In re Estate of Stuchlik

IN RE ESTATE OF STUCHLIK 	673
Cite as 289 Neb. 673
I n re estate of edward J. stuchlIk, Jr., deceased, and I n re
trust created by edward J. stuchlIk, Jr., deceased.
John e. stuchlIk, appellant, v. M argaret stuchlIk,
personal representatIve and cotrustee, and
kenneth stuchlIk, cotrustee, appellees.
857 N.W.2d 57
Filed December 12, 2014. 	No. S-13-1118.
1. Decedents’ Estates: Appeal and Error. In reviewing a judgment of the probate
court in a law action, the Supreme Court does not reweigh evidence, but con-
siders evidence in the light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party, who is entitled to every
reasonable inference deducible from the evidence.
2. ____: ____. The probate court’s factual findings have the effect of a verdict,
and an appellate court cannot set those findings aside unless they are clearly
erroneous.
3. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
4. Fraud: Judgments. The existence of a fiduciary duty and the scope of that duty
are questions of law for a court to decide.
5. Wills: Contracts. Oral testimony as to a contract for wills is allowed only where
the will itself references the contract.
6. Decedents’ Estates: Wills: Contracts: Breach of Contract. The effect of a valid
contract for wills is not to create a cause of action against the decedent’s estate,
but instead is to create a cause of action for breach of contract.
7. Wills: Contracts. Even where a valid contractual will exists, that existence does
not make the surviving party’s will irrevocable.
8. Decedents’ Estates: Wills: Contracts: Breach of Contract. If a surviving party
revokes or breaches a mutual contractual will, an action lies for a breach of con-
tract against the estate of the survivor.
9. Decedents’ Estates: Jurisdiction. County courts have exclusive jurisdiction over
all matters relating to decedents’ estates, including the probate of wills and con-
struction thereof.
10. Decedents’ Estates: Jurisdiction: Equity. In exercising exclusive original juris-
diction over estates, county courts may apply equitable principles to matters
within probate jurisdiction.
11. 	Decedents’ Estates: Jurisdiction: Wills: Trusts: Minors: Mental Competency.
County courts have jurisdiction over all subject matter relating to estates of dece-
dents, including construction of wills and determination of heirs and successors
of decedents, estates of protected persons, protection of minors and incapacitated
persons, and trusts.
12. Courts: Jurisdiction. County courts have full power to make orders, judgments,
and decrees and to take all other actions necessary and proper to administer jus-
tice in the matters which come before them.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:33 AM CST

674 	289 NEBRASKA REPORTS
13. Trusts: Property. A trust creates a fiduciary relationship in which one person
holds a property interest subject to an equitable obligation to keep or use that
interest for the benefit of another.
14. Trusts. Trustees owe the beneficiaries of a trust duties that include loyalty,
impartiality, prudent administration, protection of trust property, proper record-
keeping, and informing and reporting.
15. ____. The duty of loyalty requires a trustee to administer the trust solely in the
interests of the beneficiaries.
16. ____. In exercising powers of control over interests in an enterprise held by a
trust, a trustee shall act in the best interests of the trust beneficiaries.
17. ____. If a trust has two or more or more beneficiaries, a trustee has a duty of
impartiality among beneficiaries.
18. Trusts: Words and Phrases. Impartiality means that a trustee’s treatment of
beneficiaries or conduct in administering a trust is not to be influenced by the
trustee’s personal favoritism or animosity toward individual beneficiaries.
19. Trusts: Conflict of Interest. A cause for removal is appropriate for the best
interests of the trust estate where hostile relations exist between a trustee and
beneficiaries of such a nature as to interfere with proper execution of the trust,
particularly where it appears that the trustee’s personal interests conflict with, or
are antagonistic to, his or her duties as trustee under the terms of the trust.
20. ____: ____. When an entity is held by a trust, and particularly where a control-
ling share of that entity is exercised against the best interests of any trust benefi-
ciary, it is a breach of the duty of loyalty.
21. Trusts: Attorney Fees: Costs. Attorney fees and expenses will ordinarily be
allowed to a trustee where they were incurred for the benefit of the estate.
22. ____: ____: ____. If a fiduciary’s defense of his or her acts is fully successful, he
or she is entitled to recover the reasonable costs necessarily incurred in preparing
his or her final account and in successfully defending it against objections.
23. ____: ____: ____. A fiduciary’s defense must be only substantially successful,
not 100 percent successful, in order for the fiduciary to be entitled to recover
costs and attorney fees.
24. Courts: Trusts: Attorney Fees: Costs: Appeal and Error. The county court
or district court on appeal has discretionary power and authority to order pay-
ment out of the trust estate for costs of litigation and, in proper cases, to order
payment of reasonable fees to attorneys for services rendered to a trustee in
good faith.
Appeal from the County Court for Saunders County: patrIck
r. McderMott, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Paul R. Elofson, of Fitzgerald, Schorr, Barmettler & Brennan,
P.C., L.L.O., for appellant.
Richard L. Rice and Andrew C. Pease, of Crosby Guenzel,
L.L.P., for appellees.

