In re Trust of Shire , 299 Neb. 25 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    IN RE TRUST OF SHIRE
    Cite as 
    299 Neb. 25
    In re Trust of Jennie Shire, deceased.
    Wells Fargo Bank, National Association,
    Successor Trustee, appellee, and Shirley
    Smith Gronin, beneficiary, appellant,
    v. Unknown/Undiscovered H eirs
    et al., appellees.
    ___ N.W.2d ___
    Filed February 16, 2018.   No. S-17-263.
    1.	 Trusts: Equity: Appeal and Error. Absent an equity question, an
    appellate court reviews trust administration matters for error appear-
    ing on the record; but where an equity question is presented, appellate
    review of that issue is de novo on the record.
    2.	 Evidence: Appeal and Error. In a review de novo on the record, an
    appellate court reappraises the evidence as presented by the record and
    reaches its own independent conclusions on the matters at issue.
    3.	 Statutes. Statutory interpretation presents a question of law.
    4.	 Judgments: Appeal and Error. An appellate court independently
    reviews questions of law decided by a lower court.
    5.	 Statutes. Absent anything to the contrary, statutory language is to be
    given its plain meaning, and a court will not look beyond the stat-
    ute or interpret it when the meaning of its words is plain, direct, and
    unambiguous.
    6.	 Legislature: Statutes. When the Legislature provides a direct reference
    to a section of a uniform law code when adopting that code, it incorpo-
    rates the comments explaining that section.
    7.	 Trusts: Proof. Under Neb. Rev. Stat. § 30-3837(b) (Reissue 2016), the
    party seeking a modification of a trust must affirmatively demonstrate
    that all beneficiaries have consented to the modification.
    8.	 Statutes: Legislature: Intent. Components of a series or collection of
    statutes pertaining to a certain subject matter are in pari materia and
    should be conjunctively considered and construed to determine the
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    IN RE TRUST OF SHIRE
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    intent of the Legislature, so that different provisions are consistent, har-
    monious, and sensible.
    9.	 Trusts. Under Neb. Rev. Stat. § 30-3837(b) (Reissue 2016), the issue
    of consent for unknown beneficiaries is governed by Neb. Rev. Stat.
    §§ 30-3825 and 30-3826 (Reissue 2016).
    10.	 Trusts: Intent. At common law, a trust can be modified upon the con-
    sent of the settlor and all the beneficiaries, regardless of whether the
    purpose of the trust is satisfied, or upon the consent of all beneficiaries
    if not inconsistent with the trust’s purpose.
    11.	 Statutes: Legislature: Intent: Appeal and Error. In construing a stat-
    ute, an appellate court should consider the statute’s plain meaning in
    pari materia and from its language as a whole to determine the intent of
    the Legislature.
    12.	 Statutes: Intent. The construction of a statute which restricts or removes
    a common-law right should not be adopted unless the plain words of the
    statute compel it.
    13.	 Trusts: Courts: Intent. Under Neb. Rev. Stat. § 30-3837(e) (Reissue
    2016), for the interests of nonconsenting beneficiaries to be adequately
    protected, the court must determine that modification will not affect
    those interests and impose safeguards to prevent them from being
    affected, when deemed necessary.
    14.	 Appeal and Error. An issue not presented to or decided by the trial
    court is not appropriate for consideration on appeal.
    Appeal from the County Court for Lancaster County: Holly
    J. Parsley, Judge. Affirmed.
    Daniel E. Klaus, of Rembolt Ludtke, L.L.P., for appellant.
    John C. Hurd and Krista M. Carlson, of Wolfe, Snowden,
    Hurd, Luers & Ahl, L.L.P., for appellee Wells Fargo Bank.
    Chris Blomenberg, of McHenry, Haszard, Roth, Hupp,
    Burkholder & Blomenberg, P.C., L.L.O., for appellees
    Unknown/Undiscovered Heirs.
    J.L. Spray, of Mattson Ricketts Law Firm, for appellees
    Robert Banner et al.
    Heavican, C.J., Cassel, Stacy, K elch, and Funke, JJ.
