Commonwealth v. Gaston (Lawyers Weekly No. 11-138-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1215 Appeals Court COMMONWEALTH vs. JUSTIN C. GASTON. No. 12-P-1215. Suffolk. May 7, 2014. – October 31, 2014. Present: Cypher, Kafker, & Hanlon, JJ. Controlled Substances. Firearms. Constitutional Law, Conduct of government agents. Due Process of Law, Disclosure of evidence, Conduct of prosecutor. Practice, Criminal, New trial, Disclosure of evidence, Conduct of government agents, Conduct of prosecutor. Evidence, Disclosure of evidence, Firearm, Certificate of drug analysis. Complaints received and sworn to in the Dorchester Division of the Boston Municipal Court Department on June 25 and July 3, 2008. After transfer to the Central Division of the Boston Municipal Court Department, the cases were tried before Mark H. Summerville, J., and a motion for a new trial was heard by Eleanor C. Sinnott, J. William M. White, Jr., for the defendant. Vincent J. DeMore, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Justin Gaston, appeals from the denial of a motion for new trial and from his convictions by a jury on two counts of carrying a firearm without a license, G. L. c. 269, § 10(a); one count of unlawful possession of ammunition, G. L. c. 269, § 10(h); one count of possession of a class B substance with the intent to distribute (“crack” cocaine), G. L. c. 94C, § 32A; and one count of unlawful possession of a loaded firearm charged in a separate complaint, G. L. c. 269, § 10(n).[1],[2] The defendant argues that the evidence was insufficient to support the charge of possession with intent to distribute and the firearms and ammunition charges. The defendant also argues that his motion for new trial, which was based on a claim of newly discovered evidence and prosecutorial nondisclosure regarding problems in the William A. Hinton State Laboratory Institute (Hinton lab) involving chemist Annie Dookhan, should have been allowed. We conclude that the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt on all of the charges but that the motion for new trial should have been allowed as to the drug charge. Facts. Police officers in the Boston drug control unit obtained a search warrant for an apartment in a six-family building located in Dorchester. They executed the warrant on June 18, 2008, and initially tried to gain entry by knocking loudly on the apartment door and announcing […]
K.A. v. T.R. (Lawyers Weekly No. 11-139-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-108 Appeals Court K.A. vs. T.R.[1] No. 13-P-108. Norfolk. April 9, 2014. – October 31, 2014. Present: Vuono, Meade, & Carhart, JJ. Parent and Child, Custody. Divorce and Separation, Child custody, Findings. Evidence, Child custody proceeding. Probate Court, Custody of child. Practice, Civil, Contempt. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on April 16, 2010. The case was heard by John D. Casey, J. Michael J. Traft for the mother. VUONO, J. Cases concerning the custody of children are often difficult and emotionally charged, and may be rendered even more complex when domestic violence is involved. This appeal presents us with such a case. Following a five-day trial on a complaint for divorce filed by K.A. (the former husband; hereinafter, the father), a Probate and Family Court judge concluded that although the father had engaged in a pattern of abuse towards T.R. (the former wife; hereinafter, the mother) within the meaning of G. L. c. 208, § 31A, it was in the best interests of the parties’ children that their primary physical custody be with the father, with substantial parenting time for the mother. The mother has appealed from the custody orders in the amended judgment of divorce.[2] She also has appealed from those provisions of the amended judgment that adjudicated her complaints for contempt. While we are sensitive and sympathetic to the mother’s position, for the reasons that follow, we affirm the amended judgment. 1. Procedural history. We recite the lengthy procedural history in detail as it informs our discussion of the issues. On April 16, 2010, the father filed a complaint for divorce and, claiming that the parties’ two minor children were at risk, an ex parte motion, supported by affidavit, requesting that the mother be required to vacate the marital home and that he be given temporary legal and physical custody of the children. The motion was allowed, and a temporary order granted the father the relief he requested. Shortly thereafter, the parties entered into a stipulation, incorporated in a court order, in which they agreed to joint legal and physical custody of the children, and that the mother was to have sole and exclusive use of the marital home. A guardian ad litem (GAL) subsequently was appointed to investigate and to […]
