In re Trust of Alexis

appellate court must remand the cause for further consideration.
State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Constitutional Right to Speedy Trial.
[15] Vasquez also argues that his constitutional right to a
speedy trial was violated. An appellate court is not obligated to
engage in an analysis that is not needed to adjudicate the con-
troversy before it. State v. Sommer, 273 Neb. 587, 731 N.W.2d
566 (2007). Therefore, we do not address this issue.
CONCLUSION
We conclude that the district court erred in excluding any
time periods relating to the plea bargain under § 29-1207(4)(a).
Even if such periods may be excluded under § 29-1207(4)(f),
the district court made no findings in that regard. Accordingly,
we reverse, and remand with directions to the district court
to determine whether, based on the existing record, the State
proved by a preponderance of the evidence that the time from
the filing of the first information to the entry of the plea of not
guilty or the time from the entry of the plea to the filing of
the motion to suppress, or both, is excludable for good cause,
supported by specific findings.
R eveRsed and Remanded with diRections .
in Re tRust of J oseph e.a. alexis , deceased .
caRl e. alexis , appellant , v . J osephine molloy
et al ., tRustees , appellees .
in Re tRust of maRJoRie e. alexis , deceased .
caRl e. alexis , appellant , v . J osephine molloy
et al ., tRustees , appellees .
744 N.W.2d 514
Filed February 19, 2008. 	Nos. A-06-408, A-06-409.
1. Trusts: Equity: Appeal and Error. Appeals involving the administration of a trust
are equity matters and are reviewable in an appellate court de novo on the record.
2. Decedents’ Estates: Appeal and Error. In the absence of an equity question, an
appellate court, reviewing probate matters, examines for error appearing on the
record made in the county court.
416 	16 NEbrASkA AppELLATE rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. ____: ____. In instances when an appellate court is required to review cases for
error appearing on the record, questions of law are nonetheless reviewed de novo
on the record.
5. ____: ____. An appellate court, in reviewing a district court judgment for errors
appearing on the record, will not substitute its factual findings for those of the
district court where competent evidence supports those findings.
6. Trusts. Interpretation of the language of a trust is a matter of law.
7. Judgments: Appeal and Error. regarding matters of law, an appellate court has
an obligation to reach a conclusion independent of that of the trial court in a judg-
ment under review.
8. Trusts: Intent. The rules of construction for interpreting a trust are applied when
the language of the trust is not clear; but if the language clearly expresses the
settlor’s intent, the rules do not apply.
9. ____: ____. The primary rule of construction for trusts is that a court must, if
possible, ascertain the intention of the testator or creator.
10. ____: ____. When there are two or more instruments relating to a trust, they
should be construed together to carry out the settlor’s intent.
11. Decedents’ Estates: Wills: Words and Phrases. “by right of representation”
means a devisee is entitled to take or receive a share of the estate on a per
stirpes basis.
12. ____: ____: ____. A distribution per stirpes is one in which the beneficiaries take
proportionate shares of the share of the ancestor through whom they claim as his
or her representatives, and as such representatives, they will be entitled to take just
as much as such ancestor would have taken and no more.
13. Wills. Clear and unambiguous provisions of the original will cannot be controlled
by a subsequent codicil, the terms of which are confusing and ambiguous.
14. Wills: Intent. The intention of the testator is to be ascertained from a liberal
interpretation and comprehensive view of all of the provisions of the will, and the
court must base its interpretation upon the literal and grammatical meaning of the
words and phrases as they appear in the will itself and take into account all the
provisions set forth in the will.
15. Trusts. With certain exceptions, the Nebraska Uniform Trust Code, Neb. rev.
Stat. § 30-3801 et seq. (Cum. Supp. 2006), applies to all trusts created before, on,
or after January 1, 2005, and to all judicial proceedings concerning trusts com-
menced on or after January 1, 2005.
16. ____. Neb. rev. Stat. § 30-3879(b)(1) (Cum. Supp. 2006) requires certain trust-
ees who are also beneficiaries to make certain discretionary distributions only in
accordance with an ascertainable standard.
17. ____. Neb. rev. Stat. § 30-3879(b)(1) (Cum. Supp. 2006) applies only to trusts
which become irrevocable on or after January 1, 2005.
18. ____. Neb. rev. Stat. § 30-3879(a) (Cum. Supp. 2006) requires that notwithstand-
ing the breadth of discretion granted to a trustee in the terms of the trust, includ-
ing the use of such terms as “absolute,” “sole,” or “uncontrolled,” the trustee shall
IN rE TrUST OF ALExIS 	417
Cite as 16 Neb. App. 416

