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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST

Cite as 312 Neb. 381

In re Margaret L. Matthews Revocable Trust.

Wells Fargo Bank, N.A., as Trustee of the Margaret L. 

Matthews Revocable Trust, appellee, v. Salvation 

Army and Visiting Nurse Association of the 

Midlands, doing business as Visiting Nurse 

Association, appellees, and Nebraska Synod 

of the Evangelical Lutheran Church in 

America, substituted for Pella Evangelical 

Lutheran Church, appellant.

___ N.W.2d ___

Filed September 9, 2022. No. S-21-507.

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. Declaratory Judgments. Whether an action for declaratory judgment is 

to be treated as one at law or one in equity is to be determined by the 

nature of the dispute. The test is whether, in the absence of the prayer 

for declaratory judgment, the issues presented should properly be disposed of in an equitable action, as opposed to a legal action.

3. 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 concerning the matters at issue. 

However, the court may give weight to the fact that the trial court heard 

and observed the witnesses and their manner of testifying, and accepted 

one version of the facts rather than the other.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is an appellate court’s duty to determine whether it 

has jurisdiction to decide the issues presented.

5. ____: ____. Where a lower court lacks subject matter jurisdiction to 

adjudicate the merits of a claim, issue, or question, an appellate court 

Nebraska Supreme Court Online Library

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

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also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

6. Trusts: Declaratory Judgments. Nebraska’s declaratory judgment statutes allow trustees and persons interested in the administration of a trust 

to seek a declaration regarding any question arising in the administration 

of a trust.

7. Trusts. A trustee or beneficiary may apply to an appropriate court for 

instructions regarding the administration or distribution of the trust if 

there is reasonable doubt about the powers or duties of the trusteeship 

or about the proper interpretation of the trust provisions.

8. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final judgment or 

final order entered by the tribunal from which the appeal is taken.

9. Final Orders: Words and Phrases. To be final, an order must dispose 

of the whole merits of the case. When no further action of the court is 

required to dispose of a pending cause, the order is final.

10. Declaratory Judgments: Parties. When declaratory relief is sought, 

it is a statutory requirement that all persons shall be made parties who 

have or claim any interest which would be affected by the declaration, 

and no declaration shall prejudice the rights of persons not parties to 

the proceeding.

11. Trusts: Courts: Jurisdiction. The act of registering a trust gives the 

county court jurisdiction over the interests of all notified beneficiaries to 

decide issues related to any matter involving the trust’s administration, 

including a request for instructions or an action to declare rights.

12. Trusts: Words and Phrases. The term “beneficiary” includes persons with a present or future beneficial interest in a trust, vested or 

contingent.

13. Trusts: Intent. The primary rule of construction for trusts is that a court 

must, if possible, ascertain the intention of the testator or creator.

14. Corporations: Charities. A gift, donation, or bequest by name, without 

further restriction or limitation as to use, to a corporation organized and 

conducted solely for charitable purposes, will be deemed to have been 

made for the objects and purposes for which the corporation was organized, and not to the corporation itself.

15. Charities: Intent. The charitable intent of the donor is ascertained by 

reference to the charitable purposes of the donee.

Appeal from the County Court for Douglas County: Derek 

R. Vaughn, Judge. Affirmed.

William J. Lindsay, Jr., and Zachary W. Lutz-Priefert, of 

Gross & Welch, P.C., L.L.O., for appellant.
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST

Cite as 312 Neb. 381

Krista M. Eckhoff, Jesse D. Sitz, and Brian Barmettler, of 

Baird Holm, L.L.P., for the Salvation Army and the Visiting 

Nurse Association of the Midlands.

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

Freudenberg, JJ., and Stecker, D.J.

Heavican, C.J.

The late Margaret L. Matthews established and amended 

a revocable trust prior to her death wherein she made three 

bequests: one each to the Salvation Army and the Visiting Nurse 

Association of the Midlands, doing business as Visiting Nurse 

Association (VNA), appellees, and one to Pella Evangelical 

Lutheran Church (Pella). As amended, each bequest encompassed the named beneficiary, as well as its charitable successors and assigns. Prior to Matthews’ death, Pella had ceased 

to exist. Wells Fargo Bank, N.A. (Wells Fargo), as trustee of 

the trust, filed a petition for declaratory judgment concerning Pella’s existence. The Nebraska Synod (Synod) of the 

Evangelical Lutheran Church in America (ELCA), appellant, 

a conglomerate of churches to which Pella belonged prior to 

cessation, was allowed to intervene and asserted that it was 

entitled to Pella’s share of the trust property.

After trial, the Douglas County Court determined that the 

Synod was not Pella’s charitable successor and assign, and it 

ordered that Pella’s share be distributed pro rata to the Salvation 

Army and the VNA, the remaining named beneficiaries, pursuant to the terms of the trust. The county court accordingly 

denied the Synod’s complaint in intervention. We affirm.

I. FACTUAL BACKGROUND

In 2006, Matthews established a revocable trust. Pursuant to 

the trust, and upon her death, property was to be distributed to 

a number of charitable organizations. Wells Fargo was selected 

to serve as trustee.

