MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2021 ME 44 Docket: Cum-20-263 Argued: June 3, 2021 Decided: September 14, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
ROBERT L. CONNARY et al.
v.
RICHARD A. SHEA et al.
HUMPHREY, J.
[¶1] In 2003, Patricia and William Shea established the Shea Family
Living Trust with assets that included stock issued by a particular bank. The
Trust was to conclude upon the death of the survivor of them, and all of the
bank stock in the Trust was to be distributed to Patricia’s nieces and nephews.
In 2006, William died and, coincidentally, the bank redeemed all of its stock.
Twelve years later, Patricia died and the successor trustee distributed the
remaining assets of the Trust, which no longer included the bank stock.
[¶2] The plaintiffs, including Robert L. Connary, are the nieces and
nephews of Patricia (collectively Connary).1 Connary appeals from a judgment
1 The other nieces and nephews are Susan E. Napolitano, Patricia A. Narducci, James C. Clark, Margaret A. Gillett, and Eric R. Clark. 2
of the Superior Court (Cumberland County, Stewart, J.) granting a partial
summary judgment in favor of the defendants, Richard A. Shea and two of his
family members (collectively Shea),2 on Count 2 of Connary’s second amended
complaint seeking a declaratory judgment “interpret[ing] and/or reform[ing]”
part of the Trust.3 Connary challenges both the court’s determination that the
provision gifting the bank stock to Connary was a specific devise that had
adeemed and the court’s ruling for Shea on Connary’s reformation claim. We
affirm the judgment except as to reformation. That claim must be remanded to
the trial court for further proceedings.
I. BACKGROUND
[¶3] The following facts are drawn from the parties’ supported
statements of material facts, viewed in the light most favorable to Connary.
See Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 15, 8 A.3d 677.
2 The defendants—Richard A. Shea, Dennis G. Shea, and William P. Shea—are the children of William Shea. 3 Connary’s second amended complaint includes nine counts: (1) breach of fiduciary duty and the
replacement of trustee Richard Shea, (2) declaratory judgment on the interpretation of the Trust and/or reformation of the Trust, (3) breach of fiduciary duty and money damages against trustee Shea, (4) injunctive relief avoiding disbursements, (5) return of any improper distributions, (6) another breach of fiduciary duty by trustee Shea in the conversion of trust assets, (7) trustee Shea’s breach of the duty of impartiality, (8) trustee Shea’s breach of the duty of loyalty, and (9) trustee Shea’s breach of the duty to protect beneficiaries’ interests. The parties stipulated to judgment in favor of Connary on all counts other than Count 2, dismissing all claims arising out of the interpretation of the Trust with prejudice and dismissing any claims not arising out of that interpretation without prejudice. 3
[¶4] In July 2003, Patricia and William created the Trust and funded it,
in part, with stocks in General Electric and in Siwooganock Bank (the Bank), a
private bank that was based in New Hampshire.4 The Trust’s plan of
distribution provided that upon the death of the survivor of William and
Patricia, the successor trustee was to “take charge of the assets then remaining
in this trust [and] pay all of the legally enforceable debts of the survivor” and of
the Trust. After complying with those conditions, the trustee was to distribute
all of the General Electric and Bank stock to Patricia’s nieces and nephews, and
the remaining “net proceeds of the trust” to William’s children.
[¶5] In 2006, William died. That same year, the Bank stock was recalled
and redeemed, and the Trust received approximately $460,000 for the stock.
Over the next twelve years, after taxes related to the redemption were paid, the
net funds from the redemption were variously deposited in and moved among
4 The Trust was also funded with other assets, including the parties’ residence in Scarborough, and it separately provided that if William died before Patricia, she could occupy, rent, or sell the residence. If Patricia elected to sell it, she could invest the proceeds, including by reinvesting them in a “replacement residence,” or distribute portions of the proceeds to William’s children and to Patricia. 4
the Trust’s investment accounts, commingled with other funds in the Trust, and
used to purchase various securities.
