Kirschbaum v. Wennett
Kirschbaum v. Wennett
Opinion of the Court
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
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.
“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 transfer, 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. . . . His clear intention to amend his estate documents, combined with the presence of the Trustees, demonstrates his intent to make the amendment a finality.
“Thirdly, both parties contend that because the execution of amendment occurred through Wennett, delivery must be in accord with the established third-party delivery standard. Silbert, 314 Mass. at 409. See also Papale-Keefe v. Altomare, 38 Mass. App. Ct. 308, 308-[314] (1995). In Silbert, the settlor executed an irrevocable indenture of trust naming his brother as trustee, with his wife as beneficiary [of the settlor’s insurance policies,] but then amended the document by changing the beneficiary to his brother. [314 Mass.] at 406-407. The settlor retained one copy of the amendment and sent the other to the assurance society with a letter requesting the change in beneficiary.*812 Id. [at 407]. However, the settlor never delivered the trust indenture directly to the trustee, nor did the trustee have any knowledge of the alteration. Id. at 408. The court opined that under these circumstances there is good delivery ‘only if the grantor or promisor “then makes manifest to the third person his intention that the third person shall hold the instrument on the grantee’s or promisee’s behalf and the third person accepts it on these terms” [citation omitted].’ Id. at 409; Papale-Keefe, 38 Mass. App. Ct. at [313]. Based upon that declaration the court concluded that there was ‘an entire absence of evidence that the assurance society in receiving the assignment acted or purported to act in behalf of the trustee or of the beneficiaries of the trust.’ Silbert, 314 Mass. at 409. Papale-Keefe, 38 Mass. App. Ct. at 309-310 (finding that the third party never accepted delivery for the trustee and that the trustee was never notified of the funding document).
“The case at bar conforms to the established third-party delivery standard. The actions of Benjamin and the Trustees lie in direct contrast to their counterparts in Silbert and Papale-Keefe, where the court held that delivery was not effective because the trustees lacked any involvement and had a complete lack of knowledge of the documents attempting to be delivered. Here, both Trustees were actually present when the amendment was executed. Furthermore, the Trustees were involved in the process and knew the reasoning and substance of the amendment. Thus, the agreement of Benjamin and both Trustees for Wennett, as a third person, to hold the amendment demonstrated the settlor’s intention that the third person shall hold the instrument on the Trustees’ behalf.
“Therefore, in this case where the settlor has a clear intent to amend the revocable Trust and the Trustees are present, involved in the execution of that document, and accept a third party holding the document, the amendment is deposited or delivered with the Trustees in conformity with the Trust provision. Hence, Defendants’ motion for summary judgment as to Count I is Allowed, while [Kirschbaum’s] cross motion for summary judgment is Denied.”
We add the following comments:
1. Kirschbaum’s conclusory contention that the judge erred in equating the terms “deposit” and “delivery” not only is unsupported by reasoned argument and relevant authority, contrary to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), but also is inconsistent with longstanding Massachusetts precedent, cited by the judge, holding that deposit connotes delivery, see, e.g., Crain v. Paine, 4 Cush. at 486 (dictum), and is inconsistent with the trust instrument itself, wherein the two terms are used indiscriminately and synonymously throughout.
