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In re Trust Created by Henr

Augustin, decea

Scott Augustin, appellee, v. Kirtus 

Trustee, appellant, and 

Augustin, appell

In re Trust Created by Norval 

Augustin, decea

Scott Augustin, appellee, v. Rock

and Kirtus Augustin, individu

Cotrustees, appellants

In re Trust Created by Henr

Augustin, decea

Kirtus Augustin, Trustee, appell

Rocky Augustin, appellee, v

Augustin, appell

In re Trusts Created by Elnora Augu

Norval H. Augustin, dece

Kirtus Augustin and Rocky Augusti

and as Cotrustees, appellants, v. S

Augustin, individuall

Cotrustee, appellee.

___ N.W.2d ___

Filed September 24, 2019. Nos. A-16-1182 through A-16-1185.

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.

Nebraska Supreme Court Online Library

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

09/24/2019 09:06 AM CDT
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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. 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.

4. Wills: Trusts. The interpretation of the words in a will or a trust presents a question of law.

5. Trusts. Removal of a trustee under the Nebraska Uniform Trust Code is 

a special proceeding and affects a substantial right.

6. Parties: Words and Phrases. Necessary parties are parties who have 

an interest in the controversy, and should ordinarily be joined unless 

their interests are separable so that the court can, without injustice, 

proceed in their absence. Indispensable parties are parties whose interest 

is such that a final decree cannot be entered without affecting them or 

that termination of controversy in their absence would be inconsistent 

with equity.

7. Parties. The inclusion of a necessary party is within the trial court’s 

discretion. However, there is no discretion as to the inclusion of an 

indispensable party.

8. Parties: Words and Phrases. All persons interested in the contract or 

property involved in an action are necessary parties, whereas all persons 

whose interests therein may be affected by a decree in equity are indispensable parties.

9. Jurisdiction: Parties: Waiver. The absence of an indispensable party to 

a controversy deprives the court of subject matter jurisdiction to determine the controversy and cannot be waived.

10. Trusts: Jurisdiction: Parties. A court does not have subject matter 

jurisdiction over a request to terminate a trust or remove a trustee in the 

absence of an indispensable party.

11. Equity. Under the doctrine of unclean hands, a person who comes into 

a court of equity to obtain relief cannot do so if he or she has acted 

inequitably, unfairly, or dishonestly as to the controversy in issue.

12. Trusts. A trust terminates at the time at which it becomes the duty of the 

trustee to wind up administration of the trust, and not at the time when 

that winding up period is actually accomplished.

13. Trusts: Time. The Nebraska Uniform Trust Code provides statutory 

options for a trustee to seek relief during the winding up period following the expiration or termination of a trust by its own terms.

14. Trusts. Regardless of how a trust may terminate, Neb. Rev. Stat. 

§ 30-3836(b) (Reissue 2016) authorizes a trustee or beneficiary to 
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commence a proceeding to approve or disapprove a proposed modification or termination under Neb. Rev. Stat. §§ 30-3837 to 30-3842 

(Reissue 2016).

15. Trusts: Courts: Equity: Jurisdiction. County courts may apply equitable principles to matters within probate jurisdiction, including trusts, 

and such courts have full power to make orders, judgments, and decrees 

and to take all other actions necessary and proper to administer justice 

in the matters which come before them.

16. Trusts: Time. The period for winding up the trust is the period after 

the time for termination of the trust has arrived and before the trust is 

terminated by the distribution of the trust property.

17. Trusts: Intent. The objective of the rule allowing judicial modification 

or deviation and the intended consequences of its application are not to 

disregard the intention of a settlor. The objective is to give effect to what 

the settlor’s intent probably would have been had the circumstances in 

question been anticipated.

18. Trusts: Courts. The Nebraska Uniform Trust Code allows a beneficiary 

or trustee to petition a county court to consider modification or termination of a trust which has expired or terminated pursuant to its own terms 

but remains in the winding up period, including the possible modification of or deviation from dispositive terms.

19. Trusts. When a trustee unduly delays distributions from a trust, the 

trustee has breached a duty of care owed to a beneficiary, and the violation of that duty is a breach of trust.

20. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

21. Trusts. A trust which is revocable when made remains revocable during 

the settlor’s lifetime; however, a revocable trust necessarily becomes 

irrevocable upon the settlor’s death.

22. Trusts: Courts. Neb. Rev. Stat. § 30-3837 (Reissue 2016) authorizes 

a court to modify a trust without the consent of all beneficiaries, but 

it can only do so if the modification is not inconsistent with a material purpose of the trust and any nonconsenting beneficiary would be 

adequately protected.

23. Trusts: Courts: Equity. Neb. Rev. Stat. § 30-3838 (Reissue 2016) 

broadens the court’s ability to apply equitable deviation to modify 

a trust.

24. Trusts: Courts: Equity: Intent. The application of equitable deviation 

allows a court to modify the dispositive provisions of a trust as well 
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as its administrative terms. The purpose of equitable deviation is not 

to disregard the settlor’s intent but to modify inopportune details to 

effectuate better the settlor’s broader purpose.

25. Trusts: Intent. Under the equitable deviation doctrine, the objective is 

not to disregard the intention of the settlor, but to give effect to what 

the settlor’s intent probably would have been had the circumstances in 

question been anticipated.

Appeals from the County Court for Polk County: Steph

R.W. Twiss, Judge. Affirmed in part, vacated in part, and in p

reversed and remanded for further proceedings.

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

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

appellants.

Jacqueline M. Tessendorf and Ryan G. Tessendorf, of 

Tessendorf and Tessendorf, P.C., for appellee Scott Augustin.

Riedmann and Bishop, J

Bishop, Judg

I. INTRODUCTION

Brothers Kirtus Augustin and Rocky Augustin were opposing parties to their younger brother, Scott Augustin, in five 

separate lawsuits filed in the county court for Polk County. 

Scott was the initiator of two actions in which he sought to terminate family trusts, remove the trustees, order an accounting, 

and have certain farmland distributed in accordance with specific language in the trusts and their father’s will. Kirtus and 

Rocky were the initiators of two actions in which they sought 

to modify the trusts based on an alleged agreement between the 

brothers to preserve the farmland in the trusts or in a business 

entity for another 10 years so they could continue their joint 

farming operation or, alternatively, to distribute the farmland 

in separate parcels in fee simple title rather than as tenants in 

common. They filed a separate action seeking amounts due 

from Scott for his share of costs associated with the joint farming operation.
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Kirtus and Rocky appeal from the county court’s decision 

as to four of those actions, in which the county court concluded in each case that (1) the trusts had terminated by their 

own terms upon the death of the brothers’ father; (2) there 

was insufficient evidence to modify the trusts, and further, 

the brothers’ sister, Pamela Shorney (Pamela), was a necessary party for any modification action; (3) Scott did not file 

his actions with unclean hands; (4) there was no agreement 

to continue the farming operation another 10 years; (5) there 

was a breach of trust by the trustees; (6) it was necessary to 

remove the trustees, order an accounting, and appoint a successor trustee; and (7) statutory language permitted the trustees 

to allocate the property other than as tenants in common, but 

there was insufficient evidence to approve the division of the 

disputed farmland as proposed by Kirtus and Rocky.

The five lawsuits were consolidated for trial, and the four 

appeals have been consolidated for disposition in this court. We 

affirm in part, vacate in part, and in part reverse and remand 

for further proceedings.

II. BACKGROUND

Kirtus, Rocky, and Scott farmed with their father, Norval 

H. Augustin, until his death in April 2010, and they maintained a joint farming operation for a period of time thereafter. 

Norval’s father, Henry F. Augustin, died in 1989, and Norval’s 

wife, Elnora Augustin, died in 2001. In addition to their own 

separate properties, the brothers jointly farmed over 500 acres 

of land held in the trusts established by their grandfather and 

their parents. Scott, the youngest of the brothers, wanted to 

farm independently of his brothers following their father’s 

death; he wanted the farmland that had been held in trust for 

the three brothers to be distributed so that he could do that. 

However, Kirtus and Rocky wanted to continue the joint 

farming operation and leave the real property at issue in the 

trusts or hold it in a separate business entity for another 10 

years. Alternatively, rather than distribute the farmland to the 
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brothers as tenants in common as indicated in the trusts and by 

appointment in their father’s will, they wanted to distribute the 

disputed farmland in separate parcels titled in fee simple and 

equitably allocate those parcels between them. In July 2015, 

after further problems developed between the brothers, the 

underlying lawsuits were filed. Their sister, Pamela, was not 

named as a party in any of the litigation, nor did she participate in the consolidated trial. Kirtus, Rocky, Scott, and Pamela 

will be collectively referred to as “the siblings.”

1. Trust

The trusts involved in the present appeals are (1) the grandfather’s trust, titled the “Henry F. Augustin Revocable Trust 

(Amended and Restated),” executed on January 7, 1980, and 

amended on December 30, 1981, and June 7, 1987 (Henry 

Trust); (2) the father’s trust, titled the “Norval H. Augustin 

Amended and Restated Revocable Trust,” executed on January 

27, 1993, and amended on March 8, 1995, and August 25, 

1999 (Norval Trust); and the mother’s trust, titled the “Elnora 

Augustin Amended and Restated Revocable Trust,” dated 

January 27, 1993 (Elnora Trust).

(a) Henry Trust

Kirtus is the sole trustee of the Henry Trust; the siblings 

are beneficiaries of this trust. The real estate in the Henry 

Trust relevant here includes an 80-acre parcel (Henry 80) 

and a 160-acre parcel. The Henry Trust authorized Norval 

to exercise a limited power of appointment with regard to 

these properties, which Norval did through his “Last Will 

and Testament of Norval H. Augustin” and his “First Codicil 

to Will of Norval H. Augustin” (First Codicil). In the First 

Codicil, Norval “appoint[ed] the entire interest . . . in the real 

property legally described as [the Henry 80] in equal shares, 

outright and free of trust, to my three sons, KIRTUS, ROCKY 

and SCOTT . . . , or their issue per stirpes.” Norval then 

appointed the 160-acre parcel to Kirtus and Pamela as trustees, 

with the property to be held for Pamela’s benefit during her 
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lifetime, and upon her death, the land would be transferred in 

equal shares to her then-living issue. Norval further authorized 

Kirtus and Pamela to distribute the 160-acre property outright 

and free of trust to Pamela if they, as trustees of that parcel, 

determined the trust was no longer necessary, appropriate, or 

in Pamela’s best interests, and “the trust shall thereupon terminate.” The 160-acre parcel was not at issue in the underlying proceedings, and only the Henry 80 in which the brothers 

were given equal shares, “outright and free of trust,” was at 

issue. The Henry 80 is immediately south and adjacent to 

another 80-acre parcel contained in the Norval Trust and the 

Elnora Trust. The parties referred to the Henry 80 and the 80 

acres immediately north of it as the “Homeplace”; however, 

our reference to the Homeplace will mean the 80 acres contained only in the Norval Trust and the Elnora Trust.

(b) Norval Trust and 

Elnora Trust

The Norval Trust and the Elnora Trust were mirror trusts, 

meaning the language in the trusts was identical except for 

one referencing Norval and the other referencing Elnora. 