The provisions located within article VIII of the trust provided for the following distribution of trust property: “(a) 
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One-half (1/2) to the SALVATION ARMY, WESTERN 

DIVISION, Omaha, Nebraska; (b) One-sixth (1/6) to the 

BETHESDA LUTHERAN HOME FOUNDATION, INC.,

Watertown, Wisconsin; (c) One-sixth (1/6) to the VISITING 

NURSE ASSOCIATION, Omaha, Nebraska; and (d) Onesixth (1/6) to the PELLA LUTHERAN CHURCH, Omaha, 

Nebraska.” (Emphasis omitted.) The trust also provided that in 

the event any of the beneficiaries did not exist at the time of 

Matthews’ death or was no longer a charity, the bequest would 

instead be allocated to the remaining existing and qualified 

charities, pro rata.

In 2010, Matthews amended her trust, modifying only article 

VIII. Through this amendment, Matthews removed Bethesda 

Lutheran Home Foundation, Inc., as a beneficiary, reallocated 

shares of trust property, and added the language “its charitable successors and assigns” to each charitable beneficiary 

as follows: “(a) One-half (1/2) to the SALVATION ARMY, 

WESTERN DIVISION, Omaha, Nebraska, its charitable successors and assigns; (b) One-fourth (1/4) to the VISITING 

NURSE ASSOCIATION, Omaha, Nebraska, its charitable 

successors and assigns; and (c) One-fourth (1/4) to the PELLA 

LUTHERAN CHURCH, Omaha, Nebraska, its charitable successors and assigns.” (Emphasis omitted.)

After Matthews’ death in January 2018, Wells Fargo, serving as trustee, registered the trust with the court and filed a 

petition for declaratory judgment. Wells Fargo sought a declaration concerning distribution of trust property pursuant to 

the terms of the trust as it pertained to Pella. After receiving 

notice of the declaratory judgment action, the Synod filed 

a motion to intervene, asserting that it was the proper and 

lawful successor of Pella and that, as such, it was entitled to 

Pella’s share of trust property. The Salvation Army and the 

VNA resisted this claim, arguing that Pella had no charitable 

successors or assigns and, as a result, that Pella’s share should 

be distributed between the two pro rata, pursuant to the terms 

of the trust.
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Cite as 312 Neb. 381

On December 28, 2018, the county court authorized intervention and permitted the Synod to align as a defendant. A trial 

was held on the matter in April 2021 to determine whether the 

Synod was Pella’s charitable successor and assign. The following evidence was introduced at trial.

Pella was a local Lutheran congregation in Omaha, Nebraska, 

whose activities were overseen by the Synod, a regional 

governing body within the ELCA. The Synod oversees 200-

plus Lutheran congregations in Nebraska that together with 

the other regional synods across the nation, make up the 

national ELCA.

Although incorporating under state law was not a requirement of the ELCA, Pella was organized as a corporation 

under Nebraska law and was governed in part by its articles 

of incorporation. As a member of the Synod and the ELCA, 

Pella was also subject to, and governed by, the ELCA’s model 

constitution in addition to its own local constitution. Whenever 

required provisions are updated or added to the model constitution by the ELCA, those provisions are automatically deemed 

to be implemented as part of all local constitutions in effect, 

even where local constitutions do not make any changes. The 

model constitution in effect at the time Pella dissolved indicated that Pella’s affiliation with the ELCA could be terminated 

if the congregation took action to dissolve, ceased to exist, was 

removed from membership in the ELCA according to internal 

discipline procedures, or followed internal procedures otherwise set forth in the model constitution. If the congregation 

ceased to exist, title to any undisposed property would pass to 

the Synod.

In 2012, the Synod assigned the Reverend Juliet Focken to 

assist Pella in its search for a part-time minister after it had 

become clear that Pella could not support a full-time minister. In 2013 and 2014, Focken held numerous meetings with 

Pella’s council members to suggest and work through their 

options moving forward. Some of these options included the 

continued use of a part-time minister, the merger with another 
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congregation of the Synod, or dissolution. As a result of waning membership and other financial and pastoral concerns, 

Pella ultimately made the decision to dissolve and cease worship services. The Synod again assigned Focken to oversee and 

assist Pella in this process, and it provided guidance to Pella 

regarding specific steps for dissolution.

Members of Pella were provided notice of a dissolution 

meeting; however, the notice did not feature a dissolution plan 

and did not indicate who received copies of this notice. At the 

meeting, no record was made to show that the requisite number 

of voting members were in attendance, nor that the requisite 

number of members voted in favor of dissolution. Matthews 

herself did not receive such notice, but Pella’s then-pastor 

testified that Matthews did not receive a letter because of her 

mental state and that Matthews would not have understood its 

contents even if she had received a copy.

