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18-P-871 Appeals Court 18-P-872
IN THE MATTER OF THE ESTATE OF DAVID E. STACY.
DEBORAH A. STACY, personal representative,1 & others2 vs. IANA A. STACY.3
Nos. 18-P-871 & 18-P-872.
Barnstable. March 1, 2019. - November 8, 2019.
Present: Green, C.J., Neyman, & Henry, JJ.
Devise and Legacy, Intestacy, Personal property. Husband and Wife, Antenuptial agreement. Contract, Construction of contract, Antenuptial agreement. Trust, Distribution.
Petition for probate of a will filed in the Barnstable Division of the Probate and Family Court Department on February 26, 2014.
A petition to render an inventory and account, filed on April 7, 2016, was heard by Robert A. Scandurra, J., on a statement of agreed facts.
Complaint in equity filed in the Barnstable Division of the Probate and Family Court Department on July 23, 2015.
1 Of the estate of David E. Stacy.
2 Elaine Kelley and David Kelley.
3 Although the two cases were argued separately, because they have overlapping facts and legal issues, we have consolidated them for purposes of decision. 2
The case was heard by Robert A. Scandurra, J.
R. Alan Fryer for the plaintiffs. Heidi A. Grinsell for the defendant.
HENRY, J. At the heart of these cases is the proper
distribution of the assets of the decedent, David E. Stacy, in
light of a premarital agreement executed by him and his wife,
Iana Stacy (Iana or wife),4 and the fact that his will did not
provide for his wife and expressly excluded his son from a prior
marriage. These issues have arisen in the context of two
separate cases: (1) a petition brought by the wife against the
personal representative of the estate to render an inventory and
account (in 18-P-871, which we shall call the inventory action),
and (2) an equity action commenced by the personal
representative to recover items belonging to the estate that are
in the wife's possession (in 18-P-872, which we shall call the
estate asset recovery action). Because our de novo review of
the premarital agreement differs from that of the Probate and
Family Court judge, which in turn impacts the outcome of the
decedent's estate plan, we vacate and modify portions of the
judgment and decree and remand for further proceedings as
necessary.
4 We use the first names of those who have a common surname. 3
Factual background. The decedent died on February 12,
2014. He was survived by his wife of approximately six years,
Iana, and his minor son from a prior marriage. He was also
survived by his biological mother, Elaine Kelley (Elaine); his
sister, Deborah Stacy (Deborah); and his adoptive mother, Joan
Bentinck-Smith, who adopted the decedent in 1995 when he was
thirty-four years old.
1. The decedent's last will and the David E. Stacy
Revocable Trust of 2001. The decedent executed his last will on
August 19, 2003 (decedent's will), and nominated Deborah as the
executor of his will. Subsequently, she was appointed personal
representative of his estate. The decedent's will bequeathed
all of his property to the trustee of the David E. Stacy
Revocable Trust of 2001 (2001 Trust). The decedent expressly
omitted from his will his son, a former wife, and his adoptive
mother, Bentinck-Smith.
As amended in 2003, the 2001 Trust named as sole
beneficiary the decedent's biological mother, Elaine. The
decedent also excluded from the 2001 Trust his son, former wife,
and adoptive mother as beneficiaries. The 2001 Trust, as
amended, appointed Deborah as trustee.
The wife is not named as a beneficiary in either the
decedent's will or the 2001 Trust, which were both executed
prior to their 2008 marriage. 4
2. The premarital agreement. The decedent and the wife
entered into a premarital agreement on July 18, 2008. The
parties dispute the interpretation of this agreement. However,
it is undisputed that the premarital agreement enumerated the
parties' separate property owned by each of them at the time of
the marriage.5 The decedent included in his list of assets
something called "Pigeon Trust." Bentinck-Smith created the
Pigeon Trust, an irrevocable life insurance trust, naming as
"the beneficiaries" only one beneficiary: David E. Stacy, the
decedent. Article VI of the Pigeon Trust, identifying the
decedent as the beneficiary, did not expressly identify the
decedent's estate as a beneficiary should he predecease the
donor, although other provisions did identify the decedent's
estate. The decedent's list of assets in the premarital
agreement described the Pigeon Trust, (a) identifying himself as
the beneficiary, (b) identifying the successor beneficiary as
"___," (c) stating the principal value of this asset as of July
14, 2008, and (d) noting there would be no distribution of trust
5 "Separate property of a party" is defined in the premarital agreement in part as "all property owned by that party prior to the marriage in his or her name individually, in trust or otherwise, including but not limited to property owned or to become owned as a beneficiary of any trust, or in any form of ownership whatsoever with any other person (other than the other party)." 5
principal until the death of the donor, who was his adoptive
mother, Bentinck-Smith.6
As already stated, Bentinck-Smith survived the decedent.
