Bongaards v. Millen, 99-P-1631

• Court: Appeals Court of Massachusetts
• Writing for the Court: WELLS; GRIMES, J., concurs with an opinion, in which OVERTON; ANSTEAD, J., dissents with an opinion, in which KOGAN, C.J. and SHAW; GRIMES; OVERTON; ANSTEAD; KOGAN, C.J. and SHAW
• Citation: 55 Mass. App. Ct. 51
• Parties: GEORGE BONGAARDS vs. NINA MILLEN(FN1) & others.(FN2) Docket No.: 99-MASSACHUSETTS COURT OF APPEALS County: Suffolk
• Docket Number: 99-P-1631
• Decision Date: 04 June 2002

GEORGE BONGAARDS
vs.
NINA MILLEN(FN1) & others.(FN2)

Docket No.: 99-P-1631

MASSACHUSETTS COURT OF APPEALS
County: Suffolk.

November 13, 2001.
June 4, 2002.

Trust, Validity, Revocable trust, Real estate trust, Beneficiary, Termination, Savings bank account. Husband and Wife.

Complaint for declaration of trust filed in the Suffolk Division of the Probate and Family Court Department on June 10, 1997.

The case was heard by Nancy Gould, J., on a motion for summary judgment.

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

Susan E. Stenger (Harry S. Miller with her) for the defendants.

Present: Jacobs, Mason, & Kantrowitz, JJ.

JACOBS, J.

In her last will, Jean Bongaards stated that she had intentionally made no provision for her husband, George Bongaards. Following Jean's death, George filed a complaint for declaratory judgment in the Probate and Family Court seeking a determination that real estate purportedly held in trust by her be treated as a part of her estate for purposes of his spousal claim under G. L. c. 191, § 15.(FN3) After a hearing on the parties' cross motions for summary judgment, the judge ruled, in effect, that the real estate was trust property not subject to a spousal claim, and entered judgment in favor of the defendants.(FN4)

Background. In 1978, Josephine D'Amore, Jean's mother, created the 291 Commonwealth Avenue Trust and at the same time conveyed to the trust real estate in Boston consisting of an apartment building at that address. D'Amore then also declared herself the sole trustee and beneficiary of the trust during her life. Upon D'Amore's death, Jean would, if she accepted, become the sole trustee and the sole beneficiary during her life. About a year later, in 1979, D'Amore purported to convey the real estate to Jean by a deed signed by D'Amore as an individual, and running to Jean as an individual. The 1979 deed, which made no reference to the trust, was drafted by an attorney different from the one who had drafted the 1978 deed and trust. D'Amore died in July, 1979. Jean and the plaintiff continued to live in one of the apartments, as they had since their marriage in 1965, and Jean managed the property until her death in July, 1996. About ten days before she died, Jean executed an acceptance of appointment as trustee, a confirmatory deed of the real estate to herself as trustee, and an appointment of the remainder in trust in favor of her sister, Nina Millen.

Discussion. On appeal, the plaintiff argues several grounds in support of his claim that the real estate was not trust property. Additionally, he seeks a spousal share of a bank savings account (see note 4, supra).

1. Validity of the trust. Article II of the trust provides: "The original beneficiaries of this Trust are the persons listed as beneficiaries in the Schedule of Beneficiaries this day executed by them and the Trustee and filed with the Trustee; and the interests of the beneficiaries are as stated in said Schedule." The plaintiff asserts the trust was void ab initio for the lack of a beneficiary, noting that only D'Amore, as trustee, signed the schedule of beneficiaries, and that the trust instrument required the beneficiaries to execute that schedule. The schedule had been signed by D'Amore contemporaneously with the trust and clearly identified the beneficiaries by name or description and their respective interests.(FN5) The provision for beneficiary signatures may not be read as a condition precedent to the validity of the schedule. The uncontroverted fact is that the schedule came into existence at the same time as the trust instrument and was signed by the person who was the settlor, sole trustee and only present beneficiary of the trust. Accordingly, the absence of beneficiary signatures relied upon by the plaintiff may not be equated with a lack of beneficiaries or a failure of contemporaneous identification. See 2 Scott & Fratcher, Trusts §§ 112 & 112.1 (4th ed. 1988). Compare Arlington Trust Co. v. Caimi, 414 Mass. 839, 848 (1993) (where the settlor never identified any beneficiary in writing, as required by the declaration of trust, the trust "never came into existence and the attempted conveyance fail[ed] for lack of a cognizable recipient"). At most, and to the extent Jean Bongaards may be regarded as an "original" beneficiary of the trust, the absence of her signature on the schedule is a purely technical failing and, at most, suggests that she then may have been unaware of her status under the trust. "[T]here is no principle of general application that knowledge or consent of the cestui que trust at the time is necessary to the validity of a declaration of trust." Stuart v. Sargent, 283 Mass. 536, 542 (1933). See Aronian v. Asadoorian, 315 Mass. 274, 276-278 (1943); Cohen v. Newton Sav. Bank, 320 Mass. 90, 93 (1946).

2. Effect of the 1979 deed. The plaintiff argues that the conveyance of the real estate in 1979 effectively terminated the trust as it transferred the only trust asset.(FN6) He also cites circumstances he believes indicate that D'Amore intended to convey the property to Jean as an individual.(FN7)

The reason for the 1979 deed is not readily apparent from the record.(FN8) On its face, the deed contains critical facts which are inconsistent with the 1978 deed conveying the property to the trust. The 1979 deed is signed by D'Amore individually, and not in her capacity as trustee. There is no description of the property as trust property. It states that D'Amore's title is derived not from the prior recorded deed to the trust in 1978, but from a 1962 deed to D'Amore which she cited as the origin of her title when conveying the property to herself as trustee. There is...