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
24-P-582
SAI DARAVANH
vs.
REBECCA AMARAL, conservator.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff filed a complaint in equity in the Probate
and Family Court against the defendant for (1) money had and
received and (2) gift causa mortis. The plaintiff appeals from
the dismissal of her claim for money had and received2 and the
denial of her motion for summary judgment. We affirm the
dismissal and thus do not reach the issue of summary judgment.
Background. We recite the undisputed facts, drawn from the
complaint and elsewhere in the record. The plaintiff lived with
her partner, Donald J. Swanbon, from 2012 until his death in
1 Of Donald J. Swanbon.
2The plaintiff does not raise the issue of the dismissal of her second claim, gift causa mortis, so we do not address it. 2023. In 2014, Swanbon listed the plaintiff as his sole
beneficiary on his Individual Retirement Account (IRA), which
was managed by Edward Jones Investments (Edward Jones). In
February 2022, the defendant was appointed Swanbon's
conservator. Beginning in or around October of that year, the
defendant began the process of withdrawing $75,000 in funds from
Swanbon's IRA to cover home hospice care and medical expenses.
On December 30, 2022, Edward Jones initiated the transfer of
funds to the defendant's conservator account with Rollstone Bank
& Trust (Rollstone account).
On January 1, 2023, before the funds were credited into the
defendant's account, much less expended for Swanbon's care,
Swanbon passed away at his home. Two days later, on January 3,
2023, the funds were credited into the Rollstone account. A
judge of the Probate and Family Court appointed a temporary
special personal representative for Swanbon's estate, and the
defendant completed a first and final accounting of all assets
to be transferred to the estate. The remaining balance of
Swanbon's IRA was paid directly to the plaintiff as the
account's beneficiary.
The plaintiff, claiming that the unspent $75,000 held in
the Rollstone account belonged to her as the beneficiary of the
IRA, demanded that the defendant turn over the funds directly to
her. When this did not occur, the plaintiff filed suit against
2 the defendant in equity for (1) money had and received and
(2) gift causa mortis. The plaintiff moved for summary judgment
pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), seeking
title to the $75,000 that had been withdrawn from the IRA to
cover Swanbon's hospice care, but, due to his death, was never
expended. The defendant subsequently filed a motion to dismiss
the complaint for failure to state a claim upon which relief can
be granted pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974), and for failure to include Swanbon's estate as a
necessary party pursuant to Mass. R. Civ. P. 12 (b) (7), 365
Mass. 754 (1974).
After a hearing, the judge denied the plaintiff's motion
for summary judgment and allowed the defendant's motion to
dismiss the complaint without prejudice. In a written decision,
the judge reasoned that the defendant's fiduciary duty and
powers as conservator had terminated on Swanbon's death and, as
a result, the defendant had no authority over the funds.
Moreover, the judge found that, although the disbursed funds
were never spent for hospice care, they were still withdrawn
from the Edward Jones account while Swanbon was alive, and thus
not subject to disbursement to the plaintiff. Finally, the
judge reasoned that while the plaintiff may be able to establish
herself as a creditor against the estate, the amended complaint
3 sought judgment against the past conservator (the defendant) and
not the personal representative of Swanbon's estate.
Discussion. We first review the judge's dismissal of the
plaintiff's complaint pursuant to Mass. R. Civ. P. 12 (b) (7)
for failure to include Swanbon's estate as a necessary party.3 A
party is considered necessary when, in their absence, "complete
relief cannot be accorded among those already parties."
Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974). "Generally, a
court will not proceed to a final determination without an
indispensable party." Guardianship of Wilson, 496 Mass. 60, 64
(2025). "Parties are indispensable when their interests in the
subject matter of the suit, and in the relief sought, are so
bound up with that of the other parties, that their legal
presence as parties to the proceeding is an absolute necessity,
without which the court cannot proceed" (quotation and citation
omitted). Id.
Here, the relief the plaintiff seeks would affect the
rights of nonparties significantly, such that their presence in
the proceeding is an absolute necessity. The factual allegation
3 The plaintiff also argues that the judge erred in dismissing her complaint under Mass. R. Civ. P. 12 (b) (7) because the special personal representative cannot be a necessary party to the action when his powers over the estate were limited and he never entered an appearance on the complaint. This argument is not persuasive because the person identified in the judge's order represented Swanbon's estate, not the temporarily appointed special personal representative.
4 that forms the basis for the plaintiff's theory of recovery is
that Swanbon died prior to the disbursal of the funds from the
IRA account. She argues that she is "entitled thereto" to the
funds, and that the defendant should have transferred them to
her pursuant to G. L. c. 190B, § 5-424 (e).4 That subsection
states, "If a protected person dies, the conservator shall . . .
retain the estate for delivery to a duly appointed personal
representative of the decedent or other persons entitled
thereto." G. L. c. 190B, § 5-424 (e).5
Our courts have not had occasion to determine who qualifies
as a "person entitled thereto," under the statute, but we need
not reach this question. In order to determine whether the
defendant was required to deliver the funds in question to the
4 We note that the plaintiff, who was represented by counsel, entered into a binding agreement with Swanbon's heirs regarding the division of the estate. The agreement was detailed and specific, and it included the resolution of such items as the distribution of the proceeds from the sale of Swanbon's home, reimbursement for funeral expenses, and title to personal items and vehicles.