Each trust contained an undivided one-half interest in the 

real property at issue here, separate from the Henry 80. Upon 

the death of the first spouse (in this case, Elnora), two trusts 

were created for the surviving spouse (Norval): “The Marital 

Trust” and “The Family Trust.” The Marital Trust was to be 

composed of cash, securities, and other property having a 

value equal to the maximum marital deduction, but adjustable 

for other tax purposes. The Family Trust was to consist of the 

balance of the trust estate after assets were selected for The 

Marital Trust. The surviving spouse was to receive all the net 

income from The Marital Trust. The surviving spouse also had 

the authority to reach the principal in the trust, as well as withdraw all or part of the principal in The Marital Trust. Upon the 

surviving spouse’s death, the entire remaining principal of The 

Marital Trust was to be paid over, conveyed, and distributed 
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in the manner the surviving spouse may have appointed in his 

or her will. If the power of appointment was not exercised, 

then the entire remaining principal of The Marital Trust was 

to be used to first pay taxes from the increased value resulting 

from the inclusion of The Marital Estate assets in the surviving spouse’s estate, and the balance was to be added to and 

become part of The Family Trust; it was to be administered as 

if it had been an original part of The Family Trust. The Family 

Trust was to be held for the benefit of the surviving spouse 

and the children primarily for medical care, education, support, and maintenance. Upon the surviving spouse’s death, the 

entire remaining principal of The Family Trust was to be paid 

over, conveyed, and distributed in accordance with the surviving spouse’s power of appointment in his or her will, and any 

remaining property was to be distributed as set forth thereafter, which we address below. The three brothers were named 

cotrustees of the trusts; and according to the trusts, “the vote 

of the Trustees for any action . . . must be by majority action 

of the Trustees.” The siblings are all remainder beneficiaries 

under the trusts, but only the brothers are beneficiaries of the 

farmland at issue.

The parties referred to the disputed farmland as “Big Jisa,” 

“Little Jisa,” “Homeplace,” and “Staroscik.” These four properties are all located in Polk County, Nebraska, on two sections of land (Section 6 and Section 7). Section 6 is directly 

north of Section 7. Big Jisa consists of 160 acres in the 

northwest quarter section of Section 6. Little Jisa consists of 

80 acres immediately south of Big Jisa. Staroscik consists of 

the northwest quarter (160 acres) of Section 7; Kirtus lives in 

the southwest corner of Staroscik. The Homeplace consists of 

80 acres located in the north half of the southeast quarter of 

Section 7. As previously noted, the Henry 80 is immediately 

south of the Homeplace. And although not at issue here, there 

are another 80 acres immediately north of the Homeplace 

owned by RKS Farms, Inc., a company owned by the brothers 

for the purpose of running their joint farming operation.
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The Norval Trust and the Elnora Trust provided each of the 

siblings with specific parcels of real property: Kirtus received 

a small tract of land on Staroscik, Rocky received a small 

tract of land on Little Jisa, and Scott received land separate 

from the trust ground at issue which, according to Scott, was 

“roughly a mile and a half” south of the Homeplace. Pamela 

was also granted an acre of land. The trusts then directed that 

“[a]ll other farmland held by the Trust shall be distributed 

to the three sons of the Grantor in equal shares as tenants in 

common.” Each trust then states, “The remainder of the Trust 

property shall be distributed in equal shares to the Grantor’s 

children, outright and free of trust.” There is nothing in the 

record to indicate that prior to his death, Norval exercised 

any power of appointment granted to him with regard to the 

Elnora Trust. Therefore, the terms of the Elnora Trust and the 

terms of the Norval Trust control the distribution of the disputed farmland.

2. July 2011 Meet

On June 15, 2011, attorney Richard A. DeWitt sent the brothers a letter regarding “Norval Augustin Trust Administration.” 

The letter described the remaining steps to finalize the inheritance tax process and inquired about the division of personal 

property. DeWitt indicated that “[u]pon completion of these 

items, administration of the Trust can be completed and the 

Trust assets (basically farmland) can be distributed.” The letter goes on to state, “As written, the Trust provides for distribution of farmland to each of you in undivided one-third 

interests.” DeWitt recommended either the brothers divide the 

farmland into separate parcels such that each brother would 

own 100 percent of his parcel or, alternatively, the brothers 

could form a limited liability company with equal interests and 

the farmland could be transferred into that company. DeWitt 

reminded the brothers that as trustees, they each had an equal 

say in the administration of the trust, and that decisions could 

be made by a “two-thirds majority vote.”
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The brothers and their wives met at DeWitt’s office on July 

12, 2011. According to Scott, after some initial small talk 

about “dishes and stuff,” Scott brought up getting the land 

out of the trust and splitting it up, and “they immediately got 

hostile about that and we were arguing about that back and 

forth.” Scott claimed that Rocky “slid . . . over this LLC, 

which we knew nothing about,” and Rocky told them they 

had to sign it. Scott said he told them he and his wife would 

not sign it but would take it home and take it to their lawyer 

to look over. Meanwhile, they continued to talk about “the 

LLC” and what they wanted in it. Scott acknowledged that 

his brothers expressed wanting to continue farming the trust 

ground for 10 years, but at no time did Scott agree to farm 

together for another 10 years. Kirtus testified that Scott and 

Scott’s wife said they wanted to farm for 5 more years and 

then retire; Kirtus told them he wanted to farm for 20 years. 

Kirtus proposed that they go with a 10-year agreement, and he 

testified that he believed Scott agreed with farming 10 years 

before splitting up the trust ground. According to Kirtus, “We 

was going to continue farming for ten more years and then 

after the ten years, we was going to divide the ground up and 

the machinery. That is what I believed when we walked out 

of that door.” Rocky testified that “Kirt[us] stood up and he 

come up with an idea of wanting to farm for 20 years, but that 

was too much. So, we come up with a plan of doing it for ten 

years. And everyone in there did agree to this.” Both of the 

older brothers acknowledged that there was nothing in writing 

about a 10-year agreement.

According to DeWitt, there were two areas of discussion 

at the July 2011 meeting in his office: finalizing the division 

of tangible personal property and “what [were] we going to 

do with the land going forward.” DeWitt recalled that Scott 

expressed a desire to farm independently and farm with his 

son. Scott wanted to have “individual ownership of his share 

of the farmland.” Kirtus and Rocky were concerned that doing 

that would “force them out of farming, because there wouldn’t 
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be economical units left if there was a forced breakup at that 

time.” There was then discussion of “when would they be ready 

to retire.” Kirtus said in maybe 20 years, and “Scott said that’s 

too long. And then ten years was suggested.” DeWitt recalled 

that Scott said “he could live with ten” and that “Rocky and 

Kirtus said they could live with ten.” DeWitt believed the three 

brothers had reached an agreement to continue farming for 

10 years and then divide it up. DeWitt stated he had not yet 

prepared a limited liability company operating agreement for 

that meeting; his letter to the brothers, which enclosed a draft 

operating agreement, was dated December 7, 2011. That letter 

referred to special provisions they had discussed, including a 

commitment to retain ownership of the farmland for 10 years 

and a commitment at the end of 10 years to sell the farmland. 

DeWitt thought that Kirtus and Rocky had signed the operating 

agreement, but that Scott had not.

Following the July 2011 meeting at DeWitt’s office, Scott 

and his wife talked about buying their own farm equipment, 

and later “that fall,” Scott spent approximately $900,000 for 

his own farm equipment. Scott started farming with his son in 

2012. With the exception of 1 year, Scott continued to pay his 

one-third share of input expenses for farming the trust property, and he received his one-third share of the grain harvested. 

Scott, however, discontinued paying his one-third share of the 

annual personal property and real estate taxes for the trust 

property after 2011.

3. Lawsu

As conflict between the brothers escalated, Scott filed 

a petition pursuant to the Nebraska Uniform Trust Code 

(NUTC), Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 

2016 & Cum. Supp. 2018), in July 2015 to terminate the Henry 

Trust (cases Nos. PR15-18 in county court and A-16-1182 

on appeal). He claimed that he had made repeated demands 

to terminate the trust, to distribute trust assets, and for a full 

accounting. He alleged the trust had not been administered 
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effectively, including the failure to distribute the Henry 80 to 

the beneficiaries. Scott requested that “the Co-Trustees” be 

removed (only Kirtus was trustee) and that a successor trustee 

be appointed. He asked for the distribution of all trust assets, 

a full accounting, the termination of the trust, and for attorney 

fees and costs.

Scott also filed a petition to terminate the Norval Trust 

(cases Nos. PR15-19 in county court and A-16-1183 on appeal), 

which was subsequently amended to include the Elnora Trust. 

His allegations and requests for relief were similar to those 

claimed in the Henry Trust action.

In October 2015, Kirtus and Rocky filed a petition to 

modify the Henry Trust (cases Nos. PR15-25 in county court 

and A-16-1184 on appeal). The petition acknowledged that 

Norval appointed the entire interest in the Henry 80 in equal 

shares, outright and free of trust, to the brothers. However, the 

petition requested that the court enforce an “agreement and 

partnership” between the brothers related to this property, and 

to modify the trust to continue to own and administer the property until December 31, 2021, or to transfer ownership of the 

property “to the parties’ partnership to be held and not further 

transferred until December 31, 2021.” Alternatively, the petition sought the court’s authorization to allow Kirtus, as trustee, 

to distribute to Scott “sole fee simple title to a portion of the 

[Henry 80] having a value equal to approximately one-third of 

the value of the entirety . . . in full satisfaction of his beneficial 

interest in the Trust’s real estate.”

Kirtus and Rocky also filed a petition to modify or declare 

rights to the Norval Trust and the Elnora Trust (cases Nos. 

PR15-26 in county court and A-16-1185 on appeal). This 

petition contained allegations similar to those contained in 

their Henry Trust action, and also sought modification of the 

trusts to hold the properties in these trusts or transfer ownership to “the parties’ partnership” until December 31, 2021. 

Alternatively, it sought an order declaring that the terms of 

the trusts authorized the trustees to distribute sole fee simple 
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title of the real estate to individual beneficiaries, as well as an 

order permitting the trustees to do so.

Also in October 2015, Kirtus, Rocky, and RKS Farms filed a 

complaint in the county court against Scott (case No. CI15-156) 

alleging that the brothers were “parties to an oral cash-rent 

year-to-year farm lease” with the Norval Trust and the Elnora 

Trust, which requires the brothers to annually pay the trusts 

“an amount equal to the real estate taxes and expenses” related 

to the trusts. At the time of the complaint, it was alleged that 

Scott had failed to pay to the trusts $31,895.30, which was his 

one-third share of the real estate taxes owed to the trusts that 

he stopped paying in 2011. The complaint further requested 

that the court declare void a notice to terminate that Scott had 

delivered to Kirtus, Rocky, and RKS Farms. The notice was 

given “for the purpose of terminating” their “tenancy” and 

stated that they were to “vacate and surrender possession” to 

Scott. The properties listed included lands held by the trusts 

and RKS Farms.

4. Relationship Pro

Scott testified at trial that he asked his brothers if they could 

split up the trust ground after their father passed away because 

he wanted to make his own decisions on how to farm it and 

make improvements so he could “make more money with the 

same piece of ground.” When he asked Rocky about it, Rocky 

would get “hostile” toward Scott and verbally abuse him until 

Scott “back[ed] off and let it go.”

Scott paid the cash rent due for the trust ground in 2010. 