IN RE ESTATE OF STUCHLIK 	675
Cite as 289 Neb. 673
heavIcan, c.J., wrIght, connolly, stephan, MccorMack,
MIller-lerMan, and cassel, JJ.
MccorMack, J.
I. NATURE OF CASE
This matter involves petitions filed by John E. Stuchlik
seeking removal of the personal representative of the Edward J.
Stuchlik, Jr., estate and removal of the cotrustees of the Edward
J. Stuchlik, Jr., Family Trust. The personal representative and
one of the cotrustees is John’s mother and the spouse of the
decedent. The other cotrustee is John’s brother. The probate
dispute involves assets held in a testamentary trust established
by the last will and testament of the decedent.
II. BACKGROUND
On March 22, 2012, Edward J. Stuchlik, Jr. (Stuchlik), died
testate. He was survived by his wife, Margaret L. Stuchlik,
and his five children, John, Edward J. Stuchlik II, LeAnne
M. Bullock, Linda M. Voboril, and Kenneth G. Stuchlik. This
action is by John against Margaret as both personal representa-
tive and cotrustee and Kenneth as cotrustee. John filed a peti-
tion in the probate proceedings to remove Margaret as personal
representative. John also asked for trust administration and to
have Margaret and Kenneth removed as cotrustees. Among
other things, John alleged that Margaret was managing trust
assets against the will of Stuchlik and harming John’s interests
as a beneficiary. John asked the court to appoint him as per-
sonal representative and trustee in their place.
1. real estate and
partnershIp
Before Stuchlik’s death, Stuchlik and Margaret formed a
limited partnership in the name of Stuchlik Farms Ltd. in the
course of their tax and estate planning. They conveyed into the
partnership all of the farm real estate that they owned.
Originally, Stuchlik and Margaret were the general partners
and owners of 100 percent of the general partnership interests.
Eventually, Stuchlik and Margaret gifted equal limited partner-
ship interests to John, Edward, and Kenneth. Currently, the
partnership is owned 22.1888 percent by John as a limited

676 	289 NEBRASKA REPORTS
partner. Edward and Kenneth each also own a 22.1888-percent
limited partnership interest in his own name. Margaret holds
a 16.7168-percent limited partnership interest and a 1-percent
general partnership interest in her own name. Margaret and
Kenneth hold a 16.7168-percent interest as cotrustees of the
family trust, including the 1-percent general partnership inter-
est originally held by Stuchlik. The farm real estate is the only
asset held by the partnership.
2. stuchlIk faMIly and
faMIly trust
Stuchlik left a will executed on February 8, 2011. Stuchlik’s
will provided that, aside from certain personal items that were
bequeathed to Margaret, all assets were to be transferred to the
family trust. The terms of the trust stated that the income and
assets were to be expended as needed to support Margaret dur-
ing her lifetime and that, upon her death, the assets were to be
distributed according to certain provisions.
The provisions of the trust are set forth in the fifth article of
Stuchlik’s will. The terms state:
Upon the death of my spouse . . . the trustee shall distrib-
ute all of my estate and trust estate as follows:
1) [personal property items to be designated according
to safe deposit box list].
2) . . . trucks, pickups or machinery and grain shall be
sold and the proceeds thereof divided equally to [Kenneth,
John, and Edward], share and share alike.
3) I acknowledge that a portion or all of my farm real
estate may be titled in Stuchlik Farms, Ltd. . . . but it is
my desire and request that my sons as a condition of their
inheritance, exchange deeds so as to divide my farm real
estate [such that each of the sons would receive a speci-
fied parcel or parcels of farm real estate.]
. . . .
(h) I devise all the rest, residue and remainder of my
estate and trust estate to [Kenneth, John, and Edward],
share and share alike.
The parcel specifically set aside for John included the “home
place.” John and his family have lived at the home place

