Kirschbaum v. Wennett

806 N.E.2d 440, 60 Mass. App. Ct. 807
CourtMassachusetts Appeals Court
DecidedApril 14, 2004
DocketNo. 02-P-1090
StatusPublished
Cited by7 cases

This text of 806 N.E.2d 440 (Kirschbaum v. Wennett) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirschbaum v. Wennett, 806 N.E.2d 440, 60 Mass. App. Ct. 807 (Mass. Ct. App. 2004).

Opinion

Laurence, J.

The principal question before us is whether a Superior Court judge correctly allowed summary judgment against the plaintiff, Nancy Kirschbaum, when she ruled that the settlor had effectively amended his revocable trust — which granted the settlor the power to modify its terms at any time during his lifetime “by a written instrument. . . deposited with the Trustees” — so as to eliminate Kirschbaum as a beneficiary. Kirschbaum contends that the settlor failed to comply with the trust terms when, in his lawyer’s office and in the presence of the two trustees, he executed the amendment but did not then physically deposit it with the trustees. Instead, he handed the executed amendment to his lawyer for notarization and then acquiesced in his lawyer’s suggestion — also contemporaneously assented to by the trustees, who did not actually receive or touch the instrument — that the lawyer immediately place the document in the law firm’s vault, where the settlor’s will and the original trust document had previously been stored for convenience and safekeeping.

Basic facts. The judge acted on the following undisputed material facts. The settlor, Benjamin M. Broomfield (Benjamin), created a revocable and amendable trust in (for all relevant purposes) October, 1994, with the legal assistance of his attorney, the defendant Richard W. Wennett. The instrument provided that, upon the death of the survivor of the settlor and his wife, Eleanor, the trust assets were to be divided in equal shares among Nancy Kirschbaum (Eleanor’s daughter by a prior marriage), Helen Adams (one of Benjamin’s two nieces), the defendant Evelyn Femgold (Benjamin’s other niece), and the defendant Charles Press (Benjamin’s nephew). The trust document named Femgold and Press as tmstees.

Eleanor died on January 22, 2000. On March 2, 2000, Benjamin, again with Wennett’s assistance, amended his trust (as well as the companion will) to eliminate any beneficial interest for Kirschbaum. The amendment (as well as a codicil to the will) was executed and notarized in Wennett’s law office, in the presence of Wennett, Ferngold, and Press, as well as the requisite number of disinterested witnesses. Benjamin clearly [809]*809stated to those assembled that his intention in amending his estate documents was to ensure that Kirschbaum received nothing, because she had not helped her mother, Eleanor, during her final illness and had not attended Eleanor’s funeral. His amended trust distributed the trust property in equal shares to Femgold, Press, and Adams. Benjamin died on April 1, 2000, having made no further changes to the tmst. One year later, Kirschbaum filed the underlying action seeking a declaration that the March 2, 2000, amendment was invalid. As noted, the dismissal of that action on the defendants’ summary judgment motion is the source of this appeal.

Discussion. In 1921, Justice Benjamin N. Cardozo of the New York Court of Appeals noted that, “Of the cases that come before [my] court... a majority . . . could not, with semblance of reason, be decided in any way but one.” Cardozo, The Nature of the Judicial Process 164 (1921). By 1924 he had refined his estimate to opine that “Nine-tenths, perhaps more, of the cases that come before . . . [an appellate] court are predetermined ... in the sense that they are predestined — their fate preestablished . . . .” Cardozo, The Growth of the Law 60 (1924). The soundness of his observations can be seen in the work of this court, where, year in and year out, eighty percent or more of all appeals are affirmed in their entirety. This phenomenon reflects the acumen and excellence of the work of our trial courts, whose consistently outstanding performance is, regrettably, too rarely acknowledged in an explicit manner in the pages of our reports.

The ruling under review is the product of such a characteristically comprehensive, well-reasoned decision; and, having carefully reviewed the record and the parties’ briefs, we can affirm the judgment for substantially the reasons set forth by the motion judge in her March 1, 2002, memorandum of decision.4 We [810]*810are in particular agreement with the following analysis by the judge:

“Benjamin, as settlor of the revocable Trust, is expressly granted the right to amend the instrument. Paragraph 22 of the 1994 . . . trust states in pertinent part: ‘[t]he Donor reserves to himself during his lifetime the power by written instrument or written instruments deposited with the Trustees at any time or from time to time, prior to the donor’s death... to vary or modify the terms of this trust.’ . . .
“ ‘Where a trust instrument explicitly provides for a power and method of modification, that power “must be exercised in strict conformity to its terms.” ’ Fogelin v. Nordblom, 402 Mass. 218, 223 (1988), quoting Phelps v. State Street Trust Co[.], 330 Mass. 511, 512 (1953); Leahy v. Old Colony Trust Co., 326 Mass. 49, 52 (1950). Strict conformity in this case involves depositing the amendment with the trustee. The validity of the March 2000 Trust amendment, and therefrom the interest of Kirschbaum as a beneficiary, thus depends upon whether delivery of the amendment occurred between Benjamin and the Trustees at the meeting with Wennett on March 2, 2000.
“First, the term ‘deposit’ under the trust connotes delivery of the written instrument to the trustee. Crain v. Paine, [4 Cush.] 483, 486 (1849). Physical delivery however is not required for a deposit to be effective. . . . The S[upreme] judicial] C[ourt] has held that a transfer between a settlor and trustee of a trust document is valid if it conforms to the legal requirements for similar transfers not in trust. Silbert v. Equitable Life Assur. Soc. of [the] U.S., 314 Mass. 406, 408 (1943). For example, ‘manual delivery of a recorded deed is not required to work a [811]*811transfer, and. . . acts of the grantee when coupled with a purpose of the grantor to treat the deed as delivered are sufficient to pass the title.’ Sullivan v. Hudgins, 303 Mass. 442, 447 (1939). Furthermore, ‘[i]t is not necessary, as between the parties themselves, even when both are present, that the deed should be placed in the actual custody of the grantee, or of his agent. It may remain with the grantor, and it will be good, if there are other acts and declarations sufficient to show an intention to treat it as delivered.’ Id. at 447, quoting Regan v. Howe, 121 Mass. 424, 426 (1877).
“Secondly, delivery of the instrument requires a ‘relinquishment of control over the instrument by the grantor or promisor with intent to make it a finality.’ Silbert v. Equitable Life Assur. Soc. of [the] U.S., 314 Mass. [at] 408 .... Here, Benjamin executed the Trust amendment, handed it to Wennett for notarization, at which time Wennett inquired as to placing the document into the firm’s vault. The Trustees, who were both present, and Benjamin, the settlor, agreed to this arrangement. Thus, by handing over the document in the presence of both Trustees, with their assent to leaving the amendment with Wennett, Benjamin relinquished control. Further, Benjamin clearly stated that he wanted to amend his estate documents so that Kirschbaum, after not helping when Eleanor was sick and not coming to the funeral, would not receive anything. . . .

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Bluebook (online)
806 N.E.2d 440, 60 Mass. App. Ct. 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirschbaum-v-wennett-massappct-2004.