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296 Nebraska Reports

IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

In re Robert L. McDowell Revocable Trust.

Jane O. Hornung, appellee and cross-appellee, v. 

Sandra K. Stockall, Trustee of the Betty

Jane McDowell Revocable Trust and

individually, appellant, and Roger R. 

Stockall, Trustee of the Robert L. 

McDowell Revocable Trust, 

appellee and cross-appellant.

___ N.W.2d ___

Filed May 5, 2017. No. S-16-071.

1. Trusts. The interpretation of the words of a trust is a question of law.

2. 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.

3. Decedents’ Estates. In Nebraska, powers of appointment are construed 

according to the principles of the common law.

4. Decedents’ Estates: Intent. In the construction of powers of appointment, the cardinal principle is that the intention of the donor is 

controlling.

5. ____: ____. 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.

6. Decedents’ Estates. Where there is a prohibition, limitation, or restriction in a power of appointment, such provision will control and the 

donee will not be permitted to disregard the same.

7. ____. A power of appointment is considered special or limited when the 

donee’s appointment is limited to a group which is not unreasonably 

large and which does not include the donee.

Nebraska Supreme Court Online Library

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

07/28/2017 09:10 AM CDT
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IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

8. Trusts: Intent. Rules of construction for interpreting a trust are applied 

when the language of the trust is not clear; but if the language clearly 

expresses the settlor’s intent, the rules do not apply.

9. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

10. Trusts: Words and Phrases. A breach of trust includes every omission 

or commission which violates in any manner the obligation of carrying 

out a trust according to its terms.

11. Trusts. Every violation by a trustee of a duty required of it by law, 

whether willful and fraudulent, or done through negligence, or arising 

through mere oversight or forgetfulness, is a breach of trust.

12. ____. According to Neb. Rev. Stat. § 30-3890 (Reissue 2016), a violation by a trustee of a duty the trustee owes to a beneficiary is a breach 

of trust.

Appeal from the County Court for Custer County: Tami K. 

Schendt, Judge. Affirmed as modified.

John M. Lingelbach, James Tews, and Minja Herian, of 

Koley Jessen, P.C., L.L.O., for appellant.

Brian S. Koerwitz and Kent E. Endacott, of Endacott, Peetz 

& Timmer, P.C., L.L.O., and Heidi Hornung-Scherr, of Scudder 

Law Firm, P.C., L.L.O., for appellee Jane O. Hornung.

Richard A. DeWitt and David J. Skalka, of Croker, Huck, 

Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for appellee 

Roger R. Stockall.

Heavican, C.J., Wright, Cassel, Stacy, Kelch, and

Funke, JJ.

Stacy, J.

This is a dispute between the adult children of Robert L. 

McDowell and Betty Jane McDowell, both deceased. The issue 

presented is whether Betty validly exercised a limited power of 

appointment given to her by Robert’s trust when she appointed 

the assets in Robert’s trust to her own revocable trust. The 
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IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

county court found Betty’s appointment was ineffective and 

ordered that the assets be recovered and distributed through 

Robert’s trust. We affirm as modified.

I. FACTS

Robert and Betty were the owners of McDowell Cattle 

Company, which consists of farmland and pasture near Arnold, 

Nebraska. Robert and Betty each owned 270 shares of the 

company.

In 2001, Robert and Betty drafted wills and revocable trusts 

with nearly identical language. Robert’s trust provided in relevant part:

From and after my death all principal of the trust not 

allocated to the said Trust shall be administered and distributed as Trust “A” as follows:

. . . .

(d) Upon the death of my wife in the event my wife 

shall survive me, the then principal of Trust “A” shall be 

distributed to or held in trust for the benefit of such one 

or more of my issue, the spouses of any such issue, and 

tax-exempt charitable organizations, in such shares and 

proportions and subject to such powers, terms and conditions, as my wife shall appoint by will and any principal 

of Trust “A” not appointed effectively by my wife shall 

continue to be administered as Trust “A” pursuant to the 

following provisions of this instrument.

Robert died before Betty. After his death, Betty executed a new 

will. In this will, she provided:

I hereby exercise any power of appointment given to me 

under the . . . Robert L. McDowell Revocable Trust . . . 

(including Trust “A” . . .), and direct that all such property over which I have a power of appointment, together 

with all of my property, whether real or personal, is 

hereby devised to the Trustee or Trustees of the [Betty 

Jane McDowell Revocable Trust], to be administered 

by the Trustee as part of the property of said . . . Trust, 
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IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

and to be held or distributed according to the terms 

thereof . . . .

