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
23-P-1341
JAMES LARSON
vs.
KEITH DEVINE, trustee. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Keith Devine (Keith), trustee of the Mary V.
Larson Irrevocable Trust (trust), appeals from a judgment
finding him in breach of fiduciary duty and awarding the
plaintiff, James Larson (James), $50,000 in damages plus
attorney's fees, interest, and costs. We affirm.
Background. Mary Larson (Mary) executed the trust in 2016.
Two of her grandchildren, Keith and James Mark Devine (Mark),
were initially cotrustees of the trust. Keith and Mark are also
beneficiaries of the trust, along with their uncle James. The
trust provided that on Mary's death, the trustees shall pay
$50,000 to James if he is alive, and the "balance of the
1 Of the Mary V. Larson Irrevocable Trust. remaining trust principal" shall be divided and allocated in
equal shares to Keith and Mark. The trust further provided that
"[n]otwithstanding the foregoing, upon the death of the Donor, the Trustee, as soon as practicable, unless otherwise unanimously agreed by [Keith and Mark] . . . , shall sell and convert into money any real property that the Trustee may own or have an interest in, and in connection therewith, [Keith and Mark] . . . shall have the first option to purchase any and all of the Donor's real property and, if so purchased, the purchase price shall be the fair market value of the property on the date of the Donor's death."
A house in Burlington was conveyed to the trust by
quitclaim deed in 2016. Keith and Mark, who had lived at the
house since they were teenagers, continued to reside there
through at least 2023 without paying rent. After Mary's death
in 2020, James made repeated demands on Keith and Mark for the
distribution of $50,000 as provided in the trust, and eventually
filed this action. In response to James's motion for summary
judgment, Keith stated that he did not oppose the distribution
to James, but Mark disagreed. The first judge granted partial
summary judgment in favor of James, concluding that the
cotrustees were liable in their fiduciary capacities to make the
distribution to James and their failure to do so was a breach of
the trust. The judge also stated that "the estate includes real
property that the Donor directed be sold and which, at least,
may be collateral for a loan to generate the necessary funds."
2 After the second judge allowed James's motion to remove
Mark as trustee, James and Keith cross-moved for entry of final
judgment. Stating that the first judge's summary judgment order
was "an adjudication of the issue presented in [James's]
verified complaint," the second judge entered judgment on
James's claims for declaratory and injunctive relief, as well as
his claim for breach of fiduciary duty based on Keith's "ongoing
failure to pay" the distribution. This appeal followed.
Discussion. Keith contends that the first judge erred in
granting summary judgment to James because, as trustee, Keith
had no obligation to pay a general cash bequest to James when
there were no liquid funds available. In response to both
James's complaint and motion for summary judgment, however,
Keith stated that he did not oppose making the $50,000
distribution to James and in fact favored obtaining financing to
pay it. In this civil case, Keith may not assert a position on
appeal contrary to what he asserted at summary judgment. See
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Although Keith argues that he subsequently changed his position
based on new legal advice and his inability to obtain a loan on
the Burlington property, those circumstances do not excuse his
failure to "put the judge on notice" that he "opposed summary
judgment on this theory." Id. Keith's failure to advance his
current position at summary judgment is particularly significant
3 because, as the second judge explained, the summary judgment
order "was an adjudication of the issue presented in [James's]
verified complaint," and "the plethora of pleadings" that
followed "were wholly unnecessary."
We similarly reject Keith's argument that, by
unsuccessfully moving the judge to order the sale of the
property, James violated the trust's in terrorem or "no contest"
clause and thus forfeited his beneficial interest in the trust.
After Mark moved to dismiss the action on this theory, Keith
filed an opposition stating that "the complaint does not violate
the in terrorem clause because it does not seek to invalidate
the trust, but rather to enforce its provisions." The first
judge denied Mark's motion on that same basis. Keith asserts
that he later changed his position on this issue "as the case
wore on," but the judges were not required to reconsider an
argument that Keith had unequivocally waived. See Commissioner
of Revenue v. Comcast Corp., 453 Mass. 293, 312-313 (2009).