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    IN RE TRUST OF SHIRE
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    299 Neb. 25
    Funke, J.
    This appeal concerns a petition for trust proceeding, filed
    by the trustee, Wells Fargo Bank (Wells Fargo), to provide
    increased disbursements from the trust of Jennie Shire (Trust)
    to the remaining lifetime beneficiary, Shirley Smith Gronin.
    The county court for Lancaster County ruled that a modifi-
    cation of the terms of the Trust was not authorized by the
    Nebraska Uniform Trust Code.1 We affirm.
    BACKGROUND
    The Trust was created by the last will and testament of
    Shire, executed on September 10, 1947. Paragraph IV of
    Shire’s will provided that the Trust would be funded with
    $125,000 and that the trustees would pay $500 monthly to
    Shire’s daughter, Ruth Banner Gronin (Ruth), during her life
    and to Shire’s granddaughter, Gronin, upon Ruth’s death and
    Gronin’s attaining the age of 25 years. Further, paragraph IV
    states: “Upon the death of the survivor of [Ruth and Gronin],
    the balance of the trust fund (including any addition from
    Paragraph V) shall be added to the residue of my estate and be
    distributed, as provided in Paragraph VI.”
    Gronin was born in 1945. Shire died in 1948. After Ruth
    passed away in 1983, the monthly $500 payments from the
    Trust were made to Gronin.
    At the time of trial, Gronin was also receiving monthly
    payments of $564 from Social Security and $88.38 from a
    casino pension plan. Her total monthly income was $1,152.38.
    Further, she had two bank accounts, each with a negligible bal-
    ance. She testified that neither she nor Ruth had ever been able
    to save any money, because their income never exceeded their
    living expenses.
    A trust officer for Wells Fargo testified that as of September
    26, 2016, the Trust had a principal balance of $981,874.58.
    He further testified that the expected annual return for the
    1
    Neb. Rev. Stat. § 30-3801 et seq. (Reissue 2016 & Supp. 2017).
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    Trust, before fees and taxes, ranged from 6.40 percent to 8.10
    percent. Consequently, the Trust could expect income and
    appreciation to be between approximately $64,000 and $81,000
    annually. Evidence was also adduced that based on the rate of
    inflation, the present value of a $500 payment in 1948 would
    be either $4,997 or $5,400.29 today.
    Before filing the petition, Wells Fargo attempted to identify
    potential heirs of the beneficiaries identified in paragraph VI
    of Shire’s will. In its petition, Wells Fargo specifically identi-
    fied 12 individuals and entities that may have an interest in
    the residuary and requested the court to notify them of the
    proceeding. The petition requested that the court determine the
    beneficiaries under paragraph VI, which was bifurcated from
    the present proceeding and set for later consideration.
    The following known beneficiaries were present at the
    hearing on the Trust’s modification: six individual benefi-
    ciaries participated by counsel, one individual beneficiary
    participated pro se, and the Nebraska Attorney General’s
    office participated on behalf of charitable beneficiaries. At
    Wells Fargo’s request, the court appointed an attorney to
    represent the “Unknown/Undiscovered Heirs,” if any, of the
    beneficiaries under paragraph VI of Shire’s will (unknown
    beneficiaries).
    After the hearing, the parties had the opportunity to submit
    posttrial briefs. Counsel for the unknown beneficiaries was
    the only party that opposed Wells Fargo’s motion. Neither the
    assistant attorney general nor the pro se beneficiary submitted
    any brief supporting or opposing the modification of the Trust.
    Counsel for the six beneficiaries submitted a brief which con-
    cluded: “On behalf of our clients, we respectfully request the
    Court enter an Order adjusting the monthly distribution to . . .
    Gronin consistent with the Trustee’s evidence in such a fashion
    so as to not jeopardize the corpus of the Trust.” No other ben-
    eficiaries expressed consent or an objection.
