In the Matter of the Trust of Bobby Dean Churchill

IN THE COURT OF APPEALS OF IOWA

No. 23-1585
Filed July 24, 2024

IN THE MATTER OF THE TRUST OF BOBBY DEAN CHURCHILL,

NATALIE ANN CHURCHILL,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Taylor County, Thomas P. Murphy,

Judge.

A grandchild appeals the district court’s order interpreting her grandfather’s

trust and denying her request to remove the trustee. AFFIRMED.

William Bracker, Council Bluffs, for appellant.

Bradford L. Davis, Council Bluffs, for appellee.

Considered by Badding, P.J., Langholz, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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LANGHOLZ, Judge.

A few months before his death in July 2014, Bobby Churchill Sr. executed

his will. That will creates a trust to hold 280 acres of farmland “for the benefit of

my daughters, Kathy and Nancy, for their lifetime.” And it provides: “Upon the

death of both of my daughters the real estate shall pass to the living heirs of my

two daughters. The trust shall continue until both girls are deceased.”

Consistent with the will, Nancy and Kathy split the farmland’s income as co-

beneficiaries of the trust while they were both alive.1 But when Kathy died in 2020,

Nancy interpreted the terms of the trust to mean that she was now the sole

beneficiary and entitled to receive all the income until her death. Kathy’s only

daughter, Natalie, disagreed. So Natalie petitioned the district court to declare that

the trust’s terms entitle her to receive her mother’s share of the farmland’s income

until the trust terminates on Nancy’s death. See Iowa Code § 633A.6202(2)(a)

(2022) (authorizing petitions to “[c]onstrue and determine the terms of a trust”).

Natalie also asked the court to remove Nancy as trustee, accusing Nancy of

mismanaging the farm. See id. §§ 633A.6202(2)(j); 633A.4107 (authorizing

petitions to remove trustee). Nancy denied any mismanagement and likewise

denied that Natalie had any interest in the farmland until both she and Kathy died.

The dispute was tried in equity and largely involved witnesses speculating

about which outcome Churchill would have wanted. Indeed, the attorney who

drafted Churchill’s will, Sanford Turner, testified. Churchill and Turner never

discussed whether the farmland’s income should pass to one of his daughters’

1 Churchill’s son Bobby Jr. originally became trustee. For reasons that are
interesting yet unrelated to this appeal, Nancy later replaced Bobby Jr. as trustee.
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heirs while the other daughter remained alive. Still, Turner believed his language

created a situation akin to tenancy in common. And thus he believed Natalie

should receive her mother’s undivided share of the farmland’s income. Turner also

emphasized that Churchill’s foremost interest was keeping the farmland in the

family and preventing his children from quickly selling it upon his death. Nancy

and Bobby Jr., for their part, each offered conflicting views of who was entitled to

the trust’s income.

The district court sided with Nancy on all issues. The court first concluded

that the will’s language was unambiguous—the trust was for the benefit of Nancy

and Kathy for their lifetimes. The court noted that “the document uses the word

‘both’ twice: once where it mentions when the real estate passes to Bobby Dean

Churchill’s grandchildren; and again where the document describes when the trust

terminates.” And so the court reasoned, “[t]he children of Kathy and Nancy receive

no benefits from the land held in trust until ‘both’ Nancy and Kathy die.” While the

court recognized extrinsic evidence was unnecessary, it noted that its

interpretation aligned with Turner’s testimony that Churchill’s core intent was to

keep the farmland in the family and Turner’s “lack of recollection about any

discussions of income going to grandchildren.”

The court also denied Natalie’s request to remove Nancy as trustee. It

found that Natalie had failed to prove Nancy’s reports were inaccurate, that Nancy

did not have a duty to maximize profits while she alone was recouping those profits,

and that she was fulfilling her obligation “to ensure that the land is in good condition

when it passes” to Natalie and Churchill’s other grandchildren.
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Finally, the court decided that Nancy was entitled to reasonable attorney

fees under Iowa Code section 633A.4507. And it ordered “that if she desires those

fees, then within fifteen days Nancy may file an attorney’s fee request” and “[w]ithin

ten days after that, Natalie may file a resistance and request for hearing.” Nancy

filed such a timely request for an amount “that the Court deems just and equitable,”

and attached an itemization totaling $4130 in fees. Natalie objected to the amount

and argued “that reasonable attorney fees in this case would be $2,500.” Nancy

then filed a reply reiterating her request and highlighting that Natalie did not

request a hearing and admitted that some amount was reasonable. But the court

did not issue an order resolving the dispute or awarding Nancy any fees before

Natalie filed her notice of appeal.