The surrender value of the life insurance policy held by the
Pigeon Trust as of December 5, 2016, was $1,648,879.45.
We reserve recitation of additional terms of the premarital
agreement and the Pigeon Trust for discussion below.
Procedural background. The largest asset in dispute is the
Pigeon Trust. Thus, before turning to the two lawsuits on
appeal, we first address an earlier action that the personal
representative filed concerning disposition of the Pigeon Trust.
1. Litigation regarding the Pigeon Trust. In May 2015,
Deborah, as personal representative of the decedent's estate,
filed a petition to terminate the Pigeon Trust early. Later,
the trustees of the Pigeon Trust (Pigeon trustees) filed a
petition for instructions as to whether the rightful beneficiary
of the trust was the decedent's estate or the decedent's
descendant.7 The court consolidated these two petitions. After
6 The decedent's list of assets in the premarital agreement also included several real properties, the "2003 D.E.S. Support Trust (Irrevocable)," a $990,990 judgment, jewelry worth $186,000, a coin collection, other collections, tools and equipment, several specific bank accounts and investments, three automobiles, a boat, arts and antiques, loose gemstones, and a business, Stacy Imports, Inc.
7 While the terms of the Pigeon Trust limited amendments to correction of scrivener's errors and prohibited amendment to the 6
mediation, Deborah, individually and in her dual capacities as
personal representative of the decedent's estate and as trustee
of the 2001 Trust; the Pigeon trustees; a guardian ad litem for
Bentinck-Smith; and a guardian ad litem for the decedent's son
eventually came to a "Non-Judicial Settlement Agreement"
(settlement agreement). This settlement agreement essentially
called for dividing the trust res in half, minus fees, and
distributing one half to a trust for the son's benefit, and the
other half to Deborah, as trustee of the 2001 Trust, the
remainder beneficiary of the decedent's will.
The wife objected to only so much of the settlement
agreement as called for distribution of Pigeon Trust principal
to Deborah as trustee of the 2001 Trust, rather than to Deborah
as personal representative of the decedent's estate. The judge
approved the settlement agreement, reserving, with Deborah and
the wife's agreement, the question whether the Pigeon Trust
distribution to Deborah should be in her capacity as personal
representative of the decedent's estate or in her capacity as
trustee of the 2001 Trust. This question was to be resolved in
the inventory action.
article designating a beneficiary, several amendments were executed over the next two decades changing the terms of the mandatory distribution article, including who would benefit from mandatory distribution. 7
2. Estate asset recovery action. On July 23, 2015,
Deborah, in her capacity as personal representative, filed an
equity complaint alleging that the wife had taken from the
marital home personal property belonging either to the estate or
to Elaine and her husband, David Kelley (David). The amended
complaint asserted claims against the wife for constructive
trust, conversion, unjust enrichment, and violation of G. L.
c. 190B, § 3-709.8 The complaint also sought a declaratory
judgment interpreting the premarital agreement as it related to
the wife's interest in the estate's assets and the wife's
obligations to return property, as well as the wife's liability
for the value of any property taken and all damages caused to
the estate. The amended complaint included the decedent's
mother, Elaine, and her husband, David, as plaintiffs seeking to
recover their property from the wife. The wife also filed a
counterclaim asserting that the personal representative
committed a breach of her fiduciary duty toward the wife.