    In February 2017, the court ruled that the requested modifi-
    cation of the trust was not warranted. Specifically, it ruled that
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    IN RE TRUST OF SHIRE
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    the plain language of the Trust did not permit an increased
    distribution; § 30-3837(b) did not authorize a modification,
    because not all beneficiaries had consented; § 30-3837(e)
    did not permit a modification, because increasing Gronin’s
    annual payments would have a detrimental effect on the
    Trust’s residue, which would not adequately protect the non-
    consenting beneficiaries; and § 30-3838 did not allow a
    modification, because there was not an unanticipated change
    in circumstances.
    Gronin filed a timely appeal. We removed the case to
    our docket on our own motion pursuant to our authority to
    regulate the caseloads of the Nebraska Court of Appeals and
    this court.2
    ASSIGNMENTS OF ERROR
    Gronin assigns, restated, that the court erred in concluding
    that modification of the Trust, to provide increased disburse-
    ments to her, was not appropriate under § 30-3837(b) and (e)
    and the doctrine of deviation. Gronin also assigns, restated,
    that the court erred in concluding that her current living
    circumstances were not unanticipated by Shire and that the
    purpose of the Trust did not include providing a reasonable
    income to Gronin.
    STANDARD OF REVIEW
    [1,2] 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.3 In a review de novo on
    the record, an appellate court reappraises the evidence as pre-
    sented by the record and reaches its own independent conclu-
    sions on the matters at issue.4
    2
    See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
    3
    In re Estate of Radford, 
    297 Neb. 748
    , 
    901 N.W.2d 261
    (2017).
    4
    
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    [3,4] Statutory interpretation presents a question of law.5
    We independently review questions of law decided by a
    lower court.6
    ANALYSIS
    Beneficiaries Did Not Unanimously
    Consent to Modification
    Gronin and Wells Fargo argue that we should interpret
    § 30-3837(b), requiring the “consent of all of the benefici­
    aries,” to allow a modification when no known beneficiary
    has objected to the modification after receiving notice of
    it. Regarding unknown beneficiaries, they argue that—based
    on the Comments and Recommendations for Enactment of
    a Nebraska Uniform Trust Code7—we should follow Neb.
    Rev. Stat. §§ 30-24,123 and 30-24,124 (Reissue 2016) of
    Nebraska’s Uniform Probate Code and permit the lack of
    objection by known beneficiaries with a commonality of inter-
    est with unknown beneficiaries to satisfy the statutory require-
    ment. They argue that the objection by the attorney appointed
    to represent the unknown beneficiaries was only theoretical
    and should not bar application of this subsection here, because
    all residuary beneficiaries share a common interest.
    The unknown beneficiaries argue that the plain language
    of § 30-3837(b) requires the consent of all beneficiaries and
    does not permit a commonality of interest representation for
    unknown beneficiaries.
    Section 30-3837(b) provides, in relevant part, that “[a] non-
    charitable 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.”
    [5,6] Absent anything to the contrary, statutory language
    is to be given its plain meaning, and a court will not look
    5
    Gillpatrick v. Sabatka-Rine, 
    297 Neb. 880
    , 
    902 N.W.2d 115
    (2017).
    6
    Id.
    7
    See, 2002 Neb. Laws, L.R. 367; Comments and Recommendations for
    Enactment of a Nebraska Uniform Trust Code (2002).
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    beyond the statute or interpret it when the meaning of its
    words is plain, direct, and unambiguous.8 We have held that
    when the Legislature provides a direct reference to a section
    of a uniform law code when adopting that code, it incorpo-
    rates the comments explaining that section.9
    The Legislature has incorporated the comment to § 411 of
    the Uniform Trust Code (UTC) to § 30-3837, upon which it
    was modeled.10 In the UTC comment to § 411, subsection (b)
    is described as requiring “unanimous consent,” while subsec-
    tion (e) is described as being the applicable procedure “when
    the consent of less than all of the beneficiaries is available.”11
    [7] Based on the plain language of § 30-3837(b) and the
    comment to § 411, the party seeking a modification of a trust
    must affirmatively demonstrate that all beneficiaries have con-
    sented to the modification. Gronin and Wells Fargo’s argument
    that this requirement is satisfied when no known beneficiary
    has objected after receiving notice of a modification is not sup-
    ported by either the plain language of the statute or the com-
    ment to § 411.