Robert and Betty had two children who survived them: 

Jane O. Hornung and Sandra K. Stockall. Pursuant to the 

terms of Betty’s will, both Robert’s 270 shares of McDowell 

Cattle Company—from his “Trust ‘A’” (Trust A)—and Betty’s 

270 shares passed through Betty’s trust to Stockall. Hornung 

received nothing under the terms of Betty’s trust, but was a 

potential beneficiary under Robert’s trust.

After at least some of Robert’s assets from Trust A were 

distributed through Betty’s trust, Hornung filed suit in the 

county court for Custer County requesting instructions and a 

declaration of rights of the beneficiaries of Robert’s trust, pursuant to Neb. Rev. Stat. § 30-3812 (Reissue 2016). Hornung 

alleged that “[t]he power of appointment exercised under 

Betty’s Will is invalid and ineffective as the Betty Jane 

McDowell Revocable Trust is not a person or beneficiary to 

which the assets of Trust A could be transferred.” Hornung 

alleged that the assets of Trust A should instead be distributed 

pursuant to the terms of Robert’s trust, which provided that 

any residue was to be distributed in equal shares to Hornung 

and Stockall. Hornung’s petition “request[ed] that the Court 

instruct the Trustee of [Robert’s trust] to recover, preserve, 

and distribute the principal of Trust A accordingly and . . . 

issue a preliminary order estopping the transfer of any assets 

of Trust A.”

Stockall, in her capacity as the trustee of Betty’s trust and 

in her individual capacity, counterclaimed in the county court 

action. Her counterclaim also sought instructions and a declaration of rights of the beneficiaries under Robert’s trust. 

Stockall denied that the power of appointment exercised by 

Betty was invalid. Stockall’s counterclaim requested that the 

court enter an order (1) finding that Betty’s exercise of the 

power of appointment was valid and enforceable, (2) approving the actions taken by the trustee of Robert’s trust in “distributing the remaining principal of [Trust A] to the Trustee of 
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Cite as 296 Neb. 565

Betty’s Trust in accordance with Betty’s exercise of the power 

of appointment,” and (3) requiring the trustee of Robert’s 

Trust “to promptly distribute the remainder of the principal 

of [Trust A] in accordance with Betty’s exercise of the power 

of appointment . . . to the Trustee of Betty’s Trust . . . .” Our 

record reflects that notice of the action and the counterclaim 

was provided to the trustees of both Robert’s trust and Betty’s 

trust and to all potential beneficiaries of either trust.

A bench trial was held. Hornung, Stockall, and the trustee 

of Robert’s trust participated. The court determined Betty’s 

exercise of the power of appointment was ineffective because 

it exceeded the scope of the limited power granted in Robert’s 

trust, in that it commingled the Trust A assets with Betty’s 

trust assets and thus benefited Betty, her estate, and creditors of her estate so that it was not limited to one of the 

three classes of beneficiaries Robert designated. The court 

ordered the trustee of Robert’s trust to recover all assets of 

Trust A and to distribute them in accordance with the terms 

of Robert’s trust.

Stockall appealed, and the trustee of Robert’s trust (who 

is also Stockall’s husband) filed a cross-appeal. We granted 

Stockall’s petition to bypass the Nebraska Court of Appeals 

and moved this appeal to our docket.

II. ASSIGNMENTS OF ERROR

Stockall assigns, restated, that the county court erred in (1) 

finding Betty’s exercise of the power of appointment granted 

to her by Robert’s trust was ineffective; (2) finding Betty 

exceeded the power granted to her by Robert’s trust; (3) finding merged assets (assets appointed from Robert’s trust and 

assets that originally constituted Betty’s trust) were used to pay 

taxes and creditors of Betty’s estate; (4) finding Betty benefited 

herself, her estate, her creditors, and the creditors of her estate 

by merging the Trust A assets with her trust; (5) finding Neb. 

Rev. Stat. § 30-3850(a)(3) (Reissue 2016) would allow Betty’s 

creditors to reach the assets Betty appointed from Robert’s 
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Cite as 296 Neb. 565

trust to her trust; (6) finding Betty’s appointment of the Trust A 

assets to her trust caused those assets to be taxable as part of 

Betty’s gross estate; and (7) finding Betty did not designate a 

permissible appointee in her will and instead opted to appoint 

the Trust A property to her trust.