As part of the dissolution process, Pella evaluated its real 

and personal property and Focken compiled a list of Pella’s 

assets, which were transferred to fellow congregations or given 

away to church members. In March 2014, nearly 4 years prior 

to Matthews’ death, Pella held its last worship service. Any 

property or assets that remained at that time were transferred to 

the Synod through warranty deeds, including Pella’s building. 

Focken then transferred Pella’s members to other congregations; some members voluntarily transferred, and others, such 

as Matthews, were administratively transferred to a receiving 

congregation at Augustana Lutheran Church (Augustana) in 

Omaha. The remaining assets that had been transferred to the 

Synod were sold or disposed of shortly thereafter, including 

transfers of property to other congregations across Nebraska. 

Pella’s building was sold that same month.

Brian Maas, the bishop and administrative leader of the 

Synod, testified to the hallmarks that indicate the existence of 

a congregation: It gathers regularly for worship, is served by 

a ministry leader, has an active identification number within 

the ELCA, and is recognized by the Synod and internally as 
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a congregation. According to Maas, even if there was never a 

formal vote to dissolve Pella, the fact that Pella lacked all of 

the hallmarks of a congregation meant that “within the eyes” 

of the Synod Pella had “ceased to exist.” Maas also testified 

that after Pella closed, all of the usual hallmarks of a closure 

had occurred. The Synod had given notification to its council; 

distributed assets (including the church building, the parsonage, and some financial accounts); and archived all the records 

it had for Pella.

Maas discussed the nature of individual churches which 

were also corporate entities. Maas stated that a congregation’s 

existence as a church was not contingent or dependent upon 

the entity’s corporate structure and that there are congregations 

within the Synod which are not formally incorporated. The 

Synod does not formally require congregations to dissolve with 

the Secretary of State’s office. A congregation which lacked 

the requisite hallmarks would be deemed to no longer exist 

regardless of whether it was still incorporated under the laws 

of its home state, and, alternatively, congregations which had 

all the hallmarks of existence would be deemed to exist even 

if that congregation was not incorporated under the laws of its 

home state.

The VNA vice president of development and communications, along with a Salvation Army major, who was also a 

minister and divisional secretary of business for the Salvation 

Army’s division located in Iowa, Nebraska, and South Dakota, 

both testified for appellees. The VNA vice president detailed 

the long-term relationship between the VNA and Matthews, 

including that the VNA had cared for Matthews’ husband in 

its hospice services and that a number of its hospice nurses 

had established close personal relationships with Matthews 

that lasted long after care for her husband had ceased. The 

Salvation Army major detailed a similar relationship between 

Matthews and the Salvation Army. According to the major, 

Matthews provided the Salvation Army with over 70 gifts 

during her lifetime, amounting to over $125,000 in support 
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for its charitable mission. Matthews was often in attendance 

at special events hosted by the Salvation Army, and some 

of its employees developed close personal relationships with 

Matthews that included visits to Matthews’ home on a regular 

basis to watch movies and spend time with Matthews.

After considering the evidence, the county court concluded 

that the Synod failed to prove that it was Pella’s charitable 

successor and assign, as such terms were used in the trust. 

The county court found that (1) Pella had failed to properly 

dissolve according to the Nebraska Nonprofit Corporation 

Act (NNCA) and its own internal governance documents, (2) 

Pella did not establish any separate foundation or charitable 

entity to remain associated with the ELCA following dissolution, (3) the Synod did not support the charitable functions 

of Pella in the same manner as Pella had prior to its dissolution, and (4) Matthews had not intended to make a distribution to the Synod. Accordingly, the county court denied the 

Synod’s complaint in intervention and ordered that Pella’s 

share of the trust be distributed to appellees pro rata pursuant to the alternative distribution provisions of the trust. The 

Synod appealed.

II. ASSIGNMENTS OF ERROR

The Synod assigns that the county court erred in (1) concluding that the Synod was not an appropriate successor to 

Pella, (2) concluding that the Synod was not entitled to receipt 

of Pella’s share of Matthews’ assets and that such assets should 

not have been distributed to the Synod, (3) finding that Pella 

failed to follow its own requirements for dissolution, (4) making a resolution of a doctrinal dispute, and (5) failing to properly follow the religious associations statutes.

III. STANDARD OF REVIEW

We begin by clarifying our standard of review. Beginning 

in 1982 with In re Zoellner Trust,

 1 this court stated that all 

1 In re Zoellner Trust, 212 Neb. 674, 678, 325 N.W.2d 138, 141 (1982).
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“[a]ppeals involving the administration of a trust are equity 

matters and are reviewable in this court de novo on the record.” 

A de novo on the record standard was thereafter applied to most 

appeals involving trust administration issues. However, an 

error on the record standard has also been utilized in a smaller 

number of appeals regarding trust administration issues. We 

recognized both standards of review in In re R.B. Plummer 

Memorial Loan Fund Trust 2 and focused on the specific issues 

presented to determine whether de novo review applied.