    The language of § 30-3837(b), however, is not clear regard-
    ing the effect of potential unidentified beneficiaries, who might
    not even exist, on the consent requirement. But the comment to
    § 411 provides that “[t]he provisions of Article 3 on representa-
    tion, virtual representation, and the appointment and approval
    of representatives appointed by the court apply to the determi-
    nation of whether all beneficiaries have signified consent under
    this section.”12
    The Nebraska Uniform Trust Code also contains the provi-
    sions of article 3 of the UTC. Section 30-3825 provides:
    8
    Hopkins v. Hopkins, 
    294 Neb. 417
    , 
    883 N.W.2d 363
    (2016).
    9
    See, e.g., In re Estate of Fuchs, 
    297 Neb. 667
    , 
    900 N.W.2d 896
    (2017);
    Midwest Renewable Energy v. American Engr. Testing, 
    296 Neb. 73
    , 
    894 N.W.2d 221
    (2017).
    10
    See § 30-3837.
    11
    Unif. Trust Code § 411, 7C U.L.A. 499 (2006).
    12
    
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    (UTC 304) Unless otherwise represented, a minor,
    incapacitated, or unborn individual, or a person whose
    identity or location is unknown and not reasonably ascer-
    tainable, may be represented by and bound by another
    having a substantially identical interest with respect to the
    particular question or dispute, but only to the extent there
    is no conflict of interest between the representative and
    the person represented.
    (Emphasis supplied.) Further, § 30-3826 states:
    (UTC 305) (a) If the court determines that an interest
    is not represented under sections 30-3822 to 30-3826,
    or that the otherwise available representation might be
    inade­quate, the court may appoint a representative to
    receive notice, give consent, and otherwise represent,
    bind, and act on behalf of a minor, incapacitated, or
    unborn individual, or a person whose identity or location
    is unknown. A representative may be appointed to repre-
    sent several persons or interests.
    (b) A representative may act on behalf of the individual
    represented with respect to any matter arising under the
    Nebraska Uniform Trust Code, whether or not a judicial
    proceeding concerning the trust is pending.
    (c) In making decisions, a representative may consider
    general benefit accruing to the living members of the
    individual’s family.
    (Emphasis supplied).
    [8,9] These provisions comprehensively resolve any consent
    issues concerning individuals who cannot consent on their own
    behalf. Components of a series or collection of statutes pertain-
    ing to a certain subject matter are in pari materia and should be
    conjunctively considered and construed to determine the intent
    of the Legislature, so that different provisions are consistent,
    harmonious, and sensible.13 Based on the comment to § 411
    13
    County of Webster v. Nebraska Tax Equal. & Rev. Comm., 
    296 Neb. 751
    ,
    
    896 N.W.2d 887
    (2017).
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    and our well-established principle of statutory construction,
    we must determine the issue of consent for unknown benefici­
    aries in § 30-3837(b) pursuant to §§ 30-3825 and 30-3826.
    While Gronin and Wells Fargo argue that we should rely on
    a reference contained in the Comments and Recommendations
    for Enactment of a Nebraska Uniform Trust Code, we have
    not previously considered whether that source is incorporated
    into the sections of the Nebraska Uniform Trust Code. The
    Comments and Recommendations for Enactment of a Nebraska
    Uniform Trust Code was created as a result of an interim
    study by the Legislature’s Banking, Commerce and Insurance
    Committee, as required by L.R. 367. Accordingly, we con-
    sider the Comments and Recommendations for Enactment of
    a Nebraska Uniform Trust Code to be legislative history. In
    further support of this conclusion, we note that unlike the
    comments to the UTC, the Legislature did not reference the
    Comments and Recommendations for Enactment of a Nebraska
    Uniform Trust Code in the text of the sections of the Nebraska
    Uniform Trust Code.
    In order for a court to inquire into a statute’s legislative his-
    tory, the statute in question must be open to construction, and a
    statute is open to construction when its terms require interpre-
    tation or may reasonably be considered ambiguous.14 Because
    § 30-3837 is not ambiguous, we do not consider the language
    of the Comments and Recommendations for Enactment of a
    Nebraska Uniform Trust Code.
