Edinburg v. Edinburg

• Decision Date: 02 July 1986
• Citation: 22 Mass.App.Ct. 199,492 N.E.2d 1164
• Parties: Dorothy B. EDINBURG, v. Golda EDINBURG et al. 1 ; Jo-Ann Edinburg Pinkowitz et al., 2 interveners.
• Court: Appeals Court of Massachusetts

Page 1164

492 N.E.2d 1164

22 Mass.App.Ct. 199

Dorothy B. EDINBURG, v. Golda EDINBURG et al. ¹; Jo-Ann Edinburg

Pinkowitz et al., ² interveners.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 13, 1986.

Decided May 19, 1986.

Further Appellate Review Denied July 2, 1986.

Jeffrey M. Freedman (Robert J. Wells, Boston, with him), for plaintiff.

George S. Abrams (Peter J. Sonnabend, Boston, with him), for Jo-Ann Edinburg Pinkowitz & others, interveners.

Before GREANEY, C.J., BROWN and SMITH, JJ.

GREANEY, Chief Justice.

This phase of the Edinburg litigation concerns the ownership of nineteen pieces of art work and a parcel of real estate in Jacksonville, Vermont. The case was heard and decided by a probate judge of the Middlesex Division pursuant to the orders of assignment and consolidation discussed in Pinkowitz v. Edinburg, 22 Mass.App.Ct. 180, 492 N.E.2d 1153 (1986). The judge concluded that Dorothy B. Edinburg had either made gifts of or sold the disputed art works to her children's trusts and that the Vermont property was owned by the trust for her daughter Hope Edinburg. We affirm the judgment.

The case arose as follows. Dorothy, as settlor, created on April 3, 1963, three irrevocable inter vivos trusts for the benefit of her three children, John D. Edinburg, Hope Edinburg and Jo-Ann Edinburg Pinkowitz. The original trustees were Dorothy's husband, Joseph M. Edinburg; his sister, Golda Edinburg; and Joseph's uncle, Mr. Joseph Talamo, an attorney. In early 1981, Dorothy and Joseph filed cross-complaints for divorce. On May 4, 1982, Dorothy filed an action in the Superior Court seeking the filing by Joseph and Golda, the two remaining trustees, ³ of accounts for each of the trusts; the confirmation of their resignations; ⁴ and the appointment of a bank or some other suitable corporate fiduciary as the successor trustee. On September 12, 1982, Joseph filed accounts for each of the trusts that covered the period from 1963 through 1979. These submissions listed the assets of each trust as of July 14, 1980, and again as of September 15, 1982. They indicated that Dorothy had withdrawn $33,900 from Jo-Ann's trust ⁵ but had never accounted for the use of the money. They also indicated that Dorothy had withdrawn $15,400 from Hope's trust ⁶ and $9,700 from John's trust. ⁷

In October, 1982, Dorothy filed objections to the accounts. Insofar as relevant to this case, the objections stated that the nineteen drawings at issue ⁸ belonged to the trusts, not to her, and that the accounts inaccurately claimed that Dorothy owed money to the trusts. While the matter of the accuracy of the accounts was being litigated, Dorothy simultaneously took the position in the divorce litigation, in testimony under oath, in written documents, and by her conduct, that the nineteen drawings were properties of the trusts by reason of gifts or sales made by her.

On February 16, 1983, Joseph died, terminating the pending divorce complaints. On March 31, 1983, Dorothy's three children intervened in this action. ⁹ The children accepted the recommended modifications to the accounts and requested that their trusts be managed by an independent trustee. At about the same time, Dorothy sought to reverse her position as to the nineteen drawings, claiming that she had not made gifts of them or sold them to the trusts. Instead, she contended that she had constructed the appearance of gifts and sales in order to keep the art works from falling into her husband's hands by way of any division of property in the divorce actions under G.L. c. 208, § 34. This reversal led Dorothy to assert that she had committed perjury in prior testimony when she stated under oath that the drawings belonged to the trusts, and to claim that she had falsified documents and made misrepresentations to others in order to deceive the trial court and her husband. Confronted with this situation, the judge conducted a five-day trial, focused primarily on the question of the ownership of the drawings (and, to a lesser extent, on the ownership of the Vermont property), during which he heard the testimony of numerous witnesses and received considerable documentary evidence. Following the trial, the judge entered comprehensive findings of fact and rulings of law, ¹⁰ in which he concluded that the nineteen drawings belonged to the children's trusts and that the Vermont real estate was an asset of Hope's trust. The judge then appointed a Boston lawyer, whom he determined to be "an experienced person [and] knowledgeable in art and trust law," to act as the permanent trustee of the three trusts. ¹¹

