IN THE MATTER OF THE MacMACKIN NOMINEE REALTY TRUST.
Heard: October 2, 2018.
filed in the Dukes County Division of the Probate and Family
Court Department on January 19, 2016.
case was heard by Robert A Scandurra, J., and a
motion to alter or amend judgment was considered by him.
C. Perry for the respondents.
L. Peters for the petitioner.
Present: Massing, Neyman, & Ditkoff, JJ.
appeal, we are asked to review a decree issued by a judge of
the Probate and Family Court terminating a nominee trust
under the Massachusetts Uniform Trust Code (MUTC), G. L. c.
2O3E. We conclude that termination was warranted pursuant to
§ 412 (a.) of the MUTC, and thus affirm.
The present case involved six vacant lots located
"adjacent to and between" two summer cottages on
Martha's Vineyard. For many decades, the cottages and the
lots were owned by, or held in trust for the benefit of,
members of the MacMackin family, including Alice MacMackin
(Alice) and her husband Stuart MacMackin (Stuart). Alice and
Stuart had two daughters, Cynthia and Janet. Cynthia married
Ivo Meisner (Ivo) in 1967 and they had two sons, Eerik and
Ian (collectively, the Meisners). Cynthia and Ivo divorced in
2006. Janet married James Wansack and they had three
children, Andrew, Heather, and Karen (collectively, the
Wansacks). While Alice and Stuart were alive, the cottages
and lots were used as a family compound.Stuart died in
1983, and Alice died in 2009.
Alice's death, disputes arose between the Meisners and
the Wansacks over the vacant lots and two cottages. In 2015,
the sides resolved the quarrel over the two cottages by a
settlement agreement, through which Janet purchased the
Meisners' interest in both cottages. However, the dispute
over the vacant lots, which were held in the nominee trust
discussed infra, lingered and triggered the present
litigation. We begin with a brief overview of the legal
instruments related to the disposition of the vacant lots.
Stuart's will and testamentary trust. Under the
terms of his will, Stuart established a testamentary trust
and devised to this trust the cottages and vacant lots. His
will expressed his "wish if practicable that these
summer homes and lots be kept undivided in the family and
used as they are now for as long as that is possible and
practicable." His will further expressed his desire,
"if that be practicable under the circumstances,"
that, upon the death of Cynthia and Janet, the testamentary
trust continue and the cottages and lots be maintained for
the benefit of his grandchildren. Despite these provisions,
the parties did not dispute that upon Stuart's death in
1983, the vacant lots passed directly to Alice and were not
governed by the provisions of Stuart's will or
testamentary trust. The cottages, however, remained in the
testamentary trust until Janet purchased the Meisners'
interest in both cottages in 2015.
MacMackin Nominee Realty Trust. On December 23,
1994, Alice and Ivo,  as trustees, created the MacMackin Nominee
Realty Trust (MacMackin trust),  to which Alice
transferred the vacant lots. The vacant lots were the only
assets of the MacMackin trust, which was never otherwise
funded, apart from a nominal ten dollars.
MacMackin trust provided that the trustees held any trust
property for the sole benefit of the beneficiaries and acted
only as directed by all of the beneficiaries. The trust
further provided that it may be terminated at any time by
agreement of all of the beneficiaries but, in any event,
shall terminate twenty years after the death of Alice or Ivo,
whichever is later. The operative schedule of beneficiaries
specified that the Wansacks together held fifty percent of
the beneficial interest, while Cynthia's two sons and Ivo
held the other fifty percent. Janet and Cynthia paid the taxes
on the vacant lots until 2001, thereafter Stuart's
testamentary trust paid the taxes through 2013, and Cynthia
and Janet subsequently shared the tax payments until the
summer of 2015. The judge found that the combined yearly real
estate taxes for the vacant lots was $6, 447.
Petition to terminate the MacMackin trust. As
discussed supra, Janet purchased the Meisners'
interest in the two cottages, at which time they were deeded
to Janet and the testamentary trust was
terminated. However, the Wansacks and Meisners
wrangled over the appropriate disposition of the vacant lots
held in the MacMackin trust. Their ongoing dispute led to the
present litigation. Specifically, Ivo, in his capacity as
trustee and beneficiary of the MacMackin trust, and with the
assent of his sons, filed a petition in the Probate and
Family Court to terminate the trust. The petition alleged
that termination was proper under G. L. c. 203E, §§
411, 412, and 414. In an attachment to the petition, Ivo
asserted that the MacMackin trust "no longer serves any
useful purpose, . . . lacks any financial assets to meet the
requirements of administration, . . . [and] should be
dissolved and the ownership thereof converted to tenancies in
common, in the respective percentages of the
beneficiaries." The Wansacks opposed the termination of
the trust and any sale or development of the vacant lots.
trial, the judge issued written findings in which he
concluded that Alice and Stuart wanted to create a place for
family gatherings, but that Alice, the settlor of the
MacMackin trust, did not anticipate one daughter's family
"buying out" the other daughter's family
interest in both cottages "for a significant purchase
price." The judge further found that, upon the
"sale of the cottages to Janet Wansack, the Meisners no
longer have cause or desire to vest any funds into the
preservation of the vacant lots (i.e., payment of real estate
taxes) and therefore, the [MacMackin trust] would be rendered
unproductive and uneconomical." Citing to §§
411 and 412 of the MUTC, the judge determined that
"[t]he material purpose for which the [MacMackin trust]
was created, to facilitate a family compound, is no longer
viable and therefore, continuation of the [MacMackin trust]
is not necessary to achieve any material purpose of the
[MacMackin trust], " Through an amended decree, the
judge ordered termination of the MacMackin trust and
distribution of the three lots closest to the cottages to the
Wansacks and the other three lots to the Meisners, according
to their beneficial interests. The judge also awarded $21,
385.28 in legal fees and costs to Ivo pursuant to G. L. c.
215, § 45, noting that he, the judge, had taken into
consideration the written settlement offer extended by Ivo
before trial. The Wansacks have appealed from the amended
The Wansacks contend on appeal that the judge erred in
terminating the MacMackin trust because (1) Stuart and Alice
did in fact anticipate one daughter's family purchasing
the other daughter's family interest in the cottages, and
(2) Stuart and Alice intended to conserve the lots in their
natural state. They maintain that the vacant lots were always
intended to protect the privacy and enjoyment of the
cottages, preserving privacy is a material purpose of the
MacMackin trust, termination would violate the purpose of the