After a trial, the judge deemed the premarital agreement
null and void upon the decedent's death and concluded that it
"shall have no applicability relative to the estate of David E.
8 General Laws c. 190B, § 3-709 (b), provides that "[w]ho ever injuriously intermeddles with any personal property of a deceased person, without being thereto authorized by law, shall be liable as a personal representative in his own wrong to the person aggrieved." 8
Stacy." Additionally, the judge found that the wife possessed
certain enumerated pieces of the decedent's personal property
worth $76,875 and additional property of unknown value, and
credited the wife's denial that she possessed other items. Per
the personal representative's request, the judge ordered that
the wife return all of the decedent's property to the personal
representative. However, sua sponte, the judge also ordered
that if the wife did not return the property, the personal
representative could deduct the value of assets in the wife's
possession from the wife's share of the estate.
The judge further found that the personal representative's
claims of conversion, unjust enrichment, and violation of G. L.
c. 190B, § 3-709, and request for imposition of a constructive
trust were based on the assertion that the premarital agreement
applied in the event of death and took precedence over the
otherwise applicable provisions of G. L. c. 190B, §§ 2-102, 2-
301, 2-403 (a), and 2-404 (a). Given his conclusion that the
premarital agreement was null and void, the judge concluded that
those claims failed. Finally, the judge dismissed the wife's
counterclaim, finding that the personal representative had not
breached her duty toward the wife. In this matter, all parties
appealed.
3. Inventory action. On April 7, 2016, the wife brought a
petition to order the personal representative of the estate to 9
render an inventory and account. As noted above, consolidated
with this petition was the issue of the capacity in which
Deborah would receive the distribution of the Pigeon Trust
settlement agreement proceeds: as personal representative of
the decedent's estate or as trustee of the 2001 Trust.
Based on the parties' legal briefs and an agreed statement
of facts, to which the Pigeon Trust and its multiple amendments
were attached, the judge determined that the Pigeon Trust
settlement agreement proceeds should be distributed to the
decedent's estate. The judge also allowed the personal
representative's account, with the judge's amendments, and
concluded that the wife "as surviving spouse is entitled to the
first $100,000 plus one-half of the balance of the decedent's
probate estate."9 The judge further concluded that after the
wife received her share, the remainder of the estate assets
would pour over into the 2001 Trust. In this matter, the wife
and personal representative both appealed.
Discussion. In 2008, the Legislature overhauled the law
governing the probate process by adopting nearly the entire
Uniform Probate Code (code). See St. 2008, c. 521, §§ 9 and 44,
as amended by St. 2011, c. 224, and made effective March 31,
9 See G. L. c. 190B, § 2-102 (4) ("the first $100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent's surviving descendants are not descendants of the surviving spouse"). 10
2012; G. L. c. 190B. As relevant here, G. L. c. 190B, § 2-301
(a), of the code provides that where a surviving spouse married
the testator after the testator executed a will, as occurred
here, "the surviving spouse is entitled to receive, as an
intestate share, no less than the value of the share of the
estate the spouse would have received if the testator had died
intestate as to that portion of the testator's estate, if any,
that neither is devised to a child of the testator who is born
before the testator married the surviving spouse and who is not
a child of the surviving spouse [nor a descendent of such child]
. . . ." This right is subject to the terms of the premarital
agreement. See generally Austin v. Austin, 445 Mass. 601, 603-
604 (2005). We begin our discussion there.
1. The premarital agreement. The wife argues that, as in
other contexts involving waivers of statutory rights, any waiver
of her statutory right of intestate succession must be clear and
unmistakable. See, e.g., Crocker v. Townsend Oil Co., 464 Mass.
1, 14 (2012) ("[an agreement] purporting to release all possible
existing claims . . . will be enforceable as to the statutorily
provided rights and remedies conferred by the Wage Act only if
such an agreement is stated in clear and unmistakable terms");
Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass.
390, 398 (2009) (same for G. L. c. 151B rights and remedies). 11
We agree with the wife that no provision of the premarital
agreement clearly and unmistakably waives one spouse's rights of
intestacy. That, however, does not end our inquiry.