On appeal, Natalie challenges the district court’s interpretation of the trust,

its refusal to remove Nancy as trustee, and the attorney-fee award. But the district

court got it right on the two issues properly before us. The terms of the trust

unambiguously give no right to Natalie until “both” of Churchill’s daughters “are

deceased.” The court did not abuse its discretion in refusing to remove Nancy as

trustee. And we cannot consider Natalie’s attorney-fees arguments because the

district court has not made a final attorney-fee award to Nancy and Natalie never

requested fees. We thus affirm.

I. Natalie’s Interest in the Trust

We review the district court’s declaratory ruling interpreting the terms of

Churchill’s will that govern the trust de novo. See In re Will of Uchtorff, 693 N.W.2d

790, 793 (Iowa 2005); see also Iowa Code §§ 633.33, 633A.6101; Iowa R. App.
5

P. 6.907. The principles that guide our review are firmly entrenched, and this case

serves as a reminder of why they have remained so durable.

We honor the testator’s intent. In re Tr. of Killian, 459 N.W.2d 497, 499

(Iowa 1990). And we locate that intent not by asking “what the testator meant to

say” but by asking “what the testator meant by what he or she did say.” In re Tr.

of Cross, 551 N.W.2d 344, 346 (Iowa 1996). We further “assume the testator

selected the language adopted to express his meaning and he knew and

appreciated the effect of the language used in his or her will.” Id. at 347. At bottom,

“[t]he terms of a trust shall always control.” Iowa Code § 633A.1105.

Under Churchill’s executed language, he placed 280 acres of farmland in

trust “to be held for the benefit of my daughters, Kathy and Nancy, for their lifetime.

Upon the death of both of my daughters the real estate shall pass to the living heirs

of my two daughters. The trust shall continue until both girls are deceased.” Like

the district court, we find this language unambiguous. Churchill gave his daughters

and grandchildren discrete interests in the farmland. The daughters would never

own the farmland—they could not sell or dispose of the land but would benefit from

its income only during their lifetimes. When the trust terminated upon both his

daughters’ deaths, his grandchildren would get title to the farmland and could

choose whether to sell or benefit from its income.

Nearly seventy years ago, our supreme court addressed a similar trust term

in In re Will of Young, 79 N.W.2d 376 (Iowa 1956). There, a woman created a trust

to benefit her niece, and upon the niece’s death the trust would be for the benefit

of two co-beneficiaries for a period of twenty-one years. Id. at 377. If both co-

beneficiaries died before the twenty-one years were up, the principal would be paid
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to the niece’s heirs. Id. One of the co-beneficiaries died while serving in World

War II, before the niece died and thus before the co-beneficiaries began receiving

any trust income. Id. After the niece died, the court considered whether the

surviving beneficiary would get the entire trust income during the twenty-one years

or if the deceased beneficiary’s share of trust income would pass to his estate or

surviving widow. Id.

The court reasoned that the cross-remainder theory best carried out the

testator’s intent as well as aligned with other jurisdictions and leading treatises.

See id. at 380. Under that approach, “if two or more persons are to receive a life

estate and one departed this life prior to the death of the first life tenant, the

surviving life tenant is entitled to all income.” Id.; see also id. (“[A] majority of the

cases have held that the share of the deceased life beneficiary passed to the

cobeneficiary or cobeneficiaries, upon the theory either that the language of the

will indicated an intention to create a joint estate in the life beneficiaries, with the

accompanying right of survivorship, or that the gift must be regarded as one to a

class or as one creating cross remainders by implication.” (citation omitted)). Thus

the surviving beneficiary received all trust income for the twenty-one years, and

the deceased beneficiary’s share did not pass to his estate or widow. Id.

So too here. Under the trust’s plain language, it created life estates for

Kathy and Nancy, who would receive the trust’s income. If one daughter dies, her

life estate terminates and the trust continues for the benefit of the surviving

daughter. When both daughters die, the trust dissolves and ownership passes to

the grandchildren. The daughters were never intended to hold title and the

grandchildren were never intended to receive trust income. See also Restatement
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(Second) of Trusts § 143 (Am. L. Inst. 1959) (“If a trust is created under which the

income is payable to two or more beneficiaries and the principal is payable to

another on the death of the survivor of the income beneficiaries, and one of them

dies, the survivor or survivors are entitled to the income until the death of the last

survivor, unless the settlor manifested a different intention.”).2

Natalie offers no contrary reading of this language, instead jumping straight

to ambiguity. See generally In re Steinberg Fam. Living Tr., 894 N.W.2d 463, 471

(Iowa 2017) (explaining patent ambiguity exists “when the provision is uncertain,

doubtful, or obscure on its face” and latent ambiguity exists “when the language is

clear on its face, but something outside the trust renders the meaning uncertain,

doubtful, or obscure”). She argues the instrument contains no express language

directing the trust income upon one daughter’s death and such a failure creates

latent ambiguity. As Natalie sees it, the “rushed” and “anxious” drafting of

Churchill’s will left some of his desires on the cutting-room floor. And because

Churchill would have wanted her to have her mother’s share of the trust income,

we can confidently fill in the gap ourselves.