[¶6] In 2018, Patricia died, and Richard Shea became the successor
trustee.5 Shea liquidated the General Electric stock and distributed those
proceeds to Connary. Shea determined that the Bank stock was no longer in the
Trust and, after consulting with the attorney who drafted the Trust, informed
Connary that he could not distribute any funds to Connary in its place. Connary
responded that he would contest the Trust.
[¶7] On October 1, 2019, Connary filed a second amended complaint6
seeking in Count 2 that the court either (A) declare that the Trust clearly and
unambiguously “provides that the Connary heirs are entitled to the ‘[p]roceeds’
from the involuntary sale of” the Bank stock or, if the Trust is ambiguous,
“conclude that [Patricia] intended to gift any proceeds” from the redemption of
that stock to Connary, or (B) reform the Trust to “conform to [Patricia’s]
5The Trust designated Patricia and William as the “primary trustees” and Richard Shea as the successor trustee upon the death of the survivor of Patricia and William.
On February 7, 2019, Connary filed the initial complaint in this matter, and on February 19, 6
2019, he filed the first amended complaint. 5
intentions” that “[t]he proceeds are to be distributed in equal shares to
[Connary].”7
[¶8] On October 15, 2019, Connary filed a motion for partial summary
judgment seeking a summary judgment only on Count 2 of the second amended
complaint. In Count 2, Connary sought a declaratory judgment that the Trust
provided for a general devise of the Bank stock and that Connary was entitled
to the proceeds from its 2006 redemption. Connary’s motion did not address
Connary’s alternative claim for reformation, which he also asserted in Count 2.
Shea opposed the motion and filed a cross-motion for partial summary
judgment, arguing that Connary was not entitled to the proceeds because the
Bank stock was a specific devise that had adeemed.
[¶9] On March 31, 2020, the court entered a partial summary judgment
for Shea on Count 2 of the complaint, concluding that the Trust makes “clear
and plain” that the settlors intended a specific devise of the Bank stock, which
adeemed in 2006 following its recall and redemption by the Bank, and it
“denied and dismissed” the reformation claim. Connary then filed a motion for
7 The Superior Court shares concurrent equitable jurisdiction with the probate courts and has
jurisdiction over declaratory judgment actions seeking the construction of trust instruments. See 4 M.R.S. §§ 105, 252 (2021); 14 M.R.S. 5956 (2021). Title 18-C M.R.S. 1-302(1)(C) (2021), which confers jurisdiction on the probate courts over “all subject matter relating to . . . [t]rusts,” does not confer exclusive jurisdiction on the probate courts. See also 18-C M.R.S. § 1-201(8) (2021). 6
reconsideration of the court’s partial summary judgment order and a motion to
strike the ruling on the reformation claim. Connary argued that the court erred
in denying and dismissing the reformation claim because it was not subject to
the motions for summary judgment. The court denied both motions and stated
that it had entered a summary judgment on Count 2 based on its finding of the
clear and plain intent of the settlors.
[¶10] On September 22, 2020, the parties stipulated to a final judgment
in favor of Shea on all remaining counts of the second amended complaint.
Connary timely appealed. See 14 M.R.S. § 1851 (2021); M.R. App. P. 2A,
2B(c)(1).
II. DISCUSSION
[¶11] We review the entry of a summary judgment de novo, “considering
the evidence in the light most favorable to the nonprevailing party to determine
whether the parties’ statements of material facts and the record evidence to
which the statements refer demonstrate that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Kurtz & Perry, P.A., 2010 ME 107, ¶ 15, 8 A.3d 677 (quotation marks omitted).
