In re Estate of Robb ( 2013 )

Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 429
Cite as 21 Neb. App. 429Accordingly, I would reverse the decision of the district court
which modified custody by awarding Kyle primary physical
custody of the children.
In re Estate of Mason D. Robb, deceased.
Linda Hahn and Shawn Eichman, appellees, v.
Theodore J. Robb, Personal R epresentative
and Trustee, appellant.
___ N.W.2d ___
Filed October 22, 2013. No. A-12-1002.
1. Decedents’ Estates: Trusts: Appeal and Error. In trust administration and pro-
bate cases, an appellate court uses an “issue-specific approach” to determine the
appropriate standard of review.
2. Decedents’ Estates: Trusts: Equity: Appeal and Error. Both probate and trust
administration matters are reviewed for error appearing on the record, absent an
equity question.
3. ____: ____: ____: ____. Both probate and trust administration matters are
reviewed de novo, where an equity question is presented.
4. ____: ____: ____: ____. The removal of a trustee is a question of equity.
Accordingly, in a trust proceeding, an appellate court reviews de novo the ques-
tion of whether a trustee was properly removed.
5. Decedents’ Estates: Appeal and Error. The removal of a personal representative
is not an equity question. The removal of a personal representative is reviewed
for error appearing on the record.
6. Decedents’ Estates: Executors and Administrators: Appeal and Error. A trial
court’s decision whether to appoint a special administrator is not a question of
equity. Appointment of a special administrator is reviewed for error appearing on
the record.
7. Decedents’ Estates: Executors and Administrators. When an executor has
a personal interest in the administration of an estate and in the disposition of
the estate property, and when the circumstances disclose that those interests
prevent him from performing his duties in an impartial manner, he should
be removed.
8. Trusts. A trustee commits a breach of trust if he violates any of the duties owed
to beneficiaries.
9. ____. A trustee has the duty to administer the trust in good faith, in accordance
with its terms and purposes and the interests of the beneficiaries, and in accord­
ance with the Nebraska Uniform Trust Code.
10. ____. Transactions involving the investment or management of trust property
entered into by the trustee for the trustee’s own personal account or which is
other­ ise affected by a conflict between the trustee’s fiduciary and personal
w
Decisions of the Nebraska Court of Appeals
430 21 NEBRASKA APPELLATE REPORTS
interests are voidable unless they are authorized, are approved, or were entered
into before the trustee contemplated becoming a trustee.
11. Decedents’ Estates: Executors and Administrators. A trial court has the
authority to appoint a special administrator under Neb. Rev. Stat. § 30-2457(Reissue 2008).
12. ____: ____. After a special administrator is appointed, the administrator has the
same powers as a personal representative, except the power is limited to the
duties prescribed in the trial court’s order.
Appeal from the County Court for Hall County: Arthur S.
Wetzel, Judge. Affirmed.
David C. Huston, of Huston & Higgins, for appellant.
Ronald S. Depue, of Shamberg, Wolf, McDermott & Depue,
for appellees.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Riedmann, Judge.
I. INTRODUCTION
Theodore J. Robb appeals the order of the county court for
Hall County removing him as the personal representative of his
deceased father’s estate and as the trustee of his father’s inter
vivos trust. The issue raised is whether the trial court erred in
determining that it was in the best interests of the estate and the
trust to remove Theodore from his fiduciary positions. Because
Theodore’s individual interests conflicted with the interests of
the estate and the trust, we affirm the trial court’s decision to
remove him from his fiduciary positions.
II. BACKGROUND
Mason D. Robb passed away in March 2010. Pursuant to
his last will and testament and his trust documents, his son,
Theodore, became the personal representative of his estate and
the trustee to the inter vivos Mason D. Robb Revocable Living
Trust (the Trust). The Trust included three pieces of real estate:
the Tri Street house, the Hall County farm, and the Sherman
County pastures.
The Trust declared that the trustee should hold and use the
Trust property for two purposes: to pay administrative costs
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 431
Cite as 21 Neb. App. 429and the settlor’s debts and for the benefit of the Mason D.