1. Standard of review. The essential questions are whether the judge's findings of fact are clearly erroneous, and, if not, whether they support his legal conclusions that the drawings and the Vermont property belonged to the particular trusts designated as the owners. The nature of the "clearly erroneous" test, which Mass.R.Civ.P. 52(a), 365 Mass. 816-817 (1974), establishes as the standard governing the reliability of findings of fact made by a trial judge, has been stated many times. We see no need to repeat all the principles that make up the definition. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161, 360 N.E.2d 1051 (1977); New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675, 363 N.E.2d 526 (1977); Simon v. Weymouth Agricultural & Industrial Soc., 389 Mass. 146, 148-149, 449 N.E.2d 371 (1983); First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985). We emphasize the following three principles that we think have particular relevance to the issues in this appeal. First, the judge's assessment of the quality of the testimony is entitled to our considerable respect because "it is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence." New England Canteen Serv., Inc. v. Ashley, 372 Mass. at 675, 363 N.E.2d 526. Second, "[i]f the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Third, "[t]he burden is squarely on the appellant to show an appellate court that a finding is clearly erroneous." First Pa. Mortgage Trust v. Dorchester Sav. Bank., 395 Mass. at 621-622, 481 N.E.2d 1132, quoting from Matter of Multiponics, Inc., 622 F.2d 709, 723 (5th Cir.1980). With these principles in mind, we turn to the discrete questions involved in the appeal.

2. The question of the gifts of sixteen drawings. The judge determined that sixteen drawings had been given by Dorothy as gifts to two of the three irrevocable trusts. ¹² As a general rule, to sustain a transfer as a gift, there must be evidence of donative intent on the donor's part, combined with evidence of delivery of the property to the donee, or someone acting on the donee's behalf, in a manner that surrenders dominion and control. Kobrosky v. Crystal, 332 Mass. 452, 460, 125 N.E.2d 385 (1955). Silverman v. A. & L. Heel Corp., 353 Mass. 108, 110, 228 N.E.2d 720 (1967).

Whether Dorothy possessed the necessary donative intent was "essentially a question of fact." Herwitz v. Herwitz, 356 Mass. 734, 254 N.E.2d 249 (1969). In addition to her testimony, under oath, that she had made gifts of the sixteen drawings to the trusts, several independent witnesses testified that Dorothy had made gratuitous and unsolicited statements to her counsel, her husband's counsel, and others that the art works belonged to the trusts. There was evidence that Dorothy had stated to appraisers from Christie's Appraisals, Inc., retained to value each of the drawings, that the art works were the property of the trusts. There was further evidence that she had affixed labels to some of the drawings that indicated their ownership by specific trusts; that she had placed stamps on the mats of other drawings, again indicating ownership by specific trusts; and that she had placed drawings that were of appropriate size in solander boxes, ¹³ which were marked as containing property of specific trusts. Thus, by means of labelling, stamping, or sequestration in solander boxes, each of the sixteen drawings had been identified as the property of a particular trust. Further, the evidence warranted the judge's finding that, in a meeting with her son John in March, 1982, Dorothy directed him to copy down the name of each artist and the title of each drawing given to his and Hope's trusts and other information, so that the ownership of each of the art works by a specific trust would be clear and unequivocal.

Other evidence showed that Dorothy had made gifts of art work to each of the three trusts in the past. This last evidence tended to demonstrate a pattern of giving to her children. Finally, the judge could note that Dorothy's financial statements filed in connection with the divorce litigation did not list the disputed art works as her property. All of the above, which represents a summary of the evidence found credible by the judge, is sufficient to sustain his findings that Dorothy manifested the requisite donative intent. ¹⁴

Dorothy's conduct in effecting gifts by placing the contested art works in the children's trusts, however, makes this a somewhat exceptional case. This is not the typical gift situation, in which physical delivery of the subject matter of the gift by the donor to the donee has clearly occurred. Ordinarily, such a definitive act of delivery confirms that the donor has irrevocably parted with dominion and control over the subject of the gift. Nevertheless,...