Even if we were to reach the merits of Keith's arguments,
we would still affirm the judgment. Keith argues that, under
the doctrine of abatement, if there are insufficient funds in an
estate to pay a cash bequest, the bequest cannot be satisfied by
reducing the value of a specific devise of real property. See
Kaplan v. Leader, 297 Mass. 145, 146-147 (1937). Keith did not
assert abatement at summary judgment, however, but rather only
4 "mentioned the possibility" that Mary's expenditure of cash
before her death "may have adeemed" the bequest to James -- a
suggestion that the first judge rejected because ademption
applies to "a specific gift of property," not money. See
Wasserman v. Cohen, 414 Mass. 172, 174 (1993). Keith concedes
that ademption does not apply here.
As for the doctrine of abatement, which Keith raised after
the summary judgment order was entered, it governs how assets
are apportioned in an estate. See G. L. c. 190B, § 3-902.
Keith does not cite any case applying it to an irrevocable
trust. Even if the rules of abatement did apply, the trust did
not make a specific devise of real property to Keith, Mark, or
anyone else, but rather directed the trustees to make an
unconditional distribution of $50,000 to James and to allocate
the "balance of the remaining trust principal and any
undistributed income" to Keith and Mark. Keith's argument that
the trust devised the Burlington property to him and Mark
contradicts the plain language of Article 5.09, which directed
the trustees to "as soon as practicable . . . sell and convert
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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
23-P-1341
JAMES LARSON
vs.
KEITH DEVINE, trustee. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Keith Devine (Keith), trustee of the Mary V.
Larson Irrevocable Trust (trust), appeals from a judgment
finding him in breach of fiduciary duty and awarding the
plaintiff, James Larson (James), $50,000 in damages plus
attorney's fees, interest, and costs. We affirm.
Background. Mary Larson (Mary) executed the trust in 2016.
Two of her grandchildren, Keith and James Mark Devine (Mark),
were initially cotrustees of the trust. Keith and Mark are also
beneficiaries of the trust, along with their uncle James. The
trust provided that on Mary's death, the trustees shall pay
$50,000 to James if he is alive, and the "balance of the
1 Of the Mary V. Larson Irrevocable Trust. remaining trust principal" shall be divided and allocated in
equal shares to Keith and Mark. The trust further provided that
"[n]otwithstanding the foregoing, upon the death of the Donor, the Trustee, as soon as practicable, unless otherwise unanimously agreed by [Keith and Mark] . . . , shall sell and convert into money any real property that the Trustee may own or have an interest in, and in connection therewith, [Keith and Mark] . . . shall have the first option to purchase any and all of the Donor's real property and, if so purchased, the purchase price shall be the fair market value of the property on the date of the Donor's death."
A house in Burlington was conveyed to the trust by
quitclaim deed in 2016. Keith and Mark, who had lived at the
house since they were teenagers, continued to reside there
through at least 2023 without paying rent. After Mary's death
in 2020, James made repeated demands on Keith and Mark for the
distribution of $50,000 as provided in the trust, and eventually
filed this action. In response to James's motion for summary
judgment, Keith stated that he did not oppose the distribution
to James, but Mark disagreed. The first judge granted partial
summary judgment in favor of James, concluding that the
cotrustees were liable in their fiduciary capacities to make the
distribution to James and their failure to do so was a breach of
the trust. The judge also stated that "the estate includes real
property that the Donor directed be sold and which, at least,
may be collateral for a loan to generate the necessary funds."
2 After the second judge allowed James's motion to remove
Mark as trustee, James and Keith cross-moved for entry of final
judgment. Stating that the first judge's summary judgment order
was "an adjudication of the issue presented in [James's]
verified complaint," the second judge entered judgment on
James's claims for declaratory and injunctive relief, as well as
his claim for breach of fiduciary duty based on Keith's "ongoing
failure to pay" the distribution. This appeal followed.
Discussion. Keith contends that the first judge erred in
granting summary judgment to James because, as trustee, Keith
had no obligation to pay a general cash bequest to James when
there were no liquid funds available. In response to both
James's complaint and motion for summary judgment, however,
Keith stated that he did not oppose making the $50,000
distribution to James and in fact favored obtaining financing to
pay it. In this civil case, Keith may not assert a position on
appeal contrary to what he asserted at summary judgment. See
Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
Although Keith argues that he subsequently changed his position
based on new legal advice and his inability to obtain a loan on
the Burlington property, those circumstances do not excuse his
failure to "put the judge on notice" that he "opposed summary
judgment on this theory." Id. Keith's failure to advance his
current position at summary judgment is particularly significant
3 because, as the second judge explained, the summary judgment
order "was an adjudication of the issue presented in [James's]
verified complaint," and "the plethora of pleadings" that
followed "were wholly unnecessary."