IN RE ESTATE OF STUCHLIK 	677
Cite as 289 Neb. 673
sporadically for over 20 years, with some absences while John
was working out of state.
Margaret was named as personal representative of the estate,
and Margaret and Kenneth were named cotrustees of the fam-
ily trust.
Margaret stated in an affidavit to the court that all estate
assets were moved into the family trust, and this evidence was
corroborated by her attorney at oral argument. Thus, the estate
is ready to be closed.
3. alleged contract for
wIlls or oral trust
John argues that there was either a contract for wills or an
oral trust between Margaret and Stuchlik. He asserts as evi-
dence the language of the will indicating Stuchlik’s “desire
and request that my sons[,] as a condition of their inherit-
ance, exchange deeds so as to divide my farm real estate
as follows.”
As further evidence of the contract for wills or an oral trust,
John produced a document handwritten by Margaret to the
couple’s attorney, Curtis Bromm. The letter states that “[i]n
case of our death Dad & I want the land and our possessions
divided this way,” and it then devises part of their land to John.
The letter was signed by both Margaret and Stuchlik on March
1, 2009.
At a deposition on July 15, 2013, Margaret engaged in the
following dialog with counsel:
[Q:] Did you and [Stuchlik] sit down and talk about
how . . . you’re going to make distribution of your estate?
[A]: It’s in the will.
[Q:] And you discussed it, and then you — either with
. . . Bromm or in his presence and discussed that issue or
with — you went to . . . Bromm and told him what you
wanted to do; is that correct?
[A]: That’s what [Stuchlik] did.
[Q]: All right. And were you present?
[A]: I was present.
[Q:] And so . . . Bromm drafted a will consistent with
your husband’s wishes and understandings, and he drafted

678 	289 NEBRASKA REPORTS
a will that was consistent with your wishes and under-
standings. And those two wills, based upon what you’ve
shared with me, were based upon an agreement between
you and [Stuchlik] about how your joint assets would be
conveyed; is that correct?
[A]: Yes.
. . . .
[Q:] So do I understand that your will and [Stuchlik’s]
will as of February 2011 were identical in terms of how
they transferred property?
[A]: Explain “identical.”
[Q:] Other than the name changes, the dispositive pro-
visions about how property was to be dissolved, distrib-
uted, they were identical in format; is that correct?
[A]: Yes.
Margaret later testified at trial that she did not make any
contract for wills with Stuchlik.
At trial, Bromm was also called as a witness. The court
allowed John’s counsel to inquire into the making of Stuchlik’s
will, but only to the extent that Bromm felt he was within his
ethical boundaries. The court stated, “I think it’s going to
have to be done kind of question by question because some
questions may not be ones that I would feel interfere with
the attorney-client privilege with [Margaret] and there will be
some that may very directly bear on her privilege with . . .
Bromm.” Eventually, John’s counsel asked the court to review
Bromm’s file on the Stuchliks. The court declined to review
the case file in camera. The court allowed in evidence only
the letter from Margaret and Stuchlik containing directives for
their will.
4. actIvItIes of cotrustees
After Stuchlik’s death, Margaret conveyed the home place
owned by the partnership to Edward, Voboril, and Kenneth as
tenants in common, subject to a life estate granted to Margaret.
As the warranty deed states, “[Margaret], a single person,
Grantor, in consideration of One Dollar ($1.00) and other good
and valuable consideration, conveys to Grantees, [Edward,
Voboril, and Kenneth], as tenants-in-common, an undivided

IN RE ESTATE OF STUCHLIK 	679
Cite as 289 Neb. 673
one-half interest in and to the following described real estate . .
. .” The warranty deed then purports to convey the home place
from Margaret to Edward, Voboril, and Kenneth.
In January 2013, Margaret, Kenneth, and Edward entered
the home place premises without the consent of John. They
were accompanied by a county sheriff’s deputy who testified
that he did so “through a civil standby that [he] was requested
to do sometime at the beginning of this year.” The county
sheriff’s deputy testified that he was directed by the sheriff
to accompany Margaret and her two children “to make sure
that there’s no sort of altercation between the two parties.”
Margaret, Kenneth, and Edward entered the residence and
changed the locks. A propane tank was removed from the
home place residence, which caused the home to go without
heat for several days and subsequently caused damage from
frozen pipes. Since the retaking of the home place, Margaret,
Kenneth, and Edward have indicated to John that they intend
to demolish the residence. John alleges that Margaret’s and
Kenneth’s treatment of his personal property in the residence
constituted a conversion.
It is alleged that the partnership entered into leases with
members of the family that were below fair market value. John
alleges the leases are below fair market value because they
are 10-year crop share leases, and he believes Margaret’s life
expectancy is less than 10 years. Therefore, it would result in
John’s share being burdened by the lease. However, the eviden-
tiary rulings of the county court limited the record in regard to
these allegations.
5. county court proceedIngs
In this action, John filed a petition in the probate proceed-
ings to remove Margaret as a personal representative. John
also asked for trust administration and to have Margaret
and Kenneth removed as cotrustees. John asked the court
to appoint him as personal representative and trustee in
their place.
The matters were heard in August 2013, and on September
13, the county court entered an order on John’s petitions.
The court stated that there were three main issues it needed