2. Persuasive authorities not mentioned by the parties confirm the result. See Bogert, Trusts and Trustees § 147, at 60, 63 (2d rev. ed. 1979) (delivery “in the best modem usage means the manifestation of an intention that the instrument in question shall have operative effect. It does not necessarily refer to possession of the instrument or to transfer of the document from hand to hand. . . . Placing a third person in possession of the instrument . . . may show the necessary intent that the instrument shall have immediate operative effect”); Restatement (Third) of Trusts § 63 comment i (2003) (“If the terms of the trust reserve to the settlor a power to revoke or amend the trust exclusively by a particular procedure, the settlor can exercise the power only by substantial compliance with the method prescribed. Thus, if a settlor reserves the power to revoke the
3. Further supportive of the judge’s rulings are the well-established principles that a trustee may properly employ agents, including lawyers, and delegate the performance of ministerial acts and administrative details to them, and that such delegated acts are deemed to be the acts of the trustee. Under the decisions invoking those principles, the act of the trustees at issue here — authorizing an agent (Attorney Wennett)
4. Kirschbaum’s reliance on Phelps v. State St. Trust Co., 330 Mass. 511 (1953), for the proposition that a trustee cannot authorize a variance from strict compliance with the method of amendment provided in the trust instrument, is bootless, since here there was effective “deposit” and consequent compliance with the trust. Moreover, Phelps is entirely distinguishable, because the trust there required that the written instrument be “acknowledged and delivered to the trustees,” but the purported amendments as delivered to the trustees had not been acknowledged by the settlor. Id. at 512. The requirement of acknowledgment — i.e., a certificate by an empowered public officer, attached to a written instrument, stating that the maker of the instrument has sworn to the officer that he executed it as his own free act and deed — is no mere administrative detail blit rather is a fundamental evidentiary matter, because it “furnishes formal proof of the authenticity of the execution of the instrument.” McOuatt v. McOuatt, 320 Mass. 410, 413 (1946). Thus, in contrast to the situation here, in Phelps the lack of the required acknowledgment, in the absence of other evidence, precluded a finding that the settlor had freely and voluntarily executed the amendment.
5. Finally, Kirschbaum asserts that the judge erred in denying her motion to amend her complaint a second time
Judgment affirmed.
Kirschbaum’s first amended complaint had alternatively alleged the breach of a supposed 1994 oral contract between Benjamin and Eleanor to make Kirschbaum irrevocably a twenty-five percent beneficiary of Benjamin’s trust in consideration of Eleanor’s transferring her one-half interest in the family house to Benjamin in 1994, and a count in quantum meruit based on the same allegations. Because we conclude that the judge also correctly granted summary judgment for the defendants on these counts — on the bases that there
The one case mentioned by Kirschbaum in connection with this contention, Gloucester Mut. Fishing Ins. Co., v. Hall, 210 Mass. 332 (1911), contradicts her argument. It held that “depositing” with the post office a motion required by court rule to be “delivered” to opposing counsel constituted “delivery,” a term that did “not necessarily import an actual physical tradition of possession from one hand to another.” Id. at 334-335. See the essentially equivalent meaning for the two terms in The American Heritage College Dictionary of the English Language 368, 373 (3d ed. 1997) (“deliver . . . [t]o surrender [someone or something] to another; hand over”; “deposit . . . [t]o give over or entrust for safekeeping”).
Relying upon Restatement (Second) of Agency § 392 (1958), which requires an agent acting for two principals to disclose all material facts relevant to his dual representation to both parties, Kirschbaum argues that Wennett could not simultaneously act as agent for Benjamin and for the trustees because he failed to procure both parties’ consent to his dual agency. Her argument is without merit on the facts. Explicit disclosure of any facts relevant to the parties in this case would have been redundant, as Benjamin and the trustees had all been participants in the execution of the amendment and all had acquiesced to Wennett’s proposal to hold the documents, as they had to his custody of earlier versions of Benjamin’s trust and will. Wennett possessed no additional facts that might have affected the judgment of either Benjamin or the trustees and, thus, further disclosure was unnecessary. Moreover, the Restatement expressly provides that no disclosure is necessary when the principals’ actions manifest that they are aware of the relevant facts.
The “second amended complaint” sought to add a proposed “new” count for “alternative declaratory relief” based on the supposed discovery of new facts indicating the alleged invalidity of an earlier (1994) trust amendment upon which the March 2, 2000, amendment was based, an invalidity also founded on the claimed failure to have properly “deposited” that 1994 amendment with the trustees.
Reference
- Full Case Name
- Nancy Kirschbaum, individually & as administratrix v. Richard W. Wennett, coexecutor, & others
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- 7 cases
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- Published