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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
24-P-582
SAI DARAVANH
vs.
REBECCA AMARAL, conservator.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff filed a complaint in equity in the Probate
and Family Court against the defendant for (1) money had and
received and (2) gift causa mortis. The plaintiff appeals from
the dismissal of her claim for money had and received2 and the
denial of her motion for summary judgment. We affirm the
dismissal and thus do not reach the issue of summary judgment.
Background. We recite the undisputed facts, drawn from the
complaint and elsewhere in the record. The plaintiff lived with
her partner, Donald J. Swanbon, from 2012 until his death in
1 Of Donald J. Swanbon.
2The plaintiff does not raise the issue of the dismissal of her second claim, gift causa mortis, so we do not address it. 2023. In 2014, Swanbon listed the plaintiff as his sole
beneficiary on his Individual Retirement Account (IRA), which
was managed by Edward Jones Investments (Edward Jones). In
February 2022, the defendant was appointed Swanbon's
conservator. Beginning in or around October of that year, the
defendant began the process of withdrawing $75,000 in funds from
Swanbon's IRA to cover home hospice care and medical expenses.
On December 30, 2022, Edward Jones initiated the transfer of
funds to the defendant's conservator account with Rollstone Bank
& Trust (Rollstone account).
On January 1, 2023, before the funds were credited into the
defendant's account, much less expended for Swanbon's care,
Swanbon passed away at his home. Two days later, on January 3,
2023, the funds were credited into the Rollstone account. A
judge of the Probate and Family Court appointed a temporary
special personal representative for Swanbon's estate, and the
defendant completed a first and final accounting of all assets
to be transferred to the estate. The remaining balance of
Swanbon's IRA was paid directly to the plaintiff as the
account's beneficiary.
The plaintiff, claiming that the unspent $75,000 held in
the Rollstone account belonged to her as the beneficiary of the
IRA, demanded that the defendant turn over the funds directly to
her. When this did not occur, the plaintiff filed suit against
2 the defendant in equity for (1) money had and received and
(2) gift causa mortis. The plaintiff moved for summary judgment
pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), seeking
title to the $75,000 that had been withdrawn from the IRA to
cover Swanbon's hospice care, but, due to his death, was never
expended. The defendant subsequently filed a motion to dismiss
the complaint for failure to state a claim upon which relief can
be granted pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974), and for failure to include Swanbon's estate as a
necessary party pursuant to Mass. R. Civ. P. 12 (b) (7), 365
Mass. 754 (1974).
After a hearing, the judge denied the plaintiff's motion
for summary judgment and allowed the defendant's motion to
dismiss the complaint without prejudice. In a written decision,
the judge reasoned that the defendant's fiduciary duty and
powers as conservator had terminated on Swanbon's death and, as
a result, the defendant had no authority over the funds.
Moreover, the judge found that, although the disbursed funds
were never spent for hospice care, they were still withdrawn
from the Edward Jones account while Swanbon was alive, and thus
not subject to disbursement to the plaintiff. Finally, the
judge reasoned that while the plaintiff may be able to establish
herself as a creditor against the estate, the amended complaint
3 sought judgment against the past conservator (the defendant) and
not the personal representative of Swanbon's estate.
Discussion. We first review the judge's dismissal of the
plaintiff's complaint pursuant to Mass. R. Civ. P. 12 (b) (7)
for failure to include Swanbon's estate as a necessary party.3 A
party is considered necessary when, in their absence, "complete
relief cannot be accorded among those already parties."
Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974). "Generally, a
court will not proceed to a final determination without an
indispensable party." Guardianship of Wilson, 496 Mass. 60, 64
(2025). "Parties are indispensable when their interests in the
subject matter of the suit, and in the relief sought, are so
bound up with that of the other parties, that their legal
presence as parties to the proceeding is an absolute necessity,
without which the court cannot proceed" (quotation and citation
omitted). Id.
Here, the relief the plaintiff seeks would affect the
rights of nonparties significantly, such that their presence in
the proceeding is an absolute necessity. The factual allegation
3 The plaintiff also argues that the judge erred in dismissing her complaint under Mass. R. Civ. P. 12 (b) (7) because the special personal representative cannot be a necessary party to the action when his powers over the estate were limited and he never entered an appearance on the complaint. This argument is not persuasive because the person identified in the judge's order represented Swanbon's estate, not the temporarily appointed special personal representative.
