DEBORAH A. STACY, personal representative, & others 
IANAA. STACY. 
Heard: March 1, 2019.
for probate of a will filed in the Barnstable Division of the
Probate and Family Court Department on February 26, 2014.
petition to render an inventory and account, filed on April
7, 2016, was heard by Robert A. Scandurra, J., on a
statement of agreed facts.
Complaint in equity filed in the Barnstable Division of the
Probate and Family Court Department on July 23, 2015. The
case was heard by Robert A. Scandurra, J.
Alan Fryer for the plaintiffs.
A. Grinsell for the defendant.
Present: Green, C.J., Neyman, & Henry, JJ.
heart of these cases is the proper distribution of the assets
of the decedent, David E. Stacy, in light of a premarital
agreement executed by him and his wife, Iana Stacy (Iana or
wife),  and the fact that his will did not
provide for his wife and expressly excluded his son from a
prior marriage. These issues have arisen in the context of
two separate cases: (1) a petition brought by the wife
against the personal representative of the estate to render
an inventory and account (in 18-P-871, which we shall call
the inventory action), and (2) an equity action commenced by
the personal representative to recover items belonging to the
estate that are in the wife's possession (in 18-P-872,
which we shall call the estate asset recovery action).
Because our de novo review of the premarital agreement
differs from that of the Probate and Family Court judge,
which in turn impacts the outcome of the decedent's
estate plan, we vacate and modify portions of the judgment
and decree and remand for further proceedings as necessary.
decedent died on February 12, 2014. He was survived by his
wife of approximately six years, Iana, and his minor son from
a prior marriage. He was also survived by his biological
mother, Elaine Kelley (Elaine); his sister, Deborah Stacy
(Deborah); and his adoptive mother, Joan Bentinck-Smith, who
adopted the decedent in 1995 when he was thirty-four years
The decedent's last will and the David E. Stacy
Revocable Trust of 2001.
decedent executed his last will on August 19, 2003
(decedent's will), and nominated Deborah as the executor
of his will. Subsequently, she was appointed personal
representative of his estate. The decedent's will
bequeathed all of his property to the trustee of the David E.
Stacy Revocable Trust of 2001 (2001 Trust). The decedent
expressly omitted from his will his son, a former wife, and
his adoptive mother, Bentinck-Smith.
amended in 2003, the 2001 Trust named as sole beneficiary the
decedent's biological mother, Elaine. The decedent also
excluded from the 2001 Trust his son, former wife, and
adoptive mother as beneficiaries. The 2001 Trust, as amended,
appointed Deborah as trustee.
wife is not named as a beneficiary in either the
decedent's will or the 2001 Trust, which were both
executed prior to their 2008 marriage.
The premarital agreement.
decedent and the wife entered into a premarital agreement on
July 18, 2008. The parties dispute the interpretation of this
agreement. However, it is undisputed that the premarital
agreement enumerated the parties' separate property owned
by each of them at the time of the marriage. The decedent
included in his list of assets something called "Pigeon
Trust." Bentinck-Smith created the Pigeon Trust, an
irrevocable life insurance trust, naming as "the
beneficiaries" only one beneficiary: David E. Stacy, the
decedent. Article VI of the Pigeon Trust, identifying the
decedent as the beneficiary, did not expressly identify the
decedent's estate as a beneficiary should he predecease
the donor, although other provisions did identify the
decedent's estate. The decedent's list of assets in
the premarital agreement described the Pigeon Trust, (a)
identifying himself as the beneficiary, (b) identifying the
successor beneficiary as "___," (c) stating the
principal value of this asset as of July 14, 2008, and (d)
noting there would be no distribution of trust principal
until the death of the donor, who was his adoptive mother,
already stated, Bentinck-Smith survived the decedent. The
surrender value of the life insurance policy held by the
Pigeon Trust as of December 5, 2016, was $1, 648, 879.45.
reserve recitation of additional terms of the premarital
agreement and the Pigeon Trust for discussion below.
largest asset in dispute is the Pigeon Trust. Thus, before
turning to the two lawsuits on appeal, we first address an
earlier action that the personal representative filed
concerning disposition of the Pigeon Trust.
Litigation regarding the Pigeon Trust.