The rent consisted of whatever was due for real estate and 

personal property taxes. Scott did not pay the 2011 or subsequent years’ rent because it was “the only leverage [he] had” 

to “break the land up.” He was concerned that if he paid the 

rent, his brothers would “use it against [him]” to suggest he 

was “going along with all this all the time.” But Scott did 

not like “the way this [was] working.” Scott was willing to 

pay the rent as soon as the ground was split up. Funds for his 
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share of the 2011 through 2014 taxes had been placed into his 

attorney’s trust account. On cross-examination, Scott acknowledged that the trust had to pay his share of the rent and that if 

it had not, the taxes would have become delinquent, the county 

treasurer would have charged 14-percent interest, and the land 

could have gone into foreclosure. However, Scott’s position 

was that “there was enough money in the trust to more than 

take care of that.” According to Scott, as of October 6, 2015, 

the Norval Trust bank account balance was $142,727. Scott 

stated that he and his siblings were all beneficiaries of that 

account and therefore were each entitled to 25 percent of that 

balance. Scott testified that he asked either Kirtus or Rocky for 

his share of the money in that account, but he was never paid 

his share.

In 2015, the year the lawsuits were filed, further issues 

arose between the parties. Kirtus explained at trial that RKS 

Farms is a corporation owned by the three brothers, started 

back in 1977. They would run all the expenses of their farming operation through RKS Farms, which would then pay the 

bills and then bill each brother. Scott’s wife had been preparing grain settlement spreadsheets for RKS Farms from 2007 

until the end of 2014, after which the “books disappeared.” 

Kirtus testified that he and Rocky took that responsibility 

away from Scott’s wife in January 2015 because she would 

not give them the information they needed, such as “what was 

in the bins.” She would take all the receipts home and “we’d 

never see them again.” Kirtus said he made sure Scott still 

received financial and accounting information for the joint 

farming operation and RKS Farms; he gave him a copy of all 

the receipts for RKS Farms, bank statements, and receipts and 

bills every month. Kirtus acknowledged that in January 2015, 

he went into Norval’s house and “removed all of the books and 

the computer”; he had not notified Scott and his wife that he 

had “a problem with how they were keeping the books.” Kirtus 

testified that he and Scott “always got along,” but that “Scott 

and Rock[y] had issues.”
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On another occasion, Scott was unable to get into the shop 

located on the Homeplace. The locks on the shop, house, and 

fuel pump had been changed, as well as a padlock on a shed 

they were renting. Scott was unable to get his “equipment or 

machinery out of those shops.” According to Scott, his brothers “always made sure that they had something in the way or 

they had the keys.” They removed the keys out of the tractors and pickups; Scott “never had access to the equipment 

anymore” and could no longer access the fuel barrels on the 

Homeplace. In the summer of 2015, when Scott tried to get 

grain from the grain bins located on trust property, his brothers 

refused to give him the keys to his own truck and the auger 

that Scott needed to haul his grain out. It was at this time that, 

according to Scott, Rocky tore Scott’s shirt and “slapped [him] 

around.” Kirtus and Rocky denied there was ever a physical 

altercation between Rocky and Scott. After DeWitt made the 

brothers give Scott keys to the house again later in the summer, the brothers changed the security code on the shed so that 

when Scott opened the door, an alarm would go off. Kirtus testified that they changed the security code so that if something 

came up missing in the shop, they “wouldn’t go blame Scott 

for it.” Also, according to Kirtus, the security code was not on 

during the day, just in the evenings. Scott testified that he did 

not think his father would have expected him “to put up with 

this,” because “[l]ife is just too short.”

Kirtus acknowledged changing the lock on the Homeplace 

shop, but claimed Scott could have asked for a new key but did 

not. He agreed the shop was trust property. He also acknowledged changing the security code; he did not provide Scott the 

new code because “he never asked.” Kirtus also acknowledged 

changing the locks on the fuel barrels, which were also owned 

by the trust. He claimed, that like the shop lock, the lock was 

old and needed to be changed. He agreed that he did not give 

Scott the keys to the locks until he was told by his attorney to 

do so, but claimed that if Scott had asked, he would have given 

the keys to him.
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Scott acknowledged that in August 2015, he unilaterally 

closed the RKS Farms checking account. He explained that he 

did this because of a $90,000 “rolling loan” the brothers could 

get through the account and that Scott would have no control 

over such a loan. Scott did not notify his brothers in advance 

that he was closing the account because he did not want to 

take the risk of them borrowing $90,000, with Scott then being 

liable for it. That same month, Scott also delivered a “Notice 

of Termination” to his brothers and RKS Farms. It directed 

them to vacate and surrender possession to the various trust 

properties “at the end of the lease term,” and it stated that the 

notice was being given to them “for the purpose of terminating 

[their] tenancy.” Scott acknowledged receiving his share of the 

grain and not paying for his share of rent and expenses, but he 

claimed this was necessary because if he paid the rent he owed, 

that would somehow be used against him.

5. Expert Witnes

(a) Jeffrey Pirruccello

Jeffrey Pirruccello, a tax lawyer and shareholder with an 

Omaha, Nebraska, law firm, testified on Scott’s behalf. He 

holds an “inactive CPA certificate,” and his primary practice 

areas include tax, as well as estate planning and estate administration. At the time of trial, he had been practicing law for 

almost 40 years. Pirruccello had reviewed the Henry Trust, the 

Norval Trust, the Elnora Trust, and Norval’s will and codicil. 

He explained the difference between a mandatory distribution 

of property using language such as “‘shall be distributed’” and 

language retaining property for the benefit of a beneficiary, as 

used in an “ongoing or continuing trust.” Pirruccello testified 

that the Norval Trust and the Elnora Trust were “mirror trusts” 

in that the language in the trusts was identical except for one 

referencing Norval and the other referencing Elnora.

Referring to page 8 of each parent’s trust, Pirruccello said 

there was a mandatory distribution of “other unspecified farmland after specific farmland had been addressed to the three 
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sons as tenants in common.” He pointed out the distinction in 

Norval’s will and First Codicil where he exercises his power 

of appointment (for the lands in the Henry Trust) between the 

“ongoing, continuing trust for land for the daughter [Pamela] 

as well as an outright distribution of land from the grandfather’s estate.” Pirruccello noted that when wills and trust 

instruments say “‘shall distribute,’” or words to that effect, that 

means it is to be distributed “immediately upon death or subject to administration or it can be upon some contingency, but 

that essentially means, as here, that it would be outright, free 

and clear of trust to the recipients that are designated.”

Pirruccello also testified that when property is transferred by 

a trust, it is not itself a taxable event. He stated, “[T]he mere 

transfer of property by operation of law at the death from the 

decedent to a beneficiary is not a taxable transaction. It’s not 

a sale or exchange.” He also discussed “like-kind exchanges” 

for property distributed from a trust. As an example, he agreed 

that if real estate is transferred from a trust to three people 

as tenants in common and is then sold, each of those tenants 

in common would owe one-third of the tax incurred from 

the sale unless one or more of them took action to set up a 

“like-kind exchange.”

(b) DeWitt

DeWitt testified that he graduated from law school in 1975 

and began working for the Augustin family “[a]lmost right 

out of law school.” In addition to testifying about the July 

2011 meeting and his preparation of the limited liability company operating agreement, DeWitt said the general benefits 

and purposes of the types of revocable trusts used for Henry, 

Norval, and Elnora was “[b]y and large, probate avoidance,” 

and “to take optimum use of the federal estate tax, marital 

deduction and credit with the objective of eliminating any 

federal estate tax at the death of the first spouse to die and 

deferring all the tax on the combined estates until the death 

of the survivor.” DeWitt testified that it “is typical of farm 
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families” to have a “strong desire to focus on preserving the 

family farm to keep it in the family and pass down from one 

generation to the next. It’s kind of a way of life almost more 

than economics.”

(c) Carmen Standley

Carmen Standley testified on behalf of Kirtus and Rocky. 

She is a Nebraska licensed certified public accountant and is 

a shareholder at a Lincoln, Nebraska, company where she has 

worked for 18 years. Standley has prepared RKS Farms’ tax 

returns, Kirtus’ and Rocky’s corporate and personal tax returns, 

and the trusts’ tax returns. Standley was asked to assume certain values for the trusts’ real estate in order to calculate an 

approximate income tax liability in the event the properties 

were transferred to the brothers as tenants in common and then 

sold in a partition sale. She used values of $1.6 million for the 

Henry 80 and the Homeplace (respectively, basis of $68,000 

and $319,375), $1.884 million for Big Jisa and Little Jisa 

(basis of $652,000), and $1.244 million for Staroscik (basis of 

$423,000). Assuming the fair market values and basis for each 

property as noted, Standley calculated that the sale of the trust 

properties would result in a capital gain of $3,265,625. She 

calculated this to result in an $822,975 total tax liability, or 

$274,325 per brother.

6. Proposals for Splitti

It was Scott’s position at trial that if he did not get the 

Homeplace, he was going to pursue his partition action 

(already filed in district court) and have all of the trust ground 

sold. Scott initially suggested to his brothers that he take 

the entirety of Big Jisa and Little Jisa, which was more than 

one-third of the trusts’ real estate. He was willing to “pay the 

difference.” Kirtus remembered this, and he also remembered 

telling Scott he did not want to break the trust up. Scott subsequently proposed that he receive the Homeplace, the Henry 

80, and the 80 acres owned by RKS Farms, which is adjacent 

to the Homeplace.
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According to Kirtus, age 58 at trial, the brothers have been 

farming together since 1978. He wanted to farm for another 

20 years. Rocky, age 60 at trial, wanted to continue farming another 10 to 15 years. Kirtus said that if Scott “was to 

sell this, Rock and I would be out of a job.” Kirtus admitted 

that prior to Scott’s filing any lawsuits, Scott had told him 

he wanted to “‘break up the trust.’” But it was Kirtus’ position that their father, Norval, would have wanted the three of 

them to continue farming. According to Kirtus, Norval “would 

have told us, you guys, get your head out of your — and get 

together and you can make it work. This is dumb.” Kirtus testified that he did not want to transfer the trust property out as 

tenants in common because his father and grandfather wanted 

“to keep this farm ground in the family.” However, Kirtus said 

that if the court determined he had the authority or granted him 

the authority, he would distribute Big Jisa (160 acres) to Scott 

(estimated value of $1.28 million). They would sell Little Jisa 

and use proceeds from that sale to equalize what would be 

owed to Scott in light of the value of the remaining properties that Kirtus and Rocky would be keeping. After paying an 

equalization to Scott from the Little Jisa proceeds, the remaining Little Jisa moneys would be divided equally. According 

to Kirtus’ calculations, he and Rocky would be keeping the 

Henry 80, the Homeplace, and Staroscik for a total value of 

$2.844 million, or $1.422 million each. Rocky acknowledged 

that the Homeplace and the Henry 80 have the best ground of 

all the property held in the trusts.

7. Reopening of 

Trial took place on February 29 and March 1, 2016. Scott 

filed a “Motion to Reopen Case and Present Additional 

Evidence” on May 16; the matter was heard on June 9. Scott 

testified that following trial, he drove by Kirtus’ place and 

saw survey stakes. Scott subsequently learned that Kirtus had 

recorded a trustee’s deed on March 1 (the second day of trial). 

It had been signed by Kirtus on December 29, 2015. The deed 

gave Kirtus title to approximately 3 acres of trust real estate 
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consisting of irrigated farm ground adjacent to Kirtus’ house. 

Kirtus claimed, by affidavit, that he purchased the tract for 

$17,500 on January 7, 2016, and that the purchase price was 

based on an appraisal. Kirtus attached only one page of the 

appraisal to his affidavit, and it indicates that the 3 acres are 

certified irrigated land, but that the client requested that it be 

called dryland for purposes of the appraisal. Kirtus’ affidavit 

indicated that Rocky approved the transaction; however, Rocky 

did not participate in the execution of the trustee’s deed—only 

Kirtus had signed the deed.