exercise a discretionary power in good faith and in accordance with the terms and
purposes of the trust and the interests of the beneficiaries.
19. ____. Under Neb. rev. Stat. § 30-3849(d) (Cum. Supp. 2006), § 30-3849, which
imposes limitations on the right of the creditor of a beneficiary to compel a distri-
bution, does not limit the right of a beneficiary to maintain a judicial proceeding
against a trustee for an abuse of discretion or failure to comply with a standard
for distribution.
20. Trusts: Courts: Jurisdiction. Under Neb. rev. Stat. § 30-3812 (Cum. Supp.
2006), the court may intervene in the administration of a trust to the extent its
jurisdiction is invoked by an interested person or as provided by law, and a judicial
proceeding involving a trust may relate to any matter involving the trust’s admin-
istration, including a request for instructions and an action to declare rights.
21. ____: ____: ____. The comment to Unif. Trust Code § 201, 7C U.L.A. 455
(2006), allows, but does not require, invocation of the court’s jurisdiction absent
an actual dispute.
22. Trusts. Neb. rev. Stat. § 30-3812 (Cum. Supp. 2006) does not limit to trustees
the right to seek instructions from the court.
23. Trusts: Declaratory Judgments. Nebraska’s declaratory judgment statutes allow
trustees and persons interested in the administration of a trust to seek a declara-
tion regarding any question arising in the administration of a trust.
24. Declaratory Judgments. As a general rule, there must be an actual case or con-
troversy for a party to obtain a declaratory judgment.
25. Courts: Justiciable Issues. A court decides real controversies and determines
rights actually controverted.
Appeal from the County Court for Lancaster County: lauRie
J. yaRdley, Judge. reversed and remanded with directions.
patrick D. Timmer, of pierson, Fitchett, Hunzeker, blake &
katt, for appellant.
David W. rowe and Julianne M. Spatz, of kinsey, rowe,
becker & kistler, L.L.p., for appellees.
inbody, Chief Judge, and caRlson and cassel, Judges.
inbody, Chief Judge.
INTrODUCTION
Carl E. Alexis (Appellant) appeals the order of the Lancaster
County Court in the trust administration action he initiated
to obtain interpretation or construction of the last wills and
codicils of his grandparents, Joseph E.A. Alexis and Marjorie
E. Alexis (collectively Testators). Testators’ last wills and codi-
cils established trusts, of which Testators’ remaining children,
418 	16 NEbrASkA AppELLATE rEpOrTS

the appellees in this matter, are trustees. The proceedings for
Testators’ last wills and codicils were consolidated by the county
court and remain consolidated on appeal. because we conclude
that the county court misinterpreted the last wills and codicils
and is obligated to determine the extent of the trustees’ discre-
tion, we reverse, and remand with directions.
STATEMENT OF FACTS
Testators, now deceased, were husband and wife and had
four children: Carl Odman Alexis, Josephine Alexis Molloy,
Marjorie Alexis Todd, and Hilbert Verne Joseph Alexis. On
January 4, 1958, Testators each executed their last wills. The
last wills were essentially identical. Testators each disposed of
their personal property and household items, made a marital
bequest, and devised the residue to their trustees.
After the execution of their last wills, Testators executed nine
codicils to their last wills. The last wills and the nine codicils
were admitted to probate following the respective deaths of
Joseph E.A. Alexis and Marjorie E. Alexis on August 15, 1969,
and March 13, 1970. Upon the respective deaths of Testators,
both testamentary trusts became irrevocable. both of the testa-
mentary trusts were confirmed by the county court.
At all times relevant to this case until 2005, all four of
Testators’ children were acting as trustees. On February 28,
2005, Carl Odman Alexis died, leaving his surviving siblings,
the appellees, as trustees.
The trusts were each funded with parcels of real estate
located in Nebraska through the residual distribution of each
of Testators’ estates. In 1990, upon the recommendation of
a farm management firm, the trustees directed the sale of 40
acres and distributed the proceeds equally among themselves.
Until the death of Carl Odman Alexis, the trustees directed
the annual distribution of the farm income equally among
themselves. After the death of Carl Odman Alexis, the surviv-
ing trustees directed the distribution of farm income from the
trusts equally among themselves, the three surviving children
of Testators, with no distribution to the issue of Carl Odman
Alexis and his former wife, Maybritt Alexis: Appellant and his
sister, karin Alexis Frenze. Appellant subsequently initiated
IN rE TrUST OF ALExIS 	419
Cite as 16 Neb. App. 416

