In re Trust Created by Jack Fenske, also known as Jack B. Fenske and John B. Fenske, deceased.
Elkhorn Valley Bank & Trust, Trustee of the Jack Fenske, also known as Jack B. Fenske and John B. Fenske, Revocable Trust, appellee. Jennifer Lea Wheeler and Laura Jean Grace, now known as Laura Jean Wilson, appellants,
Decedents' Estates: Trusts: Equity: Appeal and
Error. The removal of a trustee is a question of
equity, and therefore an appellate court reviews the issue de
novo on the record.
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.
Statutes. Statutory interpretation presents
a question of law.
Judgments: Appeal and Error. An appellate
court independently review questions of law decided by a
from the County Court for Madison County: Donna F. Taylor,
P. Wilson and Jonathan M. Brown, of Walentine O'Toole,
L.L.P., for appellants.
D. Fitzgerald, of Fitzgerald, Vetter, Temple & Bartell,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 431]PAPIK, J.
has adopted a section of the Uniform Trust Code which allows
a court to remove a trustee if removal is requested by all
beneficiaries, removal best serves the interests of all
beneficiaries and is not inconsistent with a material purpose
of the trust, and a suitable replacement trustee is available
to serve. That provision is at issue in this appeal in which
trust beneficiaries challenge a county court order denying
their petition to remove the trustee. We conclude that the
beneficiaries failed to prove that removal of the trustee was
not inconsistent with a material purpose of the trust, and
therefore we affirm.
Fenske, also known as Jack B. Fenske and John B. Fenske, died
on December 25, 1998. His last will and testament, executed
about a year before his death, devised most of his property
to Elkhorn Valley Bank & Trust (the Bank), as trustee,
for the benefit of specific family members. Those family
members included the appellants in this case, Jennifer Lea
Wheeler (Jennifer) and Laura Jean Grace, now known as Laura
Jean Wilson (Laura). The trust provided as follows:
b. Ninety-five percent (95%) [of the principal balance] for
my niece ... to hold and manage the same until the death of
my said niece, with directions to said Trustee to distribute
the annual income from the corpus of said trust to [my niece]
annually, with the restriction that there be no invasion of
the corpus of this trust by my said Trustee except for
distribution for educational expenses for my greatnieces
[sic], Jennifer . . . and Laura .... I further direct that
upon the death of my niece . . . the annual income from the
corpus of the trust shall be distributed in equal shares
annually to my greatnieces [sic], Jennifer . . . and Laura
..., in equal shares. The Trustee is specifically authorized
to invade the corpus at [303 Neb. 432] any time for
distribution to Jennifer . . . and Laura . . . for
c. At the death of Jennifer . . . and Laura ..., the Trustee
shall distribute all remaining corpus and accumulated income,
if any, to the heirs of Jennifer . . . and Laura ... in equal
niece died prior to Fenske, and consequently, Jennifer and
Laura began receiving income distributions from the trust
upon Fenske's death. Trust assets were also available to
them for educational purposes. At all times relevant to these
proceedings, Jennifer had two adult children and Laura had
one adult child.
parties do not dispute that as of September 2017, the trust
property consisted of approximately $52, 000 in money market
funds, agricultural land assessed at approximately $278, 500,
and a nearly $30, 000 debt owed by Jennifer.
for Trustee s Resignation.
undisputed that Jennifer, Laura, and their children all
support removing the Bank as trustee and replacing it with
David P. Wilson, Laura's husband who is an attorney.
According to the record, in 2016, Wilson relayed a request
that the Bank voluntarily resign as trustee, citing concerns
about trust income and an intent to initiate termination of
Bank refused to resign. It stated in a letter that the
request for the Bank's resignation and the plan to
terminate the trust were not consistent with the material
terms of the trust, noting that a member of the Bank's
trust committee knew Fenske personally and had some insight
into why he set up the trust as he had. The Bank offered to
discuss concerns about the trust income and the pros and cons
of liquidating the trust real estate, but received no
to Modify. "
September 22, 2017, Jennifer and Laura filed a "Petition
to Modify" the trust to remove the Bank as trustee and
approve Wilson as successor trustee. They invoked Neb. Rev.
Stat. [303 Neb. 433] § 30-3862(b)(4) ...