The trustee of Robert’s trust assigns on cross-appeal, 

restated, that the county court (1) erred in ordering him as 

trustee to recover all Trust A assets and then distribute them 

under Robert’s trust and (2) lacked subject matter jurisdiction 

to determine that Betty’s exercise of the power of appointment 

was invalid or to hold that transfers from Robert’s and Betty’s 

trusts were void.

III. STANDARD OF REVIEW

[1,2] The interpretation of the words of a trust is a question 

of law.1 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

IV. ANALYSIS

1. Appointment Was ineffective

Stockall argues the county court erred in finding Betty’s 

exercise of the power of appointment was ineffective. We find 

no error on this issue.

[3-6] In Nebraska, powers of appointment are construed 

according to the principles of the common law.3 In the construction of powers of appointment, the cardinal principle is 

that the intention of the donor is controlling.4 The donee of a 

1 In re Family Trust Created Under Akerlund Trust, 280 Neb. 89, 784 

N.W.2d 110 (2010).

2 In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 

(2011).

3 Applegate v. Brown, 168 Neb. 190, 95 N.W.2d 341 (1959).

4 Id.
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IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

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.5 Where there is a 

prohibition, limitation, or restriction, such provision will control and the donee will not be permitted to disregard the same.6

[7] Here, Robert’s trust gave Betty the power to “appoint by 

will” the Trust A property to “be distributed to or held in trust 

for the benefit of such one or more of my issue, the spouses 

of any such issue, and tax-exempt charitable organizations.” 

The parties agree this power of appointment was a special 

or limited power of appointment. A power of appointment is 

considered special or limited when the donee’s appointment is 

limited to a group which is not unreasonably large and which 

does not include the donee.7 Here, Robert made it clear the 

permissible group included only tax-exempt charitable institutions, Robert’s issue, and spouses of his issue.

To determine whether Betty effectively exercised this limited power of appointment, we look to the provisions of 

Betty’s will, which provided:

[A]ll such property over which I have a power of appointment, together with all of my property, whether real or 

personal, is hereby devised to the Trustee [of Betty’s 

revocable trust], to be administered by the Trustee as part 

of the property of said . . . Trust, and to be held or distributed according to the terms thereof.

Notably, the beneficiaries of Betty’s trust were Stockall and 

several of Robert’s grandchildren. Betty’s trust thus ultimately 

distributed all her property and all the property from Robert’s 

Trust A to Robert’s issue.

5 Id.

6 Id.

7 In re Estate of Muchemore, 252 Neb. 119, 560 N.W.2d 477 (1997), 

disapproved on other grounds, In re Estate of Nelson, 253 Neb. 414, 571 

N.W.2d 269 (1997).
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Cite as 296 Neb. 565

The question presented is whether Betty’s limited power of 

appointment was effectively exercised when she devised Trust 

A assets to her personal trust in this manner. Stockall argues 

the appointment was effective because, after passing through 

Betty’s trust, the Trust A property eventually was distributed 

to Robert’s issue, a permissible group identified in Robert’s 

trust. Hornung argues that the appointment was not effective, 

because Betty’s trust is not in the permissible group under 

Robert’s trust, so the unqualified appointment to her trust was 

ineffective even if the property eventually was distributed to 

those in the permitted group under Robert’s trust.

This court has not previously considered the effectiveness 

of exercising a limited appointment under such circumstances. 

We find guidance in cases from other jurisdictions which have 

addressed similar circumstances.

In BMO Harris Bank N.A. v. Towers,

8

 parents created two 

trusts granting their son a limited power to appoint assets 

of the parents’ trusts to certain beneficiaries. The son’s will 

devised all of his estate to his trust, thus commingling the 

assets he received from the parents’ trusts with his own trust 

assets. The court determined this was an ineffective exercise of 

the power of appointment, because the son exercised the power 

of appointment in favor of himself and he was not a permissible beneficiary under the parents’ limited power of appointment. The court reasoned that no language in the son’s trust 

segregated the assets of his parents’ trusts from the assets of his 

trust and consequently, the son’s creditors could have used the 

commingled assets to satisfy the son’s debts.

The case of In re Estate of Reisman9 is also instructive. 

There, a wife’s trust granted her husband a limited power of 

appointment and designated her children and any descendants of her children as the permissible beneficiaries of the 

8 BMO Harris Bank N.A. v. Towers, 2015 IL App (1st) 133351, 43 N.E.3d 

1131, 398 Ill. Dec. 221 (2015).