But Natalie’s approach to extrinsic evidence exceeds our deep-seated

precedent. We do not set aside plain language in search of wrongs to right. See

Guilford v. Gardner, 162 N.W. 261, 264 (Iowa 1917) (“The meaning being plain

2 While the Third Restatement advocates for a different approach, it acknowledges

that the “slightly prevalent view in the cases still appears to be to allow the surviving
income beneficiary or beneficiaries to receive the deceased beneficiary’s share of
income.” Restatement (Third) of Trusts, § 49 cmt. c-c(3) (Am. L. Inst. 2007).
Natalie does not rely on the Third Restatement, In re Will of Young aligns with the
Second Restatement, and, regardless, we believe Nancy receiving all trust income
best effects Churchill’s intent. So we do not consider the Third Restatement
further.
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and the intent being lawful, there is no room left for controversy. It is not for the

court to question or consider the absolute justice of the condition; its only function

is to ascertain the testator’s intent and give it effect.”). Nor may challengers wield

extrinsic evidence to create new terms or construct a narrative that is missing from

the instrument itself. See In re Est. of Kalouse, 282 N.W.2d 98, 104–06 (Iowa

1979); Cross, 551 N.W.2d at 348.

Yet Natalie seeks to do just that. She argues her grandfather at first wanted

to disinherit his daughters and leave everything to his grandchildren, so we should

construe the trust’s terms to favor the grandchildren.3 And she rests heavily on

Turner’s belief that the trust’s income should be passed down to Natalie. But that

is not what the trust says or does. The trust does not favor Churchill’s

grandchildren over his daughters, nor does it pass any trust income to the

grandchildren. Instead, the trust provides his daughters and grandchildren with

discrete interests in the farmland. So that is the intent we preserve and enforce

because “courts have no more authority to make wills for the dead than contracts

for the living.” In re Est. of Staab, 173 N.W.2d 866, 870 (Iowa 1970); see also In

re Est. of Rogers, 473 N.W.2d 36, 40 (Iowa 1991) (“We will not, from oral

3 On appeal, Natalie makes a related argument that, given her extrinsic evidence

about Churchill’s purported wishes, we should find that failing to direct the trust
income to the non-surviving daughter’s heirs was inadvertent and imply a gift
ourselves. See Russell v. Johnston, 327 N.W.2d 226, 230 (Iowa 1982) (discussing
gifts by implication “[w]hen a testator’s will clearly reveals a general plan or
intention as to the disposition of his property” (citation omitted)). But Natalie did
not make this argument below. And even if she had, the will as a whole reveals
no intent for Churchill’s grandchildren to receive anything besides title to the
farmland upon his daughters’ deaths. In that regard, elsewhere in Churchill’s will
he places other land in trust to benefit his son, with title to pass to his son’s heirs
upon the son’s death. So across his will, Churchill was consistent—his children
receive trust income and his grandchildren later receive title.
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testimony, make a will the testator perhaps intended to, but in fact did not, make.”);

Kalouse, 282 N.W.2d at 104 (upholding will’s language creating a class gift despite

scrivener’s testimony that testator intended to make individual gifts). We thus

affirm the district court’s ruling that Natalie is not entitled to her mother’s share of

the trust income.

II. Nancy’s Removal as Trustee

We next consider Natalie’s petition to remove Nancy as trustee. “A trustee

may be removed” if she “has committed a material breach of the trust.” Iowa Code

§ 633A.4107(2)(a). Among a trustee’s duties is the responsibility to “administer

the trust with the reasonable care, skill, and caution as a prudent person would.”

Id. § 633A.4203. She must “administer the trust solely in the interest of the

beneficiaries” and must “act with due regard to their respective interests.” Id.

§ 633A.4202(1). And she must exercise her “discretionary power[s] within the

bounds of reasonable judgment and in accordance with applicable fiduciary

principles and the terms of the trust.” Id. § 633A.4214.

When considering an action to remove a trustee, a court must consider

whether “there is sufficient reason to do so to protect the best interests of the trust

and its beneficiaries.” Schildberg v. Schildberg, 461 N.W.2d 186, 191 (Iowa 1990).

