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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

In re William R. Zutavern Revocable Trust.

Shawn W. Zutavern and Russell C. Zutavern, 

appellants, v. Meredith A. Zutavern, 

individually and as Trustee of the 

William R. Zutavern Family 

Trust, et al., appellees.

___ N.W.2d ___

Filed June 25, 2021. No. S-20-455.

1. Trusts: Equity: Appeal and Error. Trust administration matters are 

reviewed for error appearing on the record, absent an equity question.

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. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

4. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an 

order dismissing a complaint, the appellate court accepts as true all facts 

which are well pled and the proper and reasonable inferences of law and 

fact which may be drawn therefrom, but not the plaintiff’s conclusion.

5. Wills: Trusts. The interpretation of the words in a will or a trust pre

sents a question of law.

6. Judgments: Appeal and Error. In instances when an appellate court is 

required to review cases for error appearing on the record, questions of 

law are nonetheless reviewed de novo on the record.

7. Standing: Words and Phrases. Standing involves a real interest in the 

cause of action, meaning some legal or equitable right, title, or interest 

in the subject matter of the controversy.

8. Trial: Standing. Generally, standing in a trustee removal proceeding is 

governed by Neb. Rev. Stat. § 30-3862(a) (Reissue 2016).

9. Trusts. Beneficiaries need not be named in the terms of the trust, but 

may be designated by class terminology or by description.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/06/2021 01:08 AM CDT
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

10. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss 

for failure to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face.

11. Dismissal and Nonsuit: Pleadings: Appeal and Error. When analyzing a lower court’s dismissal of a complaint for failure to state a claim, 

an appellate court accepts the complaint’s factual allegations as true and 

construes them in the light most favorable to the plaintiff.

12. Trusts: Property. A trust creates a fiduciary relationship in which one 

person holds a property interest subject to an equitable obligation to 

keep or use that interest for the benefit of another.

13. Trusts. The Nebraska Uniform Trust Code states that trustees owe the 

beneficiaries of a trust duties that include loyalty, impartiality, prudent 

administration, protection of trust property, proper recordkeeping, and 

informing and reporting.

14. ____. All actions of the trustee must be in the interest of the benefici

aries and no one else.

15. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the 

lower court.

16. Statutes: Legislature: Intent. The fundamental objective of statutory 

interpretation is to ascertain and carry out the Legislature’s intent.

17. Statutes: Appeal and Error. When construing a statute, an appellate 

court looks to the statute’s purpose and gives to the statute a reasonable 

construction that best achieves that purpose, rather than a construction 

that would defeat it.

18. 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 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

19. Statutes. A court must give effect to all parts of a statute, and if it can 

be avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

20. ____. When interpreting a statute, well-established principles of statutory interpretation require a court to take account of context and of other 

statutes pertaining to the same subject.

21. Statutes: Words and Phrases. Under the associated words canon of 

statutory interpretation, if two or more words are grouped together in a 

statute, the meaning of a particular word may be determined by reference to the meaning of associated words and phrases.

22. Trusts. A trustee may exercise powers conferred by the Nebraska 

Uniform Trust Code, except as limited by the terms of the trust.
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

23. Contracts: Appeal and Error. Whether a document is ambiguous 

is a question of law, and an appellate court considering such a question is obligated to reach a conclusion independent of the trial court’s 

decision.

24. Parol Evidence: Contracts. Unless a document is ambiguous, parol 

evidence cannot be used to vary its terms.

Appeal from the District Court for Lancaster County: 

John A. Colborn, Judge. Reversed and remanded for further 

proceedings.

John V. Matson, James A. Tews, Brian J. Koenig, and Quinn 

R. Eaton, of Koley Jessen, P.C., L.L.O., for appellants.

Daniel J. Guinan, Robert W. Futhey, and Ryan M. Ricke, of 

Fraser Stryker, P.C., L.L.O., for appellees.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Funke, J.

Shawn W. Zutavern and his son, Russell C. Zutavern, petitioned the district court for Lancaster County for removal 

of the trustee of a trust created by Shawn’s father, William 

R. Zutavern. Shawn and Russell then moved to enjoin the 

trustee’s potential sale of the family ranch. The court found 

that Shawn and Russell were not beneficiaries and were owed 

no duties by the trustee, dismissing the petition and motion 

for injunction.

Shawn and Russell appeal. We conclude that Shawn and 

Russell are beneficiaries and that the court erred by dismissing 

their petition. The cause is remanded for further proceedings 

consistent with this opinion.

BACKGROUND

Zutavern Family

William died on November 26, 2011. Meredith A. Zutavern 

is William’s surviving spouse, and together William and 

Meredith had four children, all still living: Shawn, Shayne T. 
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

Zutavern, Kelly R. Leonard (Kelly), and Maria D. Zutavern. 

William and Meredith lived on a ranch near Dunning, Blaine 

County, Nebraska, and maintained significant real estate 

holdings.