8. County Court’s Ord

On December 2, 2016, the county court entered an identical 

16-page order in each of the five consolidated cases. The order 

first addressed Kirtus and Rocky’s claim that Scott should be 

barred from any relief on the basis of “unclean hands” because 

Scott refused to pay rent, sent an unauthorized “Notice of 

Termination,” closed the RKS Farms’ checking account without notice, and failed to pay his share of 2015 farm expenses. 

The county court found that “Scott’s actions were not fraudulent, illegal, or unconscionable under the circumstances,” and 

therefore, he did not act with “unclean hands.”

The county court next pointed out that pursuant to 

§ 30-3836(a) of the NUTC, a trust can terminate or expire pursuant to its terms, and that a trustee is required to distribute the 

trust property to the designated beneficiaries upon the termination of the trust. It concluded that the Henry Trust, Norval’s 

will and First Codicil, the Norval Trust, and the Elnora Trust 

clearly state that all assets of the trusts were to be distributed 

upon the death of Norval. The court stated, “Following the 

distribution of all of the assets of the Trusts, there would be 

no purpose of the Trusts remaining to be achieved. As such, 

the Trusts terminated upon the death of Norval . . . pursuant to 

section 30-3836(a) of the NUTC.”

The county court then discussed the older brothers’ request 

that the court modify the trusts to follow the terms of the 
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alleged agreement between the brothers during the July 2011 

meeting to continue farming the trust real estate for 10 more 

years. The court concluded:

The evidence shows that Scott did not agree to modify 

the Trusts to defer distribution of the real estate for ten 

years or to continue to farm the trust real estate with his 

brothers for ten years. . . . If there was an oral agreement with clear, satisfactory, and unequivocal terms that 

Kirtus and Rocky now seek to enforce, there was no 

reason for DeWitt to draft a limited liability company 

agreement after the meeting. . . . The evidence was clear 

that Scott did not sign the operating agreement drafted 

by DeWitt. Kirtus confirmed that Scott has wanted to 

terminate the Trusts since 2011. . . . In addition, even if 

the court was convinced that [the brothers] had agreed 

to modify the Trusts, there was no evidence presented to 

the court that the fourth beneficiary of the Trusts, Pamela 

. . . , had consented to the modifications as required by 

section 30-3837(b).

Regarding the request by Kirtus and Rocky to modify the 

trusts to authorize distribution of sole fee simple title to separate parcels of the real estate to individual beneficiaries (rather 

than distribute the property as tenants in common), the court 

concluded modification was not necessary, finding:

Notwithstanding the terms of Article XI of the Norval 

and Elnora Trusts, section 30-3881[(a)](22) of the NUTC 

authorizes a trustee to “make distributions in divided or 

undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property 

for those purposes, and adjust for resulting differences in 

valuation.” As such, the requested relief is already authorized under the NUTC.

Pursuant to the dispositive provisions of the Norval 

and Elnora Trusts and the First Codicil to Norval’s Will, 

it is clear that Norval wanted his three sons treated 

equally with respect to the distribution of farm real estate 
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and personal property used in the farm operation. To the 

extent a request to modify the Trusts was made by Kirtus 

or Rocky with regard to the distribution proposal made by 

Kirtus at trial, the court finds that there is not sufficient 

evidence upon which the court can determine the equality 

of the proposal. As such, the request to modify the Trusts 

to approve the distribution proposal is denied.

Regarding Scott’s requests to remove trustees, the county 

court found that the brothers, as cotrustees of the Norval 

Trust and the Elnora Trust, and Kirtus, as trustee of the Henry 

Trust, “have failed to prudently administer the Trusts” and 

that the trusts terminated upon the death of Norval in April 

2010. It went on to state that the cotrustees failed to distribute 

the assets of the trusts and wind up the administration of the 

trusts. The court further found:

In addition, the evidence reflects that Kirtus and Rocky 

have abused their majority control over the affairs of the 

Norval and Elnora Trusts and that Kirtus has abused his 

control over the affairs of the Henry Trust in violation of 

the duty of impartiality by failing to manage and distribute the trust property with due regard for the interests of 

all of the beneficiaries. Their personal interest in continuing the farming operation has clearly been favored over 

their duties as trustees.

Kirtus has violated the duty of loyalty with regard to 

the sale of a three acre tract of real estate located on a 

parcel held in the Norval and Elnora Trusts to himself. 

The Trustee’s Deed was executed by Kirtus, as Trustee, 

on December 29, 2015, but not recorded until March 1, 

2016. Not only was the conveyance made without any 

notice to Scott, a Co-Trustee, and beneficiary of both 

Trusts, it appears that the purchase price may not be 

the fair market value of the real estate. . . . In addition, 

although Kirtus claims that Rocky approved the transaction, the Trustee’s Deed was not executed by a majority 

of the Co-Trustees.
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The county court concluded that Kirtus “has committed a 

series of breaches that justify his removal as the Trustee of the 

Henry Trust.” The court removed Kirtus as trustee of the Henry 

Trust and ordered him “to account, and to deliver the Trust 

property within his possession as Trustee, to the Successor 

Trustee within thirty (30) days of the appointment of the 

Successor Trustee.”

The county court also found that there was a lack of cooperation among the cotrustees of the Norval Trust and the Elnora 

Trust justifying their removal. The court stated:

Although the evidence supports a finding that the 

Co-Trustees have committed a series of breaches that 

justify removal, it is not necessary for the court to 

find that the lack of cooperation involves a breach of 

trust. . . . The evidence clearly shows that the administration of the Norval and Elnora Trusts has been affected 

by the inability of the Co-Trustees to get along and work 

together in their personal lives and in the administration 

of the Trusts.

Kirtus, Rocky, and Scott were removed as cotrustees and 

ordered “to account, and to deliver the Trust property within 

their possession as Co-Trustees, to the Successor Trustee within 

thirty (30) days of the appointment of the Successor Trustee.”

Regarding the appointment of a successor trustee, the county 

court stated:

Pursuant to the removal of Kirtus as Trustee of the 

Henry Trust and the removal of Kirtus, Rocky, and Scott 

as Co-Trustees of the Norval and Elnora Trusts as ordered 

herein, a vacancy in the trusteeship of the Trusts exists 

under section 30-3860 of the NUTC. . . . The Trusts at 

issue do not designate a Successor Trustee under the 

present circumstances. As such, the next order of priority would be by unanimous agreement of the qualified 

beneficiaries. The qualified beneficiaries of the Trusts are 

Kirtus, Rocky, Scott, and Pamela . . . . In the event the 

qualified beneficiaries are unable to unanimously agree 
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to a person to be appointed as Successor Trustee by the 

court, the court will determine the person to be appointed 

Successor Trustee of the Trusts at issue.

The county court noted that Pamela was not given notice of 

the present proceedings and that as a qualified beneficiary, she 

was entitled to notice and an opportunity to be heard regarding the appointment of a successor trustee; a later hearing was 

scheduled for that purpose.

As to the case not appealed, the county court entered 

judgment in favor of the Norval Trust and against Scott for 

$41,692.30 for his share of rent and personal property taxes 

for 2011 through 2015, with interest to accrue at 2.498 percent. 

Also, with regard to the “Notice of Termination” Scott sent in 

August 2015 to Rocky, Kirtus, and RKS Farms purporting to 

terminate their leases with the trust real estate, the court concluded Scott was not authorized to do so and thus found such 

notice to be “void and of no effect.”

III. ASSIGNMENTS OF ERROR

In cases Nos. A-16-1182 (case No. PR15-18) and A-16-1184 

(case No. PR15-25), Kirtus appeals from the two underlying 

actions related to the Henry Trust. In cases Nos. A-16-1183 

(case No. PR15-19) and A-16-1185 (case No. PR15-26), 

Kirtus and Rocky appeal from the two underlying actions 

related to the Norval Trust and the Elnora Trust. The errors 

assigned on appeal in each case can be consolidated and 

restated as claims that the county court erred by (1) terminating the trusts, ordering the distribution of assets other than 

real estate, and removing the trustees without notice being 

given to Pamela, a beneficiary of all the trusts; (2) failing to 

find Scott was barred from obtaining equitable relief on the 

basis of unclean hands; (3) terminating the trusts; (4) failing 

to find that the brothers entered into an agreement to continue 

farming together for 10 years before distributing the trusts’ 

real estate, and thus, the court erred in failing to modify the 

trusts as requested; (5) finding a breach of trust and removing 
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the trustees and ordering them to account for and deliver trust 

property to a successor trustee; and (6) determining there was 

insufficient evidence to order an equitable distribution of the 

real estate.

Unless otherwise indicated, references to appellants’ and 

appellee’s briefs will be to page numbers contained in submissions filed under case No. A-16-1183.

IV. 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. In re Henry B. Wilson, Jr., 

Revocable Trust, 300 Neb. 455, 915 N.W.2d 50 (2018). 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. Id. 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. In re Estate of Hedke, 278 Neb. 727, 

775 N.W.2d 13 (2009).

[4] The interpretation of the words in a will or a trust presents a question of law. In re Estate of Forgey, 298 Neb. 865, 

906 N.W.2d 618 (2018).

V. ANALYSIS

1. Jurisdi

These appeals arise from actions brought pursuant to the 

NUTC, § 30-3801 et seq. As an initial matter, we note that 

Scott filed a motion for summary dismissal of these appeals; 

he claimed this court lacked jurisdiction because the county 

court’s December 2, 2016, order did not dispose of all the 

issues and was therefore not a final, appealable order. We overruled the motion without prejudice to consider the jurisdiction 

issue following briefing and submission to the court.
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In support of his position, Scott relies on In re 

Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 

(2017). In that case, reference is made to an unpublished case 

from this court docketed as case No. A-15-968, in which a 

county court entered an order stating that a party would be 

removed as successor trustee upon the appointment of a new 

successor trustee. The Supreme Court noted that this court dismissed the appeal from the trust case for lack of jurisdiction, 

“no doubt for the lack of a final order because of the reserved 

appointment of a successor trustee.” In re Conservatorship 

of Abbott, 295 Neb. at 518, 890 N.W.2d at 478. The circumstances in In re Conservatorship of Abbott are distinguishable from the present cases because, here, the trustees were 

immediately removed in the December 2, 2016, order, and a 

trustee vacancy was immediately created; however, in In re 

Conservatorship of Abbott, the trustee was not immediately 

removed and would remain trustee until the appointment of a 

successor trustee.

[5] We find In re Trust of Rosenberg, 269 Neb. 310, 693 

N.W.2d 500 (2005), to be more instructive. In that case, a 

county court removed an individual as trustee, and the individual did not timely appeal from that order. Rather, the former 

trustee waited several months until further action was taken by 

the county court and another order was subsequently entered. 

The Nebraska Supreme Court held that the removal of a trustee 

under the NUTC is a special proceeding and that further, the 

removal of a trustee under §§ 30-3814 and 30-3862 affects a 

substantial right. The Supreme Court stated:

We have held that a proceeding under Neb. Rev. Stat. 

§ 30-2454 (Reissue 1995) to remove a personal representative for cause is a special proceeding within 

the meaning of § 25-1902 and therefore is a final 

order and is appealable, even though it may not terminate the action or constitute a final disposition of the 

case. . . . “[G]iven the scope of the personal representative’s power over the interests of the beneficiaries and 
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other interested parties in an estate, the right conferred 

by § 30-2454 to petition the county court to remove the 

personal representative for cause is a substantial right.” 

[Citation omitted.] The same can be said of proceedings 

to remove a trustee.

In re Trust of Rosenberg, 269 Neb. at 315, 693 N.W.2d at 504. 

