Mond v. Pitts

90 Mass.App.Ct. 1102

56 N.E.3d 894 (Table)

Terry K. MOND & another¹ temporary coexecutors²

v.Lorenzo PITTS, Jr. & another.³

No. 15–P–686.

Appeals Court of Massachusetts.

August 19, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Lorenzo Pitts, Jr. (Lorenzo, Jr.) and Robert Pitts (Robert) appeal from a judgment issued by a judge of the Land Court holding that certain properties in the Roxbury section of Boston passed to the heirs of Lorenzo Pitts, Sr. (Lorenzo, Sr.) free of trust. Because we conclude the trusts at issue unambiguously provide for distribution to Lorenzo, Jr. and Robert, we reverse.

The decedent, Lorenzo, Sr., created two trusts in the 1980's, the Esperanza Trust dated February 13, 1980, and the Fort Hill Trust dated December 1, 1984. Each trust held one or more parcels of real estate. Both are for a term of years, the Esperanza Trust for a term of forty years, and the Fort Hill Trust for a term of thirty years. Both trusts, however, call for termination of the trust upon the death of the settlor, Lorenzo, Sr., if he is the sole trustee of the trust.

Paragraph 7 of the Esperanza Trust identifies the beneficiary as Lorenzo, Sr., but further provides that if he is not living, “then the beneficiaries shall be Lorenzo Pitts, Jr. and Robert Pitts, in equal shares, ... or to the survivor of them if either shall have died.” Paragraph 3 names Lorenzo, Sr. and Sondra Brick as the trustees, and paragraph 4 provides that if one of them dies or resigns, the surviving trustee shall become the sole trustee, but, if a certificate declaring that the surviving trustee has resigned, died, or otherwise cannot act, is recorded in the registry of deeds, the trust terminates. Paragraph 13 provides that at termination, “the Trustee shall sell or transfer the Trust property and divide the proceeds thereof among the beneficiaries if living, or to their heirs at law, in proportion to their respective interests.”

The Fort Hill Trust has somewhat different provisions but similar effect. Paragraph 7 provides that Lorenzo, Sr. and Sondra Brick hold the beneficial interest (ninety-nine percent and one percent, respectively) but further provides that “[i]f Lorenzo Pitts[, Sr.] is not living, then the beneficiaries shall be Lorenzo Pitts, Jr., and Robert Pitts, in equal shares, share and share alike or to the survivors of them if either shall have died.” Paragraph 3 identifies Lorenzo, Sr. as the sole trustee, and paragraph 4 provides that if the trustee becomes unable to act, resigns or dies, upon recording a “a certificate signed and acknowledged by the surviving beneficiaries setting forth such facts,” the trust shall terminate. Paragraph 13 of the Fort Hill Trust contains the same instruction for distribution upon termination as paragraph 13 of the Esperanza Trust.

In 1997, Sondra Brick resigned as trustee and Lorenzo, Sr. became the sole trustee and sole lifetime beneficiary of the Esperanza Trust. On April 26, 2005, Sondra assigned her one percent interest in the Fort Hill Trust to Lorenzo, Sr., and Lorenzo, Sr. thereby became its sole trustee and sole lifetime beneficiary. Lorenzo, Sr. died in 2009. He did not resign as trustee or otherwise purport to terminate the trusts or convey the trusts' property before his death.

The judge concluded that paragraphs 7 and 13 are inconsistent, paragraph 7 identifying the residuary beneficiaries in the event of Lorenzo, Sr.'s death as Lorenzo, Jr. and Robert, and paragraph 13 identifying them as Lorenzo, Sr.'s heirs. Finding a patent ambiguity, the judge conducted a trial focused on extrinsic evidence of the facts known to Lorenzo, Sr. and his intentions. He concluded that paragraph 13 of the trusts required distribution to Lorenzo, Sr .'s heirs. In addition, he concluded that the trusts had ceased to exist by operation of the doctrine of merger when Lorenzo, Sr. became the sole lifetime beneficiary and trustee of each trust.

Discussion. “[T]he interpretation of a written trust is a matter of law to be resolved by the court.... A trust should be construed to give effect to the intention of the settlor as ascertained from the language of the whole instrument considered in the light of the attendant circumstances.” Sullivan v. O'Connor, 81 Mass.App.Ct. 200, 205 (2012), quoting from Schroeder v. Danielson, 37 Mass.App.Ct. 450, 453 (1994) (other quotation omitted). “We are in as good a position as the [trial] judge to” interpret the trust under this standard. Ciampa v. Bank of America, 88 Mass.App.Ct. 28, 31 (2015).

Neither party contests that both trusts provide that the trusts shall terminate upon the recording of a certificate of Lorenzo, Sr.'s death. Paragraph 7 of both trusts identifies the beneficiaries following the death of Lorenzo, Sr. as Lorenzo, Jr. and Robert. Paragraph 13 of both trusts provides that upon termination, the proceeds shall be divided among the “beneficiaries if living.” Both Lorenzo, Jr. and Robert were living when Lorenzo, Sr. died. Viewing each instrument as a whole, we interpret paragraphs 7 and 13 together as clearly providing that the trust property is to be distributed to Lorenzo, Jr. and Robert. Given the definitions of “beneficiary” or “beneficiaries” contained in paragraph 7 of each trust, there is no support for interpreting paragraph 13 as requiring or allowing distribution to Lorenzo, Sr.'s heirs following termination of the trusts due to his death. The reference to the beneficiaries' heirs in paragraph 13 cannot mean Lorenzo, Sr.'s...