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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

In re Henry B. Wilson, Jr., Revoca

Dated June 27, 200

LouAnn Goding, appellant, v. Ro

and Roseann M. Wilson, Cotrustees

Henry B. Wilson, Jr., Revocab

Dated June 27, 2002, appellee

___ N.W.2d ___

Filed July 13, 2018. No. S-15-1014.

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. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.

3. 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.

4. Pleadings. The issues in a given case will generally be limited to those 

which are pled.

5. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

6. Courts: Judgments: Appeal and Error. Upon further review from 

a judgment of the Nebraska Court of Appeals, the Nebraska Supreme 

Court will not reverse a judgment which it deems to be correct simply because its reasoning differs from that employed by the Court 

of Appeals.

Petition for further review from the Court of Appeals, Moore,

Chief Judge, and Riedmann and Bishop, Judges, on a

Nebraska Supreme Court Online Library

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

09/21/2018 09:10 AM CDT
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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

thereto from the County Court for Sherman County, Tami 

Schendt, Judge. Judgment of Court of Appeals affirm

Nicole Seckman Jilek, Robert M. Schartz, and Thomas J. 

Malicki, of Abrahams, Kaslow & Cassman, L.L.P., and, on 

brief, Jeffrey J. Blumel, for appellant.

Larry W. Beucke, of Parker, Grossart, Bahensky, Beucke, 

Bowman & Symington, L.L.P., and Sheila A. Bentzen and 

Anthony M. Aerts, of Rembolt Ludtke, L.L.P., for appellees.

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

Papik, JJ., and Vaughan, District J

Funke, 

This matter concerns the administration of the “Henry B. 

Wilson, Jr., Revocable Trust Dated June 27, 2002” (Henry’s 

Trust or Trust), and the related issue of the administration of 

three subtrusts created by Henry’s Trust upon his death. Henry 

B. Wilson, Jr.’s daughter, Lou Ann Goding (Lou Ann), filed 

suit, asserting the mismanagement of Henry’s Trust, and following a trial, the county court for Sherman County removed 

the cotrustees of Henry’s Trust. Lou Ann appealed, asserting 

several errors, including that the county court failed to remove 

the cotrustees of her subtrust.

In a memorandum opinion, the Nebraska Court of Appeals 

interpreted the county court’s order to have removed the 

cotrustees of Lou Ann’s subtrust and concluded that there 

was no error in need of correction.1 Upon further review, we 

determine the Court of Appeals erred in interpreting the county 

court’s order to have removed the cotrustees of the subtrusts. 

However, our ultimate conclusion on the judgment is the same. 

Therefore, although our reasoning differs from that of the 

Court of Appeals, we affirm.

1 See In re Henry B. Wilson, Jr., Revocable Trust, Nos. A-15-1014, 

A-15-1015, 2017 WL 5608085 (Neb. App. Nov. 21, 2017) (selected for 

posting to court website).
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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

BACKGROUND

Henry died on December 23, 2010. He was preceded in 

death by his wife, Eleanor Wilson, and was survived by three 

adult children, Lou Ann, Roseann Wilson, and Roger Wilson. 

During their lifetimes, Henry and Eleanor created an estate 

plan which included revocable trusts and pour-over wills. After 

Henry’s death, Roseann and Roger were named successor 

cotrustees of Henry’s Trust and copersonal representatives of 

Henry’s estate.

The documents for Henry’s Trust and Eleanor’s trust provided that upon the death of the last surviving spouse, real 

property interests within each trust were to be distributed to 

three separate and unequal subtrusts in the name of each of 

their children: the “Lou Ann Goding Trust,” the “Roger A. 

Wilson Trust,” and the “Roseann M. Wilson Trust.” Henry’s 

Trust and Eleanor’s trust also distributed the residue of their 

respective trusts in equal shares to their three children. The 

three separate and unequal subtrusts had identical language 

regarding trust management. In relevant part, the instructions 

for the Lou Ann Goding Trust directed the trustee of the subtrust, “Until the death of my said daughter, LOUANN [sic] 

GODING, the trustee shall pay the net income from the trust in 

convenient installments (at least annually) to my said daughter 

so long as my said daughter shall live.”

At the time of Henry’s death, Henry’s Trust owned approximately 4,200 acres of land. In accordance with the Trust’s 

language, in December 2011, the successor trustees transferred 

real estate previously owned by Henry’s Trust and Eleanor’s 

trust to the three subtrusts. However, no other steps were 

taken to administer the three subtrusts, such as opening separate bank accounts, obtaining federal tax identification numbers, or filing tax returns. The cotrustees continued to operate 

Henry’s Trust for convenience as opposed to separately operating the subtrusts.