trust administration proceedings. because Testators’ last wills
and codicils are essentially identical, the matters were consoli-
dated for trust administration proceedings.
At the trust administration proceedings, the parties did not
dispute that the original last wills granted all of Testators’
grandchildren a right to succeed to a present interest in the
distribution of income and principal upon the death of their
respective parents and that the grandchildren were granted the
right to share in the distribution of the remainder of the trust
assets upon termination of the trusts after the death of the last
of Testators’ children. The parties further stipulated that (1) the
distribution of trust income is discretionary in the trustees, i.e.,
the trustees are not required to distribute trust income but are
permitted to do so in certain circumstances; (2) whether to
encroach upon or distribute the trust principal is discretion-
ary with the trustees; (3) the trusts terminate when the last of
Testators’ children dies; and (4) upon termination of the trusts,
the remaining assets shall be distributed in equal shares to
Testators’ grandchildren, with the share of any then-deceased
grandchild distributed to such grandchild’s surviving issue by
right of representation.
Additionally, the parties stipulated:
[Appellant] believes that the trustees’ direction to the farm
management company to make equal distributions of the
trusts’ net income to the surviving three children of the
Testators is contrary to the terms of the trusts. respondent
trustees assert that their direction to the farm management
company is pursuant to a correct interpretation of the
applicable wills and codicils and the discretionary powers
granted to them under the trusts.
We set forth the pertinent portions of the wills and rele-
vant codicils in the analysis portion of this opinion. because
Testators’ last wills and codicils are essentially identical for the
purposes of our analysis, we will quote the last will and codicils
of Joseph E.A. Alexis in the analysis portion of our opinion.
The issues before the county court were (1) what the benefi-
cial interest of Testators’ grandchildren was and (2) whether the
county court should review the extent of the trustees’ exercise
of discretion. The county court found that the fourth, fifth, and
420 	16 NEbrASkA AppELLATE rEpOrTS

seventh codicils entirely eliminated Appellant’s contingent right
to succeed to a present interest in distributions of trust income
and principal but left Appellant’s remainder interest unchanged.
The county court further found that the ninth codicil changed
the rights of all the other grandchildren and treats them equally
with Appellant and his sister by directing the trustees to distrib-
ute income and principal primarily to Testators’ children while
Testators’ children are still living, and only as a final distribution
to the grandchildren as remaindermen upon the death of the last
of Testators’ children. Appellant filed timely appeals, and the
appeals were consolidated.
ASSIGNMENTS OF ErrOr
Appellant assigns that the county court erred in (1) finding
that the fourth, fifth, and seventh codicils entirely eliminated
his right to succeed to a present interest in distribution of trust
income and principal upon the death of his father, (2) finding
that the ninth codicil changed the rights of all of Testators’
grandchildren such that only Testators’ children were entitled
to distributions while Testators’ children were still living and
that the grandchildren were only entitled to distribution of the
remaining assets upon termination of the trusts, (3) finding that
it was not proper to review the extent of the trustees’ discretion,
and (4) not determining that the extent of the trustees’ discre-
tion was limited.
STANDArD OF rEVIEW
[1] Appeals involving the administration of a trust are equity
matters and are reviewable in an appellate court de novo on the
record. In re R.B. Plummer Memorial Loan Fund Trust, 266
Neb. 1, 661 N.W.2d 307 (2003).
[2-5] In the absence of an equity question, an appellate court,
reviewing probate matters, examines for error appearing on the
record made in the county court. In re Trust Created by Inman,
269 Neb. 376, 693 N.W.2d 514 (2005); In re Trust of Rosenberg,
269 Neb. 310, 693 N.W.2d 500 (2005). When reviewing a judg-
ment for errors appearing on the record, the inquiry is whether
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
IN rE TrUST OF ALExIS 	421
Cite as 16 Neb. App. 416

Id. In instances when an appellate court is required to review
cases for error appearing on the record, questions of law are
nonetheless reviewed de novo on the record. Stover v. County of
Lancaster, 271 Neb. 107, 710 N.W.2d 84 (2006). An appellate
court, in reviewing a district court judgment for errors appear-
ing on the record, will not substitute its factual findings for
those of the district court where competent evidence supports
those findings. Schwarting v. Nebraska Liq. Cont. Comm., 271
Neb. 346, 711 N.W.2d 556 (2006).
[6,7] Interpretation of the language of a trust is a matter of
law. Smith v. Smith, 246 Neb. 193, 517 N.W.2d 394 (1994).
regarding matters of law, an appellate court has an obligation
to reach a conclusion independent of that of the trial court in a
judgment under review. Id.
ANALYSIS
Impact of Fourth, Fifth, and Seventh Codicils on
Appellant’s Present Interest in Distribution
of Trust Income and Principal.
[8-10] Appellant asserts that the county court erred in finding
that the fourth, fifth, and seventh codicils eliminated Appellant’s
right to succeed to a present interest in the distribution of trust
income and principal upon the death of his father. The rules
of construction for interpreting a trust are applied when the
language of the trust is not clear; but if the language clearly
expresses the settlor’s intent, the rules do not apply. In re
Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004).
The primary rule of construction for trusts is that a court must,
if possible, ascertain the intention of the testator or creator. Id.;
Smith v. Smith, supra. When there are two or more instruments
relating to a trust, they should be construed together to carry out
the settlor’s intent. In re Wendland-Reiner Trust, supra. Thus,
we must first determine whether the language of the trusts and
Testators’ intent is unclear with respect to the present interest
of Appellant and his sister, such that the rules of construction
for interpreting the trusts apply.
The last wills state, in relevant part:
III.
All of the rest, residue and remainder of my estate I give,
devise and bequeath to Carl Odman Alexis, John F. Molloy
422 	16 NEbrASkA AppELLATE rEpOrTS

