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302 Nebraska Report

IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

In re Trust known as the Maintenance

Sunset Memorial Park Chapel Mau

Company of Scottsbluff, Neb

Bank of the West, formerly known as Th

State Bank and Trust Co., Trustee, appel

cross-appellant, v. Sunset Memori

Cemetery Association, Inc., a

Hughbanks, interested par

appellants and cross-appelle

___ N.W.2d ___

Filed April 19, 2019. No. S-18-517.

1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a party’s case because only a party who has standing may 

invoke the jurisdiction of a court.

2. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

3. 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.

4. Decedents’ Estates: Trusts: Equity: Appeal and Error. The removal 

of a trustee is a question of equity, and therefore an appellate court 

reviews de novo the question of whether a trustee was properly removed.

5. Standing: Words and Phrases. Standing is the legal or equitable right, 

title, or interest in the subject matter of the controversy.

6. Jurisdiction: Standing. The requirement of standing is fundamental to 

a court’s exercise of jurisdiction, and either a litigant or a court before 

which a case is pending can raise the question of standing at any time 

during the proceeding.

Nebraska Supreme Court Online Library

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

05/17/2019 09:07 AM CDT
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

7. Standing: Jurisdiction: Proof. A party invoking a court’s or tribunal’s 

jurisdiction bears the burden of establishing the elements of standing.

8. Standing: Jurisdiction. Standing requires that a litigant have such a 

personal stake in the outcome of a controversy as to warrant invocation 

of a court’s jurisdiction and justify exercise of the court’s remedial powers on the litigant’s behalf.

9. Standing: Claims: Parties. To have standing, a litigant must assert the 

litigant’s own rights and interests, and cannot rest a claim on the legal 

rights or interests of third parties.

10. Trusts. In the case of a special purpose trust, trustees cannot on their 

own decide that carrying out the trust as originally planned has become 

impossible or inexpedient.

11. Trusts: Fees. A trustee will generally not be allowed to resign if the 

terms of the trust agreement, agreed to by the settlor and trustee, became 

inadequate according to the present market value of a trustee’s services.

Appeal from the County Court for Scotts Bluff County: 

James M. Worden, Judge. Affirmed in part, and in part revers

and remanded for further proceedings.

Robert M. Brenner, of Robert M. Brenner Law Office, for 

appellants.

John A. Selzer, of Simmons Olsen Law Firm, P.C., L.L.O., 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Sta

Papik, and Freudenberg

Miller-Lerman

NATURE OF CASE

Bank of the West, formerly known as The Guardian State 

Bank and Trust Co. (Trustee), as trustee for a trust fund created 

for the perpetual care and maintenance of the Sunset Memorial 

Park Mausoleum, petitioned the county court for Scotts Bluff 

County to resign as trustee; to be paid trustee fees, expenses, 

and attorney fees; and to terminate the perpetual care trust due 

to circumstances not anticipated at the time the trust was created. Several objectors opposed terminating the trust, including 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

Myrtle Hughbanks, a person who owns a crypt in the mausoleum, and Sunset Memorial Park Cemetery Association, Inc. 

(Cemetery Association), a nonprofit corporation that owns and 

operates the surrounding cemetery in which the mausoleum is 

located. The county court found that the Cemetery Association 

lacked standing and accepted the resignation of the Trustee. 

The county court ordered the Trustee to pay trustee fees, attorney fees, costs, and expenses incurred during the prosecution 

of the petition, which payments would exhaust the balance of 

the trust fund. The county court denied both parties’ motions 

for attorney fees, and its order did not provide for future 

trust management. The Cemetery Association and Hughbanks 

appealed, and the Trustee cross-appealed. We determine that 

in addition to Hughbanks, the Cemetery Association possesses 

standing, and that the county court’s ruling to the contrary 

was error. Further, because of the perpetual nature of a mausoleum trust, it was error to grant the Trustee’s request for 

resignation and discharge without the Trustee’s having identified and requested the appointment of a successor trustee. 