    Here, Wells Fargo specifically identified 12 living indi-
    viduals and entities that were known beneficiaries of the Trust.
    The record contains a brief filed by six of these individual
    beneficiaries, which affirmatively consent to the modification
    therein. The record, however, does not contain any evidence
    that the other known beneficiaries affirmatively consented to
    the modification. Therefore, the court did not err in ruling that
    no modification was warranted under § 30-3837(b).
    14
    Doe v. McCoy, 
    297 Neb. 321
    , 
    899 N.W.2d 899
    (2017).
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    Further, while the court could have allowed any unknown
    beneficiaries to be represented and bound by the unanimous
    consent of the known beneficiaries, under § 30-3825, the
    court instead appointed a separate representative—upon Wells
    Fargo’s motion—with the full authority to act on behalf of any
    unknown beneficiaries, under § 30-3826. Therefore, the rep-
    resentative’s objection to modification was not theoretical and
    also precludes the application of this section.
    Modification of Trust Would Not
    H ave A dequately Protected
    Nonconsenting Beneficiaries
    Gronin and Wells Fargo contend that § 30-3837(e) applies
    because the modification was not inconsistent with the purpose
    of the Trust and it would adequately protect the nonconsent-
    ing beneficiaries. Gronin argues that we should interpret the
    term “‘adequate’” to mean sufficient, rather than absolute.15
    Accordingly, an increase that does not affect the principal of
    a trust would adequately protect the interests of nonconsent-
    ing beneficiaries. Further, Gronin and Wells Fargo contend
    that interpreting the subsection to preclude a modification
    that only slows the growth of the principal would create an
    absurd result.
    The unknown beneficiaries argue that any increase in dis-
    tributions to Gronin affects their interest in the future growth
    of the Trust, even if it does not affect the Trust’s principal.
    They argue that we should interpret the phrase “adequately
    protected” to impose a high standard when a modification
    would take money from one beneficiary for the benefit
    of another.16
    Subsection (e) of § 30-3837 provides:
    If not all of the beneficiaries consent to a proposed
    modification or termination of the trust under sub-
    section (a) or (b) of this section, the modification or
    15
    Brief for appellant at 23.
    16
    Brief for appellees unknown beneficiaries at 5.
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    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 sec-
    tion; and
    (2) the interests of a beneficiary who does not consent
    will be adequately protected.
    In this case, subsection (a) is not applicable because it
    would require the consent of Shire, who died in 1948.17 As
    decided above, subsection (b) is also not applicable because
    there was not unanimous consent of the beneficiaries. In order
    to satisfy the second requirement of subsection (e), there must
    be a showing that the interests of nonconsenting beneficiaries
    will be adequately protected by a modification—which has not
    been met.
    The comment to § 411 indicates that subsection (e) is “simi-
    lar to Restatement (Third) of Trusts Section 65 cmt. c (Tentative
    Draft No. 3, approved 2001), and Restatement (Second) of
    Trusts Sections 338(2) & 340(2) (1959).”18
    [10] These sections of the Restatements adopted the com-
    mon-law principle that a trust can be modified upon the
    consent of the settlor and all the beneficiaries, regardless of
    whether the purpose of the trust is satisfied, or upon the con-
    sent of all beneficiaries if not inconsistent with the trust’s pur-
    pose.19 However, regarding holders of contingent interests that
    do not consent, the Restatements depart from the common law
    by permitting a modification that is neither inconsistent with
    the settlor’s intent nor prejudicial to the nonconsenting benefi-
    ciaries’ interests.20
    17
    See § 30-3837(a).
    18
    Unif. Trust Code, supra note 11, 7C U.L.A. 501.
    19
    See Hubbard v. Buddemeier, 
    328 Ill. 76
    , 
    159 N.E. 229
    (1927). See, also,
    Commissioner of Internal Revenue v. Bacher, 
    102 F.2d 500
    (6th Cir.