and Marjorie Alexis Todd, as trustees for the beneficiaries
herein designated, for the following uses and purposes,
and subject to the following terms and conditions:
(A) beneficiaries of the trust. The beneficiaries of this
trust shall consist of the following persons or classes
of persons:
(1) During the balance of her lifetime, my wife, Marjorie
E. Alexis, shall be a beneficiary of the trust. In making
distribution of income or principal from the trust, it is
my desire that the trustees first ascertain and consider
that my wife is adequately provided for during her life-
time. Upon her death, all interest of my wife in this trust
shall terminate.
(2) My children, Carl Odman Alexis of bethesda,
Maryland, Josephine Alexis Molloy of Tu[cs]on, Arizona,
Marjorie Alexis Todd of kansas City, Missouri, and Hilbert
Verne Joseph Alexis, also known as Joseph Alexis, of
Lincoln, Nebraska, are beneficiaries of this trust. It is my
desire that my children shall share equally in my estate,
but I recognize that circumstances may arise which would
justify an unequal distribution of income or principal of
the trust, and for that reason I desire that the proportion of
income or principal of the trust allocated to my children
or distributed to them for their care, support, comfort, well
being and education be determined solely by the trustees
in the exercise of their sound discretion in the light of the
facts and circumstances then existing.
(3) Upon the death of any of my children, the issue of
such deceased child shall succeed to his or her interest in
the trust, by right of representation. It is my intention that
the word “issue” shall include adopted children. Subject to
the right of the trustees to encroach upon the principal of
the trust and to allocate principal and income distributions
in the manner provided for in this will, I desire that the
principal of the trust shall ultimately vest in equal shares
per capita in my grandchildren, or their issue, by right of
representation. The word “grandchildren” as used in this
will shall include adopted children of any child of mine.
(b) Dispositive provisions. The trustees shall hold, man-
age, invest and reinvest the trust property, shall collect
IN rE TrUST OF ALExIS 	423
Cite as 16 Neb. App. 416

and receive the income thereof and after deducting all
necessary expenses incident to the administration of the
trust, shall dispose of the principal and income of the trust
as follows:
(1) During the life of my wife, Marjorie E. Alexis, the
trustees shall first provide for the needs and enjoyment of
my wife, Marjorie E. Alexis, and to that end shall pay the
net income from the trust and if necessary, the principal
of the trust to her or shall use the same in her behalf at
such times and in such amounts as the trustees, in their
sole discretion determine, to be necessary or advisable.
During said period the trustees shall also have the right to
pay all or any portion of the net income and, if necessary,
the principal of the trust to any other beneficiary or bene-
ficiaries of the trust at such times and in such amounts as
the trustees shall determine to be advisable if, in the sole
discretion of the trustees, the needs and enjoyment of my
wife, Marjorie E. Alexis, have been adequately provided
for from the trust or from her own property or from any
other source.
(2) After the death of my wife, Marjorie E. Alexis, the
trustees shall pay the net income and if necessary, the
principal from the trust at such times and in such amounts
as the trustees, in their sole discretion, deem necessary
or advisable for the care, support, comfort, enjoyment,
education and well being of my children (Carl Odman
Alexis, Josephine Alexis Molloy, Marjorie Alexis Todd and
Hilbert Verne Joseph Alexis), and of their issue by right
of representation.
(3) After the death of all of my children, the trustees
shall distribute the principal and accumulated income of
the trust in equal shares per capita to my grandchildren
who are living at the time the last survivor of my children
shall die. In the event any grandchild of mine shall have
died prior to that time and shall have left issue surviving
him or her and which issue is surviving at the time of the
death of the last survivor of my children, such issue shall
succeed to the interest in the trust of such deceased grand-
child, by right of representation.
424 	16 NEbrASkA AppELLATE rEpOrTS