Therefore, the Supreme Court concluded that the order removing the trustee in In re Trust of Rosenberg was a final order 

and that the former trustee’s attempt to appeal her removal was 

not timely because she did not file her appeal within 30 days 

of the order removing her as trustee.

In the present matters, the county court removed Kirtus as 

trustee of the Henry Trust and removed Kirtus, Rocky, and 

Scott as cotrustees of the Norval Trust and the Elnora Trust, 

immediately upon entry of the December 2, 2016, order. The 

county court stated that these removals resulted in a vacancy 

in the trusteeship of the trusts under § 30-3860. In accordance 

with In re Trust of Rosenberg, supra, we conclude that the 

county court’s December 2 order resolved all issues, including 

the immediate removal of the trustees, and was a final, appealable order.

2. Was Pamela Necessary Par

Kirtus and Rocky claim that the county court had jurisdiction to interpret the trusts regarding the real estate at issue and 

obligations on distributions of that real estate, as well as their 

claim regarding the 10-year farming agreement. However, they 

contend that without their sister, Pamela, being a party to the 

proceedings, the court did not have jurisdiction over Scott’s 

requests to terminate the trusts and remove the trustees. They 

argue, “[Pamela] undisputedly does not have an interest in 

the Trusts’ real estate at issue, but she definitely has an interest in the Trusts’ administration. She further has an interest 

in the Trusts’ personal property.” Brief for appellants at 28. 

Kirtus and Rocky point out that they raised this issue at the 

commencement of trial, suggesting to the county court that 
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the requests for relief regarding the trusts’ real estate and 

modifications to the trusts regarding real estate were properly before the court, but not Scott’s requests to terminate the 

trusts, remove trustees, or distribute personal property because 

Pamela was an interested party as to those issues but was not 

given notice.

We agree with Kirtus and Rocky that certain, but not all, 

matters litigated and determined by the county court required 

including Pamela as an indispensable party. Neb. Rev. Stat. 

§ 25-323 (Reissue 2016) is entitled “Necessary parties; brought 

into suit; procedure.” Section 25-323 provides in part:

The court may determine any controversy between 

parties before it when it can be done without prejudice to 

the rights of others or by saving their rights; but when a 

determination of the controversy cannot be had without 

the presence of other parties, the court must order them 

to be brought in.

[6-8] The language of § 25-323 tracks the traditional distinction between necessary and indispensable parties. Midwest 

Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017). The Nebraska Supreme Court addressed 

that distinction, explaining:

“‘“Necessary parties[]” [are parties] who have an interest 

in the controversy, and should ordinarily be joined unless 

their interests are separable so that the court can, without injustice, proceed in their absence[.] “Indispensable 

parties[]” [are parties] whose interest is such that a final 

decree cannot be entered without affecting them, or that 

termination of controversy in their absence would be 

inconsistent with equity.’

“. . . The inclusion of a necessary party is within the 

trial court’s discretion. . . . However, there is no discretion 

as to the inclusion of an indispensable party.”

Id. at 90, 894 N.W.2d at 236. Therefore, the first clause of 

§ 25-323 makes the inclusion of necessary parties discretionary when a controversy of interest to them is severable from 
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their rights. See Midwest Renewable Energy v. American 

Engr. Testing, supra. “The second clause, however, mandates 

the district court order indispensable parties be brought into 

the controversy.” Id. at 90, 894 N.W.2d at 236. All persons 

interested in the contract or property involved in an action are 

necessary parties, whereas all persons whose interests therein 

may be affected by a decree in equity are indispensable 

parties. See Midwest Renewable Energy v. American Engr. 

Testing, supra.

[9] The absence of an indispensable party to a controversy 

deprives the court of subject matter jurisdiction to determine 

the controversy and cannot be waived. Id. When a lower court 

lacks the power, that is, the subject matter jurisdiction, to 

adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of 

the claim, issue, or question presented to the lower court. Id. 

When it appears that all indispensable parties to a proper and 

complete determination of an equity cause were not before 

the court, an appellate court will remand the cause for the 

purpose of having such parties brought in. See id. Necessary 

parties are parties who have an interest in the controversy, 

and should ordinarily be joined unless their interests are separable so that the court can, without injustice, proceed in their 

absence. Id.

We conclude that even if Pamela may have been a necessary party in matters related specifically to the farmland 

in dispute, she was not an indispensable party. Therefore, 

requiring her to be included in the proceedings for such 

matters was discretionary to the county court. See Midwest 

Renewable Energy v. American Engr. Testing, supra. Pamela’s 

interest under all trusts was sufficiently separable from the 

controversies related to the disputed farmland at issue in the 

underlying lawsuits, and her rights were sufficiently protected 

without being a party to those specific controversies. It was 

not an abuse of discretion for the county court to proceed 

without Pamela as a party and to make determinations as to 
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(1) the interpretation of the trusts and other issues specific 

to the disputed farmland in which Pamela had no interest, 

(2) whether Scott filed his actions with unclean hands, (3) 

whether the trustees breached their duties with regard to their 

handling of the disputed farmland, (4) whether the brothers 

reached an agreement as to the disputed farmland, and (5) 

whether the brothers could distribute the disputed farmland 

in separate parcels in fee simple rather than as tenants in 

common. The court’s determination of these litigated issues 

could be reached without impacting Pamela’s rights under 

the trusts, other than, as discussed later, any modification 

of the trusts that would delay distribution of her interests or 

possibly diminish those interests. Pamela had no interest in 

the division or ownership of the disputed farmland and had 

no apparent involvement in how the trustees administered 

or managed the disputed farmland. Thus, any determinations 

made in that regard would not have required her presence nor 

impacted her rights under the trusts. The county court had 

jurisdiction over such matters, and we will therefore address 

the errors assigned related to the court’s determinations as to 

those particular issues.

[10] On the other hand, we conclude that Pamela, as a 

qualified beneficiary of all trusts at issue, was an indispensable party with regard to (1) Scott’s request to terminate the 

trusts and (2) his request to remove the trustees (along with 

associated requests for accounting and appointment of successor trustee). The absence of an indispensable party to a 

controversy deprives the court of subject matter jurisdiction to 

determine the controversy, and it cannot be waived. Midwest 

Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017). A court does not have subject matter jurisdiction over a request to terminate a trust or remove a trustee 

in the absence of an indispensable party; thus, the county 

court lacked jurisdiction over these requests. See, Markham 

v. Fay, 74 F.3d 1347 (1st Cir. 1996) (generally, beneficiaries 

are indispensable parties in actions seeking to collect tax or 
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other debt from trust corpus or seeking to terminate trust, and 

exception exists when trustee represents beneficiaries’ interests 

fully and without conflict); Koch v. Koch, 226 Neb. 305, 411 

N.W.2d 319 (1987) (real property conveyed to father as trustee 

for his minor children required inclusion of minor children 

as necessary parties in litigation involving real property in 

which they had interest); Roth v. Lehmann, 741 S.W.2d 860 

(Mo. App. 1987) (ordering removal of trustee impacts rights 

of each beneficiary, and beneficiaries are necessary parties to 

suit seeking such removal); 76 Am. Jur. 2d Trusts § 603 (2016) 

(whether beneficiaries of trust are necessary parties to suit may 

depend upon terms of trust and effect of suit on their equitable 

interests, and nature of particular suit is one of principle elements bearing on whether it is necessary to make beneficiaries parties).

While the county court correctly determined that Pamela 

would be necessary to the process of appointing a successor 

trustee, she should have also been included and provided an 

opportunity to be heard with regard to Scott’s requests for a 

court order terminating the trusts and removing the trustees, 

as well as the related requests for an accounting, appointment 

of a successor trustee, and delivery of trust property to a successor trustee when appointed. There was no evidence before 

the court regarding the status of Pamela’s real estate interest 

under the Henry Trust (as appointed in First Codicil), and the 

evidence suggests she had not yet received her remainder interest from her parents’ trusts. Therefore, a court order terminating the trusts, removing the trustees, ordering an accounting, 

and appointing a successor trustee could have a prejudicial 

effect on Pamela’s interests through additional delays and 

costs which could adversely impact her remaining interests in 

the trusts. Pamela’s interest in the trusts should be taken into 

account by the county court when determining the best option 

available to it to address the breach of trust between the brothers (addressed later). See § 30-3890 (remedies for breach of 

trust include, among other things, compelling performance; 
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compelling trustee to redress breach by paying money, restoring property, or other means; ordering accounting; appointing 

special fiduciary; suspending trustee; removing trustee; and 

ordering any other appropriate relief).

Because Pamela was an indispensable party as to Scott’s 

requests to terminate the trusts, remove the trustees, order 

an accounting, and appoint a successor trustee, but was not 

brought into the proceedings, the county court was without 

subject matter jurisdiction to address these particular matters. 

We are mindful, however, that the county court did not enter 

an order terminating the trusts; rather, it merely interpreted 

the trusts as terminating by their own terms. As we discuss 

later, such an interpretation was within the court’s jurisdiction. Therefore, as to those matters over which it did not have 

jurisdiction, we vacate those portions of the county court’s 

order which (1) removed Kirtus as trustee of the Henry Trust, 

(2) removed the three brothers as trustees of the Norval Trust 

and the Elnora Trust, (3) ordered an accounting for the trusts 

and delivery of trust property to a successor trustee once 

appointed, (4) created a vacancy in the trusteeships, and (5) 

directed the appointment of a successor trustee. As discussed 

later in this opinion, we agree with the county court that a 

breach of trust occurred in relation specifically to the disputed 

farmland; Pamela was not a necessary or indispensable party to 

that controversy. However, on remand, any determination with 

regard to an appropriate remedy for that breach of trust must 

include Pamela as a party (cannot be waived) and an opportunity to be heard (discretionary to Pamela).

We now address the errors Kirtus and Rocky assign to 

the county court’s order over which the county court had 

jurisdiction.

3. Unclean

Kirtus and Rocky argued to the county court that Scott 

should have been barred from relief under the doctrine of 

unclean hands; they raise the same issue on appeal. Although 
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we have concluded the county court did not have jurisdiction 

to address some of the relief requested by Scott, his other 

claims, related to distribution of the disputed farmland as tenants in common and the breach of trust by the trustees as to 

that farmland, were appropriate for consideration by the county 

court. We therefore consider this assigned error.

[11] Under the doctrine of unclean hands, “a person who 

comes into a court of equity to obtain relief cannot do so if 

he or she has acted inequitably, unfairly, or dishonestly as to 

the controversy in issue.” Farmington Woods Homeowners 

Assn. v. Wolf, 284 Neb. 280, 289, 817 N.W.2d 758, 767 

(2012). “Generally, conduct which forms a basis for a finding 

of unclean hands must be willful in nature and be considered 

fraudulent, illegal, or unconscionable.” Id.