“A material fact is one that can affect the outcome of the case, and there is a
‘genuine issue’ when there is sufficient evidence for a fact-finder to choose 7
between competing versions of the fact.” Stewart-Dore v. Webber Hosp. Ass’n,
2011 ME 26, ¶ 8, 13 A.3d 773.
[¶12] The parties agree that the disposition of the Bank stock is governed
by the terms of the Trust, but they dispute whether the evidence, viewed in the
light most favorable to Connary, demonstrates that it was a specific or a general
devise, that the stock was adeemed by the 2006 redemption, and that the Trust
should be reformed to reflect William’s and Patricia’s intent, all of which is
reviewed de novo. See Kurtz & Perry, P.A., 2010 ME 107, ¶ 15, 8 A.3d 677.
A. General or Specific Devise
[¶13] “Courts are averse to construing [devises] as specific” and will do
so only when the intent of the settlor to make them specific “is clear and plain.”
Maxim v. Maxim, 129 Me. 349, 354, 152 A. 268 (1930); see also 18-B M.R.S. § 112
(2021). The intent of the settlor, as determined by unambiguous language in
the trust, is a question of law that we review de novo. In re Pike Fam. Trs.,
2012 ME 8, ¶ 7, 38 A.3d 329. “The cardinal rule is to give effect to the intention
of the [settlor] gathered from the language of the [trust], bearing in mind that
such intention must be related to the time the [trust] was executed.” Me. Nat’l
Bank v. Petrlik, 283 A.2d 660, 664 (Me. 1971); see 18-B M.R.S. § 112. The
settlor’s intent is gathered from the whole instrument, and a court must 8
interpret it “within the four corners of the document but may use the context
of the entire [instrument] to interpret specific sections.” Fiduciary Tr. Co. v.
Wheeler, 2016 ME 26, ¶ 9, 132 A.3d 1178 (quotation marks omitted); see 18-B
M.R.S. § 112.
[¶14] Prior to engaging in that review, we note that although the Maine
Uniform Trust Code, 18-B M.R.S. §§ 101-1104 (2021), applies to the Trust,
“[t]he rules of construction that apply in [Maine] to the interpretation of and
disposition of property by will also apply as appropriate to the interpretation
of the terms of a trust and the disposition of the trust property.” 18-B M.R.S.
§ 112; see, e.g., Fiduciary Tr. Co., 2016 ME 26, ¶ 9, 132 A.3d 1178 (applying the
rules of interpretation for wills to the terms of a trust).8
[¶15] A devise like “[a] legacy is general when it is so given as not to
amount to a bequest of a particular thing or money of the testator, as
distinguished from all others of the same kind.” Spinney v. Eaton, 111 Me. 1, 5,
87 A. 378 (1913) (quotation marks omitted); see, e.g., Perry v. Leslie, 124 Me. 93,
94, 126 A. 340 (1924) (concluding that a bequest of “twenty shares in the
capital stock of [a corporation]” was a general legacy because the total shares
8We highlight this point because so much of our relevant jurisprudence in this area relates to the rules of construction regarding the interpretation of and disposition of property by will. 9
held by the testator at her death exceeded the shares disposed of and there was
no language “directly identifying the shares bequeathed” (quotation marks
omitted)).
[¶16] Conversely, a specific devise is like “a bequest of a specific thing or
fund that can be separated out of all the rest of the [settlor]’s estate of the same
kind, so as to individualize it, and enable it to be delivered to the legatee as the
particular thing or fund bequeathed.” Maxim, 129 Me. at 353, 152 A. 268
(quotation marks omitted); see, e.g., Gorham v. Chadwick, 135 Me. 479, 483, 200
A. 500 (1938) (concluding that a bequest of “my stock in [a corporation]” was
specific because the testator “identifie[d] that particular stock as then
belonging to her and distinguishe[d] it from all other parts of her property of
like kind” (quotation marks omitted)).9
[¶17] A specific devise is often accompanied by a personal pronoun
indicating the testator’s personal ownership of the property. See Restatement
9 Connary takes issue with the trial court’s comparison to Gorham v. Chadwick, 135 Me. 479, 200 A. 500, and argues that Perry v. Leslie, 124 Me. 93, 126 A. 340 (1924), is more analogous. However, unlike in Perry, where the total number of shares of stock of a particular company held by the estate exceeded the total number disposed of by the testatrix’s will, 124 Me. at 94, 126 A. 340, the Trust disposed of “all” of the Bank stock rather than just a portion of the total pool. Furthermore, in Gorham the relevant inquiry was whether the stated bequest “can be separated out of all the rest of the testator’s estate of the same kind, so as to individualize it.” Maxim v. Maxim, 129 Me. 349, 353, 152 A. 268 (1930) (quotation marks omitted); see Gorham, 135 Me. at 483, 200 A. 500. We find no error in the court’s comparison to Gorham. 10
(Third) of Property: Wills and Donative Transfers § 5.1 cmt. b (Am. L. Inst.