Robb QTIP Family Trust (the Family Trust). The Trust directed
the trustee to separate the funds in the Family Trust into two
equal shares: one for the benefit of Theodore and one for the
benefit of Theodore’s sister, Linda Hahn (Linda). The share
created for Theodore was to be delivered to him outright,
and the share created for Linda was to be held in trust for
Linda’s benefit. The Family Trust stated that Linda should
receive income from her share of the Family Trust periodically
throughout her lifetime.
In September 2011, Linda and her son, Shawn Eichman
(Shawn), filed a motion to remove Theodore as the personal
representative. In December, Linda and Shawn filed an addi-
tional motion to remove Theodore as the trustee. Linda and
Shawn also filed a petition to appoint a special administrator to
administer the estate and the Trust in the event that Theodore
was not removed. The county court of Hall County heard the
matter in September 2012.
1. Theodore’s Actions as
P ersonal R epresentative
The evidence presented at trial indicates that Theodore
received a $50,000 “death-bed transfer” from his father.
Theodore admitted receipt of the payment and agreed that the
payment should be treated as an estate asset, but he stated that
he had not deposited it in the estate account at the time of trial.
Theodore also failed to include it in either the inventory or the
amended inventory filed with the court.
The evidence also reveals that Theodore sold several items
of personal property belonging to his father, in the amount of
approximately $900, but that he had not included that amount
in any accounting filed with the court as of the date of the
hearing. Theodore had, however, deposited the funds into the
estate account.
Theodore was also untimely in his filing of his original
inventory and accounting. Despite a court order, Theodore
failed to file an amended inventory or an accounting that
included funds and assets through June 15, 2012; rather, his
amended filings were current through only 2011.
Decisions of the Nebraska Court of Appeals
432 21 NEBRASKA APPELLATE REPORTS
2. Theodore’s Management
as Trustee
The evidence presented at trial showed that after becoming
the trustee, Theodore undertook efforts to improve the Trust
properties. He compensated himself and others he hired for
their efforts in improving the real property. At times, he com-
pensated himself by using the property, determining a rental
price to charge himself for that use, and offsetting the rent he
owed the Trust against the compensation the Trust allegedly
owed him for improving the property. The efforts to improve
the three properties were substantial.
Theodore claimed the Trust owed him $7,461.26 for improv-
ing the Tri Street house. Some of his expenses for the property
included painting the house and paying the utilities and taxes.
After improving the house, Theodore began renting it to a third
party in October 2011 for $650 per month. At the time of trial,
Theodore had received $7,800 in rent from the property but
had deposited only 3 months of rent ($1,950) into the Trust
account. He also credited 3 months of rent ($1,950) against his
costs for improving the property. After crediting $1,950 against
the $7,461.26 he claimed he was owed, Theodore determined
that the Trust owed him $5,511. At the time of trial, 6 months
of rent from the Tri Street property were not accounted for in
Theodore’s accounting.
Theodore claims the Trust owed him $41,675 for his work
improving the Hall County farm and $37,175.54 for his work
improving the Sherman County pastures. The Hall County
farm had fallen into a state of disrepair before Theodore
began improving it. Theodore hired laborers to help remove
“junk” from the farm, including tires and overgrown trees. The
Sherman County pastures required pressure spraying, installa-
tion of water lines, and other labor to make the land suitable
for rental.
Theodore completed a large portion of the work on these
properties himself, but he also hired others to help. Robert
Boyd testified that he worked for Theodore improving both
properties. According to Boyd, Theodore paid him a flat rate
of $2,500 per month, either in cash or by check written
on Theodore’s personal checking account. Boyd testified that
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 433
Cite as 21 Neb. App. 429Theodore hired other men to work as well, but he did not pro-
vide details. Boyd also testified that he sometimes worked on
Theodore’s property in addition to the Trust property and that
his compensation covered work on both properties. Theodore
did not issue W-2 or 1099 forms to the workers.
After working to improve the Hall County farm and Sherman
County pastures, Theodore generated income from the proper-
ties by renting them to himself and crediting the Trust with the
rental value. The parties dispute whether Theodore charged the
fair market rental values of the properties.
