NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-701
IN THE MATTER OF THE SUSAN H. PARKER 2000 TRUST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Alex J. Parker appeals from a decree and order by a judge
of the Probate and Family Court removing him and his siblings,
Michael D. Parker and Rebekah J. Parker, as trustees of the
Susan H. Parker 2000 Trust (trust) and appointing their father,
Jeffrey A. Parker, as successor trustee.1 We affirm.
Background. In 2000, Susan H. Parker created the trust and
thereafter transferred to it her one-fourth interest in a
single-family home (the property) on Martha's Vineyard. The
remainder of the property was owned by Susan's siblings. When
the property was not being rented to generate income, its use
was allocated among Susan's extended family members.
1Because the same surname is shared by family members, we refer to them by their first names to avoid confusion. We note that the petition refers to Rebekah as Rebekah J. Thomson. The trust document named Susan as trustee and Jeffrey,
Susan's husband, as successor trustee. The trust further
provided that, in the event that Jeffrey did not remain trustee,
Susan and Jeffrey's children, Michael, Rebekah, and Alex (the
children), shall become trustees. The trust named Susan as
beneficiary and, after her death, named Jeffrey as beneficiary.
The trust provided that, upon the death of Susan and Jeffrey,
the children will be the beneficiaries of the trust.
Susan died in 2014. Following her death, Jeffrey became
the trustee in accordance with the trust. In 2017, at the
request of the children, Jeffrey resigned as trustee, and the
children were appointed as cotrustees.
Beginning in about the summer of 2020, disputes arose among
the children as trustees concerning which of them should be
permitted to occupy the property. For about two years
communication among the trustees continued to deteriorate.
On September 29, 2022, Jeffrey filed this petition for
removal of the children as trustees and for reappointment of
himself as trustee. Alex objected to being removed as trustee,
and argued that if he were removed, Jeffrey should not be
appointed trustee, but instead an independent trustee should be
appointed.2 After a trial at which witnesses including Jeffrey
2 Michael and Rebekah initially objected to their removal as trustees, but agreed that if they were removed, Jeffrey would be
2 and Alex testified, the judge granted the petition and issued a
decree and order removing the children as trustees and
reappointing Jeffrey as trustee. Alex appeals from the decree
and order.
Discussion. 1. Removal of trustees. Alex contends that
the decision to remove him as a trustee was clearly erroneous
because the evidence did not support removal pursuant to G. L.
c. 203E, § 706 (b) (§ 706 [b]).
A judge may remove a trustee where, "because of unfitness,
unwillingness or persistent failure of the trustee to administer
the trust effectively, the [judge] determines that removal of
the trustee best serves the interests of the beneficiaries."
§ 706 (b) (3). See Passero v. Fitzsimmons, 92 Mass. App. Ct.
76, 82 (2017). In reviewing the ruling of a Probate and Family
Court judge to remove a trustee, "[w]e will not disturb the
findings of the trial judge . . . unless they are clearly
erroneous." The Woodward School for Girls, Inc. v. Quincy, 469
Mass. 151, 159 (2014). "[D]ue regard shall be given to the
opportunity of the [t]rial [c]ourt to judge the credibility of
the witnesses." Rule 52(a) of the Supplemental Rules of the
Probate and Family Court (2012).
an acceptable trustee. Before trial, Michael and Rebekah withdrew their objections.
3 Because, as the judge found, the trust is "silent with
respect to the criteria for removal of a [t]rustee," the judge
properly turned to § 706 (b). Applying that statute, the judge
concluded:
"[t]he removal of the co-Trustees and appointment of Jeffrey as successor Trustee satisfies multiple criteria of Section 706(b). Because Michael and Rebekah have withdrawn their objections to their removal and to the appointment of Jeffrey as successor Trustee, the Court need not apportion fault for the breakdown in the relationship among the siblings. It is sufficient to note that it became abundantly clear during the four days of trial that a lack of cooperation among the three sibling co-Trustees substantially impairs the administration of the Trust."
The judge further concluded that "there was no evidence at trial
of any problems in the relationships between Jeffrey, Michael
and Rebekah and their . . . relatives" from Susan's side of the
family; rather, "[t]he only person who has a contentious
relationship with all the other interested parties is Alex." We
discern no clear error or abuse of discretion.
2. Reappointment of Jeffrey as trustee. Alex next
contends that the judge's appointment of Jeffrey as successor
trustee was an abuse of discretion because in 2017 Jeffrey had
resigned as trustee. Jeffrey counters that the plain language
of the trust permitted Jeffrey to reappoint himself as trustee
in the case of a vacancy, and alternatively the judge had the
power to appoint him.