9 In re Estate of Reisman, 266 Mich. App. 522, 702 N.W.2d 658 (2005).
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assets. The husband’s will appointed the assets to his trust. 

Importantly, however, the trust contained language expressly 

stating that the assets appointed to his trust via the limited 

power of appointment were not an asset of his estate. The court 

held that this express language differentiating the assets rendered the appointment effective, because the assets never could 

have benefited the husband, his estate, or his creditors.

Betty’s will attempted to exercise her power of appointment by devising all of the Trust A assets to her own trust. 

But her trust was not in the permissible group, and her trust 

contained no language separating the Trust A assets from the 

remainder of her trust assets. To the contrary, Betty’s will 

provided that the Trust A assets were devised to her trust “to 

be administered by the Trustee as part of the property of [the 

trust].” By devising the Trust A assets to her trust without 

expressly providing that the Trust A assets were not to be 

commingled with her other assets, Betty improperly exercised the power of appointment for her benefit. Merger of the 

Trust A assets with Betty’s assets resulted in nondesignated 

objects (Betty, her estate, her creditors, and creditors of her 

estate) potentially benefiting from the power of appointment, 

and rendered her appointment ineffective.10 After reviewing 

the record, we find no error in the county court’s determination that Betty’s exercise of the power of appointment 

was ineffective.

2. Doctrines of Selective Allocation

and Substantial Compliance Do

Not Save Invalid Appointment

Stockall argues that even though Betty’s will devised Trust 

A assets to her own trust, the county court should have applied 

the doctrines of selective allocation and/or substantial compliance to find Betty’s exercise of the power of appointment was 

10 See, BMO Harris Bank N.A., supra note 8; In re Estate of Reisman, supra

note 9.
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IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

effective. This court has never applied either doctrine in a case 

such as this.

(a) Selective Allocation

The doctrine of selective allocation is generally recognized by both the Restatement (Second) of Property and 

the Restatement (Third) of Property.11 According to the 

Restatement (Third), “If the donee of a power of appointment 

exercises the power in a document that also disposes of owned 

property, the owned and appointive property are deemed to 

be allocated in the manner that best carries out the donee’s 

intent.”12 Stockall urges us to apply this doctrine, through 

which she asserts we can assume that only those assets in 

Betty’s trust that she owned during her lifetime were used 

to pay the expenses of administering her final affairs and the 

claims of any of her creditors. Stockall contends that such a 

construction of Betty’s trust would render Betty’s power of 

appointment effective.

Stockall argues that applying selective allocation is particularly apt in this case, because distribution via Betty’s trust ultimately resulted in the property’s being distributed to Robert’s 

issue and Robert’s issue was one of the groups designated 

to receive his Trust A assets. Stockall also argues that even 

though Betty’s will appointed Trust A assets to Betty’s own 

trust, neither Betty, her estate, her creditors, nor any creditors 

of Betty’s estate actually benefited from the invalid appointment, because the assets of Betty’s trust, independent of the 

Trust A assets, were more than sufficient to cover Betty’s debts 

and expenses.

Although the doctrine of selective allocation is recognized 

in the Restatements, the doctrine has not been recognized or 

11 3 Restatement (Third) of Property: Wills and Other Donative Transfers 

§ 19.19 (2011); Restatement (Second) of Property: Donative Transfers 

§ 22.1 (1986).

12 3 Restatement (Third), supra note 11 at 335.
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adopted in any of our prior jurisprudence. Nor is it a doctrine 

that is commonly applied by other jurisdictions. Our research 

reveals that historically, only a few states (Massachusetts, 

Pennsylvania, and New York) have judicially recognized the 

doctrine.13 We have found no reported case applying the doctrine in the past 40 years, and the parties direct us to none.

Our research suggests that legislatures in several states 

have recognized the doctrine by adopting all or provisions of 

the Uniform Powers of Appointment Act.14 That act addresses 

selective allocation by stating, “If a powerholder exercises a 

power of appointment in a disposition that also disposes of 

property the powerholder owns, the owned property and the 

appointive property must be allocated in the permissible manner that best carries out the powerholder’s intent.”15 To date, 

the Nebraska Legislature has not adopted the Uniform Powers 

of Appointment Act.