Accordingly, we affirm the county court’s denial of the parties’ 

motions for attorney fees, but we reverse the order of discharge 

and associated award of fees and remand the cause for further proceedings.

STATEMENT OF FACTS

The issues in this case must be decided by reference to 

the mausoleum-related statutes and the Trust agreement. 

The statutes are found at Neb. Rev. Stat. § 12-601 et seq. 

(Reissue 2012) and include the following language applicable 

to this case.

Section 12-613 provides:

It shall be unlawful for any person, firm, partnership, 

limited liability company, corporation, or association to 

sell, transfer, or assign any niche or crypt in a columbarium or mausoleum without establishing a trust fund for 

the perpetual care and maintenance of such columbarium 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

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or mausoleum as provided by sections 12-603 and 12-606 

to 12-618.

Section 12-614 provides in part:

Any person, partnership, limited liability company, 

firm, corporation, or association which sells, assigns, or 

transfers any crypt or niche in a mausoleum or columbarium shall set aside a sum of not less than fifty dollars 

for each crypt and not less than twenty-five dollars for 

each niche or ten percent of the sale price of each crypt 

or niche whichever sum is the greater.

Section 12-616 provides:

The truste or trustees [of the trust fund] shall have 

the authority to receive gifts or bequests of money and 

other personal property and devises of real estate and 

any interest therein, to be placed in the perpetual care 

fund. The principal of the perpetual care fund shall be 

forever held inviolate as a perpetual trust, by said trustee 

or trustees, and shall be maintained separate and distinct 

from any other funds. The principal of the perpetual 

care fund shall be invested and, from time to time, reinvested and kept invested in securities, authorized by the 

State of Nebraska, for the investment of trust funds, and 

the income earned therefrom shall be used solely for 

the general care, maintenance, and embellishment of the 

mausoleum or columbarium, and shall be applied in such 

manner as the person or persons owning or operating 

the mausoleum or columbarium may, from time to time, 

determine to be for the best interests of such mausoleum 

or columbarium.

Where relevant, we view these specific mausoleum statutes as 

controlling our trust analysis. See Neb. Rev. Stat. § 30-3835 

(Reissue 2016).

This case concerns a perpetual care and maintenance trust 

fund known as the Maintenance Fund of the Sunset Memorial 

Park Chapel Mausoleum Company of Scottsbluff, Nebraska 

(Trust), associated with the Sunset Memorial Park Mausoleum 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

in Scotts Bluff County, Nebraska. The Sunset Memorial Park 

Chapel Mausoleum Company (Mausoleum Company) was created in 1976 as a mausoleum association established as a private corporation under the provisions of § 12-601 et seq. In 

1978, the Mausoleum Company acquired property and built the 

mausoleum building. The mausoleum is located in the Sunset 

Memorial Park Cemetery. The record suggests that ideally, the 

Mausoleum Company would manage and care for the mausoleum building.

The Trust.

As required by statute, the Trust was established for the perpetual care and maintenance of the mausoleum. See §§ 12-613 

to 12-616. On March 28, 1980, the Trust was executed 

between the Mausoleum Company and The Guardian State 

Bank and Trust Co. The Trust agreement provides that the 

trustee includes not only “THE GUARDIAN STATE BANK 

AND TRUST CO., of Alliance, Nebraska . . . but also any 

successor, legal merger, or assignees thereof.”

Several portions of the Trust agreement, reflecting compliance with the mausoleum statutes, are relevant to the 

issues considered at trial. The Trust agreement provides for a 

“SEPARATE PERPETUAL CARE TRUST” account kept apart 

from other funds, “to be forever conserved for the perpetual 

maintenance of [the] mausoleum.” See § 12-613. It provided 

that the principal of the Trust “shall be forever held inviolate 

as a perpetual trust, by the TRUSTEE.” See § 12-616. Income 

earned from investments “shall be used solely for the general 

care, maintenance, and embellishment of the mausoleum.” The 

Trust agreement required the Trustee to pay the net income 

from the Trust semiannually to the “person, firm or corporation, who shall be lawfully in actual possession, management, 

and operation of said mausoleum at the time a particular semiannual payment is due.”