In 2011 and 2012, Theodore rented the Hall County farm
and charged himself $29,062 per year, which equates to $200
per acre. He had not paid any rent for 2012 at the time of trial
but acknowledged that he did owe that amount to the Trust.
He testified that he determined the rental amount of $200 per
acre because that is the price another individual paid to rent the
property in 2010. Theodore’s appraiser placed the annual rental
value at $6,700 higher than Theodore was paying. Linda and
Shawn’s appraiser determined the rental value of the property
to be around $43,000, which is well over $10,000 more than
Theodore paid. As a result of the litigation surrounding the
estate and the Trust, Theodore executed a contract to sell the
Hall County farm to an acquaintance for $6,000 per acre, but
Linda and Shawn’s appraiser determined that the property was
worth $10,000 per acre.
Theodore also rented the Sherman County pastures to him-
self at a price of $6,400 per year. Theodore determined this
rent based on the amount he charged someone else to rent
one of his pastures. He did not deposit this amount into the
Trust account, but, rather, credited that amount to the Trust
against the amount he claimed the Trust owed him for his
work improving the property. Theodore hired an appraiser,
who determined the rental value of the property to be $14,554
per year.
In addition to the real estate, Theodore also received a
$50,000 “death-bed transfer” from his father’s account. Both
parties agree that the money should be deposited into the Trust
account, but Theodore had not yet deposited it at the time of
trial, 21⁄2 years after his father’s death. As of the date of trial,
Decisions of the Nebraska Court of Appeals
434 21 NEBRASKA APPELLATE REPORTS
Theodore claimed the Trust still owed him $112,896.87. As
a result, Linda had not yet received any payments from the
Family Trust.
3. Trial Court Determination
The court found that Theodore should be removed from
his positions as the personal representative and as the trustee,
because his actions in commingling his individual funds with
the funds and assets of the estate and the Trust caused irrecon-
cilable conflict and could continue to do so. Accordingly, the
trial court determined that removing Theodore from his posi-
tions as the personal representative and as the trustee was in
the best interests of the estate and the Trust.
This timely appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Theodore argues that the county court erred in
removing him from his role as the personal representative and
as the trustee, because removal was not in the best interests
of the estate and the Trust. In the alternative, Theodore argues
that the trial court failed to use a less intrusive method, such as
appointing a special administrator, to limit Theodore’s role as
the personal representative and as the trustee.
IV. STANDARD OF REVIEW
[1] In trust administration and probate cases, an appel-
late court uses an “issue-specific approach” to determine the
appropriate standard of review. See In re Margaret Mastny
Revocable Trust, 281 Neb. 188, 198, 794 N.W.2d 700, 710
(2011). Consequently, the applicable standards of review
regarding issues arising in probate and trust cases can be enig-
matic. Accordingly, we set forth below the applicable standards
of review in a slightly unorthodox manner.
1. P robate and Trust Issues Not
Involving Equitable Issues
[2] Both probate and trust administration matters are
reviewed for error appearing on the record, absent an equity
question. See id.Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 435
Cite as 21 Neb. App. 4292. P robate or Trust Issues Involving
Equitable Issues
[3] Both probate or trust administration matters are reviewed
de novo, where an equity question is presented. See id.
3. P robate Trust Administration Issues:
and
Equitable or Not
(a) Trust Administration Cases—Removal
of Trustee Is Equitable Issue
[4] The removal of a trustee is a question of equity. See
Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745 (1931).
Accordingly, in a trust proceeding, an appellate court reviews
de novo the question of whether a trustee was properly
removed.
(b) Probate Cases—Removal of Personal
Representative Is Not Equitable Issue
[5] The removal of a personal representative is not an equity
question. See In re Estate of Krumwiede, 264 Neb. 378, 647
N.W.2d 625 (2002). The removal of a personal representative
is reviewed for error appearing on the record. See In re Estate
of Webb, 20 Neb. App. 12, 817 N.W.2d 304 (2012).
