Heard: May 3, 2017.
action commenced in the Essex Division of the Probate and
Family Court Department on August 23, 2013.
case was heard by Peter C. DiGangi, J.
P. Lordan, Jr., (Anthony S. Porcello & Dennis P. Derrick
also present) for the defendants.
L. Jouret (Rebecca Royer also present) for the plaintiff.
Present: Massing, Shin, & Ditkoff, JJ.
case involves a dispute over the administration of a share of
a trust established for the benefit of the plaintiff and two
of her three children. The plaintiff brought suit against the
defendant trustees, claiming, among other things, that they
committed a breach of trust by paying for fifteen years of
storage fees out of trust assets. A judge of the Probate and
Family Court agreed, ordered the defendants to repay the
storage fees and other unaccounted-for sums to the trust, and
removed the defendants as trustees. We discern no error in
these determinations and reject the various challenges that
the defendants raise on appeal.
we conclude that remand is required for two reasons. First,
the judge should not have appointed the plaintiff's
children as successor trustees because they are themselves
beneficiaries of the trust. As such, they are interested
parties and are barred by the trust document from exercising
certain powers, including distributions. Second, the judge
was without authority to order the successor trustees to make
monthly distributions to the plaintiff in a specified amount.
We therefore vacate the judgment as to the appointment of the
successor trustees and the distribution of the trust's
assets and remand for appointment of a disinterested
successor trustee, who shall have the discretion to make
distributions in accordance with the trust instrument. We
affirm the judgment in all other respects.
summarize the detailed findings of fact made by the judge,
reserving some facts for later discussion. The settlor -- who
is the father of the plaintiff and of defendant Madeline Lia,
and the grandfather of defendant Paula Fitzsimmons (who is
Lia's daughter) -- executed a declaration of trust in
February of 1999. The trust provides for division of the
settlor's estate into four equal shares upon his death.
One share was to be held in a discretionary trust for the
benefit of the plaintiff and two of her three children, Paul
Passero and Alicia Passero,  with any balance remaining upon the
plaintiff's death to be distributed to Paul and Alicia in
equal shares. The remaining three shares were to
be distributed to the other beneficiaries "free of all
the settlor died in April of 2001, the defendants began
administering the trust. By October of 2008, three-quarters
of the trust assets had been distributed to the other
beneficiaries, leaving the plaintiff (and Paul and Alicia) as
the sole remaining beneficiaries. The defendants made no
distributions to the plaintiff or her children until the
judge ordered them, in May of 2016, to give the plaintiff a
$25, 000 advance so that she could pay her medical bills and
primary issue at trial concerned the defendants' decision
to pay storage fees out of the plaintiff's beneficial
interest in the trust. Shortly after the settlor's death,
the defendants identified items of the plaintiff's
personal property that she had left in the settlor's
home, and items of the settlor's personal property that
he had allocated to the plaintiff in his will, and arranged
for these items to be moved to a storage facility in
Massachusetts. Subsequently, in 2003, the trust's
attorney, Robert Madruga, sent the plaintiff a series of
letters informing her that the property was in storage, that
she needed to make arrangements to have it shipped to her,
and that the trust would not pay the storage fees "for
much longer." In response to at least one of those
letters, the plaintiff, who lived in California, asked
Madruga for the location of the storage facility. Acting on
the defendants' instructions, Madruga refused to give her
plaintiff received no further communications about the
property until June of 2008. At that time Madruga sent her
another letter in which he stated that she could not
"cherry pick" the items, but had to accept all of
them together, and refused again to provide the location of
the storage facility. Madruga sent two more letters to the
same effect in March and April of 2009. ...