680 	289 NEBRASKA REPORTS
to resolve: (1) the extent of its jurisdiction in this matter; (2)
whether there was a contract for wills between Margaret and
Edward and, if so, whether it had any bearing on this proceed-
ing; and (3) whether the actions of which John complained
were taken by Margaret and/or Kenneth in their capacities as
personal representative and cotrustees.
(a) County Court Jurisdiction
The court concluded that its jurisdiction extended only to
matters related to the property of the estate and to the corpus
of the family trust and that any claim related to the operation
and assets of the limited partnership (including all of the real
estate involved) was outside of the court’s probate jurisdic-
tion. The court emphasized that issues pertaining to the home
place were related to the partnership, and not to Stuchlik’s
estate, and that therefore, any claim relating to John’s ouster
from the home place was outside of the county court’s lim-
ited jurisdiction.
The argument over the scope of the court’s jurisdiction in
the matter led to discovery disputes between the two parties.
Midway through the proceedings, the disputes led the court
to issue an order limiting the scope of discovery to “discov-
ery relevant to administration of the estate of the decedent
and to property of the estate.” Even after the discovery
order, John continued to solicit evidence along the lines of
his broader view of the court’s jurisdiction. He was allowed
several times to make offers of proof. The court ruled again
during trial:
We are not going into any more about the partnership.
I think the ouster of [John] was a partnership action. They
removed him from partnership property. I can’t fix that as
a probate judge. And I have — I’ve been ruling that way
since the first protective order in discovery that I put out.
And that’s my ruling. It’s not probate property.
(b) Existence of Contract
for Wills
The court concluded that there was insufficient evidence
of a contract for wills between Margaret and Stuchlik and,

IN RE ESTATE OF STUCHLIK 	681
Cite as 289 Neb. 673
instead, found the estate plan consistent with a mutual will
arrangement.
(c) Fiduciary Duties With Respect
to Estate Property
The court found that actions taken by Margaret and Kenneth
in their capacities as personal representative and cotrustees did
not show evidence of mismanagement under the statutory defi-
nition. The court therefore dismissed John’s petition to remove
Margaret as personal representative. With respect to the family
trust, the court granted the request for trust administration, but
only to the extent that the court granted registration of the fam-
ily trust, and denied all other relief, including the request to
remove the cotrustees.
(d) Posttrial Motions and Orders
John moved for a new trial at the end of the proceedings.
Both parties moved for attorney fees. John’s motion for a new
trial was denied. Margaret and Kenneth were awarded attor-
ney fees.
III. ASSIGNMENTS OF ERROR
John’s assignments of error, consolidated and restated, are
the following: (1) failing to find that a contract for wills
existed between Margaret and Stuchlik; (2) failing to admit
evidence and allow discovery which could have led the court to
find that a contract for wills existed; (3) finding that the county
court lacked jurisdiction over matters pertaining to the farm
real estate held by the partnership, reasoning that Margaret’s
activities as general partner had no bearing on her fitness as
a personal representative and cotrustee of the family trust; (4)
failing to find that Margaret’s and Kenneth’s activities war-
ranted removal as personal representative and cotrustees; (5)
failing to award John his attorney fees and costs, and awarding
Margaret and Kenneth attorney fees to be paid from the estate;
and (6) overruling John’s motion for a new trial.
IV. STANDARD OF REVIEW
[1,2] In reviewing a judgment of the probate court in a
law action, the Supreme Court does not reweigh evidence,

682 	289 NEBRASKA REPORTS
but considers evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable
inference deducible from the evidence.1 The probate court’s
factual findings have the effect of a verdict, and an appel-
late court cannot set those findings aside unless they are
clearly erroneous.2
[3,4] However, on a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below.3 The existence of a fiduciary
duty and the scope of that duty are questions of law for a court
to decide.4
V. ANALYSIS
As will be explained in more detail below, we affirm in
most respects, but reverse, and remand for the limited purpose
of reviewing Margaret’s and Kenneth’s activities in regard to
the partnership as evidence of any potential breach of fiduciary
duties as cotrustees.
Margaret has already completed her duties as personal repre-
sentative and is waiting to be discharged pending the result of
this action. Therefore, any action for her removal as personal
representative is without merit.
With regard to John’s petition to remove Margaret and
Kenneth as cotrustees, much of John’s argument is based on a
theory of a contract for wills or an oral trust between Margaret
and Stuchlik. We find these arguments wholly irrelevant to the
petition to remove a cotrustee. An action to remove cotrustees
of a trust must center on any serious breaches by the cotrust-
ees.5 Therefore, the emphasis on the real estate and partnership
property is misplaced.
1 See In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).
2 See id.
3 Id.
4 Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
5 See Neb. Rev. Stat. § 30-3862 (Reissue 2008).