We agree with the county court that Scott did not act with 

unclean hands. While it is understandable that Scott’s conduct 

in some instances may have been frustrating to his older brothers, or perhaps unfairly burdened them, it was not fraudulent 

or illegal, nor so reprehensible that it could be deemed unconscionable. Scott explained his reasoning for not paying his 

share of the taxes owed on the disputed property, which could 

be used against his position that he wanted to farm separately, 

and he testified that the amounts to cover those taxes had been 

set aside in his attorney’s trust account. Plus, he was owed 

a one-quarter distribution of the Norval Trust bank account 

($142,727), which had not yet been disbursed and could have 

been used to cover his share of those taxes. With regard to his 

issuance of the “Notice of Termination,” while he was without authority to do so, it is evident that this was done out of 

frustration when Scott was otherwise unable to receive the distribution of farmland to which he was entitled under the plain 

language of the trusts and the First Codicil. And as for closing 

the brothers’ joint farming bank account without notice to his 

older brothers, while perhaps not advisable, Scott’s explanation was not unreasonable (concern about brothers’ ability to 

access $90,000 “rolling loan”).
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4. County Court’s Interpreta

of Trust

We have already explained that the county court was without subject matter jurisdiction to entertain Scott’s requests to 

formally terminate all trusts, since Pamela was an indispensable party on such matters and had not been included in the 

underlying actions. However, as acknowledged by Kirtus and 

Rocky, the county court did have “jurisdiction to interpret 

the Trusts regarding [the disputed] real estate” and to “direct 

resolution” as to the trustees’ “power and obligations on distribution of [the disputed] real estate.” Brief for appellants 

at 29. Likewise, it was also appropriate for the county court 

to review and interpret the content of the trust documents to 

determine whether Scott was entitled to the distribution of the 

disputed farmland, as he alleged in his petitions, and whether 

that farmland should have been expeditiously distributed upon 

Norval’s death.

As set forth by statute, 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.” § 30-3812(c). The NUTC was enacted in 2003 

and became operative on January 1, 2005, and except as otherwise provided in the NUTC, it applies to all trusts created 

before, on, or after the operative date and all judicial proceedings concerning trusts commenced after the operative date. See 

In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 

(2007). Also, “[t]he common law of trusts and principles of 

equity supplement the [NUTC], except to the extent modified 

by the code or another statute of this state.” § 30-3806. See, 

e.g., In re Trust of Hrnicek, 280 Neb. 898, 792 N.W.2d 143 

(2010) (although NUTC did not contain specific remedy of 

retention as allowed in probate code, right of retainer lies in 

equity, and § 30-3806 provides for common law of trusts and 

principles of equity).

In considering the county court’s interpretation of the 

trusts, we note that the NUTC states that “a trust terminates to 
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the extent the trust is revoked or expires pursuant to its terms, 

no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful, contrary to public 

policy, or impossible to achieve.” § 30-3836(a). As observed 

by the county court, the NUTC provides that “upon the occurrence of an event terminating or partially terminating a trust, 

the trustee shall proceed expeditiously to distribute the trust 

property to the persons entitled to it, subject to the right of the 

trustee to retain a reasonable reserve for the payment of debts, 

expenses, and taxes.” § 30-3882(b).

The county court concluded that pursuant to the express 

terms of the trusts,

it is clear that all of the assets of the Trusts were to be 

distributed upon the death of Norval . . . . Following 

distribution of all of the assets of the Trusts, there would 

be no purpose of the Trusts remaining to be achieved. As 

such, the Trusts terminated upon the death of Norval . . . 

pursuant to section 30-3836(a) of the NUTC.

Notably, the county court did not formally order the termination of the trusts as requested by Scott; rather, based upon its 

interpretation of the trusts’ content, the court concluded the 

trusts had terminated by their own terms upon Norval’s death.

[12] The interpretation of the words in a will or a trust 

presents a question of law. In re Estate of Forgey, 298 Neb. 

865, 906 N.W.2d 618 (2018). We agree with the county court’s 

conclusion that all assets of the trusts were to be distributed 

upon Norval’s death, and thus, the trusts terminated by their 

own terms upon his death. Recently, the Nebraska Supreme 

Court pointed out that a trust’s termination is not determined 

by the final distribution of trust property. In In re Estate of 

Barger, 303 Neb. 817, 931 N.W.2d 660 (2019), the settlor 

of a family trust was still alive at the time a court order was 

entered terminating the family trust. However, the stock certificates of two corporations used by the settlor for the family 

farming operation were never transferred from the terminated 

trust back to the settlor. It was argued that the trust was not 
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terminated, since the trustees had not transferred the property 

to the settlor prior to her death. The Nebraska Supreme Court 

disagreed, stating that “[a] trust terminates at the time at which 

it becomes the duty of the trustee to wind up administration 

of the trust, and not at the time when that winding up period 

is actually accomplished.” Id. at 838, 931 N.W.2d at 676. 

Further, “After a trust has been terminated, a trustee must 

expeditiously exercise the powers appropriate to wind up the 

administration of the trust and distribute the trust property to 

the persons entitled to it.” Id. at 838-39, 931 N.W.2d at 676. 

Therefore, after a trust terminates, a trustee continues to “have 

a nonbeneficial interest in the trust for timely winding up the 

trust and distributing its assets.” Id. at 839, 931 N.W.2d at 676. 

But after the trust is terminated, a trustee’s powers are “limited 

to those that are reasonable and appropriate to the expeditious 

distribution of the trust property and preserving the trust property pending the winding up and distribution of that property.” 

Id. See, also, Ovrevik v. Ovrevik, 242 Ga. App. 95, 527 S.E.2d 

586 (2000) (distribution of trust property is entirely separate 

matter from fulfillment of purpose of trust; having determined 

purpose of trust was fulfilled, court properly terminated trust 

and ordered distribution of trust property in accordance with 

terms of trust).

In the present case, there is no question the disputed farmland was to be distributed upon Norval’s death. Norval’s First 

Codicil appointed the Henry 80 “in equal shares, outright 

and free of trust, to [his] three sons, KIRTUS, ROCKY and 

SCOTT.” The Norval Trust (as mirrored in the Elnora Trust) 

set forth specific distributions of real estate to each child, and 

then it stated that “[a]ll other farmland held by the Trust shall 

be distributed to the three sons of the Grantor in equal shares 

as tenants in common” and that “[t]he remainder of the Trust 

property shall be distributed in equal shares to the Grantor’s 

children, outright and free of trust.” The Henry Trust (second 

Amendment, article III, paragraph 5(b)) also stated that subject to any appointment made by Norval, then upon the death 
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of Henry, his wife, and Norval, “the trustee shall distribute the 

Trust assets, as then constituted, in equal shares to [Norval’s] 

children or their issue per stirpes.” By the express language 

of the First Codicil and the trusts, the disputed farmland (and 

remainder of all trust property) should have been distributed in 

accordance with these terms upon Norval’s death. Therefore, 

all trusts at issue terminated by their own terms upon Norval’s 

death, and at that time, it became the duty of the trustees to 

wind up the administration of the trust. See In re Estate of 

Barger, 303 Neb. 817, 931 N.W.2d 660 (2019).

[13-15] Having agreed with the county court’s interpretation 

that the trusts terminated by their own terms upon Norval’s 

death, we now consider whether the trustees’ powers during the 

winding up and distribution period authorized them to seek a 

modification of the trusts or the alternative relief they sought. 

In other words, when a trust has terminated by its own terms 

but remains in the winding up period with the trust property 

not yet distributed, can that trust be modified based upon an 

agreement of the beneficiaries or, in certain circumstances, 

even without such an agreement? We conclude the NUTC provides statutory options for a trustee to seek such relief during 

the winding up period following the expiration or termination 

of a trust by its own terms. To explain, we first return to the 

full text of § 30-3836, which provides as follows:

(UTC 410)(a) In addition to the methods of termination prescribed by sections 30-3837 to 30-3840, a trust 

terminates to the extent the trust is revoked or expires 

pursuant to its terms, no purpose of the trust remains to be 

achieved, or the purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve.

(b) A proceeding to approve or disapprove a proposed 

modification or termination under sections 30-3837 to 

30-3842, or trust combination or division under section 

30-3843, may be commenced by a trustee or beneficiary. 

The settlor of a charitable trust may maintain a proceeding to modify the trust under section 30-3839.
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Notably, within § 30-3836(a), it indicates that a trust can terminate to the extent it expires pursuant to its own terms or it 

can be terminated by the court as provided by §§ 30-3837 to 

30-3840; however, regardless of how a trust may terminate, 

§ 30-3836(b) authorizes a trustee or beneficiary to commence 

a proceeding to approve or disapprove a proposed modification or termination under §§ 30-3837 to 30-3842. There is no 

language in § 30-3836 to suggest that a trust which terminates 

by its own terms, but which remains in the winding up period, 

is not eligible for relief under the statutory options identified in 

§ 30-3836(b), specifically, § 30-3837 (modification or termination of noncharitable irrevocable trust by consent), § 30-3838 

(modification or termination because of unanticipated circumstances or inability to administer trust effectively), § 30-3839 

(cy pres), § 30-3840 (modification or termination of uneconomic trust), § 30-3841 (reformation to correct mistakes), and 

§ 30-3842 (modification to achieve settlor’s tax objectives). In 

fact, the need to compel termination, or to request modification or application of other equitable principles, may not be 

discovered or become necessary until after a settlor’s death 

while the trust is in the winding up period and before the final 

distribution of trust property. See, e.g., In re Estate of Forgey, 

298 Neb. 865, 883, 906 N.W.2d 618, 633 (2018) (trust called 

for distribution of trust assets upon death of grantor, but trustee 

failed to do so for 20 years; in fashioning a remedy, Nebraska 

Supreme Court noted that county courts may apply equitable 

principles to matters within probate jurisdiction, including 

trusts, and that “[s]uch courts have full power to make orders, 

judgments, and decrees and to take all other actions necessary 

and proper to administer justice in the matters which come 

before them”).

[16] We note that the ability to apply equitable principles 

or modify or terminate a trust after a trust has terminated by 

its own terms is also supported by the Restatement (Second) 

Trusts § 344, comment a. at 191 (1959), which provides:
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By “the time for the termination of the trust” is meant the 

time at which it becomes the duty of the trustee to wind 

up the trust. Ordinarily this time is at the expiration of 

the period for which the trust is created. . . . Although 

the time for the termination of the trust has arrived in 

accordance with the terms of the trust, the trustee does 

not thereby necessarily cease to be the trustee, but he 

continues to be trustee until the trust is finally wound 

up. The period for winding up the trust is the period 

after the time for termination of the trust has arrived 

and before the trust is terminated by the distribution of 

the trust property. This period may properly be longer 

or shorter, depending upon the circumstances. Where the 

estate is large, where property not readily saleable has 

to be sold, where the ascertainment of the beneficiaries 

entitled to distribution or the amounts to which they are 

entitled is difficult, the period of winding up the trust 

may properly be longer than it would be in the absence 

of these circumstances.

(Emphasis supplied.) See, also, Estate of Nicholas, 177 Cal. 

App. 3d 1071, 223 Cal. Rptr. 410 (1986) (trust continues for 

purpose of winding up; period for winding up trust is period 

after time for termination has arrived and before trust is terminated by distribution of trust property; and winding up process 

involves distribution and conveyance of trust property to those 

entitled to it). Restated, a trust may expire or terminate by its 

own terms, thereby triggering the period for winding up the 

trust; the winding up period continues to exist until the trust 

is fully terminated by distribution of the trust property. If, as 

in this case, the trustees fail to distribute the property once the 

purpose of the trust was fulfilled, a court can enter an order 

fully terminating the trust with directions to distribute the 

trust property in accordance with the terms of the trust, see 

Ovrevik v. Ovrevik, 242 Ga. App. 95, 527 S.E.2d 586 (2000), 

or, if appropriate, enter an order modifying (or reforming) the 
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trust terms, see §§ 30-3837 to 30-3842. However, as discussed 

previously, due to Pamela not being included as a party, the 

county court did not have jurisdiction to enter an order terminating the trusts and directing distribution of the trusts’ assets, 

nor an order modifying the trusts.