1999); I Benoit et al., A Practical Guide to Estate Planning in Maine § 3.1.4(g) at
3-14 (Hunt 2d ed., 2021) (suggesting that “[t]o avoid any ambiguity as to
whether the devise is specific or general,” a specific devise should use personal
pronouns such as “‘my’ automobile” or, in the case of a bequest, “the AT&T stock
‘owned by me at the date of my death’”); see, e.g., Gorham, 135 Me. at 483, 200
A. 500 (reasoning that the testator’s “use of the possessive ‘my’ is convincing
indication that [the testator] intended to make her gift specific”).
[¶18] Here, the Trust devised “all” of the Bank stock to Connary.
Although not a personal pronoun, “all” clearly refers to the finite pool of Bank
stock held by the Trust. It is distinguishable from, see Gorham, 135 Me. at 483,
200 A. 500, and can be separated out of, see Maxim, 129 Me. at 353, 152 A. 268,
the rest of the Trust’s assets, such that the language disposes of the entire pool
of Bank stock, as opposed to a portion of those holdings, cf., Perry, 124 Me. at
94, 126 A. 340. We agree with the court that the language of the Trust reflects
a “plain and clear” intent by William and Patricia to create a specific gift of the
Bank stock in favor of Connary.10
10 In arguing that the Trust’s Plan of Distribution in Article Two makes it “clear that the [settlors]
intended their successor Trustee to deliver the value of the stocks and not the very thing bequeathed,” Connary misconstrues the Trust’s use of the term “proceeds” in subsection A.3. and the authority given to the successor trustee in subsection A.2. to “take charge of the assets then 11
B. Ademption
[¶19] “The distinctive characteristic of a specific legacy is its liability to
ademption. If the specific thing or particular fund bequeathed is not in
existence or has been disposed of by the testator subsequent to the making of
the will, the legacy is extinguished or adeemed.” Gorham, 135 Me. at 484,
200 A. 500. As noted above, although Title 18-B provides rules for the creation
and administration of trusts, see 18-B M.R.S. §§ 102, 1104(1)(A), to determine
whether the specific devise of the Bank stock was adeemed in 2006, we are
guided by the principle that “[t]he rules of construction that apply in [Maine] to
the interpretation of and disposition of property by will also apply as
remaining” and pay all of the “legally enforceable debts” of the surviving settlor and the Trust. Contrary to Connary’s assertions, those provisions did not require the successor trustee to liquidate all of the Trust’s assets, including all shares of stock, in order to pay the debts of Patricia and the Trust before delivering proceeds representing the value of the Bank stock to Connary. Because the Bank stock did not exist in the Trust at the time of Patricia’s death, “proceeds” cannot include sums that resulted from multiple reinvestments, commingling, and withdrawals of the net funds from the 2006 stock redemption.
Moreover, we are not persuaded by Connary’s argument that treating the Bank stock as a specific devise conflicts with the “manifest object” of William and Patricia to benefit their respective bloodlines. Rather, the devise of a specific gift of the stock to Connary is consistent with that objective. 12
appropriate to the interpretation of the terms of a trust and the disposition of
the trust property,” 18-B M.R.S. § 112.