Under paragraph 2(b) of the Trust agreement, the trustee 

shall be “a disinterested trust company organized to do business 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

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in the State of Nebraska.” The trustee “shall derive its authority and be selected by, the officers of the cemetery association, 

in which [the Mausoleum Company] is a part, namely [the] 

Cemetery Association.” Paragraph 12 of the Trust agreement 

provides, in part, that the trustee may resign and discharge 

itself of the duties and obligations of a trustee by applying to 

the court for the appointment of a successor trustee.

Accounting records show that in 1980, the Trust was seeded 

with a $5,000 bond contributed by the Mausoleum Company. 

The total principal contributed to the Trust from the sale of 

niches and crypts or as a gift, devise, or bequest is approximately $7,500.

Mausoleum Decline.

Shortly after the construction of the mausoleum, the 

Mausoleum Company took on debt which it was ultimately 

unable to pay. The Mausoleum Company was forced to 

replace all but one of its trustees, and a company from outside 

of the community took control of the Mausoleum Company 

in an unsuccessful effort to satisfy the debt. The appointed 

trustees continued to operate the Mausoleum Company to a 

point after 1990, and thereafter, the Mausoleum Company 

became inactive. By 2001, several of the officers who had 

been in control of the Mausoleum Company were deceased. 

The accountings of the Trustee show that the last distribution of income to the Mausoleum Company was in 1998 and 

represented the balance of the 1997 income of the Trust. 

The Trustee has made no distributions to the Mausoleum 

Company since 1998. Although the evidence establishes that 

the Mausoleum Company has not been active since July 1, 

1998, the Trust remains in existence.

A new mausoleum association was formed in 1993 in 

an attempt to access the Trust funds, but the new association could not show it was the legal successor to the 

Mausoleum Company and was unable to acquire ownership of 

the mausoleum.
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

Over the years, the administration of the Trust moved from 

one banking entity to another due to name changes and mergers, and it appears undisputed that Bank of the West is now 

serving as Trustee. In recent years, the income from the Trust 

has been insufficient to cover the Trustee’s fees and other 

expenses, and the value of the Trust account has declined. A 

trust officer of the Trustee testified that in his opinion, the 

value of the Trust did not justify the cost of administering the 

Trust and that if the Trust was allowed to continue, it would 

continue to decline in value. The trust officer also testified that 

in his opinion, no other entity would accept the trusteeship of 

the Trust under the present circumstances.

The county court found, and the evidence supports, that the 

mausoleum property was not actively managed and that over 

time, the condition of the mausoleum building deteriorated 

from lack of care and maintenance.

Proceedings to Terminate the Trust.

In 2017, the Trustee filed a petition to terminate the Trust 

due to circumstances not anticipated at the time of the creation 

of the Trust. The petition alleged that the mausoleum was 

abandoned. The Trustee sought authorization from the court 

for the Trust to pay trustee fees, tax preparation expenses, 

and attorney fees. The petition suggested that the Trustee be 

allowed to transfer the remaining assets of the Trust to Scotts 

Bluff County, Nebraska.

An answer to the petition was filed by the Cemetery 

Association that owns and operates the cemetery in which 

the mausoleum building was constructed. The Cemetery 

Association appeared and asserted it had standing because, 

inter alia, the Trust agreement provides in paragraph 2 that it 

selects the Trustee and has served as caretaker of the mausoleum. For completeness, we note that the Cemetery Association 

claims to be the same entity as the Sunset Memorial Park 

Cemetery Association, the latter of which is named in the Trust 

agreement and of which the mausoleum is said to be “a part.” 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

The Cemetery Association asserted various objections and 

affirmative defenses. The Cemetery Association alleged, summarized and restated, that the Trustee violated the Trust and 

Nebraska statutes in various ways and that the Trustee allowed 

niches and crypts to be sold in the mausoleum without recovering money from those sales for the Trust fund. It objected to 

transferring the trust funds to Scotts Bluff County.