[1] In In re Margaret Mastny Revocable Trust,

 3 we concluded that this issue-specific approach was preferable and 

more consistent with our standard for appellate review under 

the Nebraska Probate Code. Accordingly, we held that “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.” 4

[2] Pursuant to these holdings, whether this court reviews 

the issues de novo on the record or for error on the record 

requires examination of the issue underlying the claim. While 

this case began as a declaratory judgment action, similar to a 

trust administration issue, we have held that whether an action 

for declaratory judgment is to be treated as one at law or one 

in equity is to be determined by the nature of the dispute. 5 The 

test is whether, in the absence of the prayer for declaratory 

judgment, the issues presented should properly be disposed of 

in an equitable action, as opposed to a legal action. 6

2 In re R.B. Plummer Memorial Loan Fund Trust, 266 Neb. 1, 661 N.W.2d 

307 (2003).

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

(2011).

4 Id. at 198, 794 N.W.2d at 710.

5 See Homestead Estates Homeowners Assn. v. Jones, 278 Neb. 149, 768 

N.W.2d 436 (2009).

6 Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994).
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Utilizing that test in the present case, the issues resemble 

injunctive relief, an equitable remedy. The purpose of an 

injunction is to restrain actions that have not yet been taken. 7

Similarly, the Synod has requested, through its complaint in 

intervention and answer to Wells Fargo’s petition, that the 

court find the Synod to be Pella’s charitable successor and 

assign, and the Synod asks the court to order Wells Fargo to 

either do or refrain from doing a specified act, i.e., to distribute Pella’s share to the Synod rather than to the other named 

beneficiaries.

[3] Accordingly, we review this case de novo on the record. 8

In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its 

own independent conclusions concerning the matters at issue. 9

However, the court may give weight to the fact that the trial 

court heard and observed the witnesses and their manner of 

testifying, and accepted one version of the facts rather than 

the other. 10

IV. ANALYSIS

1. Jurisdiction

[4] Before reaching the legal issues presented for review, it 

is our duty to determine whether we have jurisdiction to decide 

them. 11 This case presents multiple jurisdictional questions, so 

we find it necessary to exercise that duty here.

(a) Subject Matter Jurisdiction 

of County Court

[5] Where a lower court lacks subject matter jurisdiction 

to adjudicate the merits of a claim, issue, or question, an 

7 Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).

8 See In re Margaret Mastny Revocable Trust, supra note 3.

9 Id.

10 Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).

11 Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).
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appellate court also lacks the power to determine the merits 

of the claim, issue, or question presented to the lower court. 12

Thus, we begin with a review of the county court’s jurisdiction 

in this matter.

According to Neb. Rev. Stat. § 30-3814(a) (Reissue 2016), 

to the full extent permitted by the Nebraska Constitution, the 

county court has jurisdiction over all subject matter relating to 

trusts. Neb. Rev. Stat. § 30-3819 (Reissue 2016) states that by 

registering a trust or accepting the trusteeship of a trust, the 

trustee submits to the jurisdiction of the court of registration 

in any proceeding under Neb. Rev. Stat. § 30-3812 (Reissue 

2016). Section 30-3812(c) specifically states that a judicial 

proceeding involving a trust may relate to any matter involving 

the trust’s administration, including a request for instructions 

and an action to declare rights.

[6,7] We have said that Nebraska’s declaratory judgment 

statutes allow trustees and persons interested in the administration of a trust to seek a declaration regarding any question arising in the administration of a trust. 13 A trustee or 

beneficiary may apply to an appropriate court for instructions regarding the administration or distribution of the trust 

if there is reasonable doubt about the powers or duties of 

the trusteeship or about the proper interpretation of the trust 

provisions. 14

Wells Fargo requested that the county court declare that 

Pella did not exist, declare that Pella was not a beneficiary, 

and order Wells Fargo to distribute the trust’s assets to the 

Salvation Army and to the VNA. Wells Fargo also requested 

that the county court find that such actions would not violate Wells Fargo’s duties as trustee and to find that the trust 

shall terminate upon payment of expenses, taxes, and distribution of remaining trust assets. Essentially, Wells Fargo 

12 See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

13 In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).

14 Id.
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requested that the county court instruct it, as trustee, on its 

duties and powers related to payment of charitable bequests 

within Matthews’ trust. This action is thus authorized pursuant to §§ 30-3812(c), 30-3814(a), and 30-3819, as well as 

the Nebraska Uniform Declaratory Judgments Act, 15 and the 

county court had jurisdiction to adjudicate Wells Fargo’s petition for declaratory judgment.

(b) Appellate Jurisdiction

[8,9] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final judgment or final order entered by 

the tribunal from which the appeal is taken. 16 To be final, an 

order must dispose of the whole merits of the case. When no 

further action of the court is required to dispose of a pending 

cause, the order is final. 17

In this case, Wells Fargo registered the Matthews trust and 

filed a petition with the court seeking a declaratory judgment 

regarding distribution of trust funds. Wells Fargo requested 

that the county court declare that Pella either did not exist or 

was not a charity at the time of Matthews’ death, declare that 

Pella was not entitled to a share of trust assets, and order Wells 

Fargo to distribute the trust’s assets to the Salvation Army and 

to the VNA.