(4) If any such grandchild or his issue by right of rep-
resentation is under twenty-one (21) years of age at the
time of the death of the last survivor of my children, the
interest of such grandchild or issue shall be vested, but the
trustees shall hold such interest as a separate trust until
such grandchild or issue becomes twenty-one (21) years
of age when the balance remaining in said trust shall be
distributed free from trust to such grandchild or issue.
The fourth codicil to the will states, in relevant part:
I
In my Will of January 4, 1958, I have provided that
upon the death of any of my children, the issue of such
deceased child shall succeed to his or her interest in the
trust therein provided by right of representation. This pro-
vision is herewith reaffirmed except for the two issue of
my son, Carl Odman Alexis, that is, Carl Erik Alexis and
karin May Alexis, who shall not succeed to his and her
interest in the trust—which interest in the trust shall, nev-
ertheless, vest on the death of their father—until the death
of their mother, Maybritt Alexis, who is now divorced
from Carl Odman Alexis, and until the death of Maybritt
Alexis, all of Carl Erik Alexis’ and karin Alexis’ interest
in the trust property shall be held, managed, invested or
reinvested by the Trustees as a separate trust.
II
Except to the extent as I have herein expressly provided
to the contrary, I hereby ratify and confirm all of the provi-
sions and terms of my Will of January 4, 1958, as modi-
fied by the second codicil to the Will, and as modified by
the third codicil to the Will, and as modified by this codicil
to said Will, and I declare said Will as so modified by said
codicil to my Last Will.
There is no dispute that the last wills established Testators’
intent that the grandchildren succeed to a present interest in the
distribution of trust income and principal upon the deaths of
their respective parents. The parties also apparently agree, as
do we, that the fourth codicil (1) delayed Appellant’s and his
sister’s succession to the interest of their father until the death
of their father and their mother and (2) created a separate trust
IN rE TrUST OF ALExIS 	425
Cite as 16 Neb. App. 416

to hold trust distributions made with respect to Appellant’s and
his sister’s present interest until the death of their mother. The
parties disagree regarding the interpretation of the fifth and
seventh codicils.
In relevant part, the fifth codicil states:
I
In my Will of January 4, 1958, the beneficiaries of the
trust are set out therein, and this entire provision is here-
with reaffirmed except for my son, Carl Odman Alexis,
who shall not be a beneficiary of said trust in that he
has already been adequately provided for by me, and I
expressly revoke his designation as a beneficiary of any
trust established under my Will; however, his two chil-
dren specified in the fourth Codicil dated November 30,
1962, shall succeed per capita with issue of my other three
children to his or her interest in the trust after the demise
of my daughter, Josephine Alexis Molloy, my daughter,
Marjorie Alexis Todd, and my son, Hilbert Verne Joseph
Alexis, also known as Joseph Alexis.
. . . .
III
Except to the extent that I have herein expressly pro-
vided to the contrary, I hereby ratify and confirm all of the
provisions and terms of my Will as modified by Codicils,
and I declare said Will as so modified to be my Last Will.
The seventh codicil to the will states, in relevant part:
I.
I hereby expressly revoke that portion of paragraph I of
the fifth Codicil to my Will quoted as follows: “In my Will
of January 4, 1958, the beneficiaries of the trust are set out
therein, and this entire provision is herewith reaffirmed
except for my son, Carl Odman Alexis, who shall not
be a beneficiary of said trust in that he has already been
adequately provided for by me, and I expressly revoke his
designation as a beneficiary of any trust established under
my Will;” and I now will and direct that my son, Carl
Odman Alexis, shall be and become a beneficiary of the
trust set out in paragraph III (A) of my original Last Will
and Testament of January 4, 1958, it being my intention
426 	16 NEbrASkA AppELLATE rEpOrTS

that he shall have the same status as a beneficiary of said
trust as my other children named therein, and that the
provisions contained in paragraph III (A) of my said Will
shall stand as originally executed on January 4, 1958, inso-
far as my said son, Carl Odman Alexis, is concerned, and
that he shall be restored to the same status as originally
provided in paragraph III (A) of my said Last Will and
Testament of January 4, 1958.
II.
Except to the extent that I have herein expressly pro-
vided to the contrary, I hereby ratify and confirm all of the
provisions and terms of my Will, as modified by Codicils,
and I declare said Will, so modified, to be my Last Will
and Testament.
[11,12] Without question, the fifth codicil revoked Carl
Odman Alexis’ interest in the trust, and the seventh codicil
reinstated that interest. In revoking Carl Odman Alexis’ inter-
est, the fifth codicil also revoked Appellant’s and his sister’s
right to succeed to their father’s interest, as there was none. See
In re Estate of Tjaden, 225 Neb. 19, 402 N.W.2d 288 (1987)
(“by right of representation” means devisee is entitled to take
or receive share of estate on per stirpes basis; distribution per
stirpes is one in which beneficiaries take proportionate shares
of share of ancestor through whom they claim as his or her rep-
resentatives, and as such representatives, they will be entitled
to take just as much as such ancestor would have taken and
no more).
However, because the status of Appellant’s and his sister’s
present interest following the seventh codicil, which reinstated
their father’s interest, is not explicitly stated, the codicils are
not clear, and we must apply the rules of construction. We
must, if possible, ascertain the intention of Testators. See, In re
Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004);
Smith v. Smith, 246 Neb. 193, 517 N.W.2d 394 (1994).
When the fifth codicil revoked the interest of Appellant and
his sister’s father, there was no longer anything to fund the
separate trust established by the fourth codicil, because the
source of the separate trust was their father’s interest; however,
when the seventh codicil reinstated the interest of their father,
IN rE TrUST OF ALExIS 	427
Cite as 16 Neb. App. 416