On February 29, 1988, William, Meredith, Shawn, and 

Shayne incorporated Wm. Zutavern Cattle Co. (WZCC), a 

Nebraska corporation. WZCC managed a ranch of approximately 22,000 acres in Blaine and Custer Counties. William 

owned approximately 38 percent of the corporate stock. 

Meredith owns 30 percent, Shawn owns 18 percent, and Shayne 

owns 14 percent.

William’s Trust and Family Trust

On January 31, 2008, William, as the settlor and trustee, 

and Meredith, as substitute trustee, executed a trust agreement 

to establish the William R. Zutavern Revocable Trust (Trust). 

The Trust included a provision setting forth William’s family 

information, stating that he and Meredith had four children—

Shawn, Shayne, Kelly, Maria—“and several grandchildren.”

William transferred his corporate stock to himself as trustee 

to create the Trust estate, which was “to be held, managed, 

controlled, invested and re-invested, the income therefrom 

to be controlled, and . . . to be administered, distributed and 

disposed of as provided herein.” William held the power 

to dispose of Trust income and principal. In the absence of 

direction, he would receive Trust income at least quarterly. 

William reserved the right to modify or terminate the Trust 

during his life by delivery of written notice to the trustee 

or substitute trustee. The Trust indicated that it “may not be 

changed orally.” Meredith would serve as substitute trustee 

upon William’s death or incapacitation, Shawn would serve as 

substitute trustee upon Meredith’s death or incapacitation, and 

Shayne would serve as substitute trustee upon Shawn’s death 

or incapacitation.

The Trust states that the general powers, duties, and restrictions upon the trustee or substitute trustee include all powers 

pursuant to the Nebraska Uniform Trust Code (NUTC), see 
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & 

Cum. Supp. 2020), which are not in conflict with any Trust 

provisions. The trustee or substitute trustee shall have the 

power to invest and reinvest any Trust property, including 

stocks, “in such manner as will be in the best interests of the 

Trust beneficiaries, giving due consideration to the preservation of principal and the amount and regularity of the income 

to be derived therefrom.” The trustee or substitute trustee shall 

keep “books of account,” showing all transactions relating to 

the Trust estate. The substitute trustee is required to furnish 

annually to each beneficiary statements of receipts and disbursements and a schedule of all Trust assets and liabilities. 

Any beneficiary may at reasonable times inspect Trust records. 

All powers and obligations granted or imposed by the Trust 

are legally binding upon the parties to the trust agreement, and 

upon their “successors, executors, administrators, assignees 

and Trustees, as the case may be.”

The Trust instructs that upon William’s death, the substitute 

trustee shall pay William’s debts and expenses. Thereafter, 

regarding the residuary, the substitute trustee “is directed to 

divide the Trust assets into two parts.” The first part, consisting 

of an amount equal to the largest amount which could pass free 

of federal estate taxes, was to be distributed to the William R. 

Zutavern Family Trust (Family Trust). The second part, consisting of the rest, residue, and remainder, was to be transferred 

to Meredith “as hers absolutely and without restriction.”

The Family Trust was to “remain in trust and administered and disposed of in accordance with” the provisions of 

the Family Trust. The Family Trust provides that if Meredith 

survives William, the trustee shall pay Meredith the Trust 

income for her life. Then, upon Meredith’s death, the trustee 

shall distribute all of the shares of WZCC stock that are held 

in trust “to those of my children and/or grandchildren who are 

[then] actively involved in the operation and management of 

[WZCC].” Any other assets of the Family Trust shall be distributed to Kelly and Maria.
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

Shawn and Russell’s Petition Allegations

On November 18, 2019, Shawn and Russell filed a verified 

petition in the district court for Lancaster County for removal 

of the trustee, appointment of a successor trustee and special 

fiduciary, an accounting, and a surcharge against the trustee. 

Portions of the Trust were attached to the petition. The background section of the petition included the following relevant 

factual allegations: Shawn and Russell alleged that they are 

beneficiaries under the Family Trust, because they qualified as 

“‘[William’s] children and/or grandchildren who are [, at the 

time of Meredith’s death,] actively involved in the management 

or operation of [WZCC].’” (Emphasis omitted.) Shawn alleged 

that he worked full time on the ranch from 1980 until his 

wrongful termination in the fall of 2017. Russell alleged that he 

was employed by the ranch but was recently fired.

Shawn and Russell alleged that the Trust grants the trustee 

no discretion in distributing the principal of the Family Trust 

and that no one holds a power of appointment with respect 

to the Family Trust. They alleged that in 2015 and 2016, 

Meredith sold approximately one quarter of the ranch, referred 

to as the “Flying A/Forester Property.” They alleged that the 

sale proceeds were used to pay a company debt and that the 

remaining funds were distributed to the WCZZ shareholders, 

which included Meredith as the trustee of the Family Trust. 

Shawn alleged that Meredith refused his numerous requests 

for an accounting of Family Trust assets which consist of the 

sale proceeds.