[¶20] Currently, those rules of construction are found in the Maine
Probate Code codified in Title 18-C, which became effective on September 1,
2019. See 18-C M.R.S. § 8-301(1) (2021). However, when the Trust was created
(2003), when Patricia died (2018), and when Connary’s first complaint was
filed (February 2019), the predecessor Probate Code—Title 18-A—was in
effect. See 18-A M.R.S. § 8-401(a) (2018). Shea argues that the relevant
ademption statute is 18-A M.R.S. § 2-607 (2018), whereas Connary argues that
the ademption provision of the current statute, 18-C M.R.S. § 2-606(1)(F)
(2021), applies.11
[¶21] The difference is important because the current code, Title 18-C,
disfavors the ademption of a specific devise in certain circumstances. In
particular, paragraphs E and F of 18-C M.R.S. § 2-606(1) reflect the “intent”
theory of ademption in which “the testator’s intent is central to the inquiry” and
“the devise fails unless the evidence establishes that failure would be inconsistent
with the testator’s intent.” Restatement (Third) of Property: Wills and Donative
See P.L. 2017, ch. 402, § A-2 (effective Sept. 1, 2019, as provided by P.L. 2019, ch. 417, § A-102) 11
(codified at 18-C M.R.S. § 2-606 (2021)). 13
Transfers § 5.2 cmt. b (Am. L. Inst. 1999) (emphasis added); see 18-C M.R.S.A.
§ 2-606 Me. cmt. (2020). In contrast, Title 18-A does not include language
similar to paragraphs E and F; rather, 18-A M.R.S. § 2-607 reflects the “identity”
theory of ademption in which “a specific devise completely fails—i.e., the
devisee is entitled to nothing—if the specifically devised property is not in the
testator’s estate at death.” Restatement (Third) of Property: Wills and Donative
Transfers § 5.2 cmt. b (Am. L. Inst. 1999).
1. The Relevant Rules of Construction
[¶22] Title 18-A and Title 18-C both include identically worded rules of
construction or presumption regarding the applicability of the Code to trusts
executed before the Code’s effective date—January 1, 1981, for Title 18-A and
September 1, 2019, for Title 18-C—as follows:
Any rule of construction or presumption provided in this Code applies to instruments executed . . . before [this Code’s effective date] unless there is a clear indication of a contrary intent.
18-A M.R.S. § 8-401(b)(5); see 18-C M.R.S. § 8-301(2)(E). Based on this
language, Connary argues that, even though Title 18-A was in effect when the
Trust was created, the nonademption provisions of 18-C M.R.S. § 2-606(1)(F)
apply retroactively to the construction of the Trust at issue here.
See 18-C M.R.S. § 2-601 (2021); see also 18-B M.R.S. § 112. 14
[¶23] However, in Scribner v. Berry, we interpreted 18-A M.R.S.
§ 8-401(b)(5) and held that this provision applies to instruments “executed
before [Title 18-A]’s effective date only when the testator survives the effective
date.” 489 A.2d 8, 9 (Me. 1985) (emphasis added).12 We reasoned that “had the
Legislature intended that [Title 18-A’s] rules of construction apply even when
the testator dies before [Title 18-A]'s effective date,” it would have expressly
stated so as it had in another statutory provision. Scribner, 489 A.2d at 9;
see 18-A M.R.S. § 8-401(b)(2) (“[Title 18-A] applies to any proceedings in Court
then pending or thereafter commenced regardless of the time of the death of
decedent . . . .” (emphasis added)). More importantly, we stated that applying
the current rules of construction to a will that predates the effective date of
those rules “is justified only when the testator has the opportunity to modify
his will if he or she disagrees with the code.” Scribner, 489 A.2d at 9; see also
Est. of Calden, 1998 ME 140, ¶ 6, 712 A.2d 522 (reasoning that because the
In that case, the issue was whether the adopted children of the testator’s son were included in 12
the terms “descendants” or “issue” as used in the testator’s will. Scribner v. Berry, 489 A.2d 8, 8 (Me. 1985). At the time of the will’s making and throughout the testator’s lifetime, the applicable rule of construction excluded the adopted children from those two terms, but after the testator’s death and at the time of the petition for construction of the will, the Probate Code had been amended, and the new rule of construction expressly provided that adopted children were included within those terms. Id. at 8-9; see P.L. 1979, ch. 540, § 1 (effective Jan. 1, 1981) (codified at 18-A M.R.S.A. § 2-611 (Supp. 1980)). 15
testator died after the effective date of the new Probate Code, the new Code’s
rules of construction applied to the testator’s will).