income to fund the separate trust provided for in the fourth
codicil would be available.
by operation of the seventh codicil, Carl Odman Alexis was
a lifetime beneficiary of the trusts as though he had never been
removed, the fifth and seventh codicils having effectively can-
celed each other out. As noted, there is no express language
affecting Appellant’s and his sister’s present interest or their
right to succeed to the present interest. The seventh codicil
does, however, state that “the provisions contained in paragraph
III (A) of my said Will shall stand as originally executed.” That
paragraph provides, in part:
(3) Upon the death of any of my children, the issue of
such deceased child shall succeed to his or her interest
in the trust, by right of representation. . . . Subject to the
right of the trustees to encroach upon the principal of the
trust and to allocate principal and income distributions
in the manner provided for in this will, I desire that the
principal of the trust shall ultimately vest in equal shares
per capita in my grandchildren, or their issue, by right
of representation.
Consequently, in the seventh codicil, Testators restated by ref-
erence their intent that their grandchildren would succeed to a
present interest in the distribution of trust income and principal
upon the deaths of their respective parents. In Appellant’s and
his sister’s case, that right was limited by the provisions of
the fourth codicil. Had Testators died after executing the fifth
codicil but before executing the seventh codicil, Appellant’s
and his sister’s interest would have been eliminated. However,
in reinstating Carl Odman Alexis’ interest, Testators demon-
strated their intention to also reinstate Appellant’s and his
sister’s interest.
Therefore, we conclude that absent express language in the
fifth and seventh codicils affecting Appellant’s and his sister’s
present interest and in light of Testators’ apparent intent, after
the seventh codicil, Appellant and his sister were entitled to
succeed to their present interest, subject to the limitations in
the fourth codicil and the trustees’ right to encroach upon the
principal of the trust, while the trusts remained in effect.
428 	16 NEbrASkA AppELLATE rEpOrTS

Impact of Ninth Codicil on Grandchildren’s Interest.
Appellant contends that the county court erred in finding
that the ninth codicil changed the rights of all of Testators’
grandchildren such that the grandchildren are only entitled to a
remainder interest.
The ninth codicil states, in relevant part:
I.
I reaffirmthe [sic] broad discretion given to the Trustees
to act freely under all or any of the powers given to them
in this Will, but I do direct that in the administration of
the trust that the distribution of principal and income be
primarily for the benefit of my wife, Marjorie, during her
lifetime, and my children, Carl, Josephine, Marjorie and
Joseph H. during their lifetime, and that final distribution
of the remaining principal to my grandchildren is solely
for the purpose of the dissolution of the trust.
Also, in knowledge of thefact [sic] that existing provi-
sions of my Will permit special consideration for the bene-
ficiaries of this Trust as the circumstances may appear, I
direct that the Trustees take such appropriate action in the
distri bution [sic] of income and/or principal to my daugh-
ter, Josephine, so that said income or principal may not be
diverted from the beneficiaries of this Will to strangers.
Except to the extent that I have herein expressly pro-
vided to the contrary, I hereby ratify and confirm all of
the provisions and terms of my last Will and Testament as
modified by all of the Codicils thereto, and I declare said
Will as so modified to be my Last Will and Testament.
The ninth codicil expressly directs the trustees to take action
regarding distributions to Josephine Alexis Molloy to avoid any
distributions being diverted to strangers. It is the language of the
first paragraph that requires construction. See In re Wendland-
Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004) (rules of
construction for interpreting trust are applied when language of
trust is not clear).
In the first paragraph of the ninth codicil, Testators reaffirm
the trustees’ broad discretion to act as provided in the last wills.
That reaffirmation is followed by the words “but I do direct”
and a reiteration of the last wills’ statements that the trust be
IN rE TrUST OF ALExIS 	429
Cite as 16 Neb. App. 416