(c) Probate Cases—Appointment of Special
Administrator Is Not Equitable Issue
[6] A trial court’s decision whether to appoint a special
administrator is not a question of equity. See In re Estate of
Evans, 20 Neb. App. 602, 827 N.W.2d 314 (2013) (noting that
trial court erred in ordering removal of appellant as personal
representative rather than making independent determination).
Therefore, appointment of a special administrator is reviewed
for error appearing on the record.
V. ANALYSIS
1. R emoval From Role as
P ersonal R epresentative
Theodore argues that the trial court erred in removing him as
the personal representative. We disagree.
Decisions of the Nebraska Court of Appeals
436 21 NEBRASKA APPELLATE REPORTS
[7] Neb. Rev. Stat. § 30-2454(a) (Reissue 2008) states that
a court may remove a personal representative from an estate if
“removal would be in the best interests of the estate, or if it is
shown that a personal representative . . . has mismanaged the
estate or failed to perform any duty pertaining to the office.”
See, also, In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d
453 (1992). When an executor has a personal interest in the
administration of an estate and in the disposition of the estate
property, and when the circumstances disclose that those inter-
ests prevent him from performing his duties in an impartial
manner, he should be removed. See In re Estate of Marconnit,
119 Neb. 73, 227 N.W. 147 (1929).
In this case, Theodore failed to impartially perform his
duties as the personal representative. In particular, as the per-
sonal representative, Theodore was entrusted with the duty to
manage and properly account for the property that was part of
the estate. The record reveals that Theodore has failed to prop-
erly account for estate assets, particularly the $50,000 “death-
bed transfer.” While Theodore acknowledged that this money
should be considered property of the estate, he had not depos-
ited it into the estate’s account during the 21⁄2 years between
his father’s death and the hearing. In addition, Theodore sold
items of personal property belonging to his father without
notification to the remaining heirs and had not accounted for
the income. Furthermore, Theodore did not timely file his
original inventory and accounting, nor was it complete. These
actions disclose that Theodore’s personal interest in the estate
prevented him from impartially performing his duties as the
personal representative. We agree with the trial court that
allowing Theodore to continue as the personal representative
was not in the best interests of the estate and that his removal
was proper.
2. R emoval From Role
as Trustee
Theodore argues that the trial court erred in removing him
from his role as the trustee. We disagree.
Neb. Rev. Stat. § 30-3862(b) (Reissue 2008) states that the
court may remove a trustee if:
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 437
Cite as 21 Neb. App. 429(1) the trustee has committed a serious breach of trust;
(2) lack of cooperation among cotrustees substantially
impairs the administration of the trust;
(3) because of unfitness, unwillingness, or persistent
failure of the trustee to administer the trust effectively, the
court determines that removal of the trustee best serves
the interests of the beneficiaries; or
(4) there has been a substantial change of circum-
stances or removal is requested by all of the qualified
beneficiaries, the court finds that removal of the trustee
best serves the interests of all of the beneficiaries and is
not inconsistent with a material purpose of the trust, and a
suitable cotrustee or successor trustee is available.
The language of § 30-3862 is identical to that of Unif. Trust
Code § 706, 7C U.L.A. 575 (2006). The comments to § 706
of the Uniform Trust Code are helpful in evaluating whether
a trustee has committed a “serious breach of trust.” The com-
ment to § 706 provides:
The breach must be “serious.” A serious breach of trust
may consist of a single act that causes significant harm
or involves flagrant misconduct. A serious breach of
trust may also consist of smaller breaches, none of which
individually justify removal when considered alone, but
which do so when considered together.
7C U.L.A. at 576. See, also, In re Charles C. Wells Revocable
Trust, 15 Neb. App. 624, 734 N.W.2d 323 (2007).
[8,9] A trustee commits a breach of trust if he violates
any of the duties owed to beneficiaries. See Neb. Rev. Stat.
§ 30-3890(a) (Reissue 2008). A trustee has the duty to “admin-
ister the trust in good faith, in accordance with its terms and
purposes and the interests of the beneficiaries, and in accord­
ance with the Nebraska Uniform Trust Code.” Neb. Rev. Stat.