After hearing from Wells Fargo and from the Synod, the 

county court entered an order denying the Synod’s complaint in intervention. It held that pursuant to the terms of 

the trust, “Pella[’s] share of the Trust shall be distributed pro 

rata to the Salvation Army and [the VNA].” The order also 

stated that any additional motions or matters pending that 

were not decided in accordance with the order were denied 

as moot. This order disposed of the whole merits of the case 

by granting the relief sought by Wells Fargo in its petition 

15 Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2016).

16 In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

17 Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762 (1995).
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for declaratory judgment. Pursuant to this order, Wells Fargo 

would have the authority to disburse funds to the Salvation 

Army and to the VNA, and there were no remaining issues 

which would require further action by the court. Accordingly, 

this was a final, appealable order.

(c) Notice to Augustana

In its petition for declaratory judgment, Wells Fargo named 

the three charitable beneficiaries listed in the trust—the 

Salvation Army, the VNA, and Pella—but did not name either 

the Synod or Augustana. The record indicates that the Synod 

and Augustana each obtained property, assets, or congregation 

members from Pella when it dissolved, and this raises a question of whether either entity is a necessary party to this action. 

While the Synod intervened in the matter, Augustana did not 

intervene and took no action in this case. Thus, we must consider whether Augustana’s absence deprived the county court, 

and this court, of jurisdiction over this matter.

[10] When declaratory relief is sought, we have said that it 

is a statutory requirement that all persons shall be made parties who have or claim any interest which would be affected 

by the declaration, and no declaration shall prejudice the 

rights of persons not parties to the proceeding. 18 However, the 

declaratory relief sought by Wells Fargo in this case relates to 

its duties as trustee, and thus, in addition to our rules regarding declaratory judgments, it also implicates the Nebraska 

Uniform Trust Code.

By registering a trust, the trustee submits personally to 

the jurisdiction of the court of registration in any proceeding 

under § 30-3812 relating to the trust while the trust remains 

registered, and to the extent of their interests in the trust, all 

beneficiaries of a trust properly registered in this state are 

subject to the jurisdiction of the court of registration for the 

purposes of proceedings under § 30-3812, provided notice is 

18 SID No. 2 of Knox Cty. v. Fischer, 308 Neb. 791, 957 N.W.2d 154 (2021).
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given pursuant to Neb. Rev. Stat. § 30-2220 (Reissue 2016). 19

Section 30-2220(a)(2) states that notice by publication can be 

accomplished by publishing at least once a week for three consecutive weeks a copy thereof in a legal newspaper having general circulation in the county where the hearing is to be held, 

the last publication of which is to be at least 3 days before the 

time set for the hearing.

After Matthews’ death in January 2018, Wells Fargo registered Matthews’ trust with the Douglas County Court on July 

16. In September, Wells Fargo filed a petition for declaratory judgment regarding the distribution of a trust under the 

Nebraska Uniform Trust Code and the Nebraska Uniform 

Declaratory Judgments Act. 20 The county court set a hearing 

date for November 5. A notice of the hearing was forwarded 

by the court registrar to The Daily Record, a legal newspaper, 

with instructions for publication of the notice as required 

by statute. 21

Wells Fargo thereafter filed an affidavit of mailing in accordance with statute, 22 affirming to the court that notice of the 

proceeding was first published in Douglas County, Nebraska, 

and that on September 20, 2018, Wells Fargo sent copies of 

the notice of hearing and petition for declaratory judgment 

by certified mail to 26 parties. Of the 26 notices mailed, 12 

were directed to the registered agent and former directors 

of Pella, 2 were directed to the Salvation Army’s registered 

agent and legal department, 1 was directed to the Nebraska 

Attorney General, and 11 were directed to the registered 

agent and directors of Augustana. As a result of this notice, 

the Synod sought, and was allowed, to intervene in the action 

and align as a defendant. A copy of the Synod’s complaint in 

19 See § 30-3819(a) and (b).

20 See §§ 30-3812(c), 30-3814(a), 30-3819, and 25-21,149 et seq.

21 § 30-2220(a)(2).

22 § 30-2220(c) (“[p]roof of the giving of notice shall be made on or before 

the hearing and filed in the proceeding”).
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intervention was mailed to all interested parties, including at 

least 11 directors of Augustana. Hence, we find that Augustana 

was properly notified of these proceedings.

[11,12] We have said that “[t]he act of registering a trust 

gives the county court jurisdiction over the interests of all 

notified beneficiaries to decide issues related to any matter 

involving the trust’s administration, including a request for 

instructions or an action to declare rights.” 23 The term “beneficiary” includes persons with a present or future beneficial 

interest in a trust, vested or contingent. 24 We have also held 

that Nebraska’s declaratory judgment statutes allow trustees 

and persons interested in the administration of a trust to seek 

a declaration regarding any question arising in the administration of a trust, including a request for the court to instruct the 

trustee of its duties and powers. 25

In this action, the county court had jurisdiction to make a 

declaration of rights of the beneficiaries of the trust and to 

accordingly instruct Wells Fargo as to the distribution of trust 

property. Because Augustana was properly notified of the trust 

proceedings, Augustana’s absence did not deprive the county 

court of jurisdiction and the county court’s judgment in the 

matter is binding on Augustana to the extent of its interests 

in the trust. Consequently, this court has jurisdiction over this 

claim. We turn now to the merits of the Synod’s claim.