[8] More important, the doctrine of selective allocation is 

a rule of construction.16 Rules of construction for interpreting 

a trust are applied when the language of the trust is not clear; 

but if the language clearly expresses the settlor’s intent, the 

rules do not apply.17 We see no reason to resort to a rule of 

construction when the terms of both Robert’s trust and Betty’s 

will and trust are clear and unambiguous. Indeed, the county 

13 See Joel E. Hoffman, Powers of Appointment and Selective Allocation, 46 

Cornell L. Rev. 416 (1961).

14 See, Unif. Powers of Appointment Act, 7C U.L.A. 394 (Supp. 2016); 

Colo. Rev. Stat. Ann. § 15-2.5-308 (West Cum. Supp. 2016); Mo. Ann. 

Stat. § 456.1050 (West Cum. Supp. 2017); N.M. Stat. Ann. § 46-11-308 

(Cum. Supp. 2016); N.C. Gen. Stat. § 31D-3-308 (2015); Va. Code Ann. 

§ 64.2-2720 (Cum. Supp. 2016).

15 Unif. Powers of Appointment Act, supra note 14, § 308, 7C U.L.A. at 418.

16 See 2 Restatement (Third) of Property: Wills and Other Donative Transfers 

§ 11.3 (2003) and 3 Restatement (Third), supra note 11, ch. 19, Part E, 

Introductory Note.

17 In re Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004).
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court made an express finding to this effect, and no party 

challenges that finding on appeal. On this record, we decline 

Stockall’s invitation to judicially adopt the doctrine of selective allocation.

(b) Substantial Compliance

Both the Restatement (Second) and the Restatement (Third) 

recognize the rule of substantial compliance.18 According to 

the Restatement (Third):

Substantial compliance with formal requirements of an 

appointment imposed by the donor, including a requirement that the instrument of exercise make reference 

or specific reference to the power, is sufficient if (i) 

the donee knew of and intended to exercise the power, 

and (ii) the donee’s manner of attempted exercise did 

not impair a material purpose of the donor in imposing 

the requirement.19

Stockall urges us to apply the rule of substantial compliance 

in order to find Betty’s exercise of the power of appointment 

was effective. She argues that this rule should be applied, 

because “Robert’s goal of allowing Betty to control disposition 

of [his Trust A assets] at her death in favor of Robert’s issue 

was accomplished.”20

The doctrine of substantial compliance can apply when the 

person exercising the power of appointment fails to comply 

with all the formal requirements imposed by the donor on 

the appointment.21 Formal requirements relate to the manner 

of the appointment, not its substance.22 They include such 

18 3 Restatement (Third), supra note 11, § 19.10; Restatement (Second), 

supra note 11, § 18.3.

19 3 Restatement (Third), supra note 11, § 19.10 at 280.

20 Brief for appellant at 32.

21 3 Restatement (Third), supra note 11, § 19.10.

22 See id., comment b.
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things as a specific reference to the power of appointment 

in the document attempting to assert it or a requirement 

that the appointment be made by deed under seal.23 Here, 

Betty’s attempted exercise of the power of appointment did 

not fail to comply with any formal requirement imposed by 

Robert’s trust. Instead, it substantively failed because by 

merging the Trust A assets with her own trust assets, Betty 

attempted to exercise the power of appointment in favor 

of one who was not in the permissible group. The doctrine 

of substantial compliance is not applicable to this factual 

circumstance.

Moreover, this court has long recognized that “‘[w]here 

the creator of a power defines the method of its execution, 

that method must be strictly followed, so far, at least, as may 

be necessary to give effect to his intent and design. This 

rule is fundamental.’”24 The rule of substantial compliance 

presents an “ends justify the means” approach that is at odds 

with this court’s established jurisprudence. The county court 

correctly refused to apply the rule of substantial compliance 

in this case, and Stockall’s argument to the contrary is without merit.

3. Duty of Robert’s Trustee

In his cross-appeal, the trustee of Robert’s trust argues the 

county court erred in ordering him to recover the Trust A 

assets and distribute them in accordance with Robert’s trust. 

He argues that because the court made an express finding that 

he did not breach Robert’s trust when he transferred Trust A 

property to Betty’s trust, the court had no authority to utilize 

the remedies for breach of trust available under Neb. Rev. 

Stat. § 30-3890 (Reissue 2016). Thus, the trustee of Robert’s 

23 Id., comments c. and d.

24 Massey v. Guaranty Trust Co., 142 Neb. 237, 242, 5 N.W.2d 279, 282 

(1942), quoting Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N.W. 