IN RE ESTATE OF STUCHLIK 	683
Cite as 289 Neb. 673
However, to the extent Margaret’s and Kenneth’s activities
as general partners of the partnership relate to their fitness as
cotrustees, the court erred in concluding that it lacked juris-
diction to consider any evidence pertaining to those allega-
tions. We remand the cause for a determination of whether
the partnership activities related back to their fiduciary duties
as cotrustees.
1. reMoval as personal
representatIve
The county court was correct in its finding that Margaret
had not breached any of her duties as personal representa-
tive, because her duties in that capacity were completed when
the estate property was transferred into the family trust. All
estate assets are now in the family trust. The estate’s closure
is awaiting the end of this action. Accordingly, the only issue
left is Margaret’s and Kenneth’s actions as cotrustees of the
family trust.
2. reMoval as cotrustees
Removal of a cotrustee is proper under § 30-3862 where
(1) the trustee has committed a serious breach of trust; (2)
the trustee fails to cooperate among fellow cotrustees; (3) the
trustee is unfit, unwilling, or persistently fails to administer the
trust effectively, and the court determines that removal would
best serve the interests of the beneficiaries; and (4) there has
been a substantial change in circumstances or removal is
requested by all of the qualified beneficiaries and the court
finds removal would best serve these interests. John alleges
that Margaret should be removed as cotrustee for failing to
abide by a contract for wills or an oral trust between herself
and Stuchlik. This cannot be the case, because a failure to
abide by a contract for wills or an oral trust is not a basis for
removing a cotrustee under this removal statute. However,
evidence of Margaret’s and Kenneth’s activities as general
partners of the partnership may be relevant to determine
whether there is a basis for their removal as cotrustees under
this statute.

684 	289 NEBRASKA REPORTS
(a) Contract for Wills
or Oral Trust
(i) Contract for Wills
The county court was correct in finding that there was not
enough evidence to support a contract for wills and that even
if there was, such a contract was not relevant to this action.
John argues that Margaret had entered into a contract for wills
with Stuchlik before his death and that the two had contracted
to equally divide the trust between their three sons. However,
there is no evidence of such a contract. Further, the proper
case for a breach of a contract for wills is not a probate action
against the decedent’s estate, but, rather, is an action for breach
of contract or an action against the breaching party’s estate.
Therefore, a contract for wills is wholly irrelevant to this action
to remove cotrustees.
[5] In Nebraska, a contract for wills “can be established
only by (1) provisions of a will stating material provisions of
the contract; (2) an express reference in a will to a contract
and extrinsic evidence proving the terms of the contract; or
(3) a writing signed by the decedent evidencing the contract.”6
“The execution of a joint will or mutual wills does not create
a presumption of a contract not to revoke the will or wills.”7
The comments to the Uniform Trust Code, as adopted by
Nebraska, allow oral testimony only if the will references
the contract.8
The county court found that the evidence of a letter from
Margaret and Stuchlik directing Bromm on the division of the
estate was merely the evidence of an intent to have mutual
wills, and not an agreement to will. The court correctly found
that the language in the will did not raise a presumption of a
contract for wills. We agree.
[6-8] Even if such a contract for wills existed, the proper
action for enforcement would not be a probate action for
removal of a cotrustee. The effect of a valid contract for wills
6 Neb. Rev. Stat. § 30-2351 (Reissue 2008).
7 Id. (emphasis supplied).
8 See Johnson v. Anderson, 278 Neb. 500, 771 N.W.2d 565 (2009).