The premarital agreement identified each party's separate
property and expressly provided that after the marriage, that
property was to remain the individual's property, was to be
treated as if no marriage had occurred, and would not be subject
to any claims arising from the marriage. It is well settled
that through a premarital agreement, future spouses may
relinquish claims to assets identified by each at the time of
the marriage. See Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588
(2009) (death). See also DeMatteo v. DeMatteo, 436 Mass. 18
(2002) (divorce).
Notwithstanding the express waiver of any interest in the
decedent's separate property, the wife contends that the
agreement applies only in the event of divorce, and not in the
event of death. The wife points to numerous provisions in the
premarital agreement that address divorce in support of her
argument.10 "[W]e construe a contract as a whole, so as 'to give
reasonable effect to each of its provisions.'" James B. Nutter
10The premarital agreement is titled "G. L. c. 208, § 34 AGREEMENT," which pertains to divorce, but the parties agree that it was mistitled. 12
& Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018), quoting
J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986).
The premarital agreement contained provisions related to
divorce,11 but the entire agreement was not expressly limited to
divorce. Numbered par. 4 contains broad language, providing
that after the marriage, the parties shall retain all right and
title to their separate properties as if the marriage had never
taken place.12 As previously stated, the Pigeon Trust and other
assets were identified as the decedent's separate property.
There is no ambiguity as to how the parties chose to define
and treat their separate property upon the marriage.13 As in
11 For example, numbered par. 1 provided in pertinent part:
"The parties intend at this time and by this instrument to make a final and complete settlement of all matters relating to the interest and obligations of each with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G. L. c. 208, § 34, as amended, in the event of a divorce."
12 Specifically, numbered par. 4 provides:
"After the marriage takes place, each of the parties shall separately retain all rights in his or her property owned at the time of the marriage, including appreciation attributable to such property that may occur during the marriage, with the same effect as if no marriage had been consummated between them. Each party shall have the absolute and unrestricted right to dispose of his or her separate property, free from any claim of the other based upon their marriage."
13The wife points to extrinsic evidence from the attorneys involved in drafting the agreement to support her claim that 13
Pisano v. Pisano, 87 Mass. App. Ct. 403, 412-413 (2015), "[w]e
start with the observation, made clear from paragraph[] [4] of
the premarital agreement, that each party sought to protect from
the other his or her separate property, . . . and any
appreciation in value of . . . that property. That the parties
were to control all aspects of their separate property . . . is
. . . manifest in paragraph [4], which allows the parties to
control, use, and dispose of their separate property in the same
manner as if the marriage had not taken place." In Pisano, we
concluded that although the agreement at issue did not contain
express language waiving alimony, the foregoing provision
ensured that the wife's separate property was not available to
the husband for any alimony claim. Id. at 414. Similarly,
here, although the premarital agreement did not contain an
express waiver of the wife's intestate share of the decedent's
estate, she did agree that certain identified assets would
remain the decedent's separate property "free from any claim
. . . based on their marriage."14
application of the premarital agreement at death was not discussed. However, the wife does not expressly argue that the agreement is ambiguous; thus, her reliance on extrinsic evidence is misplaced. See Redstone v. O'Connor, 70 Mass. App. Ct. 493, 498 n.14 (2007). We do not consider the extrinsic evidence.
14Numbered par. 4 is not the only provision of the premarital agreement that applies in a context other than divorce. Numbered par. 15 on page six of the agreement (there are two paragraphs labeled 15, one on page five and one on page 14
Even if the possibility of divorce was the guiding force
behind the premarital agreement, the parties, with the advice of
counsel, chose to permanently waive any interest in one
another's identified property throughout the marriage and
afterwards without condition "as if no marriage had been
consummated between them."15 Moreover, the wife waived any
future claim to the decedent's separate property "based upon
their marriage." Nothing in the agreement suggests that the
wife's waiver terminated upon the death of her spouse. To now
claim an intestate share in those assets through the decedent's
estate is in contravention of the premarital agreement. Indeed,
the wife asks us to insert language into the premarital
agreement that provides that she and the decedent agreed to
six) sets forth waivers of one another's qualified joint and survivor annuities, qualified preretirement survivor annuities, and all retirement plans. The wife correctly concedes in her brief that par. 15 would apply even in the absence of divorce.