Shawn and Russell alleged that from the time of William’s 

death in 2011 until the summer of 2017, Shawn, Shayne, and 

Meredith served as directors of WZCC, with Shawn as president, Shayne as vice president, and Meredith as secretary 

and treasurer. They alleged that at an annual stockholders 

meeting on June 21, 2017, Meredith and Shayne removed 

Shawn as president and appointed Meredith as president, secretary, and treasurer. Shawn alleged that he has stopped receiving WZCC financial reports. Shawn alleged that Meredith 
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

began making false accusations against him for the sole purpose of removing him as a beneficiary of the Family Trust. 

Shawn and Russell alleged that Meredith plans to sell the ranch 

and equally split the proceeds among her children, regardless 

of ownership. Shawn alleged that Meredith has improperly 

handled the Family Trust and fears that she will “attempt 

an illegal, oppressive and improper sale of the Ranch in the 

near-term.”

In their first claim for relief, Shawn and Russell asserted 

that Meredith has breached fiduciary duties in her capacity as 

trustee of the Family Trust. They asserted that Meredith intends 

to sell the ranch and will do so by exercising her shareholder 

votes as trustee of the Family Trust, in combination with her 

personal shareholder votes. Shawn and Russell asserted that 

such a sale would violate the Trust and constitute a breach of 

the trustee’s duties and that they “intend to seek injunctive relief 

against the trustee.” Shawn and Russell alleged that Meredith 

breached her fiduciary duties as trustee of the Family Trust 

in the following ways: failing to administer the Family Trust 

in good faith; failing to properly report and account Family 

Trust assets to Shawn and Russell, in violation of § 30-3878; 

voting WZCC stock in a manner contrary to the best interests 

of Shawn and Russell, in violation of § 30-3867(f ); breaching 

her duty of impartiality among beneficiaries, in violation of 

§ 30-3868; failing to administer the Family Trust as a prudent 

person by engaging in self-dealing and failing to exercise reasonable care, skill, and caution, in violation of § 30-3869; and 

failing to keep adequate records of the administration of the 

Family Trust, in violation of § 30-3875. Shawn and Russell 

alleged that as a direct and proximate result of Meredith’s 

breach of fiduciary duties, they have suffered immediate and 

irreparable harm and have incurred money damages. Shawn 

and Russell requested relief in the form of a declaration that 

Meredith has breached her duties as trustee; injunctive relief 

preventing further breaches; and an award of damages, costs, 

attorney fees, and other just relief.
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

For their second claim for relief, Shawn and Russell asserted 

that Meredith should be removed as trustee and that a successor trustee and special fiduciary should be appointed under 

§ 30-3862 to take possession of the Family Trust until the 

case is resolved. Shawn and Russell reasserted their previous 

allegations, and they alleged that their hostile relationship with 

Meredith has interfered with her performance as trustee.

For their third claim for relief, Shawn and Russell requested 

an accounting and inventory, which they alleged that Meredith 

had failed to provide, contrary to § 30-3878 and the terms 

of the Family Trust. They requested relief in the form of an 

accounting of the Family Trust since William’s death and an 

inventory of all assets owned by the Family Trust at the time 

of William’s death.

For their fourth claim for relief, Shawn and Russell asserted 

that Meredith should be surcharged for any improper exercise 

of power or moneys converted.

Shawn and Russell’s Motion 

for Temporary Injunction

Three days later, on November 21, 2019, Shawn and Russell 

moved for a temporary injunction. The motion was simultaneously filed in three separate actions, each of which were filed 

in district court on the same date, which include (1) the instant 

trust action, (2) a derivative action filed against WZCC by 

Shawn, and (3) a breach of contract action filed by Shawn and 

Russell against WZCC; Meredith, as trustee and as a corporate 

officer and director; and Shayne, Kelly, and Maria, individ

ually and as a corporate director, respectively. The latter two 

cases remain pending and awaiting trial. The motion requested 

the court to enjoin Meredith, in her capacity as trustee of the 

Family Trust and in her capacity as an officer and director of 

WZCC, from selling or attempting to sell the ranch during the 

pendency of the litigation.

On December 23, 2019, Meredith, individually and as 

trustee of the Family Trust; Shayne; Kelly; and Maria moved 
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Cite as 309 Neb. 542

to dismiss the petition. They alleged that Shawn and Russell 

lacked standing because they are not beneficiaries; that the petition failed to allege sufficient facts to establish that Meredith, 

as trustee, owed fiduciary duties to Shawn and Russell; and 

that the petition failed to state a plausible claim for relief. The 

court held a hearing on the motion to dismiss and motion for 

temporary injunction.

District Court’s Order

On May 29, 2020, the court issued an order dismissing 

the petition and motion for temporary injunction, finding that 

Shawn and Russell lacked standing because they are not beneficiaries under the Family Trust. The court found that neither 

Shawn nor Russell are named as beneficiaries under the Family 

Trust and that the only way they could qualify as beneficiaries 

would be if they were “actively involved in the management 

or operation of [WZCC] at the time of Meredith’s death.” The 

court found that because Shawn and Russell were terminated 

from employment in 2017, they did not qualify as benefici

aries. As an alternative holding, the court found that even if 

Shawn and Russell were beneficiaries, Meredith would owe 

them no duties as trustee of the Family Trust. The court cited 

to § 30-3855(d), which provides:

While the trust is irrevocable and during the period the 

interest of any beneficiary not having a present interest 

may be terminated by the exercise of a power of appointment or other power, the duties of the trustee are owed 

exclusively to the holder of the power to the extent of the 

property subject to the power.

