MICHAEL J. FERRI, trustee,  & others
NANCY POWELL-FERRI & another.
Heard: November 8, 2016.
of a question of law to the Supreme Judicial Court by the
Connecticut Supreme Court.
Charles L. Solomont (Nathaniel Bruhn also present) for the
Jeffrey J. Mirman for Paul John Ferri, Jr.
Kenneth Walton (Patricia B. Gary also present) for Nancy
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, &
Budd, JJ. 
case we are asked to answer three questions certified to us
by the Connecticut Supreme Court concerning the authority of
a trustee to distribute (i.e., to decant) substantially all
of the assets of an irrevocable trust into another trust. The
questions, arising out of divorce proceedings pending in
Connecticut between Nancy Powell-Ferri and her husband Paul
John Ferri, Jr., the beneficiary of a Massachusetts
irrevocable trust, are as follows:
"1. Under Massachusetts law, did the terms of the Paul
John Ferri, Jr. Trust (1983 Trust) . . . empower its trustees
to distribute substantially all of its assets (that is, to
decant) to the Declaration of Trust for Paul John Ferri, Jr.
"2. If the answer to question 1 is 'no, ' should
either 75% or 100% of the assets of the 2011 Trust be
returned to the 1983 Trust to restore the status quo prior to
"3. Under Massachusetts law, should a court, in
interpreting whether the 1983 Trust's settlor intended to
permit decanting to another trust, consider an affidavit of
the settlor . . ., offered to establish what he intended when
he created the 1983 Trust?"
reasons we discuss, we answer the first question and third
questions yes, and do not answer the second question.
Facts and procedural history.
recite the relevant facts presented in the Connecticut
Supreme Court's statement of facts for certification to
Paul John Ferri, Jr. Trust, dated June 24, 1983 (1983 Trust),
was settled by Paul J. Ferri for the sole benefit of his son,
Paul John Ferri, Jr. (Ferri Jr. or beneficiary), when Ferri
Jr. was eighteen years old. The trust was created in
Massachusetts and is governed by Massachusetts law.
1983 Trust establishes two methods by which trust assets are
distributed to the beneficiary. First, the trustee may
"pay to or segregate irrevocably" trust assets for
the beneficiary. Second, after the beneficiary reaches the
age of thirty-five, he may request certain withdrawals of up
to fixed percentages of trust assets, increasing from
twenty-five per cent of the principal at age thirty-five to
one hundred per cent after age forty-seven.
Jr. and Powell-Ferri were married in 1995. In October, 2010,
Powell-Ferri filed an action in the Connecticut Superior
Court to dissolve the marriage. See Ferri v.
Powell-Ferri, 317 Conn. 223, 225 (2015). In March, 2011,
the then trustees of the 1983 Trust, Michael J. Ferri and
Anthony J. Medaglia, created the Declaration of Trust for
Paul John Ferri, Jr. (2011 Trust). They subsequently
distributed substantially all of the assets of the 1983 Trust
to themselves as trustees of the 2011 Trust.
the 1983 Trust, Ferri Jr. is the sole beneficiary of the 2011
Trust. The 2011 Trust is a spendthrift trust; under paragraph
1(a), the trustee exercises complete authority over whether
and when to make payments to the beneficiary, if at all, and
the beneficiary has no power to demand payment of trust
assets. The spendthrift provision, in paragraph 4(b), bars
the beneficiary from transferring or encumbering his interest
and, as with similar provisions in the 1983 Trust, shields
the trust from the beneficiary's creditors. The trustees
decanted the 1983 Trust out of concern that Powell-Ferri
would reach the assets of the 1983 Trust as a result of the
divorce action. They did so without informing the beneficiary
and without his consent.
time of the decanting, pursuant to art. II.B of the 1983
Trust, Ferri Jr. had a right to request a withdrawal of up to
seventy-five per cent of the principal. During the course of
this action, his vested interest matured into one hundred per
cent of the assets the 1983 Trust.