15By agreement, the wife did not, at any time during the marriage, gain any interest in the property identified in the premarital agreement as the husband's separate property. That intention is further demonstrated in the provisions directed at divorce, which repeated that the spouses' separate property would remain the property of each spouse to the exclusion of the other spouse and, depending on the length of the marriage, provided for progressive monetary payments to the wife. Any alimony obligation would terminate in any event upon the decedent's death. In no event contemplated by the agreement would the wife obtain a title interest to the decedent's separate property. 15
treat their separate property as if there had been no marriage
unless one of them died. This we cannot to do.
Based on the plain language of the premarital agreement, we
hold that the wife waived any right to the Pigeon Trust and all
of the other property identified in the premarital agreement as
the decedent's separate property. In other words, the
decedent's interest in the Pigeon Trust is treated upon the
occasion of his death as though the parties were never married,
to the effect that the wife can claim no entitlement to a share
of that property from his estate through intestacy by virtue of
her status as spouse. While this separate property is part of
the decedent's estate, it cannot be used for purposes of
calculating or receiving the wife's intestate share of the
decedent's estate.
2. The Pigeon Trust settlement agreement proceeds. We
look to the terms of the Pigeon Trust to determine the proper
distribution of the Pigeon Trust settlement agreement proceeds.
As originally drafted, the Pigeon Trust is not a model of
clarity as to the distribution of trust assets in the event that
the decedent predeceased the donor, Bentinck-Smith. Two things
are certain, however. First, the instrument provides that under
no circumstances shall the trust property revert to the donor or
her estate, in essence eliminating Bentinck-Smith as the 16
intended contingent beneficiary.16 Second, when the Pigeon Trust
was created, the 2001 Trust did not exist, nor did any
subsequent amendment of the Pigeon Trust purport to add the 2001
Trust as a beneficiary, contingent or otherwise. Thus, at no
point was the 2001 Trust a contingent beneficiary of the Pigeon
Trust.17
We agree with the judge that the decedent's estate was the
contingent beneficiary in the event, as occurred, the decedent
predeceased Bentinck-Smith. Read together, several provisions
in the original trust instrument reflect Bentinck-Smith's intent
to distribute the Pigeon Trust assets to the decedent's estate
in the event that the decedent predeceased her.18 See Redstone
v. O'Connor, 70 Mass. App. Ct. 493, 499 (2007), quoting Harrison
16No party argues that the gift to the decedent lapsed and the Pigeon Trust should be distributed to the donor. See Redstone, 70 Mass. App. Ct. at 494, 500-501. Bentinck-Smith's guardian, in any event, disclaimed any interest in the Pigeon Trust in the settlement agreement.
17The personal representative also contends that the 2001 Trust is the proper beneficiary because the decedent "could have been expected to place in[to] the 2001 . . . Trust any amounts distributed to him from the Pigeon Trust so as to minimize the exposure of his estate to estate tax liability." She cites no authority, however, for the proposition that we may speculate as to what the decedent might have done with the Pigeon Trust proceeds had he survived the donor. The argument is unavailing.
18Because we rely on the original terms of the Pigeon Trust, we need not reach the personal representative's argument that the judge's conclusion is wrong because the parties had not agreed upon whether the trust amendments "were validly executed or remained in effect." 17
v. Marcus, 396 Mass. 424, 429 (1985) ("A trust should be
construed 'to give effect to the intention of the settlor as
ascertained from the language of the whole instrument considered
in the light of the attendant circumstances'").