(Emphasis supplied.)

The court then cited to provisions of the Nebraska Model 

Business Corporation Act (NMBCA), see Neb. Rev. Stat. 

§§ 21-201 through 21-2,232 (Cum. Supp. 2020). The court 

stated, “Under Nebraska law, a corporation has the power to 

determine who is involved in the management and operation of 

the corporation. See Neb. Rev. Stat. §§ 21-227; 21-284.” The 
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Cite as 309 Neb. 542

court further stated, “Thus, pursuant to § 30-3855, Meredith, 

as Trustee of the Family Trust, owes her duties exclusively 

to [WZCC], not to Shawn or Russell.” The court indicated 

this conclusion is supported by Manon v. Orr,

 1 wherein the 

Nebraska Supreme Court held that contingent beneficiaries of a 

revocable trust lacked standing because they had only a “mere 

expectancy” with “no real interest in the cause of action or a 

legal or equitable right, title, or interest in the subject matter 

of the controversy.” The district court found that any interest Shawn and Russell have in the Family Trust is a “‘mere 

expectancy’” insufficient to confer standing.

Further, the court rejected Shawn and Russell’s argument 

that the Family Trust terms such as “actively involved” and 

“management or operation” are ambiguous. The court found 

that there was nothing ambiguous about such terms and that 

even if they were ambiguous, Shawn and Russell failed to 

allege how any ambiguity would support their contention that 

they are beneficiaries.

Shawn and Russell appealed. We moved the case to our 

docket on our own motion.

ASSIGNMENTS OF ERROR

Shawn and Russell assign, restated, that the district court 

erred in (1) finding that Shawn and Russell are not benefici

aries and thus lacked standing; (2) finding that if Shawn and 

Russell were beneficiaries, Meredith, as trustee, would owe 

duties exclusively to WZCC, and not to Shawn and Russell; 

(3) finding the Trust terms to be unambiguous; (4) excluding 

evidence of the settlor’s intent; and (5) denying the motion for 

temporary injunction.

STANDARD OF REVIEW

[1,2] Trust administration matters are reviewed for error 

appearing on the record, absent an equity question. 2 When 

1 Manon v. Orr, 289 Neb. 484, 488, 856 N.W.2d 106, 109 (2014).

2 In re Trust Created by McGregor, 308 Neb. 405, 954 N.W.2d 612 (2021). 

See In re Trust of Cook, 28 Neb. App. 624, 947 N.W.2d 870 (2020).
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

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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

[3,4] A district court’s grant of a motion to dismiss is 

reviewed de novo. 4 When reviewing an order dismissing a 

complaint, the appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion. 5

[5,6] The interpretation of the words in a will or a trust 

presents a question of law. 6 In instances when an appellate 

court is required to review cases for error appearing on the 

record, questions of law are nonetheless reviewed de novo on 

the record. 7

ANALYSIS

Shawn and Russell Are Beneficiaries 

and Have Standing

[7] Shawn and Russell argue the district court erred in 

determining that they lacked standing to assert claims against 

Meredith as trustee because they were not beneficiaries of the 

Trust. Standing involves a real interest in the cause of action, 

meaning some legal or equitable right, title, or interest in the 

subject matter of the controversy. 8 Shawn and Russell argue 

that they qualify as beneficiaries under the Family Trust pursuant to § 30-3803(3), which defines “beneficiary” as a person that “has a present or future beneficial interest in a 

trust, vested or contingent.” Meredith, Shayne, Kelly, and 

3 Id.

4 Manon, supra note 1.

5 Id.

6 In re Trust Created by McGregor, supra note 2.

7 Id.

8 In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 (2017).
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IN RE WILLIAM R. ZUTAVERN REVOCABLE TRUST

Cite as 309 Neb. 542

Maria argue the district court correctly determined that Shawn 

and Russell are not beneficiaries, because they are no longer 

actively involved in WZCC’s management or operation. In 

determining that Shawn and Russell were not beneficiaries, 

the district court found that neither of them qualify as a child 

or grandchild of William’s “who are [at the time of Meredith’s 

death] actively involved in the management or operation 

of [WZCC].”

[8] Generally, standing in a trustee removal proceeding is 

governed by § 30-3862(a), 9 which provides that “[t]he settlor, 

a cotrustee, or a beneficiary may request the court to remove 

a trustee, or a trustee may be removed by the court on its own 

initiative.” 10 As mentioned, the NUTC defines a beneficiary as 

“a person that . . . has a present or future beneficial interest in 

a trust, vested or contingent.” 11 The NUTC statutes are derived 

from the Restatement (Third) of Trusts. 12

The Restatement (Third) of Trusts provides that “benefici

aries” of a trust are the persons or classes of persons, or their 

successors in interest, upon whom the settlor manifested an 

intention to confer beneficial interests, vested or contingent, 

under the trust. 13 In addition, persons who hold special or 

general powers of appointment or have reversionary interests 

are beneficiaries. 14 A beneficiary’s interest may be a present 

or future interest, and may or may not be subject to conditions, the discretionary decisions of a trustee or another, or a 

power of appointment or revocation. 15 A trust may provide that 

9 Id.

10 § 30-3862(a). See Restatement (Third) of Trusts § 94 (2012).