An estate proceeding was opened in county court to address 

assets that were not identified in Henry’s Trust, did not have 
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300 Nebraska Report

IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

a beneficiary, or were not payable on death to the Trust. An 

estate inventory was filed on December 28, 2011, and an 

inheritance tax worksheet and receipt were all signed “right at 

the end of December.” According to the attorney who prepared 

Henry’s estate plan and drafted Henry’s will and Henry’s Trust, 

the estate was ready to close at that point, but it had not been 

closed because of the pending litigation.

In separate cases, Lou Ann filed petitions for the removal of 

Roseann and Roger as copersonal representatives of Henry’s 

estate and cotrustees of Henry’s Trust, and the matters were 

consolidated for trial.

County Cour

In the trust case, the county court concluded that Roseann 

and Roger had breached their fiduciary duties as cotrustees 

of Henry’s Trust, under Neb. Rev. Stat. § 30-3875 (Reissue 

2016), by failing to keep accurate records, commingling assets, 

and not keeping the cotrustees’ property separate from Henry’s 

Trust property. The court also found the cotrustees breached 

their fiduciary duties under Neb. Rev. Stat. § 30-3878 (Reissue 

2016) by failing to keep beneficiaries of the Trust reasonably 

informed about the administration of the Trust and of the material facts necessary for them to protect their interests. Finally, 

the county court determined the cotrustees breached their fiduciary duties by using the Trust assets to pay for personal 

expenses, failing to maintain the subtrusts created by Henry’s 

Trust as separate trusts, and failing to pay the income from the 

Trust to Lou Ann.

The county court found the foregoing breaches qualified 

as serious breaches under Neb. Rev. Stat. § 30-3862 (Reissue 

2016) and that it was in the best interests of the administration of the Trust to remove Roseann and Roger as cotrustees 

of Henry’s Trust. The county court removed the cotrustees 

(except for their duty to provide an accounting), ordered an 

accounting, surcharged the cotrustees $73,675.88 for payments 

made from the assets of the Trust for personal expenses and 
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

expenses that were not the responsibility of the Trust, and 

awarded attorney fees in the amount of $20,000 in favor of 

Lou Ann and against the cotrustees, jointly and severally. The 

court also appointed an attorney as a successor trustee.

In the estate case, the county court found that under the 

terms of Henry’s will, any residue of Henry’s estate poured 

over into the Trust and that the Trust was the only beneficiary 

of the estate. As a result, the court found that all of Lou Ann’s 

claims for unaccounted property and for damages were claims 

for the Trust administration and not the estate proceeding.

Accordingly, the county court dismissed Lou Ann’s petition for the termination of appointment and the removal of the 

copersonal representatives, appointment of a successor personal representative, an accounting, and a surcharge. The court 

also overruled Lou Ann’s objection to the inventory. The court 

ordered the copersonal representatives to file a final accounting, a schedule of distribution, and a formal petition for complete settlement of the estate within 30 days.

Court of Appeal

Lou Ann assigned 14 errors to the county court’s order, 

consolidated and restated as follows: As to the Trust case, 

Lou Ann assigned that the court erred in (l) failing to surcharge Roseann and Roger for various amounts paid from the 

Trust, (2) making a mathematical error in the total surcharge 

amount ordered, (3) failing to remove Roseann and Roger as 

cotrustees of her subtrust, (4) failing to award amounts due 

to Lou Ann under the Trust, (5) excluding certain testimony 

and exhibits, (6) making an insufficient award of attorney 

fees and costs, and (7) ordering beneficiaries of the Trust to 

pay the successor trustee’s fee if there are insufficient assets 

in the Trust. As to the estate case, Lou Ann assigned that 

the court erred in (1) failing to remove Roseann and Roger 

as copersonal representatives of the estate, (2) not assessing 

a surcharge, and (3) overruling Lou Ann’s objection to the 

estate’s inventory.
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300 Nebraska Report

IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

Upon considering each of Lou Ann’s assignments of error, 

the Court of Appeals modestly increased the surcharge to the 

cotrustees for amounts paid from the Trust, but affirmed the 

county court’s order in all other respects. The court further 

determined that the county court’s removal of Roseann and 

Roger as cotrustees and appointment of a successor trustee 

applied to Henry’s Trust and Lou Ann’s separate subtrust and 

that therefore, no correction was needed.