For example, under art. VIII § D of the Pigeon Trust,
distribution of trust principal was mandatory after the death of
the donor and
"[i]f the Trustee shall not have distributed all of the Trust Principal during the lifetime of the said Beneficiaries, then at the death of the first Beneficiary (living at the time of the execution of this Trust and at the time of my death) to die, the Trustee shall distribute all of the Trust Principal to the Beneficiaries or their estates, in equal shares, free of all Trust, and this Trust shall terminate."19
Additionally, had the trust principal fallen below $50,000 after
Bentinck-Smith's death and before mandatory distribution
pursuant to § D, art. VIII § F permitted the trustees to
terminate the trust and "distribute the Trust Principal to the
Beneficiaries (or their estates, if any such Beneficiary has
predeceased me), in equal shares." The trust instrument also
contemplated that both the donor and David might die before the
Pigeon Trust assets were fully distributed, and named David's
estate as the contingent beneficiary in that eventuality.
19 We recognize that § D is problematic in that there was only one named beneficiary and yet this provision came into play only if there was a beneficiary living at the time of the donor's death. That incongruity does not detract from the donor's intent to benefit the beneficiary's estate. 18
Significantly, the trust instrument disavowed a reversionary
interest to the donor or her estate.20
Accordingly, we conclude that there were sufficient indicia
of the donor's intent to determine that the decedent's estate
was the intended contingent beneficiary of the Pigeon Trust
should the decedent predecease Bentinck-Smith. Therefore, the
Pigeon Trust settlement agreement proceeds should be distributed
to Deborah, as the estate's personal representative.21,22
3. Wife's intestate share. As a result of the adoption of
the code, a will executed prior to marriage is no longer void in
20We recognize that in Redstone, 70 Mass. App. Ct. at 499- 500, we noted that our courts have rejected arguments that a donor's intention to make a gift to an identified individual based upon one contingency was an adequate basis upon which to conclude that the donor would have made the same gift to the same individual where a different, unanticipated contingency came to pass. Here, however, the donor explicitly prohibited any gift from reverting to the donor.
21The personal representative also argues that pursuant to Bongaards v. Millen, 440 Mass. 10, 17 (2003), because the Pigeon Trust was created by a third person, the trust assets should not be considered part of the decedent's probate estate. Although Bongaards is distinguishable in several respects, for our purposes it suffices to say that Bongaards addresses a trust with a schedule of contingent beneficiaries that did not designate the decedent's estate as the contingent beneficiary. Id. at 12. Accordingly, we discern no merit in the personal representative's argument.
22Given our conclusion, we need not address the personal representative's argument that the judge made an erroneous finding as to whether the 2001 Trust was funded prior to the decedent's death. 19
this Commonwealth.23 Because the wife is not a beneficiary of
the will, the next question is the size of the wife's intestate
share. Here, where the decedent was survived by his wife, his
son (who is not a descendant of the surviving spouse), and his
adoptive mother, we agree with the judge that the wife's
intestate share is "the first $100,000 plus 1/2 of any balance
of the intestate estate." G. L. c. 190B, § 2-102 (4). See
G. L. c. 190B, § 2-301 (a).
The wife contends that because (1) the son and adoptive
mother joined in the settlement agreement, (2) the son in
essence received a distribution pursuant to that agreement, and
(3) the decedent expressly omitted his son from his will, all
the remaining estate should pass to the wife, notwithstanding
the decedent's will. We disagree. There simply is nothing in
the statute that suggests that the way the decedent treated his
descendants in his will alters the statutory calculation of a
spouse's intestate share, and nothing in the settlement
agreement suggests that the parties agreed that the wife is
23Pursuant to the former G. L. c. 191, § 9, see St. 1892, c. 118, repealed by St. 2008, c. 521, § 10, marriage acted as a revocation of a will made prior to the marriage, "unless it appears from the will that it was made in contemplation thereof." The code applies to the decedent's will. See St. 2008, c. 521, § 43 (1) (providing, "[T]his act shall apply to pre-existing governing instruments, except that it shall not apply to governing instruments which became irrevocable prior to the effective date of this act"). 20
entitled to all the remaining assets of the estate.24 Moreover,
the spousal share is derived from only that portion of the
testator's estate, if any, that is not devised to the testator's
child. See G. L. c. 190B, § 2-301 (a). Thus, the statutory
provisions already take into account any distribution to a child
in creating the formula for the wife's intestate share. Once
the wife's intestate share is established, the remainder of the
estate passes according to the will.
