The MASSACHUSETTS CO., INC. v. Berger

Massachusetts Appeals Court

The MASSACHUSETTS CO., INC. v. Berger

305 N.E.2d 123, 1 Mass. App. Ct. 624, 1973 Mass. App. LEXIS 516

CourtMassachusetts Appeals Court

DecidedDecember 26, 1973

StatusPublished

Cited by4 cases

This text of 305 N.E.2d 123 (The MASSACHUSETTS CO., INC. v. Berger) 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.

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The MASSACHUSETTS CO., INC. v. Berger, 305 N.E.2d 123, 1 Mass. App. Ct. 624, 1973 Mass. App. LEXIS 516 (Mass. Ct. App. 1973).

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Opinions

Armstrong, J.

This petition for instructions was brought by the trustee of two revocable inter vivos trusts located in Massachusetts and expressly made subject to administration in accordance with the laws of Massachusetts. The settlor, who was a Florida domiciliary, was declared incompetent by a Florida court, which appointed a Florida guardian, and which directed the guardian to “do such acts or execute such documents as may be necessary” to exercise the settlor’s power to revoke. The Florida guardian by letter to the trustee purported to revoke the trusts. The trustee replied that the guardian should seek appointment as guardian in Massachusetts under G. L. c. 201, § 30. The Florida guardian instead began a proceeding under G. L. c. 204, § 3, for a license to receive the trust property, but the settlor died before that proceeding concluded. The rival claimants are beneficiaries under the settlor’s will, who contend that the letter of revocation had the effect of terminating the trusts, and beneficiaries under the trusts, who contend that the revocation by the Florida guardian was of no legal effect. We are of the opinion that the purported revocation was of no effect. Whatever power a guardian might have had to revoke these trusts must derive from G. L. c. 201, § 45. Parry v. Parry, 316 Mass. 692, 695-696 (1944). The Florida guardian could derive no authority from § 45 until he had been appointed guardian under G. L. c. 201, § 30, for § 45 does not by its terms confer any power on a foreign guardian and “at common law the authority of a guardian ... is local and is restricted to the limits of the State in which he is appointed.” Gardiner v. [626]*626Thorndike, 183 Mass. 81, 82 (1903). The proceeding begun under G. L. c. 204, § 3, could confer no authority to revoke.

Decree affirmed.

Costs and expenses of this appeal to be in the discretion of the Probate Court.

This case was initially heard by a panel composed of Justices Rose, Goodman and Armstrong and was thereafter submitted on the record and briefs to the Chief Justice and Justice Keville, both of whom took part in this decision in accordance with the provisions of Rule 1:18 of this court. Justice Grant took no part in the consideration or decision of the case.

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Armstrong, J.

This petition for instructions was brought by the trustee of two revocable inter vivos trusts located in Massachusetts and expressly made subject to administration in accordance with the laws of Massachusetts. The settlor, who was a Florida domiciliary, was declared incompetent by a Florida court, which appointed a Florida guardian, and which directed the guardian to “do such acts or execute such documents as may be necessary” to exercise the settlor’s power to revoke. The Florida guardian by letter to the trustee purported to revoke the trusts. The trustee replied that the guardian should seek appointment as guardian in Massachusetts under G. L. c. 201, § 30. The Florida guardian instead began a proceeding under G. L. c. 204, § 3, for a license to receive the trust property, but the settlor died before that proceeding concluded. The rival claimants are beneficiaries under the settlor’s will, who contend that the letter of revocation had the effect of terminating the trusts, and beneficiaries under the trusts, who contend that the revocation by the Florida guardian was of no legal effect. We are of the opinion that the purported revocation was of no effect. Whatever power a guardian might have had to revoke these trusts must derive from G. L. c. 201, § 45. Parry v. Parry, 316 Mass. 692, 695-696 (1944). The Florida guardian could derive no authority from § 45 until he had been appointed guardian under G. L. c. 201, § 30, for § 45 does not by its terms confer any power on a foreign guardian and “at common law the authority of a guardian ... is local and is restricted to the limits of the State in which he is appointed.” Gardiner v. [626]*626Thorndike, 183 Mass. 81, 82 (1903). The proceeding begun under G. L. c. 204, § 3, could confer no authority to revoke.

Decree affirmed.

Costs and expenses of this appeal to be in the discretion of the Probate Court.

This case was initially heard by a panel composed of Justices Rose, Goodman and Armstrong and was thereafter submitted on the record and briefs to the Chief Justice and Justice Keville, both of whom took part in this decision in accordance with the provisions of Rule 1:18 of this court. Justice Grant took no part in the consideration or decision of the case.

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305 N.E.2d 123, 1 Mass. App. Ct. 624, 1973 Mass. App. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-massachusetts-co-inc-v-berger-massappct-1973.

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