[17] We also note that the Restatement (Third) of Trusts 

§ 66 (2003) provides that if a trustee knows or should know of 

circumstances that justify judicial action to modify an administrative or distributive provision of a trust because of circumstances not anticipated by the settlor, the trustee has a duty to 

petition the court for appropriate modification of or deviation 

from the terms of the trust. The possible imposition of such a 

duty on a trustee further supports permitting a trustee to seek 

modification under § 30-3838 even in those instances where a 

trust may have terminated or expired by its own terms, but is 

still pending the winding up and distribution of trust property. 

Further, “The objective of the rule allowing judicial modification (or deviation) and the intended consequences of its application are not to disregard the intention of a settlor. The objective is to give effect to what the settlor’s intent probably would 

have been had the circumstances in question been anticipated.” 

Restatement (Third), supra, § 66, comment a. at 493. Keeping 

in mind that the Uniform Trust Code was “drafted contemporaneously” with the drafting of the Restatement (Third) of 

Trusts, see Ronald R. Volkmer, The Nebraska Uniform Trust 

Code: Nebraska Trust Law in Transition, 37 Creighton L. 

Rev. 61, 64 (2003), we do not read the NUTC to exclude from 

possible modification or termination those trusts which may 

have terminated by their own terms but remain in the winding 

up period awaiting the final distribution and conveyance of 

trust property.

[18] Accordingly, we agree with the county court’s interpretation that the trusts terminated by their own terms. We 

also conclude that the NUTC allows a beneficiary or trustee 

to petition a county court to consider modification or termination of a trust which has expired or terminated pursuant to 
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its own terms but remains in the winding up period, including the possible modification of or deviation from dispositive 

terms, as was sought here. We therefore proceed to address the 

remaining errors assigned by Kirtus and Rocky related to their 

requests to modify or deviate from the trusts’ terms, as well 

as the error they assign to the county court’s determination 

that they committed a serious breach of trust in their duties 

as trustees.

5. Agreement to Con

Farming Oper

The older brothers were aware that Scott wanted the disputed farmland distributed and allocated among them, including that he was withholding payment of his share of the rent 

(taxes) until the land was split up. However, Kirtus and Rocky 

contend that the disputed real estate had not been distributed 

because they believed there was a 10-year agreement with 

Scott “to maintain the real estate in trust and farm it with 

him.” Brief for appellants at 32. But to maintain the disputed 

farmland in the trusts contrary to the language of the trusts 

and the First Codicil would have required modification of 

the trusts, which was not previously done, nor was it capable 

of being done in the present cases because Pamela was not a 

party. However, Kirtus and Rocky argue that “an agreement 

regarding the real estate alone . . . did not require [Pamela’s] 

approval.” Brief for appellants at 38. We agree that the brothers, without Pamela’s involvement, could have distributed 

the land to their “partnership” or to a newly formed limited 

liability company as their lawyer advised. But there was no 

evidence they did either. We agree with the county court that 

the “evidence was clear that Scott did not sign the operating 

agreement drafted by DeWitt.” Not only did they not sign the 

proposed operating agreement, and thus, there was no indication of an agreement to run it as a limited liability company, 

but they never distributed the land at all, and thus, they also 

demonstrated there was never an intention by all to run it as 
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a partnership. Because they kept the disputed farmland in the 

trusts, the only viable argument would have been that they 

agreed to modify the trusts to keep the farmland in the trusts 

for another 10 years, which they could not have done in July 

2011 without Pamela’s consent (discussed further later) and 

could not have done in the present matter without Pamela 

included as a party. We find no error by the county court in its 

conclusion on these matters.

6. Breach of Tr

Kirtus and Rocky contend that their “prior conduct and 

reaction to Scott’s underlying petitions herein in no way 

provide facts that justify the county court finding that they 

committed a ‘serious breach of trust’ supporting their removal 

under . . . § 30-3862.” Brief for appellants at 32. As previously discussed, the county court was without subject matter jurisdiction to remove the trustees because Pamela was 

an indispensable party to such an action in light of her 

interest in the trusts. This leaves for our consideration only 

the issue of whether the county court properly determined 

the brothers breached their duties as trustees with regard to 

their actions specific to the disputed farmland. We find no 

error in the county court’s findings and conclusions on this 

limited issue.

In its order, the county court pointed out that all the trustees 

failed to distribute assets and wind up the administration of 

the trusts and that therefore, they failed to prudently administer the trusts. Again, because Pamela was not a party to these 

proceedings, these findings by the county court are limited to 

matters pertaining to the disputed farmland. Keeping that in 

mind, we note that the county court found that “Kirtus and 

Rocky have abused their majority control” over their parents’ 

trusts and Kirtus “abused his control” over the Henry Trust 

“in violation of the duty of impartiality by failing to manage and distribute the trust property with due regard for the 

interests of all of the beneficiaries. Their personal interest 
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in continuing the farming operation has clearly been favored 

over their duties as trustees.”

The county court also found that Kirtus violated the duty 

of loyalty regarding the sale to himself of the 3-acre tract of 

land held in the parents’ trusts. The 3-acre tract was within 

the Staroscik parcel and was adjacent to the 11⁄2 acres already 

owned by Kirtus on the southwest corner of that property. A 

trustee’s deed was executed by Kirtus on December 29, 2015, 

and recorded on March 1, 2016, which was the second day of 

trial. The conveyance was made without notice to Scott, and 

the purchase price was based on an appraisal in which the 3 

acres of irrigated land was appraised as dryland, upon Kirtus’ 

request. And although Kirtus claimed Rocky approved the 

transaction, the trustee’s deed was not executed by a majority 

of the cotrustees. The court also found that there was a lack 

of cooperation among the cotrustees and that the administration of the parents’ trusts was affected by the inability of the 

cotrustees “to get along and work together in their personal 

lives and in the administration of the Trusts.”

Even if the older brothers initially believed there was an 

agreement to keep the disputed farmland in the trusts or otherwise for another 10 years, the evidence did not support that 

Scott agreed, nor that Pamela consented, to such a modification of the trusts. Further, the older brothers’ behaviors toward 

Scott (changing locks and security codes, removing keys from 

equipment and trucks, removing books and computer from 

Norval’s home, and taking over Scott’s wife’s bookkeeping 

responsibilities); Rocky’s aggressive behavior toward Scott; 

and Scott’s actions toward them (not paying his share of real 

estate and personal property taxes, closing joint bank account, 

and delivering termination notice) should have dispelled any 

notion that there was any basis to delay distributing the trusts’ 

property and winding up the trusts.

[19] A trustee breaches a duty of care if he unduly delays 

distributions. See In re Estate of Hedke, 278 Neb. 727, 775 

N.W.2d 13 (2009). “A violation by a trustee of a duty the 
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trustee owes to a beneficiary is a breach of trust.” § 30-3890(a). 

Thus, when a trustee unduly delays distributions from a trust, 

the trustee has breached a duty of care owed to a beneficiary, 

and the violation of that duty is a breach of trust. Accordingly, 

as to matters pertaining to the disputed farmland only, we 

find no error in the county court’s determination that a breach 

of trust occurred by Kirtus as trustee of the Henry Trust and 

the three brothers as trustees for their parents’ trusts. These 

findings and conclusions specific to a breach of trust involving the disputed farmland can be considered in the context of 

the trustees’ actions with regard to the entirety of the trusts’ 

administration upon remand, with Pamela joined in such proceedings. When considered in that context and with all qualified beneficiaries participating, an appropriate remedy can 

be determined.

7. Equitable Distr

of Real Esta

This issue is at the heart of each of the four cases on appeal 

before this court. Scott filed his actions seeking the distribution of the disputed farmland so that he could independently 

farm with his son. Having been unable to reach an agreement 

with his older brothers as to how to divide the farmland in 

which they each owned an undivided one-third interest, he 

filed his lawsuits, including a separate district court action to 

partition the land. Kirtus and Rocky were concerned that a partition action would necessarily force the sale of the disputed 

farmland (valued at $4.728 million total) and require the payment of hefty capital gains taxes ($822,975 total or $274,325 

per brother); they believed this would “force them out of 

farming”—something their father would not have anticipated 

or desired. As noted by DeWitt, it “is typical of farm families” 

to have a “strong desire to focus on preserving the family farm 

to keep it in the family and pass down from one generation to 

the next. It’s kind of a way of life almost more than economics.” Kirtus and Rocky filed their actions seeking an order 
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modifying the trusts or otherwise declaring their authority to 

equitably distribute the farmland to each brother as separate 

parcels with fee simple title, along with cash to equalize distributions where needed.

In the petitions filed by Kirtus and Rocky, in addition to 

the matters already discussed regarding modifying the trusts to 

maintain the disputed property in the trusts (or business entity) 

for another 10 years, they alternatively sought approval from 

the county court to modify the manner in which the disputed 

farmland could be distributed. They sought approval to equitably allocate the farmland by distributing separate parcels of 

land to the brothers in fee simple title rather than distributing 

the properties as tenants in common. As they note on appeal, 

in the event “their 10-year agreement was not upheld” by the 

county court, they alternatively presented a “proposal for equitable distribution of a separate parcel to Scott and some cash.” 

Brief for appellants at 39. The proposal was based on market 

values of the disputed properties, and it provided each of the 

brothers “an approximate equal amount of real estate but additional cash to Scott to make up the difference in values.” Id. 

Kirtus and Rocky contend that their proposal “effectuates as 

best as possible their ancestors’ intent to keep the farm in the 

family and avoid an unnecessary almost-$900,000 tax obligation to the brothers.” Id. The county court declined to approve 

the proposal based on insufficient evidence, and the older 

brothers contend it was error for the court to not say what 

“was missing” and to have “at least acknowledged” that their 

proposal “would be a distribution consistent with the terms of 

the Trusts and the law.” Id.

Kirtus and Rocky relied upon two statutory provisions in 

the NUTC to support their request to allow the trustees to distribute the disputed farmland as separate parcels in fee simple 

title: (1) § 30-3837 (modification or termination of noncharitable irrevocable trust by consent) and (2) § 30-3838 (modification or termination because of unanticipated circumstances 

or inability to administer trust effectively). Alternatively, they 
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also sought confirmation from the court that the NUTC and 

the language of the trusts authorized them to distribute the disputed farmland as they proposed. The county court determined 

it was unnecessary to consider any modification to the trusts 

because it concluded, in essence, that § 30-3881(a)(22) permitted the trustees to distribute the property other than as tenants 

in common and that this could be done without modification 

of the trusts. Therefore, the county court did not consider 

Kirtus and Rocky’s request for relief under either § 30-3837 or 

§ 30-3838. Further, the county court was unwilling to approve 

Kirtus and Rocky’s proposed allocation and equalization based 

on insufficient evidence. For the reasons that follow, we 

reverse, and remand for further proceedings on this issue.

(a) Conclusion That Modification 

Was Unnecessary

The county court stated that Kirtus and Rocky’s request to 

modify the trusts to authorize distribution of sole fee simple 

title and specific parcels of real estate to individual beneficiaries was not necessary, explaining:

The requested modifications are not necessary. 

Notwithstanding the terms of Article XI [trustee powers] 

of the Norval and Elnora Trusts, section 30-3881[(a)](22) 

of the NUTC authorizes a trustee to “make distributions 

in divided or undivided interests, allocate particular assets 

in proportionate or disproportionate shares, value the trust 

property for those purposes, and adjust for resulting differences in valuation.” As such, the requested relief is 

already authorized under the NUTC.

Pursuant to the dispositive provisions of the Norval 

and Elnora Trusts and the First Codicil to Norval’s Will, 

it is clear that Norval wanted his three sons treated 

equally with respect to the distribution of farm real estate 

and personal property used in the farm operation. To the 

extent a request to modify the Trusts was made by Kirtus 

and Rocky with regard to the distribution proposal made 
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by Kirtus at trial, the court finds that there is not sufficient evidence upon which the court can determine the 

equality of the proposal. As such, the request to modify 

the Trusts to approve the distribution proposal is denied.