The removal power is generally reserved for trustees who endanger the trust. Id.

So removal is unwarranted “when the overall performance of the trustee in the

interest of the trust outweighs a breach of the trust agreement and the overall

interests of the beneficiaries will be better served by having the trustee continue.”

Id. Because this case was tried in equity and yet “the removal of a trustee is a

matter largely within the discretion of the district court,” “we examine the record de
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novo to determine whether there was an abuse of discretion by the trial court in

refusing to remove the trustee.” Id. at 190.

We agree with the district court that Natalie has not shown that Nancy

materially breached the trust or has otherwise endangered its corpus. Nearly all

of Natalie’s assigned breaches stem from Nancy not reaping as much profit from

the farmland as possible. And true, based on the evidence it seems Natalie could

be charging more for rent. But as the sole income beneficiary, Nancy’s choice to

charge a lower rent to a trusted and long-term tenant only harms herself—Natalie

and the other grandchildren have no right to any share of the current profits. Nor

has Natalie proven any damage to the farmland that would jeopardize the

grandchildren’s future interests in the corpus. Indeed, Natalie offered no evidence

that the farmland has in fact been neglected or that any problems have gone

unfixed.4 Rather, the minimal evidence relating to the state of the farmland showed

that the current tenant takes good care of the land.

And Natalie’s last assertion that Nancy engaged in improper self-dealing by

refusing to split the trust income has no merit. As already shown, Kathy’s share of

the trust income did not pass to Natalie upon Kathy’s death, so Nancy was entitled

to keep all trust income as the surviving beneficiary. Thus, Nancy has not

breached any of her duties and the district court did not abuse its discretion in

refusing to remove her as trustee.

4 In her brief, Natalie recounts several factual allegations related to Nancy’s
purported mismanagement without any accompanying citations to the record. We
have no duty to consider uncited assertions. See Channon v. United Parcel Serv.,
Inc., 629 N.W.2d 835, 866 (Iowa 2001).
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III. Trial and Appellate Attorney Fees under Chapter 633A

Finally, Natalie challenges the district court’s order compelling her to pay

Nancy’s reasonable attorney fees. Courts indeed have discretion to award

attorney fees in trust proceedings. See Iowa Code § 633A.4507. But the district

court’s attorney-fee decision is not ripe for appeal.

The district court’s ruling only stated that Nancy “should receive reasonable

attorney’s fees for this litigation” and invited the parties to litigate the issue within

fifteen days. Nancy promptly moved for reasonable fees, and Natalie objected to

the claimed amount. But while the attorney-fee application was pending, Natalie

filed her notice of appeal and the district court took no further action in the case.

But see Iowa R. App. P. 6.103(3) (explaining district courts retain “jurisdiction to

consider an application for attorney fees notwithstanding the appeal of a final order

or judgment in the action”). So there is nothing yet for us to review—Natalie has

only appealed from the final ruling on her petition—any challenge to a later award

of attorney fees is “premature.” In re Marriage of Kisting, 6 N.W.3d 326, 337 (Iowa

Ct. App. 2024); see also Iowa State Bank & Tr. Co. v. Michel, 683 N.W.2d 95, 110

(Iowa 2004) (holding that orders awarding attorney-fees after the filing of a notice

of appeal must be separately appealed).

Natalie also argues that “she should be awarded attorney fees both for the

district court action and for this appeal” because she should succeed on the merits

of this appeal. (Emphasis added.) But she did not preserve error on her claim for

trial attorney fees by making such a request or getting a ruling from the district

court on it. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues must ordinarily be both raised
12

and decided by the district court before we will decide them on appeal.”). 5 And

because we affirm the district court on both issues before us, we decline to award

Natalie appellate attorney fees. See In re Tr. No. T-1 of Trimble, 826 N.W.2d 474,

491 (Iowa 2013) (discussing factors to consider when awarding attorney fees

under section 633A.4507, including “result obtained by the litigation”).

AFFIRMED.

5 On this issue—and repeatedly throughout her brief—Natalie argues she
preserved error by filing a notice of appeal. As we have said many times, filing a
notice of appeal does not preserve error—litigating the issue before the district
court does. See In re T.G., No. 23-0979, 2023 WL 5605626, at *1 n.1 (Iowa Ct.
App. Aug. 30, 2023) (noting we have clarified this point “almost seventy times” in
the last ten years); see also Iowa R. App. P. 6.903(2)(a)(8) (“Filing a notice of
appeal does not preserve an issue for appeal, and citing to the notice does not
satisfy” the requirement to include in the appellant’s brief “[a] statement addressing
how the issue was preserved for appellate review.”).