2. Doctrinal Issues

The Synod assigns that the county court erred in making a 

resolution of a doctrinal dispute, an issue which underlies each 

of the Synod’s arguments. The Synod argues that the determination of whether Pella had ceased to exist is a doctrinal 

matter, which can only be made by the Synod, and that such 

23 In re Trust Created by Hansen, supra note 13, 274 Neb. at 206-07, 739 

N.W.2d at 177 (emphasis supplied).

24 In re Trust Created by Hansen, supra note 13.

25 Id.
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determination cannot be adjudicated by the court using neutral 

principles of law.

The Synod misunderstands this court’s use of neutral principles of law to adjudicate disputes involving religious entities. We have applied the NNCA 26 to assess church closings 

and property transfers to affiliate churches and have applied 

a neutral principles of law approach to adjudicate disputes 

where religious organizations disagree with one another as to 

the state of the law or resolution of their dispute.

For example, in Glad Tidings v. Nebraska Dist. Council,

 27

this court applied the NNCA to adjudicate an intrachurch 

dispute regarding property held by each entity. In Glad 

Tidings, a local church wanted to dissolve and a larger 

affiliate church ordered that certain property belonging to 

the local church must be transferred to the larger affiliate. 

The local church sought a declaration that the board of directors had exceeded its authority in transferring such property 

to the larger affiliate. We applied the NNCA and the Model 

Business Corporation Act to define the term “transaction” 

as it related to the dispute and concluded that no transaction 

had occurred between the local and larger church entities. 

We did not overstep the authority of each church entity to 

decide its own outcomes in regard to doctrinal matters, but 

instead looked to the rules governing corporations to resolve 

a nondoctrinal question between the entities concerning the 

property dispute.

And in Aldrich v. Nelson,

 28 this court found that the district court had jurisdiction to adjudicate the dispute, even 

where the issue presented was an internal church dissolution dispute between a local Lutheran church and the larger 

26 See Neb. Rev. Stat. §§ 21-1901 to 21-19,177 (Reissue 2012 & Cum. Supp. 

2020).

27 Glad Tidings v. Nebraska Dist. Council, 273 Neb. 960, 734 N.W.2d 731 

(2007).

28 Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).
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affiliated synod. We stated the court was allowed to apply neutral principles, defined as “‘secular legal rules whose application to religious parties or disputes [do] not entail theological 

or religious evaluations,’” in order to determine the outcome 

of the issue from a secular, not religious, perspective. 29 Here, 

the same is true: The county court was not tasked with determining the doctrinal question of whether Pella existed with 

such hallmarks that it qualified as a congregation within the 

ELCA and was subject to the control of the Synod. Instead, 

the county court was tasked with analyzing whether Pella’s 

methods of dissolution had an impact on whether the Synod 

was Pella’s charitable successor and assign and thus entitled to 

Pella’s portion of trust property.

The Synod agrees that Pella did not exist at the time of 

Matthews’ death. The parties disagree as to whether Pella had 

a charitable successor and assign for purposes of the trust. In 

order to interpret the meaning of the phrase “charitable successors and assigns,” the county court looked to the NNCA to 

assess whether Pella, as a nonprofit corporation incorporated 

in the State of Nebraska, had dissolved in a manner consistent 

with State law such that the specific charitable activities of 

Pella would be supported by the Synod moving forward, making the Synod a charitable successor and assign of Pella. The 

county court did not make a resolution of a doctrinal dispute 

in determining the issues of this case. This assignment of error 

is without merit.

3. Religious Associations Statutes

After arguing that this issue is a doctrinal matter, the Synod 

next argues that the county court erred in analyzing the issues 

under the NNCA, asserting that such statutes do not control 

the issue of Pella’s existence. The Synod argues that the 

county court should have looked to the statutes concerning 

29 Id. at 170, 859 N.W.2d at 540.
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religious associations and the vesting of property in religious 

entities which have ceased to exist. 30

Contrary to the Synod’s position on this matter, these statutes merely establish a method for church entities to obtain 

good title for real and personal property owned by a church 

which is abandoned or which ceased to exist. 31 These statutes 

might have been applicable if Pella had dissolved without first 

transferring its real and personal property to the Synod. But 

here, Pella ensured that the Synod was able to obtain good 

title and executed warranty deeds for its property to the Synod. 

The religious association statutes do not resolve the issue of 

whether the Synod was a charitable successor and assign of 

Pella such that it is entitled to Pella’s share of the trust. This 

assignment of error is without merit.