    1939); Smith v. Mass. Mutual Life Ins. Co., 
    116 Fla. 390
    , 
    156 So. 498
          (1934).
    20
    See Hubbard, supra note 19.
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    Comment c. to § 65 of the Restatement (Third) of Trusts21
    states:
    [I]f the court is satisfied that the best interests of the
    beneficiaries as a whole would be served by a proposed
    termination or modification and [the modification would
    not be inconsistent with the material purpose of the
    trust], a court may order a partial termination of the
    trust (or other arrangement that might involve bonding,
    insurance, or impounding of some trust property) in a
    manner that will not prejudice the interests of noncon-
    senting beneficiaries.
    The referenced sections of the Restatement (Second) of
    Trusts also both require that nonconsenting beneficiaries are
    “not prejudiced” by a modification.22 The comments to these
    sections indicate that absent unanimous consent, modifica-
    tion is permitted only if it does not impact nonconsenting
    benefici­aries.23 This is evidenced by the following illustration
    to § 340:
    8. A transfers land to B in trust to pay the rents and
    profits to C for life and upon C’s death to convey the
    land to D. If D does not consent or is under an incapac-
    ity, C cannot insist that B convey to him a legal life
    estate.24
    That section of the Restatement provides an additional rel-
    evant illustration:
    11. A transfers securities worth $200,000 to B in
    trust to pay each of several persons an annuity for life
    and subject to such payments in trust for C. All of the
    annuitants die except D who is entitled to an annuity of
    $500. The court may order B to transfer to C a part of
    21
    Restatement (Third) of Trusts § 65, comment c. at 476 (2003).
    22
    Restatement (Second) of Trusts § 338(2) at 167 (1959). Accord 
    id., § 340(2).
    23
    
    Id., § 338,
    comment h.
    24
    
    Id., § 340,
    comment g., illustration 8 at 175.
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    the securities, B retaining enough to constitute ample
    security for the payment of D’s annuity.25
    Accordingly, in departing from the common law to per-
    mit modification without unanimous consent, the Restatements
    have steadfastly protected the rights of nonconsenting ben-
    eficiaries. For, even in instances where prejudice to a non-
    consenting beneficiary are not foreseeable, a court maintains
    authority to safeguard those beneficiaries from prejudice by
    requiring, for example, bonding or insurance. As evidenced by
    the illustrations, the exception to unanimous consent is narrow
    in scope.
    [11] In construing a statute, an appellate court should con-
    sider the statute’s plain meaning in pari materia and from its
    language as a whole to determine the intent of the Legislature.26
    Further, as mentioned above, we must construe a statute in pari
    materia with other sections of the same act and in light of
    UTC comments when the Legislature has incorporated them.
    Accordingly, in interpreting the phrase “adequately protected,”
    we must consider the comment to § 411 of the UTC and both
    § 30-3837 and the entirety of the Nebraska Uniform Trust Act
    as a whole.
    First, while the comment to § 411 states that it is only simi-
    lar to the Restatements’ provisions, rather than modeled after
    them, this appears to be a result of § 411’s being more broad
    and encompassing than any of the referenced sections in the
    Restatements. Despite the use of the phrase “adequately pro-
    tected” in § 30-3837(e), rather the Restatements’ phrase “not
    prejudiced,” nothing in the statute or the comment to § 411
    indicates that the change in terminology was intended to effec-
    tuate a change in the meaning of the common-law principle
    regarding the rights of nonconsenting beneficiaries.
    Instead, we interpret the phrase “adequately protected” as
    incorporating the safeguards discussed in the Restatements
    25
    
    Id., § 340,
    comment h., illustration 11 at 176.
    26
    State v. Robbins, 
    297 Neb. 503
    , 
    900 N.W.2d 745
    (2017).
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    to prevent prejudice to nonconsenting beneficiaries. The
    Restatements’ use of the phrase “not prejudiced” required the
    additional explanation that modifications could be made by
    a court if the nonconsenting beneficiaries’ rights would be
    adequately protected with appropriate safeguards.27 Conversely,
    the use of the phrase “adequately protected” clearly conveys a
    court’s ability to modify a trust upon determining that it will
    not likely harm nonconsenting beneficiaries’ interests, with or
    without safeguards.