In doing so, the Court of Appeals relied on language from 

the trial court’s order which stated that the cotrustees breached 

their fiduciary duties by “failing to maintain the sub trusts created by the Trust as separate trusts and by failing to pay the 

income from the Trust to Lou Ann.” The Court of Appeals 

determined that “[a]lthough the county court was unwilling 

to consider evidence specific to the administration of the subtrusts, its conclusion that the cotrustees should be removed as 

cotrustees stemmed from breaches of their fiduciary duties to 

Henry’s Trust and their responsibilities to the subtrusts.”2

The Court of Appeals further noted that the plain language 

of Henry’s Trust did not distinguish between the trustee of the 

Trust and the subtrusts and that when referencing the subtrusts, 

the document states that “‘[t]he trustee shall hold, administer, 

and distribute all of the trustee’s right, title, and interest in 

and to the following described real property.’”3 In addition, 

the court noted that there were no separate appointment procedures or processes related to the subtrusts.

Consequently, the Court of Appeals determined that the 

county court’s removal of Roseann and Roger as cotrustees and 

appointment of a successor trustee applied to Henry’s Trust 

and to Lou Ann’s separate subtrust.

ASSIGNMENTS OF ERROR

Roseann and Roger petitioned for further review of the trust 

case only. They assign, restated, that the Court of Appeals 

2 Id. at *9.

3 Id. at *10.
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

erred (1) in interpreting the county court’s order to mean that 

the removal of Roseann and Roger as cotrustees and appointment of a successor trustee applied to Henry’s Trust and 

Lou Ann’s separate subtrust; (2) by exceeding its authority, 

because the issue of removing the cotrustees of Lou Ann’s 

subtrust was not before or considered by the county court; 

and (3) in considering Lou Ann’s assignment of error that the 

county court failed to remove Roseann and Roger as cotrustees of her subtrust, because that issue was raised for the first 

time on appeal.

STANDARD OF REVIEW

[1-3] 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 When reviewing a judgment for errors appearing on the record, the inquiry is whether 

the decision conforms to the law, is supported by competent 

evidence, and is neither arbitrary, capricious, nor unreasonable.5

 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.6

ANALYSIS

Roseann and Roger argue the Court of Appeals’ reading of 

the county court’s order with respect to Lou Ann’s subtrust 

is incorrect. They contend that the county court’s order provided a clear statement that “[t]he administration of the sub 

trusts [is] not an issue properly before this Court” and that 

Lou Ann’s petition concerned only Henry’s Trust and did not 

4 In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018); In re Estate of 

Radford, 297 Neb. 748, 901 N.W.2d 261 (2017); In re Estate of Robb, 21 

Neb. App. 429, 839 N.W.2d 368 (2013).

5 In re Estate of Hasterlik, 299 Neb. 630, 909 N.W.2d 641 (2018); In re 

Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

6 See In re Estate of Robb, supra note 4.
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

include any allegations about the subtrusts or request that the 

cotrustees be removed from the subtrusts.

Lou Ann argues that Roseann and Roger are the cotrustees 

of all of the trusts and that “the Court of Appeals did not misinterpret the trial court order as removing Roseann and Roger 

as cotrustees of the subtrusts.”7 Lou Ann contends that the 

cotrustees had notice that the administration of the subtrusts 

was at issue, because a single document created Henry’s Trust 

and the subtrusts and because Lou Ann attached the document to her petition. She argues the evidence showed that the 

cotrustees commingled the affairs of Henry’s Trust and the 

subtrusts and treated them as one trust. Lou Ann claims the 

Court of Appeals merely affirmed the county court’s order and 

“made no change to the trial court order” and “did not modify 

the county court’s order in any manner.”8

We are mindful that, with respect to this narrow issue, Lou 

Ann took a contrary position in her appeal from the county 

court. In her appellate brief, Lou Ann argued that “the trial 

court failed to remove the Co-Trustees as trustees from the Lou 

Ann Trust”9 and assigned as error that “[t]he trial court erred 

in failing to remove the Co-Trustees as trustees of the Lou 

Ann Trust sub-trust . . . .” It is thus apparent that prior to the 

Court of Appeals’ opinion, Lou Ann believed that the county 

court did not remove the cotrustees of her subtrust, and thus, 

she requested the Court of Appeals to grant her relief that the 

county court did not grant.

We agree with Roseann and Roger that the Court of Appeals’ 

interpretation that the county court’s order removed the cotrustees of Lou Ann’s subtrust was incorrect. The petition filed 

by Lou Ann identifies Roseann and Roger as the cotrustees 

of Henry’s Trust. Further, the petition seeks the removal of 

Roseann and Roger as cotrustees. However, the pleadings 

7 Brief for appellant in response to petition for further review at 4.

8 Id. at 2 and 3.

9 Brief for appellant at 41-42.
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

make no reference to the subtrusts created by Henry’s Trust or 

to the removal of the cotrustees of the subtrusts.