4 that forms the basis for the plaintiff's theory of recovery is
that Swanbon died prior to the disbursal of the funds from the
IRA account. She argues that she is "entitled thereto" to the
funds, and that the defendant should have transferred them to
her pursuant to G. L. c. 190B, § 5-424 (e).4 That subsection
states, "If a protected person dies, the conservator shall . . .
retain the estate for delivery to a duly appointed personal
representative of the decedent or other persons entitled
thereto." G. L. c. 190B, § 5-424 (e).5
Our courts have not had occasion to determine who qualifies
as a "person entitled thereto," under the statute, but we need
not reach this question. In order to determine whether the
defendant was required to deliver the funds in question to the
4 We note that the plaintiff, who was represented by counsel, entered into a binding agreement with Swanbon's heirs regarding the division of the estate. The agreement was detailed and specific, and it included the resolution of such items as the distribution of the proceeds from the sale of Swanbon's home, reimbursement for funeral expenses, and title to personal items and vehicles. In that agreement the plaintiff agreed that if the current motion for summary judgment was not allowed, "any monies that remain in question and retrieved will be considered property of the estate. The estate may become a party to that action if it so chooses."
5 We note here the paradox inherent in the plaintiff's argument. Subsection (e) gives the conservator the obligation to deliver the estate. If the funds became part of the estate, they were no longer part of the IRA, and the plaintiff had no claim to them. If the funds remained outside the estate, the defendant had no authority to deliver them to anyone under § 5- 424 (e).
5 plaintiff, the lower court would first need to determine whether
the plaintiff was "entitled" to them.6 This determination would
affect the rights of the estate, which presently stands to
receive the funds. As such, it is a necessary party to any such
action. See Guardianship of Wilson, 496 Mass. at 64.7 Complete
relief cannot be accorded among the current parties because the
plaintiff's dispute is with the estate, while the defendant has
no legal interest in the funds. See G. L. c. 190B, § 429 (d).8
Next, the plaintiff claims that dismissal was not warranted
because the defendant improperly altered the estate plan without
permission from the Probate and Family Court when she withdrew
the funds from the IRA. She argues that G. L. c. 190B, § 5-426,
required the conservator to seek the Probate Court's approval
before transferring the funds from Swanbon's IRA. We are not
persuaded. General Laws c. 190B, § 5-426, merely provides that,
in exercising her authority over a protected person's assets
6 Nothing in the language of the statute suggests a conservator has the power to determine who is entitled to a decedent's property where title is disputed.
7 To the extent the plaintiff argues the transaction from Edward Jones to the defendant's Rollstone account should not have been completed due to Swanbon's death, her dispute would alternatively be with Edward Jones, rather than the defendant. Under that theory, Edward Jones would be a necessary party.
8 Because we affirm the dismissal pursuant to Mass. R. Civ. P. 12 (b) (7), we need not address the question of whether the plaintiff stated a claim under Mass. R. Civ. P. 12 (b) (6).
6 pursuant to G. L. c. 190B, § 5-424 (a)-(b), "the conservator
. . . shall take into account any estate plan . . . and any
contract." In her complaint, the plaintiff made no allegation
that the defendant's initiation of the withdrawal was improper
while Swanbon remained alive. Indeed, the complaint
specifically acknowledges the transaction was lawful. Any
argument that the defendant impermissibly altered the estate
plan in withdrawing the funds is therefore waived. Century Fire
& Marine Ins. Corp. v. Bank of New England-Bristol County, N.A.,
405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued
below may not be argued for the first time on appeal"). To the
extent the plaintiff argues the defendant altered the estate
plan by failing to return the funds to the IRA after Swanbon's
death, that argument is misplaced. General Laws c. 190B, § 5-
426, governs the exercise of a conservator's powers under G. L.
c. 190B, § 5-424 (a)-(b), whereas G. L. c. 190B, § 5-424 (e),
governs a conservator's duties upon the death of the protected
person.
Even if we were to reach the merits of the plaintiff's
argument, she would not prevail. Under G. L. c. 190B, § 5-
424 (a), a conservator has the statutory authority to " expend or
distribute income or principal of the estate without court
authorization or confirmation for the support, education, care,
or benefit of the protected person." It is undisputed that the
7 defendant withdrew the $75,000 from Swanbon's IRA to cover
hospice care and medical expenses and did not remove or alter
the beneficiaries on the account. Although the funds were not
spent for their intended use (hospice care), the withdrawal was
a valid exercise of the defendant's authority under G. L.
c. 190B, § 5-424 (a).
In sum, the plaintiff failed to join necessary parties
pursuant to Mass. R. Civ. P. 12 (b) (7). Because relief cannot
be granted without the joinder of additional parties, dismissal
of the second amended complaint was warranted.9
Judgment affirmed.
By the Court (Meade, Neyman & Walsh, JJ.10),
Clerk
Entered: November 20, 2025.
9 We decline the defendant's request for fees pursuant to G. L. c. 190B, § 5-413, and G. L. c. 215, § 45. The question of whether Swanbon's estate has an obligation to pay the defendant's fees under G. L. c. 190B, § 5-413, is not relevant to the matter before us.
10 The panelists are listed in order of seniority.