4. Administration of the estate. a. Credibility
determinations. The personal representative argues that the
judge erred in crediting the wife's testimony as to the
decedent's assets allegedly in the wife's possession in light of
evidence that the wife had been dishonest in other matters,
particularly where, at trial, the wife had first denied having
certain assets but then admitted to having them when faced with
photographs or other evidence. The Supreme Judicial Court
rejected a similar argument in Buster v. George W. Moore, Inc.,
438 Mass. 635, 644 (2003), concluding that "[t]he judge was free
to credit and discredit portions of each party's testimony."
Accordingly, we defer to the judge's credibility determinations.
See G.B. v. C.A., 94 Mass. App. Ct. 389, 395 (2018).
24The wife's reliance on statutory provisions related to disclaimed shares of an estate or intestacy, other than the wife's intestate share, is unavailing. 21
b. Estate assets in the wife's possession. The judge
found that the wife possesses some assets that were identified
in the premarital agreement as the decedent's separate property
and that the personal representative requested that the wife
return such assets. It was error to give the wife the option to
keep assets and take a deduction for their value from her
portion of the estate. Under the code, it is the option of the
personal representative to require the wife to return those
items or to deduct those items from the wife's intestate share.
See G. L. c. 190B, § 3-709 (a) (upon request "every personal
representative has a right to, and shall take possession or
control of, the decedent's property").
c. Conversion, unjust enrichment, and G. L. c. 190B, § 3-
709. The judge found that the personal representative's claims
of conversion, unjust enrichment, and violation of G. L.
c. 190B, § 3-709, against the wife failed because the premarital
agreement does not apply at death. Given our holding to the
contrary, those claims must be reinstated.25
The wife argues that the judge failed to make allowances 25
for joint assets other than an Avalanche automobile. She adopted the judge's recitation of the facts, however, and has not identified joint assets to which she claims she is entitled. In addition, although she claims that she has the right under G. L. c. 190B, § 2-403, to select property of the estate up to $10,000, the wife has not cited anywhere in the record indicating that she purported to do so. Nor do her requests for findings and rulings suggest she raised this issue below. As a result, we do not reach these arguments. To the extent the 22
d. Estate assets in Elaine's possession. According to the
agreed statement of facts, the State Police removed the
decedent's guns from his home and brought them to Elaine and
David Kelley's home. Elaine testified that because she holds an
appropriate license, she took possession of the decedent's gun
collection for the benefit of the estate. So far as the record
reveals, the personal representative had not asked her to return
the collection. See G. L. c. 190B, § 3-709 (a) (personal
representative may leave decedent's property with "the person
presumptively entitled thereto unless or until, in the judgment
of the personal representative, possession of the property will
be necessary for purposes of administration"). Although not
requested by the parties, the judge nonetheless ordered Elaine
to return the gun collection or the value of the collection to
the personal representative "forthwith," providing, in the
alternative, that if this were not done, the value of the
collection would be deducted from Elaine's eventual share of the
decedent's estate.26 While we agree that, upon request, Elaine
personal representative pursues the claims that have been reinstated, however, nothing we have said should preclude the wife from raising these issues in defense.
26We note that in the event a personal representative is also an heir or legatee, G. L. c. 140, § 129C (n), permits a firearm to be transferred from the decedent to said heir or legatee even if they do not possess the requisite license, so long as they obtain said license within 180 days of the transfer. Here, the record indicates that the personal 23
must transfer the gun collection to the personal representative,
so much of the judgment as compels Elaine to return the
collection now is premature. See G. L. c. 190B, § 3-709 (a).
e. The Kelleys' property. The Kelleys claimed and
testified that the wife took items they owned but were in the
decedent's home when he died.27 The judge found that "[w]ith the
exception of the testimony provided by Mr. and Mrs. Kelley, no
other evidence was presented with respect to these items." It
is unclear whether the judge declined to credit the Kelleys'
testimony or erroneously concluded that the Kelleys had to
produce corroborating evidence to sustain their claim. A
witness's testimony alone, without corroboration, may meet a
party's burden of proof. See generally Cooper v. Keto, 83 Mass.
