299 Nebraska R eports
IN RE TRUST OF SHIRE
Cite as 299 Neb. 25
Common-Law Doctrine of Deviation Was
Not Presented to County Court
As the parties acknowledge, the court was not presented
with the issue of whether the Trust could be modified under
the common-law doctrine of deviation. Instead, the parties
argued and the court ruled on whether the Trust could be modi-
fied under § 30-3838. After the court’s order, however, Gronin
realized that § 30-3838 did not apply to the Trust, under
§ 30-38,110(d), because the Trust became irrevocable before
January 1, 2005.
Nevertheless, Gronin and Wells Fargo argue that we can
reverse the court’s decision that modification was not war-
ranted under § 30-3838 by considering the common-law doc-
trine of deviation. They argue that § 30-3838 is the codification
of the doctrine of deviation; so, the court’s decision was suffi-
cient to present the issue on appeal. Further, they argue that the
doctrine of deviation applies to trusts under § 30-3806.
[14] An issue not presented to or decided by the trial court
is not appropriate for consideration on appeal.34 As the par-
ties argued, before we can consider the application of the
common-law doctrine of deviation, we must determine both
whether it applies to trusts in Nebraska, under § 30-3806, and
whether its principles were modified by the Legislature in
§ 30-3838. Because the trial court was neither presented with
nor ruled upon these issues, whether modification is warranted
under the common-law doctrine of deviation is not appropri-
ate for consideration on appeal. Therefore, we do not consider
this assignment of error or Gronin’s related assignments of
error concerning findings that relate to the doctrine of devia-
tion’s application.
CONCLUSION
We find that the court did not err in determining that the
Trust could not be modified, under § 30-3837, because the
34
Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671
(2017).
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IN RE TRUST OF SHIRE
Cite as 299 Neb. 25
beneficiaries did not unanimously consent to the modification
and the modification would not adequately protect the inter-
ests of the nonconsenting beneficiaries. Further, the doctrine
of deviation was not appropriate for consideration on appeal.
Therefore, we affirm.
A ffirmed.
Wright and Miller-Lerman, JJ., not participating.
Cassel, J., concurring.
A path for relief may exist. The crux is how to “adequately
protect[]”1 the unknown beneficiaries, because any additional
payment to Gronin would reduce their proceeds without
their consent.
Some parties argue that no unknown beneficiaries actually
exist. If the known beneficiaries believe that to be true and,
based on that belief, are willing to pledge part of their shares,
a path appears. By doing so, they could empower the trustee to
hold the unknown beneficiaries harmless.
If no other beneficiaries were found, the known benefici­
aries would have accommodated a needy lifetime beneficiary
at no additional cost. If any were found, the known benefi-
ciaries would suffer only what would appear to be a modest
reduction in their future payout.
1
See Neb. Rev. Stat. § 30‑3837(e) (Reissue 2016).