administered primarily for the benefit of the surviving spouse
and the children, as well as the direction that “final distribution
of the remaining principal to my grandchildren is solely for the
purpose of the dissolution of the trust.” This quoted language is
a reiteration of the last wills’ provisions at paragraph III(A)(3)
that the principal of the trust will ultimately vest in equal shares
per capita in the grandchildren.
[13,14] Typically, the word “but” signifies “except for the
fact,” “unless,” or “notwithstanding.” See Merriam-Webster’s
Collegiate Dictionary 155 (10th ed. 2001). However, in this
instance, it is followed by reiterations of existing provisions,
none of which contradict the words preceding “but.” Whatever
the typical meaning of the word, in this context, it cannot
signal a contradiction or limitation of the last wills’ provi-
sions from paragraph III(A)(3) that were reiterated. Moreover,
clear and unambiguous provisions of the original will cannot
be controlled by a subsequent codicil, the terms of which are
confusing and ambiguous. See In re Estate of Florey, 212 Neb.
665, 325 N.W.2d 643 (1982). The intention of the testator is to
be ascertained from a liberal interpretation and comprehensive
view of all of the provisions of the will, and we must base our
interpretation upon the literal and grammatical meaning of the
words and phrases as they appear in the will itself and take into
account all the provisions set forth in the will. Id.
The interpretation of codicils has been further explained
as follows:
Although the execution of a codicil usually denotes a
change in the disposition of the estate, it is not infrequent
that codicils are merely explanatory, made for the purpose
of clarifying or making plain some provision of the will,
and hence a codicil will be interpreted in the light of the
general scheme of the will and not in isolation, and as far
as is possible and practicable, the provisions of the will
and codicil should be reconciled as one consistent whole,
giving effect to every part.
However, where the will and codicil are so conflicting
or repugnant as to make them irreconcilable, the codicil
will prevail, especially where the testator so provides, it
being the last expression, but the codicil supersedes the
430 	16 NEbrASkA AppELLATE rEpOrTS

will only to the extent of those provisions of the will that
are inconsistent or in conflict with it, and the provisions
of the will should not be disturbed further than is neces-
sary to give effect to the codicil. . . . While the codicil will
prevail where there is an irreconcilable conflict between it
and the will, this rule will not be applied so as to effect an
alteration, unless such an intention on the part of the testa-
tor is clearly and unequivocally expressed in the codicil.
Where the testator specifies how his or her will as altered
by a codicil is to read, the court must construe the two
together as he or she directs.
While the clear and definite language of a will should
prevail over an obscure codicil, and a doubtful expression
in a codicil will not alter a plain provision of the will,
where the testator’s purpose is clear, the court cannot
restrict the codicil by any rule of construction to a mean-
ing which would frustrate its intendment.
96 C.J.S. Wills § 879 at 296-99 (2001).
As we have already observed, the ninth codicil was not
clearly contradictory to the last wills. In the absence of a clear
intent to alter the last wills except with respect to Josephine
Alexis Molloy, we conclude that the ninth codicil did not affect
the grandchildren’s present interest as set forth in the last wills,
subject to the trustees’ discretion.
Trustees’ Discretion.
Finally, Appellant contends that the county court erred in
finding that it was not proper to review the extent of the trust-
ees’ discretion and in not determining that the extent of the
trustees’ discretion was limited.
[15] We note that, with certain exceptions, the Nebraska
Uniform Trust Code (NUTC), Neb. rev. Stat. § 30-3801 et seq.
(Cum. Supp. 2006), applies to all trusts created before, on, or
after January 1, 2005, and to all judicial proceedings concern-
ing trusts commenced on or after January 1, 2005. § 30-38,110.
Therefore, generally, the NUTC applies to the trusts and pro-
ceedings at issue.
[16-19] While a specific provision of the NUTC does not
apply because of an exception, a general provision affecting
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Cite as 16 Neb. App. 416