11 § 30-3803(3). See Restatement, supra note 10, comment b.

12 See, In re Estate of Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), 

modified on denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015); In 

re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

13 Restatement (Third) of Trusts § 48, comment a. (2003).

14 Id.

15 Id., § 49, comment b.
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a beneficiary is to take an interest only on the happening of 

a designated event or that such interest is to terminate on the 

happening of an event. Unless contrary to public policy, such a 

condition is valid. 16

[9] Additionally, Meredith, Shayne, Kelly, and Maria argue, 

and the district court agreed, that Shawn and Russell are not 

beneficiaries, because they are not specifically named under 

the Family Trust. However, beneficiaries need not be named 

in the terms of the trust, but may be designated by class terminology or by description. 17 Trusts are often established for the 

benefit of classes consisting of the testator’s children and other 

descendants; other forms of description also may be used. 18

The requirement is that a beneficiary be “definite.” 19 Pursuant 

to § 30-3828(b), “A beneficiary is definite if the beneficiary 

can be ascertained now or in the future, subject to any applicable rule against perpetuities.” 20

The ascertainable beneficiary requirement is shown by an 

illustration from the Restatement (Third) of Trusts, which 

resembles the fact pattern in the present case:

S’s will leaves her residuary estate to T in trust to pay 

$10,000 to each person who is a full-time employee of S 

at the time of her death, and to pay $25,000 to each of S’s 

brothers and sisters who are living at her death, with the 

rest of the trust estate to be held in trust (in accordance 

with terms described in the will) for S’s issue. 21

Under this example, the beneficiaries are ascertainable by 

description, even though they are not specifically named. 22

16 See id., comment a.

17 Chicago Pol. Sergeants’ Assn. v. Pallohusky, 2019 IL App (1st) 181194, 

128 N.E.3d 436, 431 Ill. Dec. 766 (2019); Restatement, supra note 13, 

§ 44, comment b.

18 Restatement, supra note 13, § 44, comment b.

19 § 30-3828(a)(3).

20 See In re Estate of West, 252 Neb. 166, 560 N.W.2d 810 (1997).

21 Restatement, supra note 13, § 44, comment b. (emphasis supplied).

22 See id.
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A class of beneficiaries is not indefinite merely because it 

consists of a changing or shifting group, the number of whose 

members may increase or decrease. 23 Typical examples of 

definite classes for trust beneficiaries are “children” or “grand

children,” the “issue” or “descendants,” or the “heirs” or “next 

of kin” of a designated person. 24

In Newman v. Liebig,

 25 this court applied the commonlaw rule that a beneficiary must be ascertainable from the 

trust instrument. Here, Shawn and Russell are beneficiaries 

ascertainable from the Trust. The Trust specifically states that 

Shawn is one of William’s four children and that William has 

“several grandchildren.” Any of Shawn’s children would be 

included as William’s grandchildren. The Trust contemplated 

that if any of William’s children should pass away prior to 

receiving a distribution from the Trust estate, the interest of 

William’s deceased child shall pass to the children of the 

deceased, also known as William’s grandchildren. Thus, Shawn 

and Russell come within a definite class of beneficiaries under 

the Family Trust.

Furthermore, the fact that Shawn and Russell are not presently working at WZCC does not negate their status as beneficiaries. Just like the illustration of the full-time employee of 

the testator shown above, Shawn and Russell are members of 

a definite class of beneficiaries, even though William placed a 

condition upon the class. The fact that a member of the class 

may ultimately take nothing does not prevent that beneficiary 

from maintaining suit; each of the beneficiaries of such a trust 

is in this position, for if none could sue, the trustee might commit a breach of trust with impunity. 26 Premised on the policy 

of ensuring that someone has the power to enforce the trustee’s 

fiduciary duties, courts have held that future beneficiaries of 

23 Restatement, supra note 13, § 45, comment a.

24 Id.

25 Newman v. Liebig, 282 Neb. 609, 810 N.W.2d 408 (2011).

26 See Restatement, supra note 13, § 45, comment f.
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a trust, whether vested or contingent, have standing to bring an 

action against a trustee. 27 Therefore, we hold that Shawn and 

Russell are beneficiaries under § 30-3862(a) because they have 

a contingent future beneficial interest in the Family Trust. We 

agree with Shawn and Russell that the district court’s determination that they were not beneficiaries and lacked standing 

was erroneous.

The district court’s reliance on Manon is misplaced. 28 In 

Manon, a still-living settlor sold parcels of land that were 

included in the corpus of her revocable trust, and the settlor’s 

children brought suit to place a constructive trust on the real 

estate. The court looked to a previous version of § 30-3855, 

presently found with the same language at § 30-3855(b), which 

provides: “While a trust is revocable, rights of the beneficiaries 

are subject to the control of, and the duties of the trustee are 

owed exclusively to, the settlor.”