IN RE ESTATE OF STUCHLIK 	685
Cite as 289 Neb. 673
is not to create a cause of action against the decedent’s estate,
but instead is to create a cause of action for breach of contract.9
In Pruss v. Pruss,10 beneficiaries filed an action seeking relief
that would compel the distribution of a wife’s estate under the
terms of a mutual contractual will, rather than under a sub-
sequent will executed after the death of the husband. There,
we held that even where a valid contractual will existed, that
existence did not make a will irrevocable. Wills by their nature
are ambulatory and may be revoked at any time.11 Instead,
if the surviving spouse revokes or breaches the mutual con-
tractual will, an action may lie for breach of contract against
the estate of the survivor.12 Therefore, in the present case,
the cause of action was improperly brought as an action for
the removal of the personal representative and cotrustees,
and instead should have been brought as a breach of contract
action against Margaret, as the surviving spouse, by the sup-
posed beneficiaries.
(ii) Oral Trust
John asks this court to find, as an alternative to the contract
for wills, that an oral trust had been established through the
evidence at trial. Neb. Rev. Stat. § 30-3833 (Reissue 2008)
states that “a trust need not be evidenced by a trust instrument,
but the creation of an oral trust and its terms . . . may be estab-
lished only by clear and convincing evidence.”
The county court found that there was no evidence of such
an oral trust. Given our standard of review in these proceed-
ings, we must give weight to the court’s evidentiary findings.
We do not reweigh evidence, but consider evidence in the light
most favorable to the successful party and resolve evidentiary
conflicts in favor of the successful party.13 We find no clear
error in the county court’s finding.
9 Pruss v. Pruss, 245 Neb. 521, 514 N.W.2d 335 (1994).
10 Id.
11 See id.
12 See id.
13 In re Estate of Lamplaugh, supra note 1.

686 	289 NEBRASKA REPORTS
Because we find that the county court was correct in find-
ing that there was no contract for wills or an oral trust, and
because an existence of such a contract would be irrelevant to
the removal of a trustee, we find no merit to John’s arguments
that the court erred in not allowing discovery on the matter,
erred in granting attorney-client privilege, or erred in failing to
review Bromm’s testimony in camera for relevancy.
(b) Jurisdiction Over
Partnership Actions
Finally, John asserts that the court erred in failing to find
that Margaret’s conduct as a general partner warranted her
removal as cotrustee. The county court concluded that it could
not base Margaret’s removal on any conduct pertaining to the
partnership. The court reasoned that it lacked jurisdiction over
matters to do with the partnership and the real estate held by
the partnership. However, 16.7168 percent of the partnership,
including a 1-percent general partnership interest, is held
in the family trust. To the extent that the cotrustees’ activi-
ties toward this partnership are relevant to their fitness as
cotrustees, the court erred in concluding it lacked jurisdiction.
Therefore, the court erred in denying discovery and in refus-
ing to consider whether partnership actions reflected on the
propriety of Margaret and Kenneth as cotrustees of the fam-
ily trust.
[9-12] Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2012) states
that the county court shall have exclusive jurisdiction over all
matters relating to decedents’ estates, including the probate of
wills and construction thereof. In exercising exclusive original
jurisdiction over estates, county courts may apply equitable
principles to matters within probate jurisdiction.14 We have
held that county courts have jurisdiction over all subject matter
relating to estates of decedents, including construction of wills
and determination of heirs and successors of decedents, estates
of protected persons, protection of minors and incapacitated
persons, and trusts.15 Such courts have full power to make
14 Neb. Rev. Stat. § 30-2211 (Cum. Supp. 2014).
15 See, id.; In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981).

IN RE ESTATE OF STUCHLIK 	687
Cite as 289 Neb. 673
orders, judgments, and decrees and to take all other actions
necessary and proper to administer justice in the matters which
come before them.16
The county court here reasoned that “[m]erely because the
matter raised relates in some manner to an estate or a trust
does not turn the county court into a court of general equitable
jurisdiction as [the partnership] is the exclusively [sic] purview
of the district court.” The court was correct to decline adjudica-
tion of partnership disputes. A probate action is not the proper
forum for resolving issues concerning any possible conversion
or disputes regarding the real estate. But, John is asking for
Margaret and Kenneth to be removed as cotrustees of the fam-
ily trust due to a breach of their fiduciary duties. That trust
holds over 16 percent of the partnership, as well as a general
partnership interest. The 1-percent general partnership interest
held by the family trust, with Margaret and Kenneth as cotrust-
ees, combined with Margaret’s personal 1-percent general part-
nership interest, effectively gives Margaret 100 percent of the
general partnership power.
Assuming John’s allegations are true, under Nebraska’s
common definitions of a trustee’s fiduciary duties, Margaret
and Kenneth may have breached fiduciary duties to John as
a beneficiary of the trust through their management of the
partnership. In particular, John argues that the cotrustees are
engaged in self-dealing, actions of personal animus and fric-
tion that interfered with the proper administration of the estate
and trust, and failing to abide by the terms of the trust. If
so, actions taken with regard to the real estate (held by the
partnership) may be relevant evidence of a breach of fidu-
ciary duties.
[13,14] A trust creates a fiduciary relationship in which one
person holds a property interest subject to an equitable obliga-
tion to keep or use that interest for the benefit of another.17 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 accordance with the Nebraska Uniform
16 Id.
17 Karpf v. Karpf, 240 Neb. 302, 481 N.W.2d 891 (1992).