[¶24] The same considerations that guided us in Scribner persuade us
that 18-C M.R.S. § 8-301(2)(E) does not apply in the circumstances of this case.
Patricia died in November 2018, seven months prior to the effective date of
Title 18-C, and thus she did not have an opportunity to amend the terms of the
Trust in response to the provisions of Title 18-C.13 Accordingly, we conclude
that the rules of construction regarding the nonademption of a specific devise
in 18-C M.R.S. § 2-606 do not apply, and, instead, 18-A M.R.S. § 2-607 governs
the ademption of the Bank stock at issue here.
2. Application of 18-A M.R.S. § 2-607
[¶25] Section 2-607(a)(1) states that “[i]f the will provides for a specific
devise of certain securities rather than the equivalent value thereof, the specific
devisee is entitled only to . . . [a]s much of the devised securities as is a part of
the estate at the time of the testator’s death.” Paragraphs 2 through 4 of section
13 The Trust itself might also have constrained Patricia’s power to revoke or amend the provision regarding distribution of the Bank stock. As the survivor, she was authorized to revoke the Trust in whole or in part “except as to the provisions of Article Two”—the article that contained the distribution provision at issue here—and she could amend the trust in writing “except as may be limited by Article . . . Two of this Declaration of Trust.” Even assuming that Patricia retained the ability to amend or revoke the distribution provision, however, her death before the effective date of Title 18-C persuades us that Title 18-C cannot be applied. See Scribner, 489 A.2d at 9. 16
2-607(a) allow the specific devisee—in certain circumstances—to receive
different securities in lieu of what was specified in the instrument. However,
none of those circumstances exists here because in 2006, Patricia received cash
in exchange for her stock, and paragraph 2 applies only to stock splits, while
paragraph 3 relates to mergers and paragraph 4 applies to reinvestment plans.
See 18-A M.R.S. § 2-607(a)(2)-(4); Est. of Russell, 521 A.2d 677, 677 n.1
(Me. 1987). That leaves paragraph 1, which, as noted above, entitles the
devisee to the specific shares if they remain in the estate at the time of the
settlor’s death. See 18-A M.R.S. § 2-607(a)(1). Because no shares14 of the Bank
stock remained in the Trust at the time of Patricia’s death, the trial court
correctly concluded that the Bank stock had adeemed.
C. Reformation
[¶26] Finally, Connary argues that the court erred when it sua sponte
ruled on his alternate reformation claim15 after concluding that the Trust
In support of his argument that the Bank stock did not adeem, Connary contends that the 14
proceeds of the 2006 stock redemption are still held in the Trust and can be accurately traced. Although the parties dispute whether it was Patricia or her financial advisor who moved the 2006 redemption proceeds between various investment accounts and used the money to purchase other securities, they agree that the proceeds were commingled and not neatly segregated into a single account.
That claim asked the court, pursuant to 18-B M.R.S. § 415 (2021), to reform the Trust provision 15
dealing with the Bank stock to provide that “[t]he proceeds are to be distributed in equal shares to [Connary]” in order “to conform to [Patricia]’s intentions that her natural heirs recover the proceeds from [Patricia]’s inherited property.” 17
language unambiguously provided for a specific devise of the Bank stock.
