Bongaards v. Millen

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: SOSMAN, J.
• Citation: 440 Mass. 10,793 NE 2d 335
• Decision Date: 04 February 2003
• Parties: GEORGE BONGAARDS vs. NINA MILLEN & others.

440 Mass. 10
793 NE 2d 335

GEORGE BONGAARDS
vs.
NINA MILLEN¹ & others.²

Supreme Judicial Court of Massachusetts, Suffolk.

February 4, 2003.

August 12, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

440 Mass. 11

Francis T. Mayo (George T. Andrews with him) for the plaintiff

Susan E. Stenger for the defendants.

Kathleen M. O'Connor, for Women's Bar Association of Massachusetts, amicus curiae, submitted a brief.

SOSMAN, J.

The plaintiff filed a complaint in the Probate and Family Court, seeking a declaration that certain property held in trust by his deceased wife, Jean Bongaards (Jean), should be considered part of her estate for purposes of determining his elective share under G. L. c. 191, § 15, the statute permitting a surviving spouse to waive will provisions and elect instead to receive a statutory portion of the estate of the deceased spouse. The plaintiff's first amended complaint also asserted that assets in a bank savings account maintained by Jean should be subject to his elective share. Acting on cross motions for summary judgment, the judge rejected both claims and entered a judgment dismissing the complaint. The plaintiff appealed, and the

440 Mass. 12

Appeals Court affirmed in part and reversed in part. See Bongaards v. Millen, 55 Mass. App. Ct. 51, 60-61 (2002). The Appeals Court concluded that the prospective rule announced by this court in Sullivan v. Burkin, 390 Mass. 864, 867 (1984) (Sullivan), which treats assets of certain types of trusts as part of a decedent's estate for purposes of G. L. c. 191, § 15, did not apply to Jean's trust, but that the bank savings account should have been included in the elective share estate. See Bongaards v. Millen, supra at 60, 57. We granted the plaintiff's application for further appellate review. We now conclude that the result reached by the Appeals Court was correct, but we reach that same result for different reasons

1. Facts. In 1978, Josephine D'Amore, who was Jean's mother, created the 291 Commonwealth Avenue Trust (trust) and conveyed to the trust real estate consisting of an apartment building located at that address in Boston. D'Amore declared herself the sole trustee and sole beneficiary of the trust during her lifetime. The terms of the trust provided that, on D'Amore's death, her daughter Jean would, if she accepted, become the sole trustee and sole lifetime beneficiary.

D'Amore intended the trust property to pass solely to her children and then to her grandchildren. The trust incorporated by reference a schedule of beneficiaries, which provided D'Amore a life estate and, following the termination of D'Amore's life estate, a life estate to Jean, and then to D'Amore's living grandchildren "and/or to the living brother and sisters of Jean Bongaards in such proportion as Jean Bongaards shall appoint by an instrument in writing and delivered to the Trustee or by her Last Will and Testament." Should Jean fail to appoint one or more successor beneficiaries at the time of her death, the trust property was to be divided into equal shares to be paid to each then living grandchild, and the trust was to terminate. After D'Amore's death and until Jean appointed one or more successor beneficiaries, the terms of the trust permitted Jean, as sole trustee and beneficiary then entitled to a present interest, to amend the terms of the trust or to terminate the trust and vest title to the trust property in herself individually.

In 1979, D'Amore executed a deed, signed by her as an individual, which purported to convey the real estate to Jean.

440 Mass. 13

The 1979 deed was drafted by a different attorney, not by the attorney who had drafted the 1978 deed and trust, and the 1979 deed made no reference to the trust. D'Amore died later that year. Jean and the plaintiff, who had lived in one of the apartments at 291 Commonwealth Avenue since their marriage in 1965, continued to live there, and Jean managed the property until her death

In 1988, Jean executed a certificate of acceptance of her appointment as trustee. This document apparently was never recorded. On July 19, 1996, Jean executed the following documents: a second acceptance of her appointment as trustee (which subsequently was recorded); an appointment of the remainder interest in trust in favor of her sister, Nina Millen; an appointment of Nina Millen as successor trustee; and an amendment inserting a so-called spendthrift clause into the trust document. At the same time, Jean executed a confirmatory deed of the property at 291 Commonwealth Avenue to herself as trustee. That document's stated purpose was "to clarify any such potential uncertainty or conflict" stemming from the 1979 deed and "to the extent that clear title [to the property] is not already held by said Trust or the Trustee thereof, then it shall be so transferred to the said Trustee by virtue of this deed." Jean died ten days later on July 28, 1996.