[4] The issues in a given case will generally be limited to 

those which are pled.10 Lou Ann did not amend her petition 

prior to trial or during trial to raise the claim of the removal of 

the cotrustees of her subtrust, and the county court made the 

following specific finding:

Roseann . . . and Roger . . . are the Co-Trustees of the . . . 

Trust . . . . The Co-Trustees have administered the Trust 

and sub-trusts created by the Trust since Henry[’s] Death 

on December 23, 2010. The real estate that [Henry] had 

transferred to the Trust prior to his death was deeded by 

the Co-Trustees to the sub trusts on December 23, 2011. 

The administration of the sub trusts are not an issue properly before this Court.

In addition, throughout the trial, the court excluded evidence regarding the administration of the subtrusts as going 

beyond the petition. For example, the court sustained objections to testimony on issues such as how the cotrustees might 

have damaged Lou Ann’s subtrust and the extent of such damage. In one instance, Lou Ann sought to introduce evidence 

of the reasonable rental rates for a piece of land that was 

deeded to Lou Ann’s subtrust. The court sustained Roseann 

and Roger’s objection and limited the questioning to the time 

period when Henry’s Trust owned the land. The court agreed 

that Henry’s Trust did not own the land after the transfer in 

2011 and excluded evidence of income generated in 2012 

through 2014.

The county court’s order further stated that “the Co-Trustees 

Roseann . . . and Roger . . . are removed as trustees of the . . . 

Trust.” Thus, the county court determined that Lou Ann had 

not sufficiently pled the issue of removing the cotrustees of 

Lou Ann’s subtrust prior to trial. On appeal, Lou Ann requested 

10 See In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 

(2017).
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

that the Court of Appeals remove the cotrustees of her subtrust 

de novo, but the Court of Appeals did not do so. The Court of 

Appeals found no error in need of correction, and Lou Ann did 

not file a cross-petition for further review.

We also find persuasive Roseann and Roger’s argument 

that the Court of Appeals’ interpretation creates an ambiguity 

which leaves in limbo the status of the cotrustees of their own 

respective subtrusts.

Lou Ann now argues the Court of Appeals limited its decision to only remove the cotrustees from Henry’s Trust and 

her subtrust. In support of this contention, she references the 

Court of Appeals’ statement that the “county court’s removal 

of Roseann and Roger as cotrustees and appointment of a 

successor trustee applied to Henry’s Trust and Lou Ann’s 

separate subtrust.”11 However, the Court of Appeals also 

stated that “the court’s removal of the cotrustees necessarily 

applied to Roseann and Roger as cotrustees of the Trust and 

the subtrusts.”12

As noted, in response to Roseann and Roger’s petition 

for further review of the trust case, Lou Ann took the position that the trial court order removed Roseann and Roger 

as cotrustees of all of the subtrusts. Moreover, Lou Ann 

filed a supplemental brief pursuant to Neb. Ct. R. App. P. 

§ 2-102(H) (rev. 2015) which stated that the “Court of 

Appeals did not misinterpret the county court’s order with 

respect to the removal of the cotrustees of the subtrusts.”13

Therefore, the Court of Appeals’ opinion does indeed create an ambiguity with respect to Roseann’s and Roger’s 

subtrusts, and it granted Lou Ann relief beyond what she 

had elected.

11 In re Henry B. Wilson, Jr., Revocable Trust, supra note 1, 2017 WL 

5608085 at *10 (emphasis supplied).

12 Id. at *9 (emphasis supplied).

13 Supplemental brief for appellant in response to petition for further review 

at 3 (emphasis supplied) (see § 2-102(H)).
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IN RE HENRY B. WILSON, JR., REVOCABLE TRUST

Cite as 300 Neb. 455

[5] Upon further review, we find the county court did not 

remove Roseann and Roger as cotrustees of the subtrusts. 

Therefore, the Court of Appeals’ interpretation of the county 

court’s order on this narrow issue was made in error. Because 

we find merit to Roseann and Roger’s first assignment of 

error, we need not address their remaining assignments of 

error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy 

before it.14

[6] While our reasoning differs from that employed by the 

Court of Appeals, our ultimate conclusion that the county court 

did not err is the same. Upon further review from a judgment 

of the Court of Appeals, this court will not reverse a judgment 

which it deems to be correct simply because its reasoning differs from that employed by the Court of Appeals.15

CONCLUSION

The county court’s determination that the administration of 

the subtrusts was not an issue properly before the county court 

was not in error. The Court of Appeals erred in its decision in 

the trust case when it concluded that the county court removed 

Roseann and Roger as cotrustees of Lou Ann’s subtrust and 

appointed a successor trustee.

Affirme

14 Nesbitt v. Frakes, ante p. 1, 911 N.W.2d 598 (2018).

15 State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).