§ 30-3866 (Reissue 2008). The Nebraska Uniform Trust Code,
in turn, states that trustees owe the beneficiaries duties that
include the duty of loyalty, impartiality, prudent administration,
protection of trust property, proper recordkeeping, and inform-
ing and reporting.
[10] The duty of loyalty requires a trustee to administer
the trust solely in the interests of the beneficiaries. Neb. Rev.
Decisions of the Nebraska Court of Appeals
438 21 NEBRASKA APPELLATE REPORTS
Stat. § 30-3867(a) (Reissue 2008). Transactions involving the
investment or management of trust property entered into by
the trustee for the trustee’s own personal account or which is
otherwise affected by a conflict between the trustee’s fiduciary
and personal interests are voidable unless they are authorized,
are approved, or were entered into before the trustee contem-
plated becoming a trustee. See § 30-3867(b).
To further help prevent conflicts of interests, Neb. Rev. Stat.
§ 30-3875 (Reissue 2008) requires trustees to keep adequate
records of the trust administration and to keep trust property
separate from the trustee’s property. Trust property must be
designated so that the trust’s interest, “to the extent feasible,
appears in records maintained by a party other than a trustee or
beneficiary.” Id.Trustees can run afoul of these requirements when they com-
mingle their personal property with trust property. In Sherman
v. Sherman, 16 Neb. App. 766, 751 N.W.2d 168 (2008), for
example, we found that a trustee’s action in leasing land to
himself ran afoul to the general prohibitions on self-dealing by
a trustee. In that case, the trial court found that the trustee’s
action in leasing the land to himself for a lower amount than he
could have otherwise received violated the trustee’s duty to act
for the beneficiaries and remaindermen. Accordingly, we deter-
mined that the trial court did not clearly err when it removed
the trustee. Id.Nebraska law supports the trial court’s decision to remove
Theodore as the trustee. As discussed above, § 30-3862(b)
authorized the trial court to remove Theodore if he committed
a serious breach of trust. Theodore committed a breach of trust
by commingling his personal property with that of the Trust
and by engaging in self-dealing by renting the property to him-
self at favorable rates. This self-dealing brought his personal
interest in a favorable rental price into conflict with Linda’s
interest in profiting from the property.
Theodore also engaged in self-dealing by compensating
himself for improvements he made to the property. He has
given the Trust credit against its alleged debt in the form of
free rent, but continues to claim that the Trust owes him com-
pensation for his services.
Decisions of the Nebraska Court of Appeals
IN RE ESTATE OF ROBB 439
Cite as 21 Neb. App. 429Although his substantial improvements of the Trust property
may have been in the best interests of the Trust, when Theodore
is collecting compensation from the Trust for his actions, it is
not clear that he is acting solely for the benefit of the Trust
beneficiaries. Theodore’s determination of his own level of
compensation places his interests directly at odds with Linda’s.
His actions are akin to the trustee’s actions in Sherman, supra,
and therefore constitute a serious breach of trust.
In addition to the above, Theodore’s failure to account for 6
months of rent from the Tri Street property also raises serious
concerns about his ability to effectively fulfill his basic duties
as the trustee. Failure to effectively administer the trust consti-
tutes a separate ground for removal under § 30-3862(b).
Theodore’s multiple failures to impartially perform the
duties owed to the Trust beneficiaries are grounds for his
removal. Because of these failures, removal of Theodore as the
trustee was proper.
3. Failure to Appoint Special
Administrator
In his brief, Theodore argues that even if the trial court
had concerns about his ability to administer the estate and the
Trust, the trial court should have appointed a special adminis-
trator to deal with the sale of the Hall County farm and com-
pensation to Theodore for his improvements to the property
rather than removing Theodore as the personal representative
and as the trustee.
[11] A trial court has the authority to appoint a special
administrator
in a formal proceeding by order of the court on the peti-
tion of any interested person and finding, after notice and
hearing, that appointment is necessary to preserve the
estate or to secure its proper administration including its
administration in circumstances where a general personal
representative cannot or should not act.