Hughbanks also appeared in the case. She appeared for herself as a person who owns a crypt in the mausoleum and for 

her late husband who was entombed there after his death in 

1993. According to the purchase agreement, the purchase price 

of the crypt included funds necessary for a perpetual care trust 

fund. In this regard, we note that paragraph 2(a) of the Trust 

agreement provides that the greater of $50 or 10 percent of the 

sale price of each crypt shall be set aside to the Trust fund, as 

required by statute. See § 12-614. Hughbanks testified that she 

has been active in the Cemetery Association and was an officer of the 1993 association, but that the 1993 association was 

not able to acquire the control of the mausoleum. Hughbanks 

testified that she did not agree with any action which would 

deplete the Trust and did not agree to terminating the Trust or 

transferring it to Scotts Bluff County.

Following a trial, the county court determined that the 

Cemetery Association lacked standing to object to the Trustee’s 

petition. The court reasoned that the Cemetery Association 

did not have a legal interest in the Trust and was merely an 

adjacent landowner. Nonetheless, the county court reviewed 

the Cemetery Association’s claims and found them to be without merit.

With regard to the Trustee’s petition, the county court found 

that “[t]here does not appear to be anything preventing the 

Trustee from resigning and becoming discharged.” It stated that 

“the court finds the Trustee’s request for discharge is granted.” 

It further stated that the “Trustee shall retain authority to 

pay . . . fees, costs, and expenses from the trust property.” It 

found that based on the Trustee’s evidence, attorney fees and 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

expenses for the prosecution of the petition were fair and reasonable. The court otherwise denied both parties’ motions to 

assess attorney fees, costs, and expenses incurred in defending 

the others’ claims. The court stated that “[b]ased upon the current Trust accounting and the above expenses there will not be 

any funds remaining in the trust” and concluded that the court 

need not appoint future trust management. The court denied the 

Trustee’s petition to terminate the Trust. The court ordered that 

the Trustee will be discharged upon filing a final accounting of 

the payments and disbursements.

The Cemetery Association and Hughbanks appealed, and the 

Trustee cross-appealed.

ASSIGNMENTS OF ERROR

The Cemetery Association and Hughbanks claim, summarized and restated, that the county court erred (1) when it found 

that the Cemetery Association lacked standing and (2) and 

when it directed the Trustee to disburse “inviolate” funds to 

itself from the principal of the Trust.

The Trustee assigns in its cross-appeal that the county court 

erred when it failed to (1) order the Cemetery Association to 

pay the Trustee’s attorney fees, costs, and expenses; (2) provide for future trust management; and (3) terminate the Trust.

STANDARDS OF REVIEW

[1,2] Standing is a jurisdictional component of a party’s case 

because only a party who has standing may invoke the jurisdiction of a court. Wisner v. Vandelay Investments, 300 Neb. 825, 

916 N.W.2d 698 (2018). The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion 

independent of the trial court. Id.

[3,4] 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. In re Henry B. Wilson, 

Jr., Revocable Trust, 300 Neb. 455, 915 N.W.2d 50 (2018). 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

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The removal of a trustee is a question of equity, and therefore 

an appellate court reviews de novo the question of whether a 

trustee was properly removed. Id.

ANALYSIS

Standing.

The county court concluded that the Cemetery Association 

lacked standing. Because our review of the record shows the 

Cemetery Association possessed a legal interest in the proceedings under the Trust document, we conclude that the Cemetery 

Association had standing and that the county court’s conclusion to the contrary was error as a matter of law.