Because § 30-3855(b) provides that the “rights of the bene

ficiaries are subject to the control of . . . the settlor,” the court 

found that in the case of a revocable trust, the only real party 

in interest would be the settlor, or one representing the settlor’s 

interest. 29 Here, it is undisputed that the Trust is irrevocable 

and that upon his passing, William relinquished any further 

control over Trust assets to the Family Trust. As such, the 

rationale of Manon is not applicable.

Court’s Interpretation of 

§ 30-3855(d) Was Erroneous

[10,11] Shawn and Russell next argue the district court 

erred in finding that, pursuant to § 30-3855(d), Meredith, as 

trustee, owes duties exclusively to WZCC. To prevail against 

a motion to dismiss for failure to state a claim, a plaintiff 

27 In re Estate of Spencer, 417 S.W.3d 364 (Mo. App. 2013). See, also, 

Rachins v. Minassian, 251 So. 3d 919 (Fla. App. 2018).

28 See Manon, supra note 1.

29 See, id.; In re Trust of Cook, supra note 2.
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must allege sufficient facts to state a claim to relief that is 

plausible on its face. 30 When analyzing a lower court’s dismissal of a complaint for failure to state a claim, an appellate 

court accepts the complaint’s factual allegations as true and 

construes them in the light most favorable to the plaintiff. 31

Consequently, we look to the factual pleadings in the petition, accepting all allegations as true and drawing all reasonable inferences therefrom in favor of Shawn and Russell to 

determine whether they have stated a plausible claim against 

Meredith as trustee.

[12-14] A trust creates a fiduciary relationship in which one 

person holds a property interest subject to an equitable obligation to keep or use that interest for the benefit of another. 32

Upon acceptance of a trusteeship, a trustee has a 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 [NUTC].” 33 The NUTC states that trustees owe the beneficiaries of a trust duties that include loyalty, 

impartiality, prudent administration, protection of trust property, proper recordkeeping, and informing and reporting. 34 All 

actions of the trustee must be in the interest of the beneficiaries 

and no one else. 35

All powers of a trustee, whether express or implied, are 

held in a fiduciary capacity, and their exercise or nonexercise 

is subject to the fiduciary duties of trusteeship. 36 “[B]ecause 

30 Rafert v. Meyer, 290 Neb. 219, 859 N.W.2d 332 (2015).

31 Id.

32 In re Estate of Stuchlik, supra note 12; Karpf v. Karpf, 240 Neb. 302, 481 

N.W.2d 891 (1992).

33 § 30-3866.

34 In re Conservatorship of Abbott, supra note 8; In re Estate of Stuchlik, 

supra note 12.

35 See, In re Estate of Hedke, supra note 12; Karpf, supra note 32.

36 See, § 30-3880(a) and (b); Restatement (Third) of Trusts § 78, comment 

a., and § 85, comment b. (2007).
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trustees have great control over the beneficiaries’ property 

interests and beneficiaries cannot readily terminate their fiduciaries or dispose of their interests, ‘[t]he duty of loyalty is, 

for trustees, particularly strict even by comparison to the standards of other fiduciary relationships.’” 37 Trusts raise policy 

concerns regarding the potential for self-dealing, because trust 

beneficiaries often have inferior knowledge about a transaction and have a limited ability to protect their interests absent 

the trustee’s full disclosure or court approval. 38 Fiduciary 

duties in the trust context are “particularly intense so that, 

in most instances, its prohibitions are absolute for prophylactic reasons.” 39 The policy of trust law removes temptation 

for a trustee when personal interests conflict with fiduciary 

duties and provides assurance to beneficiaries that they “will 

not be deprived of a trustee’s disinterested and objective 

judgment.” 40 With the laws and policies of the NUTC fresh in 

mind, we turn to discuss the district court’s interpretation of 

§ 30-3855(d).

[15-19] Statutory interpretation presents a question of law 

which an appellate court reviews independently of the lower 

court. 41 The fundamental objective of statutory interpretation 

is to ascertain and carry out the Legislature’s intent. 42 When 

construing a statute, an appellate court looks to the statute’s 

purpose and gives to the statute a reasonable construction 

that best achieves that purpose, rather than a construction 

that would defeat it. 43 Components of a series or collection of 

37 In re Estate of Hedke, supra note 12, 278 Neb. at 755-56, 775 N.W.2d at 

36, quoting Restatement, supra note 36, § 78, comment a.

38 Id., citing George T. Bogert, Trusts § 95 (6th ed. 1987).

39 Restatement, supra note 36, § 78, comment b. at 96.

40 Id.

41 State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).

42 Id.

43 Id.
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statutes pertaining 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. 44 A court must 

give effect to all parts of a statute, and if it can be avoided, 

no word, clause, or sentence will be rejected as superfluous or 

meaningless. 45

Section 30-3855(d) provides:

While the trust is irrevocable and during the period the 

interest of any beneficiary not having a present interest 

may be terminated by the exercise of a power of appointment or other power, the duties of the trustee are owed 

exclusively to the holder of the power to the extent of the 

property subject to the power.