2015, Deborah, as personal representative of the
decedent's estate, filed a petition to terminate the
Pigeon Trust early. Later, the trustees of the Pigeon Trust
(Pigeon trustees) filed a petition for instructions as to
whether the rightful beneficiary of the trust was the
decedent's estate or the decedent's
descendant. The court consolidated these two
petitions. After mediation, Deborah, individually and in her
dual capacities as personal representative of the
decedent's estate and as trustee of the 2001 Trust; the
Pigeon trustees; a guardian ad litem for Bentinck-Smith; and
a guardian ad litem for the decedent's son eventually
came to a "Non-Judicial Settlement Agreement"
(settlement agreement). This settlement agreement essentially
called for dividing the trust res in half, minus fees, and
distributing one half to a trust for the son's benefit,
and the other half to Deborah, as trustee of the 2001 Trust,
the remainder beneficiary of the decedent's will.
wife objected to only so much of the settlement agreement as
called for distribution of Pigeon Trust principal to Deborah
as trustee of the 2001 Trust, rather than to Deborah as
personal representative of the decedent's estate. The
judge approved the settlement agreement, reserving, with
Deborah and the wife's agreement, the question whether
the Pigeon Trust distribution to Deborah should be in her
capacity as personal representative of the decedent's
estate or in her capacity as trustee of the 2001 Trust. This
question was to be resolved in the inventory action.
Estate asset recovery action.
23, 2015, Deborah, in her capacity as personal
representative, filed an equity complaint alleging that the
wife had taken from the marital home personal property
belonging either to the estate or to Elaine and her husband,
David Kelley (David). The amended complaint asserted claims
against the wife for constructive trust, conversion, unjust
enrichment, and violation of G. L. c. 190B, §
3-709. The complaint also sought a
declaratory judgment interpreting the premarital agreement as
it related to the wife's interest in the estate's
assets and the wife's obligations to return property, as
well as the wife's liability for the value of any
property taken and all damages caused to the estate. The
amended complaint included the decedent's mother, Elaine,
and her husband, David, as plaintiffs seeking to recover
their property from the wife. The wife also filed a
counterclaim asserting that the personal representative
committed a breach of her fiduciary duty toward the wife.
trial, the judge deemed the premarital agreement null and
void upon the decedent's death and concluded that it
"shall have no applicability relative to the estate of
David E. Stacy." Additionally, the judge found that the
wife possessed certain enumerated pieces of the
decedent's personal property worth $76, 875 and
additional property of unknown value, and credited the
wife's denial that she possessed other items. Per the
personal representative's request, the judge ordered that
the wife return all of the decedent's property to the
personal representative. However, sua sponte, the judge also
ordered that if the wife did not return the property, the
personal representative could deduct the value of assets in
the wife's possession from the wife's share of the
judge further found that the personal representative's
claims of conversion, unjust enrichment, and violation of G.
L. c. 190B, § 3-709, and request for imposition of a
constructive trust were based on the assertion that the
premarital agreement applied in the event of death and took
precedence over the otherwise applicable provisions of G. L.
c. 190B, §§ 2-102, 2-301, 2-403 (a.), and 2-404
(a.) . Given his conclusion that the premarital agreement was
null and void, the judge concluded that those claims failed.
Finally, the judge dismissed the wife's counterclaim,
finding that the personal representative had not breached her
duty toward the wife. In this matter, all parties appealed.
April 7, 2016, the wife brought a petition to order the
personal representative of the estate to render an inventory
and account. As noted above, consolidated with this petition
was the issue of the capacity in which Deborah would receive
the distribution of the Pigeon Trust settlement agreement
proceeds: as personal representative of the decedent's
estate or as trustee of the 2001 Trust.
on the parties' legal briefs and an agreed statement of
facts, to which the Pigeon Trust and its multiple amendments
were attached, the judge determined that the Pigeon Trust
settlement agreement proceeds should be distributed to the
decedent's estate. The judge also allowed the personal
representative's account, with the judge's
amendments, and concluded that the wife "as surviving
spouse is entitled to the first $100, 000 plus one-half of
the balance of the decedent's probate
estate." The judge further concluded that after
the wife received her share, the remainder of the estate
assets would pour over into the 2001 Trust. In this matter,
the wife and personal representative both appealed.
2008, the Legislature overhauled the law governing the
probate process by adopting nearly the entire Uniform Probate
Code (code). See St. 2008, c. 521, §§ 9 and 44, as
amended by St. 2011, c. 224, and made effective March 31,
2012; G. L. c. 190B. As relevant here, G. L. c. 190B, §
2-301 (a.), of the code provides that where a surviving
spouse married the testator after the testator executed a
will, as occurred here, "the surviving spouse is
entitled to receive, as an intestate share, no less than the
value of the share of the estate the spouse would have
received if the testator had died intestate as to that
portion of the testator's estate, if any, that neither is
devised to a child of the testator who is born before the
testator married the surviving spouse and who is not a child
of the surviving ...