4. Pella’s Dissolution

Next, the Synod argues that the county court erred in finding 

that Pella failed to follow its own requirements for dissolution. Pella, as a religious nonprofit corporation incorporated 

under the laws of Nebraska, was subject to the NNCA. Under 

the NNCA, steps for corporate dissolution are set forth at 

§ 21-19,130. The record indicates that Pella sent notice regarding a special meeting to vote on dissolution, but that no record 

was made as to which members received notice, which members were present at the meeting, or how many members voted. 

This evidence is therefore insufficient to prove that Pella complied with the two-thirds or majority vote provisions required 

by the NNCA for dissolution.

The evidence is also insufficient to prove that Pella complied with its own internal requirements for dissolution. 

According to the ELCA’s model constitution, a congregation’s 

affiliation with the ELCA can be terminated if the congregation takes action to dissolve, ceases to exist, is removed from 

30 See Neb. Rev. Stat. §§ 21-2801 to 21-2803 (Reissue 2012).

31 See § 21-2801(3).
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membership, or follows the procedures laid out at “*C6.05.” 

for termination, which include a resolution indicating intent 

to terminate, 30 days’ notice of the meeting to the bishop of 

the Synod, and a special meeting and two-thirds vote of voting members present, among other provisions. These provisions within the model constitution are required provisions 

and were binding on Pella even in the absence of a change 

to Pella’s local constitution. But again, the record does not 

contain evidence that Pella gave the required notice, that the 

notice was received by the correct parties, or how many members attended the special meeting or voted in favor of dissolution. Testimony from both Maas and Focken also showed that 

Pella’s council and leadership members had received a copy of 

the ELCA’s suggested steps for dissolution, but that Pella did 

not follow them.

In dissolving its congregation, Pella did not follow the steps 

for dissolution set forth in the NNCA or the steps set forth in 

Pella’s own constitution and bylaws, nor did Pella follow the 

ELCA’s suggested steps for dissolution. Pella thus failed to follow its own requirements for dissolution, and this assignment 

of error is without merit.

5. Successors and Assigns

Finally, the Synod assigns that the county court erred in 

concluding that the Synod was not “an appropriate successor” 

to Pella and that as such, the Synod was not entitled to Pella’s 

share of the Trust.

(a) Natural Versus Charitable Successors

The Synod argues, in part, that the Synod was Pella’s natural 

successor or appropriate successor and asserts that any property 

held by Pella should thus become the property of the Synod. 

The trust stated that the bequest was for Pella, if in existence as 

a charity, or to Pella’s “charitable successors and assigns.” Use 

of the term “natural” in this context is inappropriate and does 

not resolve the issues raised by either party; hence, we limit 
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our analysis here to whether the Synod is a charitable successor 

and assign of Pella.

(b) Plain Meaning of Successors and Assigns

The term “successor” is defined as (1) “[s]omeone who succeeds to the office, rights, responsibilities, or place of another; 

one who replaces or follows a predecessor”; or (2) a “corporation that, through amalgamation, consolidation, or other 

assumption of interests, is vested with the rights and duties 

of an earlier corporation.” 32 The term “assignee” is defined as 

“[s]omeone to whom property rights or powers are transferred 

by another.” 33 However, “[u]se of the term is so widespread 

that it is difficult to ascribe positive meaning to it with any 

specificity.” 34 Here, both parties have focused their arguments 

on whether the Synod was a successor to Pella.

In concluding that the Synod was Pella’s successor per these 

plain definitions, the Synod compares this case to Crumbley v. 

Solomon,

 35 wherein a local church entity known as Franklin 

Tabernacle attempted to withdraw from a larger church entity, 

the Holiness Baptist Association, by a majority vote of its 

members. The opposing members of Franklin Tabernacle and 

trustees of the Holiness Baptist Association sued the withdrawing members to establish a right of the association to 

control local church property. The Crumbley court held that 

the disputed property was being held in trust by Franklin 

Tabernacle for the benefit of the Holiness Baptist Association. 

For that reason, where the deed to property held by the local 

church used the phrase “successors and assigns,” it contemplated that the association was such a successor.

However, the Crumbley decision was based on application 

and interpretation of statutory framework that we do not share 

32 Black’s Law Dictionary 1732 (11th ed. 2019).

33 Id. at 147.

34 Id.

35 Crumbley v. Solomon, 243 Ga. 343, 254 S.E.2d 330 (1979).
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with Georgia and was the result of a very different factual circumstance wherein the two church entities were in disagreement with one another as to the rightful owner of the property. 

In Crumbley, the local church had vested rights in the disputed 

property; here, Pella merely had a contingent interest in the 

trust. The rules of the local church in Crumbley stated that 

all property would be held for the larger entity, regardless of 

the decisions of the local church to leave the larger entity at 

a later time. Here, Pella’s property would pass to the ELCA 

if the congregation was both dissolved and its property was 

undisposed, but Pella otherwise retained a right to deed its 

property to other Lutheran congregations or entities. Crumbley

does not resolve the issues presented here.

Next, the Synod compares this case to Larkin v. City of 

Burlington.

 36 In Larkin, the city entered into a development 

agreement with Northshore concerning undeveloped property. 