Initially, we focus our analysis on the statutory language 

“power of appointment.” The NUTC does not specifically 

define power of appointment; as a result, powers of appointment are construed according to the principles of the common 

law. 46 A general power of appointment means that an interest 

in the property passes to the donee at the donor’s death. 47 A 

limited power of appointment means that an interest in the 

property passes not to the donee, but, rather, to a specific 

class of beneficiaries at the donor’s death. 48 The donee of a 

power of appointment must keep within its terms, and where 

the donor prescribes the method of its execution, that method 

must be strictly followed, so far at least as may be necessary to give effect to the donor’s intent and design. 49 Where 

there is a prohibition, limitation, or restriction in a power of 

44 In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

45 Id.

46 In re Robert L. McDowell Revocable Trust, 296 Neb. 565, 894 N.W.2d 810 

(2017).

47 In re Estate of Nelson, 253 Neb. 414, 571 N.W.2d 269 (1997).

48 Id.

49 In re Robert L. McDowell Revocable Trust, supra note 46.
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appointment, such provision will control and the donee will not 

be permitted to disregard the same. 50

It is undisputed that the Trust did not grant Meredith a 

power of appointment. Instead, the parties dispute the meaning of § 30-3855(d)’s phrase “other power.” The district court 

accepted the argument of Meredith, Shayne, Kelly, and Maria 

that, under the NMBCA, a corporation has the power to determine who is involved in the management or operation of the 

corporation. Although neither the parties nor the district court 

identified a specific provision of the NMBCA in their analysis, 

their interpretation adopts the general position that a corporation’s power to hire and fire employees qualifies as an “other 

power” under the NUTC. Shawn and Russell argue that the 

district court’s interpretation of § 30-3855(d) was erroneous, 

because the reference to “other power” is merely a reference 

to “power of withdrawal,” as used in § 30-3855(c) and defined 

under § 30-3803(11).

[20,21] The parties’ competing interpretations of § 30-3855 

raise a novel issue, as there is no provision using the same 

language under the Uniform Trust Code or in statutes in other 

jurisdictions. Statutes, however, are not properly interpreted in 

isolation. 51 Rather, when interpreting a statute, well-established 

principles of statutory interpretation require a court to take 

account of context and of other statutes pertaining to the same 

subject. 52 Further, under the associated words canon of statutory interpretation, if two or more words are grouped together 

in a statute, the meaning of a particular word may be determined by reference to the meaning of associated words and 

phrases. 53 This canon is often wisely applied where a word 

50 Id.

51 State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).

52 Id.

53 82 C.J.S. Statutes § 439 (2009). See, Jedlicka, supra note 41; State v. 

McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007); State v. Kipf, 234 Neb. 

227, 450 N.W.2d 397 (1990).
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is capable of many meanings in order to avoid the giving of 

unintended breadth to a statute. 54 Our cases have stated that 

words grouped in a list within a statute should be given related 

meaning. 55 “Although most associated-words cases involved 

listings[,] a listing is not prerequisite.” 56 As we explain, these 

principles lead us to conclude that the district court erred in its 

interpretation that the phrase “other power” under § 30-3855(d) 

refers to powers found in statutes outside of the NUTC, such 

as the NMBCA.

Under § 30-3855, the meaning of “other power” is informed 

and limited by the meaning of the preceding phrase “power 

of appointment.” Our case law recognizes power of appointment as a specific type of testamentary power, not a general 

corporate power. As mentioned, a beneficiary’s interest can 

be subject to a power of appointment. A holder of the power 

of appointment can distribute trust property to a beneficiary 

and in effect can appoint the property to a new or existing 

trust for the benefit of the beneficiary. 57 Context is provided 

by § 30-3855’s inclusion of “power of appointment,” as well 

as other similar testamentary powers. Section 30-3855(a) discusses a settlor’s power to revoke a trust and provides that 

“[t]o the extent a trust is revocable by a settlor in conjunction 

with a person other than a trustee . . . the trustee may follow 

a direction from the settlor and the other person holding the 

power to revoke.” Section 30-3855(b) provides that “[w]hile a 

trust is revocable, rights of the beneficiaries are subject to the 

control of, and the duties of the trustee are owed exclusively 

to, the settlor.” Section 30-3855(c) states that “the holder of a 

54 See McDonnell v. U.S., ___ U.S. ___, 136 S. Ct. 2355, 195 L. Ed. 2d 639 

(2016).

55 Jedlicka, supra note 41, citing State v. Smith, 286 Neb. 77, 834 N.W.2d 

799 (2013), and State v. Kipf, supra note 53.

56 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 197 (2012). Accord U.S. v. Hill, 963 F.3d 528 (6th Cir. 2020).