Connary pleaded his reformation claim in part C of Count 2 of the second
amended complaint as an alternative to his requests in part A and B for a
declaratory judgment that either (A) “the Trust is clear and unambiguous and
provides that the Connary heirs are entitled to the ‘Proceeds’ from the
involuntary sale of [the Bank stock]” or (B) the Trust is ambiguous and must be
construed to grant the proceeds of the sale to Connary. In his motion for partial
summary judgment on Count 2 of the complaint, Connary requested a
“declaratory judgment that the provisions of [the Trust] unambiguously
provide for a general devise of the [Bank stock].” Connary did not argue for
summary judgment on the reformation claim asserted in part C of Count 2, nor
did he present evidence through his statement of material facts that, if believed,
would demonstrate a “mistake of fact or law” necessitating reformation. 18-B
M.R.S. § 415 (2021) (“The court may reform the terms of a trust, even if
unambiguous, to conform the terms to the settlor’s intention if it is proved by
clear and convincing evidence that both the settlor’s intent and the terms of the
trust were affected by a mistake of fact or law, whether in expression or
inducement.” (emphasis added)). 18
[¶27] Shea acceded to Connary’s confinement of his motion for summary
judgment to parts A and B of Count 2. Specifically, Shea argued in a footnote in
his opposing memorandum that the reformation claim set forth in part C of
Count 2 should be dismissed for failure to state a claim upon which relief can
be granted, see M.R. Civ. P. 12(b)(6), or that Connary should “voluntarily
dismiss the[] reformation claim, but failing that, [Shea] would address it in a
subsequent summary judgment motion or at trial.” Given the parties’
agreement that part C of Count 2 was not a subject of Shea’s motion for
summary judgment, the summary judgment record did not include any
statements of fact or evidence related to reformation.
[¶28] The court ruled on Count 2 in its entirety, which is understandable
given the motion’s language seeking summary judgment “on Count II of the[]
Second Amended Complaint” without explicitly setting apart the reformation
claim in part C. In its summary judgment, the court “denied and dismissed” the
reformation claim presented in part C of Count 2, though the court ultimately
appears to have rejected Shea’s invitation to dismiss the claim for failing to state
a claim upon which relief can be granted. (Emphasis added.) Instead, the court
ultimately concluded, in denying Connary’s motion to strike the court’s ruling
on that claim, that the court’s construction of the Trust negated the existence of 19
a mistake of fact or law, and that summary judgment was therefore appropriate.
See 18-B M.R.S. § 415.
[¶29] By statute, however, a “court may reform the terms of a trust, even
if unambiguous, to conform the terms to the settlor’s intention if it is proved by
clear and convincing evidence that both the settlor’s intent and the terms of the
trust were affected by a mistake of fact or law, whether in expression or
inducement.” Id. (emphasis added). Thus, the court’s conclusion that the Trust
language was clear and plain in making a specific devise of the stock does not,
as a matter of law, preclude reformation. See id.; see also M.R. Civ. P. 56(c).
There may be facts extrinsic to the Trust that demonstrate a mistake of fact or
law necessitating reformation. See 18-B M.R.S. § 415. Because the parties
agreed that the reformation issue was not before the court for purposes of
summary judgment, they did not present facts on the claim, and the court was
not in a position to conclude, as a matter of law, that there were no genuine
issues of material fact on the issue of reformation and that Shea was entitled to
summary judgment as a matter of law. See M.R. Civ. P. 56(c).
[¶30] We therefore vacate the judgment as to the reformation claim
alleged in part C of Count 2 and remand that claim for further proceedings. 20
The entry is:
Judgment on parts A and B of Count 2 affirmed. Judgment on part C of Count 2 vacated and remanded for further proceedings consistent with this opinion.
Jeremy W. Dean, Esq., Portland, and Eric R. Clark, Esq. (orally), Clark & Associates, Attorneys, Eagle, Idaho, for appellants Robert L. Connary et al.
Daniel A. Nuzzi, Esq., and Eamonn R.C. Hart, Esq. (orally), Brann & Isaacson, Lewiston, for appellees Richard A. Shea et al.
Cumberland County Superior Court docket number CV-2019-39 FOR CLERK REFERENCE ONLY