Bellerman, et al. v. Fitchburg Gas and Electric Light Company (Lawyers Weekly No. 10-180-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11492 MARCIA D. BELLERMANN & others1 vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY. Worcester. March 4, 2014. – October 30, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Electric Company. Public Utilities, Electric company. Practice, Civil, Class action, Consumer protection case, Judicial discretion. Consumer Protection Act, Class action, Unfair or deceptive act. Administrative Law, Preclusive effect of decision. Collateral Estoppel. Estoppel. Civil action commenced in the Superior Court Department on January 7, 2009. Motions for class certification and for summary judgment were heard by Douglas H. Wilkins, J., and a decision denying class certification was reported by him to the Appeals Court. A proceeding for interlocutory review was heard in the Appeals court by Cynthia J. Cohen, J., and after consolidation of the appeals, the Supreme Judicial Court granted an application for direct appellate review. Barry M. Altman & C. Deborah Phillips (James L. O’Connor, Jr., Edwin H. Howard, & James M. Galliher with them) for the plaintiffs. Gavin J. Rooney, of New Jersey (Natalie J. Kraner, of New Jersey, with him) for the defendant. Robin L. Main for Massachusetts Electric Company & others, amici curiae, submitted a brief. DUFFLY, J. This case arises out of a major ice storm that struck areas of the northeastern United States in December, 2008 (Winter Storm 2008). The defendant, Fitchburg Gas and Electric Light Company (FG&E), is a public utility that provides electric service to customers in the municipalities of Fitchburg, Lunenburg, Townsend, and Ashby, which were among those affected by the storm. FG&E is one of the utilities owned by Unitil Corporation (Unitil). The plaintiffs are twelve residential and business customers of FG&E who lost power during Winter Storm 2008. They filed a suit in the Superior Court on behalf of themselves and those similarly situated, asserting claims of gross negligence and violation of G. L. c. 93A. Pursuant to G. L. c. 93A, §§ 9 (2) and 11,2 and Mass. R. Civ. P. 23, as amended, 452 Mass. 1401 (2008) (rule 23),3 the plaintiffs moved to certify a class consisting of FG&E’s residential and business customers; their dependents, tenants, and employees; and other users of electricity who sustained damages as a result of FG&E’s inadequate preparation for and response to Winter Storm 2008. The parties also filed cross-motions for partial summary judgment on the plaintiffs’ […]
Commonwealth v. Rollins (Lawyers Weekly No. 10-181-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11583 COMMONWEALTH vs. JOHN K. ROLLINS. Hampden. September 4, 2014. – October 30, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Obscenity, Child pornography. Constitutional Law, Sentence, Double jeopardy, Freedom of speech and press. Due Process of Law, Sentence. Practice, Criminal, Sentence, Duplicative convictions, Double jeopardy, Argument by prosecutor. Evidence, Photograph, Relevancy and materiality, Opinion. Complaint received and sworn to in the Holyoke Division of the District Court Department on May 7, 2010. The case was tried before Laurie MacLeod, J. The Supreme Judicial Court granted an application for direct appellate review. Ines McGillion for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. Ryan M. Schiff, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. CORDY, J. In this case, we are asked to identify the proper unit of prosecution for the possession of child pornography pursuant to G. L. c. 272, § 29C. The defendant, John K. Rollins, was charged with six counts of possessing child pornography with each count premised on one or two distinct photographs culled from a single cache on the defendant’s computer. A Hampden County jury returned guilty verdicts on each count and a District Court judge sentenced the defendant to consecutive and concurrent terms in a house of correction. We granted the defendant’s application for direct appellate review and conclude that where the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution. Accordingly, the entry of six separate convictions and sentences constituted multiple punishments for the same offense in violation of the defendant’s constitutional and common-law rights to be free from double jeopardy. While double jeopardy principles bar multiple convictions and sentences, they do not bar the Commonwealth from prosecuting the possession of multiple photographs through separate counts, each premised on a single photograph, as a single photograph is sufficient to support a conviction. Accordingly, assuming the sufficiency of the evidence on any or all of the multiple counts, we would ordinarily vacate the convictions and remand this case to the trial judge for the entry of a judgment of conviction and resentencing on only one count. However, because […]