the nature of a trustee’s discretion does affect our analysis.
Section 30-3879(b)(1), which requires certain trustees who are
also beneficiaries to make certain discretionary distributions
only in accordance with an ascertainable standard, does not
apply in this case. See § 30-38,110(d) (§ 30-3879(b)(1) applies
only to trusts which become irrevocable on or after January 1,
2005). However, § 30-3879(a) does apply to the instant case,
and requires that
[n]otwithstanding the breadth of discretion granted to a
trustee in the terms of the trust, including the use of such
terms as “absolute”, “sole”, or “uncontrolled”, the trustee
shall exercise a discretionary power in good faith and in
accordance with the terms and purposes of the trust and
the interests of the beneficiaries.
Thus, the trustees in the case before us are bound to exercise
their discretionary powers in good faith and in accordance
with the terms and purposes of the trust and the interests of
the beneficiaries. Further, § 30-3849(d) states that § 30-3849,
which imposes limitations on the right of the creditor of a bene-
ficiary to compel a distribution, “does not limit the right of a
beneficiary to maintain a judicial proceeding against a trustee
for an abuse of discretion or failure to comply with a standard
for distribution.”
[20,21] The NUTC also authorizes a procedural method
for court review of a beneficiary’s substantive claim. Section
30-3812 provides:
(a) The court may intervene in the administration of a
trust to the extent its jurisdiction is invoked by an inter-
ested person or as provided by law.
. . . .
(c) A judicial proceeding involving a trust may relate to
any matter involving the trust’s administration, including a
request for instructions and an action to declare rights.
The language of § 30-3812 is identical to that of Unif. Trust
Code § 201, 7C U.L.A. 455 (2006). This court has previously
considered the comments to the Uniform Trust Code in inter-
preting the NUTC. See In re Charles C. Wells Revocable Trust,
15 Neb. App. 624, 734 N.W.2d 323 (2007). The comment to
§ 201 states, in relevant part:
432 	16 NEbrASkA AppELLATE rEpOrTS

Subsection (c) makes clear that the court’s jurisdiction
may be invoked even absent an actual dispute. Traditionally,
courts in equity have heard petitions for instructions and
have issued declaratory judgments if there is a reasonable
doubt as to the extent of the trustee’s powers or duties.
The court will not ordinarily instruct trustees on how to
exercise discretion, however.
7C U.L.A. at 455. The comment to § 201 allows, but does
not require, invocation of the court’s jurisdiction absent an
actual dispute.
[22,23] In In re Trust Created by Hansen, 274 Neb. 199, 739
N.W.2d 170 (2007), the Nebraska Supreme Court observed that
§ 30-3812 does not limit to trustees the right to seek instructions
from the court. The court also noted that Nebraska’s declaratory
judgment statutes allow trustees and persons interested in the
administration of a trust to seek a declaration regarding any
question arising in the administration of a trust. In re Trust
Created by Hansen, supra.
[24] In In re Estate of Tizzard, 14 Neb. App. 326, 335, 708
N.W.2d 277, 285 (2005), we stated the law applicable to obtain-
ing a declaratory judgment:
In order to grant declaratory relief, there must be a jus-
ticiable issue, meaning a present, substantial controversy
between parties having adverse legal interests susceptible
to immediate resolution and capable of present judicial
enforcement. . . . “While not a constitutional prerequisite
for jurisdiction of courts of the State of Nebraska (cf. U.S.
Const. art. III, § 2), existence of an actual case or contro-
versy, nevertheless, is necessary for the exercise of judicial
power in Nebraska.” . . . The Nebraska Supreme Court
has said numerous times that it can declare the law and its
application to a given set of facts only when a justiciable
controversy is presented for determination and that it is
not empowered to render advisory opinions.
(Citations omitted.) Thus, as a general rule, there must be an actual
case or controversy for a party to obtain a declaratory judgment.
[25] There is no dispute that there was an actual controversy
concerning the beneficial interest of Appellant and his sister
in light of the fact that their father, Carl Odman Alexis, was
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Cite as 16 Neb. App. 416

deceased. We have concluded above that Appellant’s and his
sister’s present interest was reinstated by the seventh codicil
and that the ninth codicil did not extinguish the grandchildren’s
present interest; and an additional actual controversy naturally
arises from our conclusion: whether the trustees, in excluding
Appellant and his sister, have been appropriately distributing
proceeds from the sale of trust property. The county court, hav-
ing concluded that Appellant’s and his sister’s interest was ter-
minated, did not have this controversy before it. That is, because
the county court found that Appellant and his sister were not
entitled to succeed to their father’s interest, there was no need to
interpret the extent of the trustees’ discretion. However, in light
of our analysis above, a controversy exists regarding that discre-
tion. Therefore, the county court is obligated to make that deter-
mination, and we direct the county court to determine the extent
of the trustees’ discretion on remand. See Galyen v. Balka, 253
Neb. 270, 570 N.W.2d 519 (1997) (court decides real controver-
sies and determines rights actually controverted).
Appellant’s final assignment of error is that the county
court erred in not determining that the extent of the trustees’
discretion was limited. Although we have concluded that the
county court is obligated to determine the extent of the trustees’
discretion, because the county court is in the best position to
determine the extent of that discretion, we will not consider that
issue and direct the county court to address it on remand.
CONCLUSION
For the foregoing reasons, we conclude that the county court
misinterpreted the last wills and codicils and is obligated to
determine the extent of the trustees’ discretion. Accordingly, we
reverse, and remand with directions to enter an order in accord-
ance with this opinion.
R eveRsed and Remanded with diRections .
434 	16 NEbrASkA AppELLATE rEpOrTS