During her lifetime, Jean maintained a bank savings account in the name of "Jean A. Bongaards ATF [as trustee for] Nina Millen." Jean retained the power to withdraw funds from the account at any time. Before her death, Jean informed Millen of the account's existence and directed the bank to send account statements to Millen. At the time of Jean's death, assets in the account totaled $39,905. Her will stated that she intentionally had not provided for her husband, the plaintiff.

2. Discussion. The plaintiff timely asserted his right to a share of Jean's estate pursuant to G. L. c. 191, § 15, which provides, in relevant part, that, "[t]he surviving husband or wife of a deceased person . . . within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed by him or by her, waiving any provisions that may have been made in it for him or for her, or claiming such portion of the estate of the deceased as he or she is given the

440 Mass. 14

right to claim under this section . . . ." The question before us is whether Jean's estate, for purposes of determining the plaintiff's statutory share, includes the property located at 291 Commonwealth Avenue and the funds in the bank savings account

a. The trust property. The plaintiff's claim with respect to the trust property is premised on the following alternate arguments: (1) that Jean owned the property free of trust; (2) that Jean acted as though she owned the property free of trust and her estate is now estopped from claiming the existence of a trust in order to avoid her husband's statutory right to a share of the property; and (3) that Jean's extensive control over the property under the provisions of the trust amounted in substance to full ownership and thereby warranted the property's inclusion in her estate subject to his elective share. We consider each argument in turn.

(i) Property subject to the trust. We reject the plaintiff's contention that Jean held the property free of trust. The trust was a valid inter vivos trust when created by D'Amore in 1978. It was not void ab initio for lack of beneficiaries. The schedule of beneficiaries, incorporated by reference in the trust, identified the beneficiaries and their respective interests and was signed by D'Amore, who was the settlor, sole trustee, and, at the time, only beneficiary of the trust. There is no general requirement that beneficiaries, present or future, must acknowledge a trust before it becomes valid, see Aronian v. Asadoorian, 315 Mass. 274, 276-277 (1943), nor did the terms of this trust require the signatures of the listed beneficiaries in order for the trust to become effective.

The deed purportedly executed by D'Amore in 1979 did not convey ownership of the trust property to Jean individually. As of 1979, D'Amore held the property as trustee for the beneficiaries of the trust, and she lacked power to convey the property in her individual capacity. See Rogaris v. Albert, 431 Mass. 833, 836 (2000).

We reject the plaintiff's argument that the 1979 deed, together with Jean's subsequent conduct, should be considered as manifestations that D'Amore intended to convey title to the property to Jean and that Jean acquiesced to this intent. The

440 Mass. 15

plaintiff's reliance on language in Amory v. Amherst College, 229 Mass. 374, 385 (1918), that "a deed should be so construed as to carry out the intent of the parties unless such construction is manifestly repugnant to the terms of the grant," is misplaced. At issue in that case was the proper construction of ambiguous deeds that created two distinct trusts. See id. at 384-385. The decision did not suggest that a deed, clear on its face, validly may convey property not owned by the grantor. Where, as here, the grantor has nothing to convey, a mutual intent to convey and receive title to the property is beside the point. The purported conveyance is a nullity, notwithstanding the parties' intent.³

Nor could the 1979 deed, by itself, terminate the trust, which under the express terms of its art. XII could only be terminated by written notice and a subsequent transfer to the lifetime beneficiaries. "The law of Massachusetts is plain that a valid trust, once created, cannot be revoked or altered except by the exercise of a reserved power to do so, which must be exercised in strict conformity to its terms." Phelps v. State St. Trust Co., 330 Mass. 511, 512 (1953). We conclude, as did the judge and the Appeals Court, that the property was held by Jean in a valid trust from the time of D'Amore's death in 1979 until Jean's death in 1996.

(ii) Estoppel. There is no merit to the plaintiff's argument, articulated in various ways, that traditional equitable principles of estoppel should persuade us to ignore the trust's existence and to treat Jean as the individual owner of the property. Circumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the...