4 The interpretation of a trust "is a matter of law to be
resolved by the court." Ferri v. Powell-Ferri, 476 Mass. 651,
654 (2017). "When interpreting trust language . . . we do not
read words in isolation and out of context. Rather we strive to
discern the settlor's intent from the trust instrument as a
whole . . .." Hillman v. Hillman, 433 Mass. 590, 593 (2001).
If the language of the trust is clear, "we look only to that
plain language." Ferri, supra.
As mentioned, the trust document appointed Susan as
trustee, with Jeffrey to succeed her upon her death, and "[i]f
he does not . . . remain Trustee, then [the children] . . .
shall all serve in that capacity." The trust document further
provides, "In case of any further vacancy, a successor Trustee
shall be appointed by me, . . . otherwise by [Jeffrey] . . . ."
The judge interpreted that language to grant Jeffrey "the
authority to appoint a successor trustee if there is a vacancy,"
and as not precluding him from re-appointing himself. We concur
with that interpretation of the trust document. Contrast Mackey
v. Santander Bank, N.A., 98 Mass. App. Ct. 431, 434-437 (2020)
(reappointment of trustee who had previously resigned was
precluded by terms of trust).
The judge further concluded that, even if the terms of the
trust did not permit Jeffrey to re-appoint himself trustee, the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-701
IN THE MATTER OF THE SUSAN H. PARKER 2000 TRUST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Alex J. Parker appeals from a decree and order by a judge
of the Probate and Family Court removing him and his siblings,
Michael D. Parker and Rebekah J. Parker, as trustees of the
Susan H. Parker 2000 Trust (trust) and appointing their father,
Jeffrey A. Parker, as successor trustee.1 We affirm.
Background. In 2000, Susan H. Parker created the trust and
thereafter transferred to it her one-fourth interest in a
single-family home (the property) on Martha's Vineyard. The
remainder of the property was owned by Susan's siblings. When
the property was not being rented to generate income, its use
was allocated among Susan's extended family members.
1Because the same surname is shared by family members, we refer to them by their first names to avoid confusion. We note that the petition refers to Rebekah as Rebekah J. Thomson. The trust document named Susan as trustee and Jeffrey,
Susan's husband, as successor trustee. The trust further
provided that, in the event that Jeffrey did not remain trustee,
Susan and Jeffrey's children, Michael, Rebekah, and Alex (the
children), shall become trustees. The trust named Susan as
beneficiary and, after her death, named Jeffrey as beneficiary.
The trust provided that, upon the death of Susan and Jeffrey,
the children will be the beneficiaries of the trust.
Susan died in 2014. Following her death, Jeffrey became
the trustee in accordance with the trust. In 2017, at the
request of the children, Jeffrey resigned as trustee, and the
children were appointed as cotrustees.
Beginning in about the summer of 2020, disputes arose among
the children as trustees concerning which of them should be
permitted to occupy the property. For about two years
communication among the trustees continued to deteriorate.
On September 29, 2022, Jeffrey filed this petition for
removal of the children as trustees and for reappointment of
himself as trustee. Alex objected to being removed as trustee,
and argued that if he were removed, Jeffrey should not be
appointed trustee, but instead an independent trustee should be
appointed.2 After a trial at which witnesses including Jeffrey
2 Michael and Rebekah initially objected to their removal as trustees, but agreed that if they were removed, Jeffrey would be
2 and Alex testified, the judge granted the petition and issued a
decree and order removing the children as trustees and
reappointing Jeffrey as trustee. Alex appeals from the decree
and order.
Discussion. 1. Removal of trustees. Alex contends that
the decision to remove him as a trustee was clearly erroneous
because the evidence did not support removal pursuant to G. L.
c. 203E, § 706 (b) (§ 706 [b]).
A judge may remove a trustee where, "because of unfitness,
unwillingness or persistent failure of the trustee to administer
the trust effectively, the [judge] determines that removal of
the trustee best serves the interests of the beneficiaries."
§ 706 (b) (3). See Passero v. Fitzsimmons, 92 Mass. App. Ct.
76, 82 (2017). In reviewing the ruling of a Probate and Family
Court judge to remove a trustee, "[w]e will not disturb the
findings of the trial judge . . . unless they are clearly
erroneous." The Woodward School for Girls, Inc. v. Quincy, 469
Mass. 151, 159 (2014). "[D]ue regard shall be given to the
opportunity of the [t]rial [c]ourt to judge the credibility of
the witnesses." Rule 52(a) of the Supplemental Rules of the
Probate and Family Court (2012).
an acceptable trustee. Before trial, Michael and Rebekah withdrew their objections.