August, 2011, the plaintiff trustees of the 1983 Trust and
the 2011 Trust (trustees) commenced a declaratory judgment
action against Powell-Ferri and Ferri Jr. in the Connecticut
Superior Court, seeking a declaration that (1) the trustees
validly exercised their powers under the 1983 Trust to
distribute and assign the property and assets held by them as
trustees of the 1983 Trust to the 2011 Trust; and (2)
Powell-Ferri has no right, title, or interest, directly or
indirectly, in or to the 2011 Trust or its assets, principal,
income, or other property. Powell-Ferri moved for summary
judgment, and the trustees file a cross motion. In support of
their cross motion, to demonstrate the intent of the settlor
of the 1983 Trust, the trustees filed an affidavit from Paul
J. Ferri, Sr., dated July 11, 2012.
August, 2013, the trial judge granted Powell-Ferri's
motion for summary judgment and denied the trustees'
cross motion, after first having allowed Powell-Ferri's
motion to strike the affidavit. In a subsequent memorandum of
decision explaining the reasons for the allowance of
Powell-Ferri's motion, and awarding specific remedies,
the judge ordered restoration of seventy-five per cent of the
assets of the 2011 Trust, as they were held in the 1983
Trust; an accounting of the 2011 Trust from inception to the
date of restoration; and an award of reasonable
attorney's fees to Powell-Ferri.
interpretation of a written trust is a matter of law to be
resolved by the court. See Mazzola v. Myers, 363
Mass. 625, 633 (1973). The rules of construction of a
contract apply similarly to trusts; where the language of a
trust is clear, we look only to that plain language. See
Harrison v. Marcus, 396 Mass. 424, 429 (1985).
"Determining the existence of a contract ambiguity
[also] presents a question of law for the court; when a trial
judge undertakes the interpretation of an unambiguous
contract, the judge's ruling is subject to plenary review
on appeal." Bank v. Thermo Elemental Inc., 451
Mass. 638, 648 (2008), and cases cited.
deciding whether there is ambiguity, "the court must
first examine the language of the contract by itself,
independent of extrinsic evidence concerning the drafting
history or the intention of the parties." Id.
at 648, citing General Convention of the New Jerusalem in the
U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832,
835-836, 838 (2007) (analyzing indemnity provision in lease
of real property held in trust). Language is ambiguous
"where the phraseology can support a reasonable
difference of opinion as to the meaning of the words employed
and the obligations undertaken." Bank, 451
Mass. at 648, quoting President & Fellows of Harvard
College v. PECO Energy Co., 57 Mass.App.Ct. 888, 896
(2003). If a court concludes that such ambiguity exists,
"[w]hen interpreting trust language, . . . we do not
read words in isolation and out of context. Rather we strive
to discern the settlor's intent from the trust instrument
as a whole and from the circumstances known to the settlor at
the time the instrument was executed." Hillman v.
Hillman, 433 Mass. 590, 593 (2001), citing Pond v.
Pond, 424 Mass. 894, 897 (1997).
is fundamental that a trust instrument must be construed to
give effect to the intention of the donor as ascertained from
the language of the whole instrument considered in the light
of circumstances known to the donor at the time of its
execution." Watson v. Baker, 444 Mass. 487, 491
(2005), quoting Powers v. Wilkson, 399 Mass. 650,
653 (1987). "[E]xtrinsic evidence may be admitted when a
contract is ambiguous on its face or as applied to the
subject matter. The initial ambiguity must exist, however
.... [E]xtrinsic evidence cannot be used to contradict or
change the written terms, but only to remove or to explain
the existing uncertainty or ambiguity." General
Convention of the New Jerusalem in the U.S. of Am.,
Inc., 449 Mass. at 836. "In determining the meaning
of a contractual provision, the court will prefer an
interpretation 'which gives a reasonable, lawful and
effective meaning to all manifestations of intention, rather
than one which leaves a part of those manifestations
unreasonable, unlawful or [of] no effect'" (citation
omitted) Siebe, Inc. v. Louis M. Gerson
Co., 74 Mass.App.Ct. 544, 550 n.13 (2009).
first authorized the trustee of an irrevocable trust to
decant a trust in Morse v. Kraft, 466 Mass. 92, 99
(2013) . In that case, we allowed the trustee to
decant four subtrusts into four new subtrusts, one for each
of the named beneficiaries, who had been minors when the
first trust was created and who had reached the age of
majority before the trust was decanted. Id. at 93.
In doing so, we relied on specific language in the trust,
which did not explicitly authorize decanting, and the
trustee's broad powers under that trust instrument.
Id. at 97, 99. We declined, however, to recognize an
inherent power allowing a trustee to decant irrespective of