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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 Heirs

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 appearing 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 statute 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 incorporates 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 

Nebraska Supreme Court Online Library

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

05/04/2018 12:10 AM CDT
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intent of the Legislature, so that different provisions are consistent, harmonious, 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 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.

11. 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.

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, Kelch, and Funke, JJ.
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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 modification 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 balance. 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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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 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 later consideration.

The 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).

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 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.

In February 2017, the court ruled that the requested modification of the trust was not warranted. Specifically, it ruled that 
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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 nonconsenting 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 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.

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 presented by the record and reaches its own independent conclusions 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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[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 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 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 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 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] noncharitable 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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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 incorporates 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 subsection (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 consented 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 supported by either the plain language of the statute or the comment to § 411.

The language of § 30-3837(b), however, is not clear regarding 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 representation, virtual representation, and the appointment and approval 

of representatives appointed by the court apply to the determination of whether all beneficiaries have signified consent under 

this section.”12

The Nebraska Uniform Trust Code also contains the provisions 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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(UTC 304) Unless otherwise represented, a minor, 

incapacitated, or unborn individual, or a person whose 

identity or location is unknown and not reasonably ascertainable, 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 represent 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 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.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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and our well-established principle of statutory construction, 

we must determine the issue of consent for unknown beneficiaries 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 consider 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 history, the statute in question must be open to construction, and a 

statute is open to construction when its terms require interpretation 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 individuals 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 representative’s objection to modification was not theoretical and 

also precludes the application of this section.

Modification of Trust Would Not

Have Adequately 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 nonconsenting 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 nonconsenting 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 distributions 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 subsection (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 section; 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 “similar 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 common-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 consent of all beneficiaries if not inconsistent with the trust’s purpose.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 beneficiaries’ 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 nonconsenting 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, modification 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 incapacity, C cannot insist that B convey to him a legal life 

estate.24

That section of the Restatement provides an additional relevant 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 permit modification without unanimous consent, the Restatements 

have steadfastly protected the rights of nonconsenting beneficiaries. For, even in instances where prejudice to a nonconsenting 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 consider 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 similar 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 protected” 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 effectuate 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 interests 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 continuation 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 without 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 circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust.” Both §§ 30-3837 

and 30-3838 essentially require that a modification be consistent 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 significantly 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 harmonious 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 determine 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 nonconsenting 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 scenarios 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 beneficiary 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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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 modified 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 warranted under § 30-3838 by considering the common-law doctrine of deviation. They argue that § 30-3838 is the codification 

of the doctrine of deviation; so, the court’s decision was sufficient 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 parties 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 appropriate 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 deviation’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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299 Nebraska Reports

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 interests of the nonconsenting beneficiaries. Further, the doctrine 

of deviation was not appropriate for consideration on appeal. 

Therefore, we affirm.

Affirmed.

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 beneficiaries would have accommodated a needy lifetime beneficiary 

at no additional cost. If any were found, the known beneficiaries 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).