    [12] The construction of a statute which restricts or removes
    a common-law right should not be adopted unless the plain
    words of the statute compel it.28 Therefore, because the statute
    does not clearly convey that it intended to limit the rights that
    nonconsenting beneficiaries had at common law and we can
    reasonably construe the statute in a way that avoids limiting
    such rights, we must do so.
    Second, the context of § 30-3837 and the Nebraska Uniform
    Trust Code implies that the phrase “adequately protected”
    should not be construed to limit the rights of nonconsenting
    beneficiaries. Section 30-3837 is focused on modifications
    of trusts with the consent of the beneficiaries and the settlor,
    either by actual consent or by being consistent with the purpose
    of the trust. The context of this statute does not suggest that
    a court may force a modification upon beneficiaries that will
    negatively affect their interests.
    The comment to § 411 sets forth that subsection (e) allows
    the court to fashion an appropriate order protecting the inter-
    ests of the nonconsenting beneficiaries while at the same
    time permitting the remainder of the trust property to be
    distributed without restriction. The order of protection for the
    nonconsenting beneficiaries might include partial continua-
    tion of the trust, the purchase of an annuity, or the valuation
    and cash out of the interest. Additionally, a court may order
    27
    See Restatement (Third), supra note 21.
    28
    Tadros v. City of Omaha, 
    273 Neb. 935
    , 
    735 N.W.2d 377
    (2007).
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    a partial termination of the trust (or other arrangement that
    might involve bonding, insurance, or impounding of some
    trust property) in a manner that will not prejudice the interests
    of nonconsenting beneficiaries.29
    Further, the comment to § 411 explains that modification
    may also be pursued through the UTC’s §§ 412 to 416 with-
    out the need for beneficiary consent.30 The Legislature also
    adopted these sections of the UTC by enacting §§ 30-3838
    to 30-3842.
    Section 30-3838(a), for example, permits modification of a
    trust, without any consent requirement, “if, because of circum-
    stances not anticipated by the settlor, modification or termina-
    tion will further the purposes of the trust.” Both §§ 30-3837
    and 30-3838 essentially require that a modification be con-
    sistent with the terms of the trust. However, the difference
    between the two statutes—to a nonconsenting beneficiary—is
    that interests must be “adequately protected” versus a proof of
    circumstances unanticipated by the settlor.
    Interpreting the phrase “adequately protected” to mean that
    a nonconsenting beneficiaries’ interests are not harmed too sig-
    nificantly would create a lessened burden for modifying trusts
    that is not focused on the cardinal rule of trust construction: the
    settlor’s intent.31
    [13] Accordingly, adopting the standard proposed by
    Gronin and Wells Fargo would not be consistent or harmoni-
    ous with the structure of § 30-3837 or the Nebraska Uniform
    Trust Code. Therefore, for the interests of nonconsenting
    beneficiaries to be adequately protected, the court must deter-
    mine that modification will not affect those interests and
    impose safeguards to prevent them from being affected, when
    deemed necessary.
    29
    Restatement (Third), supra note 21.
    30
    Unif. Trust Code, supra note 11.
    31
    See In re Family Trust Created Under Akerlund Trust, 
    280 Neb. 89
    , 
    784 N.W.2d 110
    (2010).
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    Here, Wells Fargo requested a modification of the Trust’s
    terms that would increase monthly distributions to Gronin.
    However, any such increase would be at the direct expense
    of the eight known and the unknown beneficiaries’ interests,
    because they have an interest in both the principal of the Trust
    and its future growth. Accordingly, the requested modification
    cannot satisfy the requirement that the interests of noncon-
    senting beneficiaries be adequately protected. Therefore, the
    court did not err in determining that modification was not
    appropriate under this subsection.
    Gronin and Wells Fargo are correct in arguing that an
    appellate court should try to avoid, if possible, a statutory
    construction that would lead to an absurd result.32 However, a
    construction is not absurd simply because it is narrow. Under
    our construction, subsection (e) still permits modification or
    termination of trusts as envisioned in the Restatements.