Doucette v. Massachusetts Parole Board (Lawyers Weekly No. 11-137-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-149 Appeals Court CHARLES DOUCETTE vs. MASSACHUSETTS PAROLE BOARD. No. 13-P-149. Essex. April 4, 2014. – October 29, 2014. Present: Berry, Katzmann, & Sullivan, JJ. Parole. Administrative Law, Adjudicatory proceeding, Decision, Evidence, Failure to raise issue before agency, Hearing, Regulations. Constitutional Law, Delay in rendering decision, Impartial tribunal, Parole. Due Process of Law, Administrative hearing, Delay in rendering decision, Hearing, Parole. Practice, Civil, Action in nature of certiorari, Failure to raise issue, Hearsay, Motion to dismiss, Relief in the nature of certiorari, Review of administrative action, Waiver. Waiver. Evidence, Absence of witness, Administrative proceeding, Hearsay, Police report. Civil action commenced in the Superior Court Department on May 18, 2012. A motion to dismiss was heard by Richard E. Welch, III, J. Eitan Goldberg for the plaintiff. Christopher Hurld, Assistant Attorney General, for the defendant. SULLIVAN, J. Charles Doucette appeals from the dismissal of his complaint challenging the decision of the Massachusetts Parole Board (board) revoking his parole. Doucette proceeds on two fronts — a civil rights claim asserting that the board violated due process in the conduct of the revocation proceedings, and a claim in the nature of certiorari seeking review of the merits of the board’s decision. See 42 U.S.C. § 1983; G. L. c. 249, § 4. We conclude that the procedural irregularities in the revocation proceedings do not rise to the level of a due process violation, and that the revocation decision was not arbitrary or capricious. Accordingly, we affirm. Background. On February 20, 2007, Doucette was released on parole from a life sentence for murder in the second degree. According to the conditions of parole, Doucette was required, among other things, to conduct himself responsibly and obey all laws, attend Alcoholics Anonymous (AA) meetings three times per week, notify and seek permission from his parole officer regarding any change in residence or living situation, avoid persons known to have violated the law, comply with all special instructions given by his parole officer, and pay a monthly supervision fee. Four years later, Doucette was arrested and charged with assault with a dangerous weapon, intimidation of a witness, and threats, charges which arose from an incident with his then girlfriend. A parole violation detainer issued, listing violations based on this incident, as well as other violations previously noted by his parole […]
Commonwealth v. Garcia (Lawyers Weekly No. 10-179-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11127 COMMONWEALTH vs. JOONEL GARCIA. Essex. December 6, 2013. – October 29, 2014. Present: Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Home Invasion. Burglary. Armed Assault with Intent to Rob. Felony-Murder Rule. Joint Enterprise. Evidence, Joint venturer, Impeachment of credibility, Cross-examination, Redirect examination, Accident. Constitutional Law, Assistance of counsel. Practice, Criminal, Required finding, Instructions to jury, Assistance of counsel, Capital case. Witness, Impeachment, Cross-examination, Redirect examination. Indictments found and returned in the Superior Court Department on March 1, 2006. The cases were tried before David A. Lowy, J. Jeffrey L. Baler for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant was indicted on charges of murder in the first degree and five related offenses in connection with the death of Rafael Castro on August 26, 2004.1 A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, based on the underlying felonies of both home invasion and armed or assaultive burglary. The jury also found the defendant guilty of the other charges. The jury did not