[5-9] Standing is the legal or equitable right, title, or interest in the subject matter of the controversy. Wisner v. Vandelay 

Investments, supra. The requirement of standing is fundamental to a court’s exercise of jurisdiction, and either a litigant or 

a court before which a case is pending can raise the question 

of standing at any time during the proceeding. Id. A party 

invoking a court’s or tribunal’s jurisdiction bears the burden of 

establishing the elements of standing. Id. Standing requires that 

a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court’s jurisdiction and 

justify exercise of the court’s remedial powers on the litigant’s 

behalf. Eagle Partners v. Rook, 301 Neb. 947, 921 N.W.2d 98 

(2018). Thus, generally, a litigant must assert the litigant’s own 

rights and interests, and cannot rest a claim on the legal rights 

or interests of third parties. See id.

Under the Trust agreement, the legal relationship between 

the Cemetery Association and the Mausoleum Company is 

intertwined and consistent with the statutory framework establishing mausoleum perpetual care trusts. Under the Trust agreement, the officers of the entity now known as the Cemetery 

Association select the trustee. Paragraph 2(b) of the Trust provides that the trustee “shall derive its authority and be selected 

by, the officers of the [C]emetery [A]ssociation, in which [the 

Mausoleum Company] is a part, namely Sunset Memorial Park 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

Cemetery Association.” This provision mirrors § 12-615(2), 

which provides that “[t]he trustee or trustees [of the mausoleum perpetual care trust], as the case may be, shall be selected 

by the officers of the cemetery association.” The Cemetery 

Association established that it is effectively the successor to 

the originally established association and that therefore, it has 

the authority to select the trustee.

The Trustee’s petition concerns its resignation as the trustee, 

and implicates the selection of a new trustee. The petition 

raises the issue of the potential termination of the Trust itself 

and, given its allegation of abandonment, the potential reversion to Scotts Bluff County. See Neb. Rev. Stat. § 12-701(1) 

(Reissue 2012) (providing upon abandonment of mausoleum 

“[t]he ownership of or right in or to an unoccupied cemetery 

lot or part of a lot in any cemetery in the state shall . . . revert 

to the city, village, township, or cemetery association having 

the ownership and charge of the cemetery containing such lot 

or part of a lot”). The Cemetery Association has a legal interest 

in these matters under the Trust agreement and, accordingly, 

has standing in this case.

Other facts also support our conclusion that the Cemetery 

Association has standing. The mausoleum is located in the 

midst of the cemetery, as required by statute. See § 12-606. 

In the absence of active management of the mausoleum by 

the Mausoleum Company, the Cemetery Association’s agents 

performed maintenance in and around the mausoleum, as the 

county court acknowledged. The threat of reversion concerns 

the Cemetery Association.

The Cemetery Association, responsible for the cemetery, 

is acting in its own interest and is not merely an actor in the 

“‘public interest’” as asserted by the county court and the 

Trustee. See Ponderosa Ridge LLC v. Banner County, 250 

Neb. 944, 554 N.W.2d 151 (1996). Accordingly, the Cemetery 

Association established standing to assert its various arguments 

in the county court and on appeal. The county court erred when 

it concluded otherwise.
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

Cite as 302 Neb. 954

Resignation of Trustee.

The Trustee’s petition sought an order approving the 

accounting of the Trustee, discharging it as trustee, and seeking termination of the Trust. As we explain below, the county 

court erred when it effected the discharge of the Trustee without meeting the terms of paragraph 12 of the Trust agreement 

requiring consideration and evaluation of appointment of a 

successor trustee.

The trust at issue in this case is a trust for a specific noncharitable purpose, i.e., care of the mausoleum, and is subject 

to the mausoleum-related statutes noted above. See Unif. Trust 

Code § 409, comment, 7D U.L.A. 152-53 (2018). The statutes 

applicable to this special purpose trust endeavor to facilitate 

“perpetual care” as opposed to care for a period of years. Id. 

at 153. See §§ 12-613 and 12-616. We take seriously these 

expressions of the Legislature’s intentions to the effect that the 

structure of the Trust fund be preserved. The terms of the Trust 

agreement reflect these objectives.

