Mark E. Swirbalus, Esq., Day Pitney LLP
The T&E Litigation Update is a recurring column summarizing recent
trusts and estates case law. If you have question about this update or
about T&E litigation generally, please feel free to e-mail the author
by clicking on his name above.
Harootian v. Douvadjian
In Harootian v. Douvadjian, Case No. 10-P-1798 (Oct. 4, 2011), the
Appeals Court addressed the question of whether certain distributions of
principal from a trustee to herself, as the lifetime beneficiary of the
trust, were in breach of her fiduciary duties to the remainder beneficiaries.
Beatrice Ansbigian, whose late husband was the settlor of the trust, was
the trustee and lifetime beneficiary of the trust. The plaintiff claimed
that Beatrice breached her fiduciary duties to him, as a remainder beneficiary,
by distributing approximately $214,000 in trust principal to herself to
pay her expenses after the settlor's death. The plaintiff argued that Beatrice
had assets of her own to pay her bills, and thus there was no need for
her to invade the trust principal. The superior court rejected this argument,
entering summary judgment against the plaintiff, and the Appeals Court
The trust provided that Beatrice, as trustee, had the power to invade trust
principal for her "support in reasonable comfort and maintenance."
The Court held that this language did not require her to exhaust her own
assets before invading principal because her discretionary power to pay
her expenses was not qualified by words such as "when in need"
or "if necessary." The Court also noted that the plaintiff cited
no authority for the proposition that the word "reasonable,"
which appeared before the words "comfort and maintenance," meant
that Beatrice should have used her own assets first so as to preserve the
trust principal for the remainder beneficiaries.
Rose v. Rose
In Rose v. Rose, Case No. 10-P-1889 (Sept. 26, 2011), the Appeals
Court addressed whether a specific bequest of real property was adeemed.
The testator owned two abutting lots in Wellesley, shown as Lot 7 and Lot
8. In her will dated September 22, 1962, the testator bequeathed Lot 8
to her son. After executing her will, however, the testator recorded a
new plan with the town planning board to subdivide her two lots. Under
the new plan, Lot 7 was designated as Lot A, and Lot 8 was effectively
split in two and designated as Lots 1 and 2. Thereafter, Lot A and Lot
2 were assessed as one lot for tax purposes and the testator sold Lot 1
to third parties.
The testator died in 1983 without having changed her will.
The heirs of the testator's son, who had been bequeathed Lot 8, filed a
petition for partition in the probate court, claiming ownership of the
portion of Lot 8 that still remained under the new plan. The probate court
held on a motion for summary judgment that the specific bequest to the
son was adeemed because Lot 8 no longer existed.
The Appeals Court affirmed the probate court judgment. The Court recognized
the general rule that where only part of real property owned by a testator
is conveyed during the testator's life, a partial ademption results and
the bequest is not adeemed as to the remaining part. Nevertheless, the
Court held that the specific bequest of Lot 8 was adeemed because the merger
of Lot 8 with Lot 7 arose from the "affirmative acts" of the
testator. This merger was not the product of the common-law doctrine of
merger or a local bylaw that caused the lots to merge.