Neb. Rev. Stat. § 30-2457 (Reissue 2008).
[12] After a special administrator is appointed, the admin-
istrator has the same powers as a personal representative,
except the power is limited to the duties prescribed in the trial
Decisions of the Nebraska Court of Appeals
440 21 NEBRASKA APPELLATE REPORTS
court’s order. In re Estate of Wilson, 8 Neb. App. 467, 594
N.W.2d 695 (1999).
Although the trial court had the authority to appoint a spe-
cial administrator in this case, the trial court also had the dis-
cretion to make the determination to simply remove Theodore
as the trustee. Section 30-2457 authorizes the trial court to
appoint a special administrator to act in specific, limited
situations where the general personal representative cannot
properly fulfill his duty. The problem with appointing a spe-
cial administrator in this case, however, is that the conflict of
interest between Theodore and the duties of the personal rep-
resentative and the trustee was so substantial that the limited
order envisioned in In re Estate of Wilson, supra, would not
remedy the problem.
Theodore argues that the trial court could have issued an
order appointing a special administrator for the limited pur-
poses of selling one property and compensating Theodore for
his improvements to the property. Appointing a special admin-
istrator for these purposes would not remedy all of the issues
the court considered in reaching its conclusion that it was in
the best interests of the estate and the Trust that Theodore
be removed.
We also note that if Theodore had remained the personal
representative and the trustee, conflict likely would continue as
a result of Theodore’s personally repairing or further improv-
ing the Trust property. With a third-party personal representa-
tive and trustee, Theodore can continue to work to improve
the property and be fairly compensated for those efforts if the
personal representative and the trustee determine that doing so
is in the best interests of the estate and the Trust.
Because Theodore committed a serious breach of trust, the
trial court had the authority to remove him as the personal rep-
resentative and as the trustee. In this case, where Theodore’s
conflict of interest permeated almost every aspect of his man-
agement of the estate and the Trust, we cannot find error in
the trial court’s decision to exercise its authority to remove
Theodore as the personal representative and as the trustee
rather than appointing a special administrator.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 441
Cite as 21 Neb. App. 441VI. CONCLUSION
The trial court did not err in removing Theodore from his
positions as the personal representative and as the trustee,
because his actions reveal that his interests irreconcilably con-
flicted with the interests of the estate and the Trust. Accordingly,
the decision of the trial court is affirmed.
Affirmed.
In re I nterest of Sarah H., a child under 18 years of age.
State of Nebraska, appellee, v. Alicia F., appellant,
and Brian H., intervenor-appellee.
___ N.W.2d ___
Filed October 22, 2013. No. A-12-1197.
1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
Nebraska Juvenile Code, Neb. Rev. Stat. §§ 43-245 through 43-2,129 (Reissue
2008 & Cum. Supp. 2012), are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over the other.
2. Juvenile Courts: Appeal and Error. In reviewing questions of law arising under
the Nebraska Juvenile Code, an appellate court reaches conclusions independent
of the lower court’s rulings.
3. Juvenile Courts: Jurisdiction: Words and Phrases. The Nebraska Juvenile
Code defines “parties” as the juvenile over which the juvenile court has jurisdic-
tion under Neb. Rev. Stat. § 43-247 (Reissue 2008) and his or her parent, guard-
ian, or custodian.
4. Interventions: Pleadings. Any person who has or claims an interest in the matter
in litigation, in the success of either of the parties to an action, or against both, in
any action pending or to be brought in any of the courts of the State of Nebraska,
may become a party to an action between any other persons or corporations,
either by joining the plaintiff in claiming what is sought by the complaint, or by
uniting with the defendants in resisting the claim of the plaintiff, or by demand-
ing anything adversely to both the plaintiff and defendant, either before or after
issue has been joined in the action, and before the trial commences.
5. Interventions. Neb. Rev. Stat. § 25-328 (Reissue 2008) provides a right to inter-
vene before trial has commenced.
6. Interventions: Time. A right to intervene should be asserted within a reasonable
time, and the applicant must be diligent and not guilty of unreasonable delay after
knowledge of the suit.