688 	289 NEBRASKA REPORTS
Trust Code.”18 The Nebraska Uniform Trust Code, in turn,
states that trustees owe the beneficiaries of a trust duties that
include loyalty, impartiality, prudent administration, protec-
tion of trust property, proper recordkeeping, and informing
and reporting.19
[15,16] The duty of loyalty requires a trustee to adminis-
ter the trust solely in the interests of the beneficiaries.20 As
§ 30-3867(c) states, “A sale, encumbrance, or other transaction
involving the investment or management of trust property is
presumed to be affected by a conflict between personal and
fiduciary interests if it is entered into by the trustee with . . . (2)
the trustee’s descendants, siblings, parents, or their spouses.”
Further, the statute states, “A transaction not concerning trust
property in which the trustee engages in the trustee’s individual
capacity involves a conflict between personal and fiduciary
interests if the transaction concerns an opportunity properly
belonging to the trust.”21 Particularly pertinent is the following
section of the duty of loyalty statute:
In voting shares of stock or in exercising powers of
control over similar interests in other forms of enter-
prise, the trustee shall act in the best interests of the
beneficiaries. If the trust is the sole owner of a corpora-
tion or other form of enterprise, the trustee shall elect
or appoint directors or other managers who will manage
the corporation or enterprise in the best interests of the
beneficiaries.22
Nebraska’s statutes are derived from the Restatement (Third)
of Trusts.23 The comments in the Restatement state that the
policy behind this law is to prevent trustees’ placing them-
selves in positions in which they may be tempted to act for
18 Neb. Rev. Stat. § 30-3866 (Reissue 2008).
19 See Neb. Rev. Stat. §§ 30-3866 through 30-3870 (Reissue 2008). See,
also, In re Estate of Robb, 21 Neb. App. 429, 839 N.W.2d 368 (2013).
20 § 30-3867(a).
21 § 30-3867(d).
22 § 30-3867(f) (emphasis supplied).
23 Restatement (Third) of Trusts (2007).

IN RE ESTATE OF STUCHLIK 	689
Cite as 289 Neb. 673
reasons other than the best interests of the beneficiaries.24 “This
policy of strict prohibition also provides a reasonable circum-
stantial assurance . . . that beneficiaries will not be deprived of
a trustee’s disinterested and objective judgment.”25
[17-19] If a trust has two or more beneficiaries, a trustee
has a duty of impartiality among beneficiaries.26 This includes
a duty to “act impartially in investing, managing, and distribut-
ing the trust property, giving due regard to the beneficiaries’
respective interests.”27 Comments in the Restatement suggest
that the duty of impartiality includes a duty to conform to the
settlor’s intentions and the terms of the trust instrument.
It is not only appropriate but required by the duty of
impartiality that a trustee’s treatment of beneficiaries, and
the balancing of their competing interests, reasonably
reflect any preferences and priorities that are discern-
ible from the terms . . . , purposes, and circumstances of
the trust and from the nature and terms of the beneficial
interests. Thus, unfortunately, it is often the case that
the implications of the duty of impartiality are compli-
cated by the difficulties of determining, and the vague-
ness of, some relevant aspects of the settlor’s intentions
and objectives—much of which is left to interpretation
and inference.28
Impartiality means that a trustee’s treatment of beneficiaries or
conduct in administering a trust is not to be influenced by the
trustee’s personal favoritism or animosity toward individual
beneficiaries.29 As we have held:
“A court of equity has power and authority to remove
a trustee from his office, when any substantial personal
disability exists in the trustee, when he fails to perform
the duties of his position, when he has misconducted
24 See id., § 78.
25 Id., comment b. at 96.
26 § 30-3868.
27 Id.
28 Restatement, supra note 23, § 79 at 129 (emphasis supplied).
29 Id.