Resignation of a trustee was contemplated by the Trust 

agreement. Under paragraph 12, a trustee seeking to be discharged from its duties as trustee for the Trust must “apply 

to [the applicable court] for the appointment of a successor 

trustee.” The nature of the Trust, expressed in this language of 

the Trust agreement and in the special statutory framework by 

which it was created, requires that a perpetual care trust have 

a trustee. See § 12-615. We read paragraph 12 to require consideration of an identifiable successor trustee before a current 

trustee may resign from its duties. Allowing a trustee to resign 

without securing a successor trustee or otherwise providing for 

future management is contrary to the intent of the settlors of 

the Trust and § 12-615; such disposition is inconsistent with 

the notion that reasonable steps must be taken to ensure perpetual care. See §§ 12-613 and 12-616.

[10,11] It is generally understood, and we agree, that in 

the case of a special purpose trust, trustees cannot on their 

own decide that carrying out the trust as originally planned 
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

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has become impossible or inexpedient. See George Gleason 

Bogert & George Taylor Bogert, Trusts and Trustees § 435 

(rev. 2d ed. 1991). We find supporting case law for the proposition that a trustee will generally not be allowed to resign if 

the terms of the trust agreement, agreed to by the settlor and 

trustee, became inadequate according to the present market 

value of a trustee’s services. See, In re Loree, 24 N.J. Super. 

604, 95 A.2d 435 (Ch. Div. 1953); Town of Cody v. Buffalo 

Bill Mem., 64 Wyo. 468, 196 P.2d 369 (1948); Empire Trust 

Co. v. Sample, 50 N.Y.S.2d 5 (Sup. 1944); Bogert & Bogert, 

supra, § 515 (rev. 2d ed. 1978). Although in recent years 

the income from the Trust no longer covered or exceeded 

the Trustee’s expenses, the Trustee had accepted the duty of 

administering the Trust with full knowledge of the situation 

and the nature of an inviolate fund and voluntarily assumed 

the duties and obligations of a trustee. The Trust indisputably 

has a lawful, statutorily authorized purpose, and the county 

court must determine how it could continue to serve that purpose. See § 12-613.

The Trustee did not fully comply with paragraph 12 of the 

Trust. Under the circumstances of this case and based on the 

Trust agreement language, the county court abused its discretion when it allowed the Trustee to resign, without providing 

for a successor trustee or future management.

It follows that the county court erred when it awarded the 

Trustee “costs, fees, and expenses incurred as a result of litigation.” Under the circumstances of this case, litigation costs 

incurred by the Trustee’s seeking to be discharged in a manner 

inconsistent with paragraph 12 of the Trust should not have 

been awarded, nor should the Trustee have been paid from the 

inviolate Trust. See Matter of Memory Gardens, 91 A.D.2d 

1163, 458 N.Y.S.2d 737 (1983). We find no error in the denial 

of awards for attorney fees, but set aside all other orders of the 

county court raised in this appeal. In view of our disposition 

of the controlling questions, the issues raised by the Trustee’s 

cross-appeals are moot or without merit.
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IN RE MAINT. FUND TRUST OF SUNSET MEM. PARK CHAPEL

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CONCLUSION

For the reasons explained above, we conclude that the 

Cemetery Association had standing to assert claims in the 

county court and on appeal and that the county court erred 

when it accepted the resignation of the Trustee. The orders 

of the county court denying attorney fees were not erroneous, 

but we set aside all other orders of the county court raised in 

this appeal. We affirm in part, and in part reverse the order 

and remand the cause for further proceedings consistent with 

this opinion.

 Affimed in pat, and in part r

remanded for further proce