IN RE TRUST OF JENNIE SHIRE, DECEASED.
UNKNOWN/UNDISCOVERED HEIRS ET AL., APPELLEES. WELLS FARGO BANK, NATIONAL ASSOCIATION, SUCCESSOR TRUSTEE, APPELLEE, AND SHIRLEY SMITH GRONIN, BENEFICIARY, APPELLANT,
1. Trusts: Equity: Appeal and
Error. 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.
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.
Statutes. Statutory interpretation presents
a question of law.
Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
Statutes. Absent anything to the contrary,
statutory language is to be given its plain meaning, and a
court will not look beyond the statute or interpret it when
the meaning of its words is plain, direct, and unambiguous.
Legislature: Statutes. When the Legislature
provides a direct reference to a section of a uniform law
code when adopting that code, it incorporates the comments
explaining that section.
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.
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 [299
Neb. 26] intent of the Legislature, so that different
provisions are consistent, harmonious, and sensible.
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).
Trusts: Intent. At common law, 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 consent of all beneficiaries if not
inconsistent with the trust's purpose.
Statutes: Legislature: Intent: Appeal and
Error. In construing a statute, 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.
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
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.
Appeal and Error. An issue not presented to
or decided by the trial court is not appropriate for
consideration on appeal.
from the County Court for Lancaster County: Holly J. Parsley,
E. Klaus, of Rembolt Ludtke, L.L.P., for appellant.
C. Hurd and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers
& Ahl, L.L.P., for appellee Wells Fargo Bank.
Blomenberg, of McHenry, Haszard, Roth, Hupp, Burkholder &
Blomenberg, PC, L.L.O., for appellees Unknown/Undiscovered
Spray, of Mattson Ricketts Law Firm, for appellees Robert
Banner et al.
Heavican, C.J., Cassel, Stacy, Kelch, and Funke, JJ.
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 modification
of the terms of the Trust was not authorized by the Nebraska
Uniform Trust Code. We affirm.
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
was born in 1945. Shire died in 1948. After Ruth passed away
in 1983, the monthly $500 payments from the Trust were made
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 balance. She
testified that neither she nor Ruth had ever been able to
save any money, because their income never exceeded their
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
[299 Neb. 28] 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.
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 identified 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
following known beneficiaries were present at the hearing on
the Trust's modification: six individual beneficiaries
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).
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 concluded: "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
beneficiaries expressed consent or an objection.
February 2017, the court ruled that the requested
modification of the trust was not warranted. Specifically, it
ruled that [299 Neb. 29] 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
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
assigns, restated, that the court erred in concluding that
modification of the Trust, to provide increased disbursements
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.
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 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.
Neb. 30] Statutory interpretation presents a question of
law.We independently review questions of law
decided by a lower court.
Did Not Unanimously Consent to Modification
and Wells Fargo argue that we should interpret §
30-3837(b), requiring the "consent of all of the
beneficiaries, " 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 Code-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
interest with unknown beneficiaries to satisfy the statutory
requirement. 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
unknown beneficiaries argue that the plain language of §
30-3837(b) requires the consent of all beneficiaries and does
not permit a commonality of ...