303 (1899).
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trust argues, the court had no power to void the act of the 

trustee in transferring Trust A property to Betty’s trust, or to 

compel the trustee to recover the Trust A property and distribute it in accordance with Robert’s trust.

[9] It is true that the county court order includes a finding 

that Robert’s trustee “acted appropriately, reasonably, and in 

good faith under the circumstances, and he did not commit a 

breach of trust in executing his duties as Trustee of Robert’s 

Trust.” No party challenges this factual finding. However, upon 

our review of the record, we find the court committed plain 

error in making this finding, because it cannot be reconciled 

with the finding that Betty’s appointment of Trust A property 

to her own trust was ineffective. Plain error is error plainly 

evident from the record and of such a nature that to leave it 

uncorrected would result in damage to the integrity, reputation, 

or fairness of the judicial process.25 An appellate court may, at 

its option, notice plain error.26

[10,11] As we previously explained, Betty’s exercise of the 

power of appointment was ineffective on its face, because 

it violated the limited power of appointment granted her by 

Robert’s trust. A breach of trust includes every omission or 

commission which violates in any manner the obligation of 

carrying out a trust according to its terms.27 Every violation 

by a trustee of a duty required of it by law, whether willful and fraudulent, or done through negligence, or arising 

through mere oversight or forgetfulness, is a breach of trust.28

When the trustee of Robert’s trust transferred Trust A assets to 

25 Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012); Cesar 

C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).

26 United States Cold Storage v. City of La Vista, 285 Neb. 579, 831 N.W.2d 

23 (2013); Folgers Architects v. Kerns, 262 Neb. 530, 633 N.W.2d 114 

(2001).

27 In re Estate of Linch, 136 Neb. 705, 287 N.W. 88 (1939); In re Louise V. 

Steinhoefel Trust, 22 Neb. App. 293, 854 N.W.2d 792 (2014).

28 Johnson v. Richards, 155 Neb. 552, 52 N.W.2d 737 (1952).
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Betty’s trust pursuant to an ineffectively exercised power of 

appointment, he committed a breach of trust.29

[12] According to § 30-3890, a violation by a trustee of a 

duty the trustee owes to a beneficiary is a breach of trust. And 

to “remedy a breach of trust that has occurred or may occur,” 

the court may, among other things, “compel the trustee to perform the trustee’s duties,”30 “compel the trustee to redress a 

breach of trust by . . . restoring property,”31 or “void an act of 

the trustee, impose a . . . constructive trust on trust property, 

or trace trust property wrongfully disposed of and recover the 

property or its proceeds.”32 Additionally, the court has authority 

to “order any other appropriate relief.”33

Here, after determining that Betty’s exercise of the power 

of appointment was ineffective and void, the county court 

ordered:

[The] successor trustee to the Robert McDowell Trust, is 

hereby instructed to recover all assets, income, and principal properly attributable to [Trust A] since Robert[’s] 

death (including as it relates to [Trust A’s] ownership 

interest in McDowell Cattle Company), preserve such 

assets, income, and principal, and distribute such assets, 

income, and principal in accordance with Article Fourth, 

Paragraph (e)(2) of Robert’s Trust. The Court shall retain 

jurisdiction to ensure that the trustee of Robert’s Trust 

carries out this Order.

Because the trustee of Robert’s trust breached the trust 

when he distributed the Trust A assets pursuant to an invalid 

exercise of appointment, the county court had available all the 

29 See, also, 3 Restatement (Third), supra note 11, § 19.17(a) at 329 (“[a] 

fiduciary who transfers property pursuant to a direct appointment to an 

impermissible appointee commits a breach of trust”).

30 § 30-3890(b)(1).

31 § 30-3890(b)(3).

32 § 30-3890(b)(9).

33 § 30-3890(b)(10).
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE ROBERT L. McDOWELL REVOCABLE TRUST

Cite as 296 Neb. 565

remedies for breach of trust under § 30-3890(b). And the remedies ordered by the county court were among those permitted 

by statute. To the extent the trustee of Robert’s trust argues 

otherwise, his cross-appeal is without merit.

V. CONCLUSION

For the foregoing reasons, we modify the decision of the 

county court to the extent it failed to find that the trustee of 

Robert’s trust breached the trust, but we otherwise affirm the 

decision of the county court.

Affirmed as modified.

Miller-Lerman, J., not participating.