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In re Estate of Robb

Court of Appeals of Nebraska

October 22, 2013

In re Estate of Mason D. Robb, deceased.
v.
Theodore J. Robb, Personal Representative and Trustee, appellant. Linda Hahn and Shawn Eichman, appellees,

Page 369

Appeal from the County Court for Hall County, ARTHUR S. WETZEL, Judge.

David C. Huston, of Huston & Higgins, for appellant.

Ronald S. Depue, of Shamberg, Wolf, McDermott & Depue, for appellees.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus

1. Decedents' Estates: Trusts: Appeal and Error. In trust administration and probate cases, an appellate court uses an " issue-specific approach" to determine the appropriate standard of review.

2. Decedents' Estates: Trusts: Equity: Appeal and Error. Both probate and trust administration matters are reviewed for error appearing on the record, absent an equity question.

3. Decedents' Estates: Trusts: Equity: Appeal and Error. Both probate and trust administration matters are reviewed de novo, where an equity question is presented.

4. Decedents' Estates: Trusts: Equity: Appeal and Error. The removal of a trustee is a question of equity. Accordingly, in a trust proceeding, an appellate court reviews de novo the question of whether a trustee was properly removed.

5. Decedents' Estates: Appeal and Error. The removal of a personal representative

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is not an equity question. The removal of a personal representative is reviewed for error appearing on the record.

6. Decedents' Estates: Executors and Administrators: Appeal and Error. A trial court's decision whether to appoint a special administrator is not a question of equity. Appointment of a special administrator is reviewed for error appearing on the record.

7. Decedents' Estates: Executors and Administrators. When an executor has a personal interest in the administration of an estate and in the disposition of the estate property, and when the circumstances disclose that those interests prevent him from performing his duties in an impartial manner, he should be removed.

8. Trusts. A trustee commits a breach of trust if he violates any of the duties owed to beneficiaries.

9. Trusts. A trustee has the duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust Code.

10. Trusts. Transactions involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or which is other wise affected by a conflict between the trustee's fiduciary and personal [21 Neb.App. 430] interests are voidable unless they are authorized, are approved, or were entered into before the trustee contemplated becoming a trustee.

11. Decedents' Estates: Executors and Administrators. A trial court has the authority to appoint a special administrator under Neb.Rev.Stat. ยง 30-2457 (Reissue 2008).

12. Decedents' Estates: Executors and Administrators. After a special administrator is appointed, the administrator has the same powers as a personal representative, except the power is limited to the duties prescribed in the trial court's order.

Riedmann, Judge.

I. INTRODUCTION

Theodore J. Robb appeals the order of the county court for Hall County removing him as the personal representative of his deceased father's estate and as the trustee of his father's inter vivos trust. The issue raised is whether the trial court erred in determining that it was in the best interests of the estate and the trust to remove Theodore from his fiduciary positions. Because Theodore's individual interests conflicted with the interests of the estate and the trust, we affirm the trial court's decision to remove him from his fiduciary positions.

II. BACKGROUND

Mason D. Robb passed away in March 2010. Pursuant to his last will and testament and his trust documents, his son, Theodore, became the personal representative of his estate and the trustee to the inter vivos Mason D. Robb Revocable Living Trust (the Trust). The Trust included three pieces of real estate: the Tri Street

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house, the Hall County farm, and the Sherman County pastures.

The Trust declared that the trustee should hold and use the Trust property for two purposes: to pay administrative costs [21 Neb.App. 431] and the settlor's debts and for the benefit of the Mason D. Robb QTIP Family Trust (the Family Trust). The Trust directed the trustee to separate the funds in the Family Trust into two equal shares: one for the benefit of Theodore and one for the benefit of Theodore's sister, Linda Hahn (Linda). The share created for Theodore was to be delivered to him outright, and the share created for Linda was to be held in trust for Linda's benefit. The Family Trust stated that Linda should receive income from her share of the Family Trust periodically throughout her lifetime.

In September 2011, Linda and her son, Shawn Eichman (Shawn), filed a motion to remove Theodore as the personal representative. In December, Linda and Shawn filed an additional motion to remove Theodore as the trustee. Linda and Shawn also filed a petition to appoint a special administrator to administer the estate and the Trust in the event that Theodore was not removed. The county court of Hall County heard the matter in September 2012.

1. THEODORE'S ACTIONS AS PERSONAL REPRESENTATIVE

The evidence presented at trial indicates that Theodore received a $50,000 " death-bed transfer" from his father. Theodore admitted receipt of the payment and agreed that the payment should be treated as an estate asset, but he stated that he had not deposited it in the estate account at the time of trial. Theodore also failed to include it in either the inventory or the amended inventory filed with the court.

The evidence also reveals that Theodore sold several items of personal property belonging to his father, in the amount of approximately $900, but that he had not included that amount in any accounting filed with the court as of the date of the hearing. ...


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