A later dispute between the parties was settled pursuant to a 

consent judgment which allowed Northshore to apply for a 

permit seeking no more than 60 residential units on the site 

of the property and which was binding on the successors and 

assigns of Northshore. After Northshore went into foreclosure, the property was sold to the plaintiff landowner, who 

filed for a permit to develop the land pursuant to the consent 

judgment. The Vermont Supreme Court concluded that “[t]he 

boilerplate language ‘successors and assigns,’ when referring to corporations, ordinarily applies only when another 

corporation, through legal succession, assumes the rights and 

obligations of the first corporation.” 37 The development agreement was not binding on the plaintiff landowner because he 

had not assumed the rights and obligations of Northshore 

in developing the premises and was not a continuation of 

Northshore’s corporate entity.

36 Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553 (2001).

37 Id. at 569, 772 A.2d at 557.
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While both parties have focused their arguments here on 

whether the Synod has proved that it assumed any rights and 

obligations of Pella such that Larkin would control the disposition of trust assets one way or another, both parties have 

incorrectly framed the issues presented by this case: When 

Matthews amended her trust, she made a bequest to Pella as 

a charitable organization and specifically allowed that the 

bequest could only be made to Pella, if it continued to exist 

as a charity, or to its charitable successors and assigns, if such 

successor organization was also a charity. The trust did not 

provide rights to a mere corporate successor, and the holdings 

in Larkin regarding corporate successors and assigns distracts 

from the real issue.

Whether the Synod was Pella’s successor for purposes of 

corporate property ownership would answer the question of 

what to do with property owned by or vested in Pella. But 

resolution of that question does not answer what to do where 

a property interest has not yet vested in Pella, as is the case 

here. 38 In order to be entitled to Pella’s share of trust property 

under the terms of the trust, the Synod must prove that it is a 

charitable successor or assign of Pella.

(c) Charitable Successor

[13-15] The primary rule of construction for trusts is that a 

court must, if possible, ascertain the intention of the testator or 

creator. 39 A gift, donation, or bequest by name, without further 

restriction or limitation as to use, to a corporation organized 

and conducted solely for charitable purposes, will be deemed 

to have been made for the objects and purposes for which 

the corporation was organized, and not to the corporation 

38 See In re Trust Created by Haberman, 24 Neb. App. 359, 886 N.W.2d 

829 (2016) (until testator’s death, beneficiary’s interest in trust property is 

merely contingent expectancy).

39 In re Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004).
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itself. 40 The charitable intent of the donor is ascertained by 

reference to the charitable purposes of the donee. 41

Membership in Pella was already waning at the time 

Matthews amended her trust to add the “charitable successors 

and assigns” language, apparently in an effort to avoid complications if Pella ceased to exist either as an entity or as a charity 

prior to Matthews’ death. Through this amendment, Matthews 

established a clear intention to leave money not just to Pella, 

the Salvation Army, or the VNA as corporate entities, but as 

charities which undertook specific charitable purposes. Thus, 

in order to establish a right to Pella’s share of trust property, 

the Synod must prove that it can and will carry on the charitable goals and purposes of Pella.

According to the testimony of Maas, local congregations 

such as Pella are gathered to form their local worshiping 

community. The Synod, on the other hand, is a “district-like 

organization” that oversees as many as 233 congregations 

in Nebraska. According to Maas, members and staff of the 

Synod work to oversee congregations, taking care of paperwork, as well as other legal and administrative matters. Unlike 

the local congregations, the Synod typically holds services 

annually, not weekly. The Synod ultimately functions differently than Pella and does not share the same specific purposes 

which were previously undertaken by Pella, a local congregation of which Matthews was a member. Based on our de novo 

on the record review, we find that the Synod has not proved 

it was a charitable successor and assign of Pella. The Synod’s 

first assignment of error is without merit.

Where the Synod has not proved that it is a charitable successor and assign to Pella, it is not entitled to a share of trust 

40 In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949). Accord 

Root v. Morning View Cemetery Assn., 174 Neb. 438, 118 N.W.2d 633 

(1962).

41 Dept. of Mental Health v. McMaster, 372 S.C. 175, 642 S.E.2d 552 

(2007).
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property; hence, the Synod’s second assignment of error is also 

without merit.

V. CONCLUSION

This court has jurisdiction to adjudicate the issues presented. Resolution of the issues does not require this court to 

resolve any doctrinal matters, and the county court also did not 

make a resolution of any doctrinal matters. The county court 

did not err when it analyzed the issues using the NNCA, nor 

when it concluded that Pella failed to follow its own procedures for dissolution.

Based upon a de novo on the record review of the issues 

presented, we find that the Synod did not prove it was a charitable successor of Pella. The Synod’s assigned errors are without merit. Accordingly, we affirm the decision of the county 

court, which denied the Synod’s complaint in intervention 

and ordered distribution of Pella’s share of trust assets to the 

Salvation Army and the VNA, pro rata, pursuant to the terms 

of the trust.

Affirmed.

Miller-Lerman, J., not participating.