App. Ct. 798, 808 (2013) ("the mother's testimony alone properly
supported [the judge's] findings").
In addition, the judge made no credibility determinations
or findings concerning a cognac diamond pendant that Elaine
testified she loaned to the wife for a photograph for a
newspaper story; the wife admitted that she possessed the
representative does not have an appropriate license but is silent as to whether she has applied to obtain one. See G. L. c. 269, § 10 (h) (1) (it is illegal to own, possess, or transfer a firearm without the requisite license).
27The items include three pieces of artwork, a rototiller, a chainsaw, and a generator. 24
pendant but claimed that Elaine and the decedent had given it to
her as a gift. We conclude that the matter must be remanded for
further findings on these issues in the estate asset recovery
action.
5. The wife's counterclaim. Finally, the judge rejected
the wife's claim that the personal representative committed a
breach of her duties toward the wife and should be removed as
unsuitable and hostile to the wife. The personal
representative's position that the wife was not entitled to
escrowed Pigeon Trust settlement agreement proceeds, albeit for
different reasons, was correct. We discern no basis, therefore,
for the wife's claims and thus no error in the judge's decision
to dismiss the wife's counterclaim.
Conclusion. 1. Docket no. 18-P-872 -- estate asset
recovery action. So much of par. 1 of the judgment as declares
the premarital agreement null and void is vacated, and the
paragraph shall be modified to declare that the assets
identified in the premarital agreement as the separate property
of the decedent cannot be used for purposes of calculating the
wife's intestate share of the decedent's estate. The judgment
shall be further modified to declare that said separate property
passes in accordance with the decedent's will.
Paragraph 2 of the judgment shall be modified by deleting
the second sentence and substituting therefor a declaration 25
that, unless the personal representative agrees to allow the
wife to retain the property described therein and credit the
value toward the wife's intestate share of the decedent's
estate, the wife shall return the property to the personal
representative within thirty days of issuance of the rescript of
this decision. The second sentence of par. 2 of the judgment
shall be further modified by adding a declaration that Elaine
Kelley must return the estate property in her possession
described therein, including, without limitation, the guns and
gun accessories (gun collection) to the personal representative
within thirty days of any written request by the personal
representative that she do so; that, absent such a request,
Elaine may continue to store estate property, including, without
limitation, the gun collection, provided that Elaine still holds
a valid firearms license; that, if the personal representative
takes physical possession of the gun collection, she shall store
the firearms with a licensed holder or first obtain the
appropriate license(s); and that, in her inventory, the personal
representative must also account for the estate's personal
property in any third party's possession.
The second sentence of par. 3 of the judgment shall be
modified to declare that the wife shall return the property
described therein to the personal representative within thirty
days of issuance of the rescript of this decision. 26
So much of par. 4 of the judgment as dismisses the personal
representative's claims for conversion, unjust enrichment,
violation of G. L. c. 190B, § 3-709, and imposition of a
constructive trust is vacated, and those claims are reinstated.
As so modified, the judgment is affirmed, and the matter is
remanded for further proceedings consistent with this opinion,
including for further findings on the Kelleys' claims.
2. Docket no. 18-P-871 -- inventory action. Paragraph I
of the decree shall be modified to add a declaration that the
Pigeon Trust settlement agreement proceeds cannot be used for
purposes of calculating the wife's intestate share of the estate
of David E. Stacy.
The first sentence of par. V of the decree shall be
modified by striking the phrase "which includes the Pigeon Trust
settlement proceeds" and substituting therefor: "excluding the
Pigeon Trust settlement agreement proceeds and any other
separate property of the decedent identified in the premarital
agreement executed by David E. Stacy and Iana Stacy dated July
18, 2008."
As so modified, the decree is affirmed.
So ordered.28
28 All parties' requests for attorney's fees are denied.