It appears the county court concluded that notwithstanding the powers granted to the trustees under article XI of the 

parents’ trusts, § 30-3881(a)(22) gave the trustees authority to 

distribute the disputed farmland in a manner contrary to the 

express language of the dispositive provisions of the trusts, 

and that they could do so without a formal request to modify. 

Article XI of the Norval Trust and the Elnora Trust contains the “Long Form of Powers for Trustee,” authorizing the 

trustee specific powers (set forth in subparts (1) through (29)), 

along with any “other rights, powers, authority and privileges 

granted by any other provision of this Trust Agreement or by 

statute or general rules of law.” The county court concluded 

that § 30-3881 gave the trustees the authority to distribute the 

disputed farmland other than as tenants in common and that 

therefore, the “requested modifications [were] not necessary.” 

Section 30-3881(a) states, in relevant part:

Without limiting the authority conferred by section 

30-3880, a trustee may:

. . . .

(22) on distribution of trust property or the division or 

termination of a trust, make distributions in divided or 

undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property 

for those purposes, and adjust for resulting differences 

in valuation.

We disagree with the county court’s interpretation that 

§ 30-3881(a)(22) can be applied to the disputed farmland in 

this matter without a modification proceeding or possibly a 

nonjudicial settlement agreement (described further below), 

when the language of the trusts and the First Codicil specifically set forth how the disputed farmland was to be distributed. 

The language of the parents’ trusts with regard to the disputed 
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real estate is clear. Article VIII(3)(f) states, “All other farmland held by the Trust shall be distributed to the three sons of 

the Grantor in equal shares as tenants in common.” And the 

First Codicil appointed the Henry 80 to the three brothers “in 

equal shares, outright and free of trust.”

To distribute the disputed farmland other than as tenants in 

common would have required the consent of the three brothers 

who were the named beneficiaries of that property; a nonjudicial settlement agreement may have been an option under 

those circumstances. The NUTC provides that “interested persons may enter into a binding nonjudicial settlement agreement 

with respect to any matter involving a trust” so long as “it does 

not violate a material purpose of the trust and includes terms 

and conditions that could be properly approved by the court 

under the [NUTC] or other applicable law.” § 30-3811(b) and 

(c). Matters that may be resolved by a nonjudicial settlement 

agreement include, for example, “the interpretation or construction of the terms of the trust” and “the grant to a trustee 

of any necessary or desirable power.” § 30-3811(d)(1) and 

(3). Therefore, with the three brothers’ consent through a nonjudicial settlement agreement, and so long as the agreement 

did not violate a material purpose of the trust and contained 

terms the court could otherwise properly approve as provided 

under the NUTC, the trustees could allocate the properties 

in separate parcels in fee simple title and make adjustments 

for differences in value as permitted by § 30-3881(a)(22) and 

article XI of the trusts. Any interested person can request the 

court to approve such an agreement and “determine whether 

the agreement contains terms and conditions the court could 

have properly approved,” § 30-3811(e), such as under the 

modification statutes we discuss below. See, also, Unif. Trust 

Code § 111, comment, 7D U.L.A. 101, 102 (2018) (comment 

notes that while Uniform Trust Code recognizes that court may 

intervene in administration of trust to extent its jurisdiction is 

invoked by interested persons or as otherwise provided by law, 

“resolution of disputes by nonjudicial means is encouraged”). 
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However, without the consent of the three brothers to enter 

into such an agreement under the requirements of § 30-3811 

discussed above, it was necessary for the trustees to seek court 

approval, as Kirtus and Rocky did, to modify the pertinent 

dispositive provisions in the trusts and the First Codicil. Since 

there was no consent to change those dispositive provisions, 

modification was necessary to effectuate an allocation of the 

properties other than as tenants in common, or “equal shares,” 

as directed by the pertinent instruments.

[20] Although Scott did not raise this issue in a crossappeal, plain error may be noted by an appellate court on its 

own motion. See Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 

282 (2007). Plain error exists where there is an error, plainly 

evident from the record but not complained of at trial, which 

prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, 

and fairness of the judicial process. Id. The county court’s 

erroneous interpretation of § 30-3881(a)(22) as applied here 

amounts to plain error; this portion of the county court’s order 

is reversed.

(b) Modification Pursuant to 

§ 30-3837(b) or § 30-3838

[21] The NUTC provides a basis for modification of a 

noncharitable irrevocable trust under § 30-3837 upon consent 

of all of the beneficiaries so long as the modification is not 

inconsistent with a material purpose of the trust; or, if all 

of the beneficiaries do not consent, a modification may still 

be approved under certain circumstances. We pause to note 

that while § 30-3837 refers to a noncharitable irrevocable 

trust, and the trusts at issue here were revocable when made, 

the statute’s application is nevertheless appropriate because 

of the death of the last surviving grantor/settlor, Norval. A 

trust which is revocable when made remains revocable during 

the settlor’s lifetime; however, a revocable trust necessarily 
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becomes irrevocable upon the settlor’s death. See Unif. Trust 

Code § 604, comment, 7D U.L.A. 232 (2018) (comment notes 

this section regarding revocable trust only applies to revocable 

trust that becomes irrevocable by reason of settlor’s death). 

See, also, § 30-3880(c) (regarding trustee’s responsibility to 

satisfy medical assistance claims for trustor whose “revocable 

trust . . . has become irrevocable by reason of the death of 

the trustor”); Grueff v. Vito, 229 Md. App. 353, 145 A.3d 86 

(2016) (settlor’s death rendered revocable trust irrevocable); 

Jameson v. Bain, 693 S.W.2d 676 (Tex. App. 1985) (when 

valid inter vivos revocable trust is not revoked during lifetime 

of trustor, it becomes irrevocable upon his death, terminates, 

and becomes enforceable by beneficiary).

We first note that § 30-3837(a) is not applicable because it 

can only apply while the settlor is still alive; it requires the 

consent of the settlor. See In re Trust of Shire, 299 Neb. 25, 

907 N.W.2d 263 (2018) (§ 30-3837(a) not applicable because 

it requires consent of settlor who was deceased). As relevant 

here, § 30-3837(b) then states:

A noncharitable irrevocable trust may be terminated upon 

consent of all of the beneficiaries if the court concludes 

that continuance of the trust is not necessary to achieve 

any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the 

beneficiaries if the court concludes that modification is 

not inconsistent with a material purpose of the trust.

Section 30-3837(e) further states:

If not all of the beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or 

(b) of this section, the modification or termination may be 

approved by the court if the court is satisfied that:

(1) if all of the beneficiaries had consented, the trust 

could have been modified or terminated under this section; and

(2) the interests of a beneficiary who does not consent 

will be adequately protected.
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[22] Although § 30-3837(e) authorizes a court to modify 

a trust without the consent of all beneficiaries, it can only 

do so if the modification is not inconsistent with a material 

purpose of the trust and any nonconsenting beneficiary would 

be adequately protected. See § 30-3837(b) and (e). This basis 

for modifying the dispositive terms related to the disputed 

farmland was not considered by the county court because 

of its reliance instead on § 30-3881(a)(22), which we have 

determined to be erroneous. Thus, we remand the cause for 

further proceedings for the county court to consider whether 

§ 30-3837(b) and (e) may permit Kirtus and Rocky to change 

the manner of distribution of the disputed farmland from ownership as tenants in common of all the property to separate 

parcels owned in fee simple.

[23-25] Likewise, § 30-3838 offers another alternative for 

modification; it states, in relevant part:

(UTC 412)(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust 

if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes 

of the trust. To the extent practicable, the modification 

must be made in accordance with the settlor’s probable intention.

The comments to the Uniform Trust Code provide some guidance as to this particular statute. See In re Trust Created by 

Fenske, 303 Neb. 430, 930 N.W.2d 43 (2019) (comments to 

Uniform Trust Code provide some guidance, and Legislature 

directly referred to sections of code when adopting it, thereby 

incorporating those comments). See, also, Unif. Trust Code 

§ 106, comment, 7D U.L.A. 85, 86 (2018) (comment notes 

that statutory text of Uniform Trust Code is “also supplemented by these Comments, which, like the Comments to any 

Uniform Act, may be relied on as a guide for interpretation”). 

Section 30-3838 broadens the court’s ability to apply equitable deviation to modify a trust. See Unif. Trust Code, supra, 

§ 412, comment, 7D U.L.A. at 168 (comment notes application 
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of equitable deviation and that subsection (a) allows court to 

modify dispositive provisions of trust as well as its administrative terms; “purpose of the ‘equitable deviation’ authorized 

by subsection (a) is not to disregard the settlor’s intent but to 

modify inopportune details to effectuate better the settlor’s 

broader purpose”). While it is necessary that there be circumstances not anticipated by the settlor before the court may 

grant relief under § 30-3838(a), the circumstances may have 

been in existence when the trust was created. See Unif. Trust 

Code § 412, supra. Under the “‘equitable deviation’” doctrine, 

the objective is not to disregard the intention of the settlor, but 

to give effect to what the settlor’s intent probably would have 

been had the circumstances in question been anticipated. See 

Restatement (Third) of Trusts § 66, comment a. at 493 (2003). 

Upon a finding of unanticipated circumstances, the court must 

further determine whether a proposed modification or deviation would tend to advance or detract from the trust purposes; 

this inquiry is likely to involve a somewhat subjective process 

of attempting to infer the relevant purpose or purposes of a 

trust from the general tenor of its provisions and from the 

nature of the beneficial interests, together with the family or 

personal relationships involved in the trust. See Restatement 

(Third), supra, § 66, comment b.

The older brothers contend their father “would not have 

wanted the family farm sold” and would have “expected 

his sons to work out their disputes between them and carry 

on with farming together.” Brief for appellants at 15. They 

suggest that if their father expected the land would be sold 

rather than farmed, he would not have left Pamela “out of 

sharing the proceeds of that sale.” Id. In other words, the 

older brothers suggest that unanticipated circumstances have 

arisen which warrant modification, or deviation, as to how the 

disputed farmland should be distributed and that such a modification should be in accordance with their father’s probable 

intention that the brothers continue farming together—or at 

least keep the farmland in the family. Again, the county court 
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did not address Kirtus and Rocky’s request for relief pursuant 

to § 30-3838, and it should do so on remand, keeping in mind 

the principles of equitable deviation set forth above.

VI. CONCLUSION

We affirm the county court’s order in all respects except 

as follows:

We vacate, for lack of jurisdiction, those portions of the 

county court’s order (1) removing the trustees, (2) ordering an 

accounting and delivery of trust property to a successor trustee 

upon appointment, (3) declaring that a vacancy was created in 

the trusteeship of the trusts, and (4) determining that a successor trustee should be appointed.

We reverse the county court’s determination that 

§ 30-3881(a)(22) gave the trustees the authority, without modification of the trusts, to distribute the disputed farmland other 

than as tenants in common; we therefore remand the cause for 

consideration of Kirtus and Rocky’s request for modification of 

the trusts pursuant to §§ 30-3837(b) and (e) and 30-3838.

Although we affirm the county court’s determination that the 

trustees engaged in a breach of trust specific to the disputed 

farmland, the issue of an appropriate remedy for that breach 

of trust is remanded for further consideration once Pamela is 

included as a party.

 Affirmd in part, vaated in 

in part reversed and rema

for further proceedin

Welch, Judge, participating on briefs