We similarly reject Keith's argument that, by
unsuccessfully moving the judge to order the sale of the
property, James violated the trust's in terrorem or "no contest"
clause and thus forfeited his beneficial interest in the trust.
After Mark moved to dismiss the action on this theory, Keith
filed an opposition stating that "the complaint does not violate
the in terrorem clause because it does not seek to invalidate
the trust, but rather to enforce its provisions." The first
judge denied Mark's motion on that same basis. Keith asserts
that he later changed his position on this issue "as the case
wore on," but the judges were not required to reconsider an
argument that Keith had unequivocally waived. See Commissioner
of Revenue v. Comcast Corp., 453 Mass. 293, 312-313 (2009).
Even if we were to reach the merits of Keith's arguments,
we would still affirm the judgment. Keith argues that, under
the doctrine of abatement, if there are insufficient funds in an
estate to pay a cash bequest, the bequest cannot be satisfied by
reducing the value of a specific devise of real property. See
Kaplan v. Leader, 297 Mass. 145, 146-147 (1937). Keith did not
assert abatement at summary judgment, however, but rather only
4 "mentioned the possibility" that Mary's expenditure of cash
before her death "may have adeemed" the bequest to James -- a
suggestion that the first judge rejected because ademption
applies to "a specific gift of property," not money. See
Wasserman v. Cohen, 414 Mass. 172, 174 (1993). Keith concedes
that ademption does not apply here.
As for the doctrine of abatement, which Keith raised after
the summary judgment order was entered, it governs how assets
are apportioned in an estate. See G. L. c. 190B, § 3-902.
Keith does not cite any case applying it to an irrevocable
trust. Even if the rules of abatement did apply, the trust did
not make a specific devise of real property to Keith, Mark, or
anyone else, but rather directed the trustees to make an
unconditional distribution of $50,000 to James and to allocate
the "balance of the remaining trust principal and any
undistributed income" to Keith and Mark. Keith's argument that
the trust devised the Burlington property to him and Mark
contradicts the plain language of Article 5.09, which directed
the trustees to "as soon as practicable . . . sell and convert
into money any real property that the Trustee may own or have an
interest in." That Article 5.09 also gave Keith and Mark the
option, if they both agreed, to forestall the immediate sale of
any real property belonging to the trust, or purchase it at fair
market value if sold, does not transform that provision into a
5 specific devise of the Burlington property. Furthermore,
because the language of the trust is clear, Keith's reliance on
extrinsic evidence purportedly showing that Mary did not want
the property to be sold or mortgaged is unavailing. See Ferri
v. Powell-Ferri, 476 Mass. 651, 654 (2017).
The first and second judges were therefore correct in
concluding that Keith violated his fiduciary duty to James by
failing to make the unconditional distribution of $50,000 to
him. 2 Even if, as Keith asserts in his brief, he and Mark
continue to agree not to sell the Burlington property, the first
judge noted that "there are at least two alternatives to sale of
the Property to satisfy the Trustees' obligation to pay [James]:
refinancing the Property and obtaining a home equity loan." The
record further shows that, after the property was conveyed to
the trust in 2016, Keith and Mark lived there until at least
2023 without paying rent, which then could have been used to pay
the distribution apart from any refinancing or loan.
Moreover, under the trust provision that James is to be
paid $50,000 and "the balance of the remaining trust principal"
shall be distributed to Keith and Mark, Keith and Mark receive
nothing until James is paid. If either Keith or Mark (or both)
They were also correct in concluding that James seeks to 2
enforce rather than invalidate the provisions of the trust, and accordingly that the in terrorem clause has no application here.
6 withdraws their agreement not to sell, the property must be
sold, some of the proceeds may be used to pay James, and then
the remaining trust assets may be distributed to Keith and Mark.
Accordingly, we discern no error in either the orders for
summary judgment or the entry of final judgment and award of
reasonable attorney's fees and costs to James. 3
Judgment affirmed.
By the Court (Sacks, Ditkoff & Toone, JJ. 4),
Clerk
Entered: September 18, 2024.
3 James has requested attorney's fees and costs on the ground that the current appeal is frivolous. After careful consideration of all relevant factors, we deny the request.
4 The panelists are listed in order of seniority.