57 See In re Estate of Sibley, 246 Ariz. 498, 442 P.3d 805 (Ariz. App. 2018).
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power of withdrawal has the rights of a settlor of a revocable 

trust under this section.” Therefore, § 30-3855(a), (b), (c), and 

(d) all refer to testamentary powers. Understood through the 

Legislature’s association of these powers with “other power,” 

we interpret “other power” to refer to a testamentary power, 

however so labeled. Under this interpretation, “other power” 

is given a meaning that is related to, but independent from, 

“power of appointment,” such that “other power” is not rendered superfluous or meaningless. This interpretation harmonizes § 30-3855(d) with § 30-3823, which employs the phrase 

“holder of a power of appointment or other power to terminate 

an interest.” 58

The district court’s interpretation is premised on general 

corporate powers rather than any specific testamentary powers granted to WZCC by the Trust. In order to avoid giving 

unintended breadth to the statutory provision, we must reject 

the district court’s interpretation that “other power” under 

the NUTC incorporates general corporate powers under the 

NMBCA. We conclude that the district court’s broad interpretation of a vague phrase such as “other power” risks unsettling the duties imposed upon trustees by the Legislature. The 

court therefore erred in interpreting § 30-3855(d) to mean that 

Meredith exclusively owes duties as trustee to WZCC.

[22] In addition, the terms and obligations of the Trust contradict the argument of Meredith, Shayne, Kelly, and Maria that 

§ 30-3855(d) controls who Meredith owes duties as trustee. A 

trustee may exercise powers conferred by the NUTC, except 

as limited by the terms of the trust. 59 Upon our review of 

the Trust, we find no provisions which state that Meredith’s 

duties are owed exclusively to WZCC. The Trust makes clear 

that Meredith, when executing the trust agreement as successor trustee, agreed to be duty bound to the beneficiaries. The 

58 See, also, e.g., Colo. Rev. Stat. §§ 15-1-202 and 15-1-203 (2020) (using 

phrase “power of appointment or other power of disposition”).

59 See § 30-3880(a)(2).
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Trust grants Meredith the authority to invest and reinvest any 

Trust property, but this must be effectuated “in such manner 

as will be in the best interests of the Trust beneficiaries.” The 

Trust requires Meredith to keep “books of account” for the 

Trust estate, to annually furnish Trust account statements to 

each beneficiary, and to at reasonable times allow beneficiaries 

to inspect Trust records. Meredith specifically agreed that these 

Trust terms are legally binding upon her. Based on the terms of 

the Trust and the allegations of the petition, summarized above, 

we conclude that Shawn and Russell have alleged sufficient 

facts to state plausible claims against Meredith in her capacity 

as trustee of the Family Trust.

Trust Terms Unambiguous

[23] Shawn and Russell assign that the district court erred 

in finding the terms of the Family Trust to be unambiguous. 

Whether a document is ambiguous is a question of law, and 

an appellate court considering such a question is obligated to 

reach a conclusion independent of the trial court’s decision. 60

The only provision of the Family Trust at issue is that 

which states, upon Meredith’s death, the trustee shall distribute 

WZCC stock “to those of my children and/or grandchildren 

who are [then] actively involved in the operation and management of [WZCC].”

We conclude that the district court correctly found the provision of the Family Trust to be unambiguous. When the Trust is 

considered as a whole, the only reasonable interpretation is that 

William intended an interest in his stock to pass to his children 

or grandchildren who were actively managing or operating 

WZCC at the time of Meredith’s death.

This assignment of error has largely been rendered moot. 

Shawn and Russell seemingly make this argument to establish themselves as beneficiaries. The terms creating a class 

of beneficiaries are unambiguous, and as we have explained, 

60 In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004).
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Shawn and Russell are beneficiaries with a future contingent 

interest. This assignment of error is without merit.

Evidence Properly Excluded

[24] Shawn and Russell argue that the district court erred 

in excluding evidence of William’s intent. Shawn and Russell 

offered this evidence for purposes of their motion for temporary 

injunction, which was filed in the present case and two companion cases. This appeal concerns only the trust case. We have 

affirmed the district court’s determination that the language in 

the Trust is unambiguous. Unless a document is ambiguous, 

parol evidence cannot be used to vary its terms. 61 In addition, 

the Trust states that it “may not be changed orally.” The district 

court correctly excluded parol evidence of William’s intent. 

This assignment of error is without merit.

Motion for Temporary Injunction

Shawn and Russell argue that the district court erred in denying their motion for temporary injunction. The district court did 

so on standing grounds and did not consider the merits of the 

motion. We have concluded that Shawn and Russell as bene

ficiaries have standing to assert claims against Meredith as 

trustee. Upon remand, the district court shall consider the merits of Shawn and Russell’s motion for temporary injunction.

CONCLUSION

The district court erred in determining that Shawn and 

Russell were not beneficiaries and lacked standing to assert an 

action against Meredith as trustee. The district court erred in 

relying upon § 30-3855(d) to conclude that Meredith, as trustee, 

exclusively owed duties to WZCC. The judgment is reversed, 

and the cause is remanded for further proceedings.

Reversed and remanded for

further proceedings.

Miller-Lerman, J., not participating.

61 Id.