    For example, in the context of the Trust, there are two sce-
    narios where this subsection could apply. First, the terms of
    the Trust could have been modified to allow Gronin to receive
    the $500 monthly payment before Ruth’s death if both women
    consented and Ruth was otherwise taken care of, even if the
    residuary beneficiaries did not consent.
    Second—similar to illustration 11 above33—if only one
    residuary beneficiary of the Trust remained, then a court could
    modify or partially terminate the Trust to provide that benefi-
    ciary a portion of the residuary before Gronin’s death, without
    her consent, if the court determined it was not inconsistent
    with the Trust’s terms and the remainder of the principal was
    sufficient to fund Gronin’s monthly payments. In that case, the
    court could require the beneficiary to obtain insurance or post
    a bond to ensure that Gronin’s interests would be adequately
    protected in the event of unlikely circumstances.
    32
    See Adair Asset Mgmt. v. Terry’s Legacy, 
    293 Neb. 32
    , 
    875 N.W.2d 421
          (2016).
    33
    See Restatement (Second), supra note 21, § 340, comment h.
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    Common-Law Doctrine of Deviation Was
    Not Presented to County Court
    As the parties acknowledge, the court was not presented
    with the issue of whether the Trust could be modified under
    the common-law doctrine of deviation. Instead, the parties
    argued and the court ruled on whether the Trust could be modi-
    fied under § 30-3838. After the court’s order, however, Gronin
    realized that § 30-3838 did not apply to the Trust, under
    § 30-38,110(d), because the Trust became irrevocable before
    January 1, 2005.
    Nevertheless, Gronin and Wells Fargo argue that we can
    reverse the court’s decision that modification was not war-
    ranted under § 30-3838 by considering the common-law doc-
    trine of deviation. They argue that § 30-3838 is the codification
    of the doctrine of deviation; so, the court’s decision was suffi-
    cient to present the issue on appeal. Further, they argue that the
    doctrine of deviation applies to trusts under § 30-3806.
    [14] An issue not presented to or decided by the trial court
    is not appropriate for consideration on appeal.34 As the par-
    ties argued, before we can consider the application of the
    common-law doctrine of deviation, we must determine both
    whether it applies to trusts in Nebraska, under § 30-3806, and
    whether its principles were modified by the Legislature in
    § 30-3838. Because the trial court was neither presented with
    nor ruled upon these issues, whether modification is warranted
    under the common-law doctrine of deviation is not appropri-
    ate for consideration on appeal. Therefore, we do not consider
    this assignment of error or Gronin’s related assignments of
    error concerning findings that relate to the doctrine of devia-
    tion’s application.
    CONCLUSION
    We find that the court did not err in determining that the
    Trust could not be modified, under § 30-3837, because the
    34
    Wayne L. Ryan Revocable Trust v. Ryan, 
    297 Neb. 761
    , 
    901 N.W.2d 671
          (2017).
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    beneficiaries did not unanimously consent to the modification
    and the modification would not adequately protect the inter-
    ests of the nonconsenting beneficiaries. Further, the doctrine
    of deviation was not appropriate for consideration on appeal.
    Therefore, we affirm.
    A ffirmed.
    Wright and Miller-Lerman, JJ., not participating.
    Cassel, J., concurring.
    A path for relief may exist. The crux is how to “adequately
    protect[]”1 the unknown beneficiaries, because any additional
    payment to Gronin would reduce their proceeds without
    their consent.
    Some parties argue that no unknown beneficiaries actually
    exist. If the known beneficiaries believe that to be true and,
    based on that belief, are willing to pledge part of their shares,
    a path appears. By doing so, they could empower the trustee to
    hold the unknown beneficiaries harmless.
    If no other beneficiaries were found, the known benefici­
    aries would have accommodated a needy lifetime beneficiary
    at no additional cost. If any were found, the known benefi-
    ciaries would suffer only what would appear to be a modest
    reduction in their future payout.
    1
    See Neb. Rev. Stat. § 30‑3837(e) (Reissue 2016).