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IN THE COURT OF APPEALS OF IOWA No. 9-929 / 09-0447 Filed December 17, 2009

IN THE MATTER OF THE TRUST UNDER THE LAST WILL AND TESTAMENT OF MARY E. WEITZEL MARY ANN STRICKER, MICHAEL H. STRICKER, and KENT D. STRICKER, Petitioners-Appellants, vs. FIRST CITIZENS TRUST COMPANY, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Mitchell County, Bryan H. McKinley, Judge.

Three beneficiaries of a trust appeal from a district court order refusing to terminate the trust and awarding the trustee compensation. AFFIRMED.

Roger L. Sutton of Sutton Law Office, Charles City, for appellants. Scott D. Brown of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason City, for appellee.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.

2 DOYLE, J. Mary Ann Stricker, Michael Stricker, and Kent Stricker, the beneficiaries of a trust created by Mary Weitzel, appeal from a district court order refusing to terminate the trust and awarding compensation to the trustee, First Citizens Trust Company. The primary issue presented in this appeal is whether a discretionary support trust that contains a spendthrift clause may be terminated with the consent of all the beneficiaries. We think not based upon the facts of this case and affirm the judgment of the district court. I. Background Facts and Proceedings. In 1994, Mary Weitzel executed a will leaving all her assets to her husband, Adam Weitzel, provided he survived her. In the event Adam

predeceased Mary, the assets were to pass to their daughter, Mary Ann Stricker, in trust for her lifetime. After Mary Anns death, the assets were to pass to the Weitzels grandsons, Michael Stricker and Kent Stricker. Mary appointed a local bank as trustee for her testamentary trust. The relevant provisions of Marys will creating the trust for Mary Ann provided: 1. My trustee shall, from time to time, pay to my said daughter or to her guardian, or apply for her benefit the income of this trust. My trustee in the exercise of its discretion, as it deems necessary or advisable, may pay sums from the principal to provide for her proper care, support, and maintenance. 2. Upon the death of my said daughter, my trustee shall distribute the remainder of the trust, as then constituted, to my grandsons, Kent David Stricker and Michael Harold Stricker, share and share alike. 3. No title in the trust created in this Article or in any property at any time becoming a part of any such trust, or in the income therefrom shall vest in the beneficiary and neither the principal nor the income of any such trust estate shall be liable to

3 be reached in any manner by the creditors of said beneficiary, and the beneficiary shall have no power to sell, assign, transfer, encumber, or in any other manner to anticipate or dispose of his interest therein. 4. It is my wish that my farm land not be sold. Adam died in 1996, and Mary died in 2005. First Citizens Trust Company assumed its role as trustee in August 2006. The trust assets, which consisted of a 312-acre farm and house valued together at $872,000, were conveyed to First Citizens in January 2007. Mary Ann and her husband, Harold Stricker, had lived in the house located on the farm for fifty-two years. With the consent of all the beneficiaries, the trustee transferred the house and approximately four acres to Harold and Mary Ann. It then rented the farmland to Stricker Farms, Ltd., which was owned by Mary Ann, Harold, and their sons, Michael and Kent, for $26,250 per year. First Citizens filed an annual report in May 2008, requesting the court to approve fees for its services as trustee from the inception of the trust as well as fees for the services of the trustees attorney, John Reuber. Statements

itemizing the services of the trustee and attorney were attached to the annual report. First Citizens requested compensation in the amount of $2375.43, and Reuber requested compensation in the amount of $2918.75. In July 2008, Mary Ann, Michael, and Kent filed a petition to terminate the trust under Iowa Code section 633A.2203 (2007). They alleged the trust was created due to financial problems that existed for Mary Ann Stricker and her husband, Harold Stricker. There were concerns that the inheritance to Mary Ann Stricker would be involved in financial debt and other debt associated with businesses operated by Harold and

4 Mary Ann Stricker. These debt concerns have been resolved and there is no purpose in having the Trust. Several months later, the Strickers filed an objection to the annual report filed by First Citizens in May 2008, contesting the fees sought by both the trustee and the trustees attorney. A hearing was held on the petition and objection in January 2009. At the beginning of the hearing, the Strickers withdrew their objection to the fees sought by the trustees attorney but maintained their objection to the fees sought by the trustee. Following the hearing, the district court entered a ruling determining the fees requested by First Citizens were reasonable. It denied the Strickers petition to terminate the trust, finding that a material purpose of the trust remained to be accomplished based upon the trusts spendthrift clause. The Strickers appeal. They assert the district court erred in determining the fees charged by the trustee were reasonable and in failing to terminate the trust. II. Scope of Review. The parties disagree as to the applicable scope of review. The Strickers contend our review is for correction of errors at law, while First Citizens contends we must review the record de novo. This case was tried by the probate court in equity. See Iowa Code

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