3 Because, as the judge found, the trust is "silent with
respect to the criteria for removal of a [t]rustee," the judge
properly turned to § 706 (b). Applying that statute, the judge
concluded:
"[t]he removal of the co-Trustees and appointment of Jeffrey as successor Trustee satisfies multiple criteria of Section 706(b). Because Michael and Rebekah have withdrawn their objections to their removal and to the appointment of Jeffrey as successor Trustee, the Court need not apportion fault for the breakdown in the relationship among the siblings. It is sufficient to note that it became abundantly clear during the four days of trial that a lack of cooperation among the three sibling co-Trustees substantially impairs the administration of the Trust."
The judge further concluded that "there was no evidence at trial
of any problems in the relationships between Jeffrey, Michael
and Rebekah and their . . . relatives" from Susan's side of the
family; rather, "[t]he only person who has a contentious
relationship with all the other interested parties is Alex." We
discern no clear error or abuse of discretion.
2. Reappointment of Jeffrey as trustee. Alex next
contends that the judge's appointment of Jeffrey as successor
trustee was an abuse of discretion because in 2017 Jeffrey had
resigned as trustee. Jeffrey counters that the plain language
of the trust permitted Jeffrey to reappoint himself as trustee
in the case of a vacancy, and alternatively the judge had the
power to appoint him.
4 The interpretation of a trust "is a matter of law to be
resolved by the court." Ferri v. Powell-Ferri, 476 Mass. 651,
654 (2017). "When interpreting trust language . . . we do not
read words in isolation and out of context. Rather we strive to
discern the settlor's intent from the trust instrument as a
whole . . .." Hillman v. Hillman, 433 Mass. 590, 593 (2001).
If the language of the trust is clear, "we look only to that
plain language." Ferri, supra.
As mentioned, the trust document appointed Susan as
trustee, with Jeffrey to succeed her upon her death, and "[i]f
he does not . . . remain Trustee, then [the children] . . .
shall all serve in that capacity." The trust document further
provides, "In case of any further vacancy, a successor Trustee
shall be appointed by me, . . . otherwise by [Jeffrey] . . . ."
The judge interpreted that language to grant Jeffrey "the
authority to appoint a successor trustee if there is a vacancy,"
and as not precluding him from re-appointing himself. We concur
with that interpretation of the trust document. Contrast Mackey
v. Santander Bank, N.A., 98 Mass. App. Ct. 431, 434-437 (2020)
(reappointment of trustee who had previously resigned was
precluded by terms of trust).
The judge further concluded that, even if the terms of the
trust did not permit Jeffrey to re-appoint himself trustee, the
judge had the authority to do so pursuant to G. L. c. 203E,
5 § 704 (c) (3). For substantially the same reasons as the judge,
we conclude that § 704 (c) (3) empowered the judge to appoint
Jeffrey as trustee.
The judge was not persuaded by Alex's contention that,
because of the "animosity" between himself and Jeffrey, the
judge should appoint an independent trustee. The judge
concluded that because the trust "is a fractional owner of a
single-family vacation home shared by extended family members[,]
[i]ts administration is simple, and it would be contrary to the
efficient administration of the [t]rust to introduce a court-
appointed stranger to the mix." Again, we discern no clear
error or abuse of discretion.
3. Appellate attorney's fees. Jeffrey requests that we
award him appellate attorney's fees and costs. Pursuant to
G. L. c. 215, § 45, the Probate and Family Court judge concluded
that "justice and equity require" an award to Jeffrey of the
fees and costs incurred after this matter was scheduled for
trial, to be paid by Alex. In our discretion, we likewise
conclude that justice and equity require that Jeffrey be awarded
his appellate attorney's fees and costs, to be paid by Alex.3
See Estate of King, 455 Mass. 796, 804-805 (2010) (in cases
3 This award is pursuant to G. L. c. 215, § 45, and not Mass. R. A. P. 25 or 26, as appearing in 481 Mass. 1654-1655 (2019).
6 applying § 45, "the party whose conduct triggered the need for
litigation has been ordered to pay the expenses arising from
that litigation"); Howe v. Tarvezian, 73 Mass. App. Ct. 10, 17
(2008) (noting that § 45 "extend[s] eligibility for fees to the
appellate process").
Jeffrey shall file with this court and serve on Alex a
submission detailing and supporting the amounts of reasonable
attorney's fees and costs incurred in connection with this
appeal, in accordance with the procedure described in Fabre v.
Walton, 441 Mass. 9, 10-11 (2004). Thereafter, Alex shall have
fourteen days to respond.
Decree and order on petition for removal of trustee and appointment of successor trustee affirmed.
By the Court (Massing, Singh & Grant, JJ.4),
Clerk
Entered: May 5, 2026.
4 The panelists are listed in order of seniority.