specify whether they found the defendant guilty of any of the offenses as a principal or as a joint venturer. On appeal, the defendant maintains that the evidence was insufficient to show that he shared the requisite intent to commit the crimes charged. The defendant contends also that his right to a fair trial was denied when he was not permitted to impeach a Commonwealth witness by confronting her with a child she observed outside the court room, whom she testified she believed to be her deceased child, although the witness was permitted on redirect examination to testify to the reasons she had formed that belief. In addition, the defendant asserts that a new trial is required because the judge erroneously declined to give two requested jury instructions, and because his counsel was ineffective for failing to object when the judge instructed that accident was not a defense to the killing. The defendant also requests that we exercise our authority to provide relief pursuant to G. L. c. 278, § 33E. We affirm the convictions, and discern no reason to grant a new trial or to reduce the verdict of murder in the first degree to a lesser degree of […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-136-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-2063 Appeals Court COMMONWEALTH vs. JOSE MARTINEZ. No. 11-P-2063. Suffolk. April 10, 2014. – October 29, 2014. Present: Grainger, Rubin, & Hanlon, JJ. Alien. Constitutional Law, Assistance of counsel, Plea. Practice, Criminal, Assistance of counsel, Plea, Affidavit. Indictments found and returned in the Superior Court Department on June 1, 1998. A motion for a new trial, filed on September 6, 2011, was considered by Elizabeth B. Donovan, J., and a motion for reconsideration was considered by her. David Shaughnessy for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. HANLON, J. The defendant, Jose Martinez, citing Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla), appeals from the denial, without a hearing, of his motion for a new trial on the grounds of ineffective assistance of counsel, and from the denial of his motion for reconsideration. The significant issue is the appropriate weight to be given to a defendant’s failure to produce an affidavit from plea counsel, when the defendant makes a substantial showing that he attempted to obtain such an affidavit and counsel refused to respond. In the circumstances of this case, the defendant was entitled to an evidentiary hearing, with an opportunity to secure plea counsel’s presence by subpoena and for the judge to determine any credibility issues based on live testimony. Accordingly, we vacate the orders denying the defendant’s motions for new trial and for reconsideration and remand the matter for an evidentiary hearing. Background. On May 3, 1999, the defendant pleaded guilty in the Superior Court to distribution of a class B controlled substance, in violation of G. L. c. 94C, § 32A(a) (count one),[1] and conspiracy to violate the Controlled Substances Act, in violation of G. L. c. 94C, § 40 (count two).[2] The judge gave the “immigration warning” required by G. L. c. 278, § 29D, and then asked the defendant where he was born. The defendant answered that he was born in Guatemala, and the judge responded, “I have no way of knowing what the consequences will be in terms of deportation and all. That’s up to the Federal Naturalization Service and not anything I can control. You understand you’re running the risk, though?” The defendant responded, “Yes.” The judge then accepted the plea, finding that the defendant was “alert and intelligent and that his plea [was] made voluntarily with full knowledge […]
Bank of America, N.A., et al. v. Babcock, et al. (Lawyers Weekly No. 10-176-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11651 BANK OF AMERICA, N.A. & another,[1] trustees,[2] vs. VICTORIA BABCOCK & others.[3] October 28, 2014. Trust, Taxation. Taxation, Marital deduction. Practice, Civil, Declaratory proceeding. The trustees of the Indenture of Trust of Hollis W. Plimpton, Jr., dated June 24, 1964, as amended, also known as the Hollis W. Plimpton, Jr. Family Trust (trust), filed a complaint in the county court, pursuant to G. L. c. 231A, seeking a declaration that the trust as drafted correctly expresses the intent of Hollis W. Plimpton, Jr. (settlor) that his estate be eligible to obtain the optimal benefit of allowable Federal and State estate tax marital deductions.