690 	289 NEBRASKA REPORTS
himself in office, when hostile relations exist between the
trustee and his beneficiaries of such a nature as to inter-
fere with the proper execution of the trust, or under any
other conditions which render his removal necessary for
the best interests of the trust estate, particularly where it
appears that the trustee’s personal interests conflict with,
or are antagonistic to, his duties as trustee under the
terms of his trust.”30
[20] Nebraska law states that when an entity is held by a
trust, and particularly where a controlling share of that entity
is exercised against the best interests of any trust beneficiary,
it is a breach of the duty of loyalty.31 That is exactly what is
purported to have happened in this case. Margaret and Kenneth
control the partnership through the general partnership interest
held in the family trust. The partnership interest is the largest
holding of the family trust. Though Margaret has a lifetime
interest, her children have equal interests in the remainder. John
alleges that the cotrustees are acting adversely to his interests
as a beneficiary. He alleges that through Margaret’s actions as
a general partner, she has caused assets of the partnership to
be sold or leased at below market value, presumably causing
the partnership interest held by the family trust to decrease in
value. We do not know if these allegations have any truth, but
the court had jurisdiction to consider these allegations and any
evidence relevant thereto. It is conceivable that an examination
into the actions of the partnership may have revealed evidence
that Margaret and Kenneth were violating their duty of loyalty
and against self-dealing.
Further, Nebraska law states that a trustee must act impar-
tially between two or more beneficiaries.32 It violates a trust-
ee’s duty of impartiality to administer a trust with personal
favoritism or animosity toward a beneficiary.33 Through the
general partnership held in trust, Margaret and Kenneth have
30 Reed v. Ringsby, 156 Neb. 33, 39-40, 54 N.W.2d 318, 322 (1952)
(emphasis supplied). See, also, § 30-3862.
31 § 30-3867(f).
32 § 30-3868.
33 Restatement, supra note 23, § 79.

IN RE ESTATE OF STUCHLIK 	691
Cite as 289 Neb. 673
a management interest in the partnership. It is arguable that
they may have managed the partnership in such a way as to
treat John’s interest in the trust unfairly. Since Margaret and
Kenneth have shown John disfavor, it may be relevant to
examine the actions of the partnership in order to determine if
the cotrustees intended to treat John unfairly in regard to his
beneficial trust interest. The actions of Margaret and Kenneth
in their capacities as partners may be evidence as to a breach
of the duty of impartiality.
In sum, the county court was correct that it is not a proper
forum for a partnership action. Most of the issues in this action
pertain to the real estate held by the partnership, and for reso-
lution of any of those issues, the county court was correct to
decline jurisdiction. However, the county court does have juris-
diction over testamentary trusts and, in this case, the family
trust. All parties must bear in mind that any evidence regard-
ing the partnership must pertain to the cause for removal of a
cotrustee and any breach of fiduciary duties by Margaret and
Kenneth, in their capacities as cotrustees, not in their capaci-
ties as general partners. The county court may find that much
evidence regarding partnership disputes is not relevant to the
action for removal of the cotrustees.
(c) Attorney Fees
[21-24] Finally, we address the issue of attorney fees.
Attorney fees and expenses will ordinarily be allowed to a
trustee where they were incurred for the benefit of the estate.34
We have stated that to make a trustee personally responsible
for all reasonably incurred attorney fees for the successful
defense of his or her actions as a fiduciary would impose an
unconscionable burden on fiduciary service without justifi-
cation.35 And, if the fiduciary’s defense of his or her acts is
fully successful, he or she is entitled to recover the reasonable
costs necessarily incurred in preparing his or her final account
and in successfully defending it against objections.36 We have
34 Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997).
35 Id.
36 See id.

692 	289 NEBRASKA REPORTS
stated that the standard is “substantially successful” and that
the fiduciary’s defense does not have to be 100 percent suc-
cessful in order for the fiduciary to be entitled to recover costs
including attorney fees.37 Similarly, the county court or district
court on appeal has discretionary power and authority to order
payment out of the trust estate for costs of litigation and, in
proper cases, to order payment of reasonable fees to attorneys
for services rendered to a trustee in good faith.38
Pending the county court’s determinations on remand, we
leave the issue of attorney fees to be decided pursuant to
these rules.
VI. CONCLUSION
For the foregoing reasons, we find that a contract for wills
or an oral trust between Margaret and Stuchlik is irrelevant to
an action to remove a personal representative or a cotrustee
and that thus, any discovery or evidentiary objections are irrel-
evant to this ruling. We also find that removal of a personal
representative is not proper in this case, because the personal
representative properly transferred all estate assets into the
family trust pursuant to the will, and that thus, all duties as
personal representative have been completed. We affirm the
rulings of the county court in these respects. We in part reverse
the judgment and remand the cause to the county court in order
to determine if any evidence of the cotrustees’ actions with
regard to the partnership are relevant to their fiduciary duties
as cotrustees, potentially warranting removal.
affIrMed In part, and In part reversed and
reManded for further proceedIngs.
37 Id. at 345, 562 N.W.2d at 362.
38 See id.