[4] Alternatively, the trustees seek an order rewording a portion of the trust to ensure that it accomplishes the settlor’s intent, pursuant to G. L. c. 215, § 6. A single justice of this court reserved and reported the case to the full court. Litigants have sought reformation of trusts, and judicial declarations of rights in will and trust cases, from this court in a variety of situations under the Bosch rubric. See Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456 (1967). The cases raise issues of State law, which the parties have asked us to resolve because of their Federal tax implications. See Walker v. Walker, 433 Mass. 581, 582 (2001); Kirchick v. Guerry, 429 Mass. 215, 217 (1999) (court decides State law issues in Bosch cases, not Federal law issues). “We have decided [such] cases . . . not only when the parties have been actively engaged in disputes with the Internal Revenue Service, but also, on occasion, when the parties have sought decisions that would enable them to plan their estates correctly and to prepare effectively for future tax consequences.” Walker v. Walker, supra at 582-583 (2001). See Shawmut Bank, N.A. v. Buckley, 422 Mass. 706, 709-710 (1996); Billings v. Fowler, 361 Mass. 230, 233-234 (1972). In the latter category, our cases have involved situations where there is a clear mistake in the drafting or some real uncertainty about the meaning of an instrument that would lead inevitably to adverse tax consequences in the future. See, e.g., Hillman v. Hillman, 433 Mass. 590 (2001). See also Linehan v. Linehan, 453 Mass. 1017, 1018 (2009), and cases cited. These features are noticeably absent from the case before us. There is […]
Commonwealth v. Carriere (Lawyers Weekly No. 10-177-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11339 COMMONWEALTH vs. EDMOND J. CARRIERE, JR. Barnstable. May 9, 2014. – October 28, 2014. Present: Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Joint Enterprise. Evidence, Joint venturer, Testimonial statement, Pattern of conduct, Subsequent misconduct, Prior misconduct, Motive, State of mind, Declaration against interest. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Capital case, Confrontation of witnesses, Argument by prosecutor, Presumptions and burden of proof. Indictment found and returned in the Superior Court Department on July 13, 2010. The case was tried before Robert C. Rufo, J. Neil L. Fishman for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth DUFFLY, J. On January 3, 1980, at approximately 8 P.M., the victim, who was the defendant’s wife, was found dead on the bathroom floor in her home in Bourne. She had died “quite some time” earlier of multiple stab wounds. When the victim’s body was discovered, the defendant and his fourteen year old daughter, who lived with the victim, were in Florida visiting one of the defendant’s older daughters. In June, 2005, Steven Stewart, the man who stabbed the victim, was convicted of murder in the first degree; this court reversed his conviction in 2009 based on errors in the admission of testimony by a key witness. See Commonwealth v. Stewart, 454 Mass. 527, 527-528 (2009). The defendant was indicted in July, 2010, after Stewart entered into a plea agreement under which he pleaded guilty to manslaughter, agreed to testify against the defendant, and was sentenced to time served. The Commonwealth’s theory at trial was that the defendant, who was in the midst of a highly contentious divorce from the victim, had engaged in a murder-for-hire scheme with Stewart and their mutual friend Richard Grebauski.[1] Grebauski, the alleged middleman, arranged to hire Stewart for $ 5,000 after accepting the defendant’s offer of $ 10,000 to kill his wife. The Commonwealth’s case relied heavily on evidence introduced through Stewart, who testified both to his own actions and to out-of-court statements by other asserted members of the joint venture, including Grebauski. The remainder of the evidence was based largely on out-of-court statements introduced by witnesses to those statements, such as the defendant’s friends and neighbors Russell Breault, Charles Berryman, and David Phinney. A police report and a letter sent to the […]
O’Connell, et al. v. Houser, et al. (Lawyers Weekly No. 10-178-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11698 MARY-KATHLEEN O’CONNELL & another,[1] trustees,[2] vs. GEORGE C. HOUSER, JR., & others.[3] October 28, 2014. Trust, Reformation. Taxation, Generation skipping transfer tax. The trustees filed a complaint in the county court seeking reformation of the trust established under Article Fourth of the Mary R. Houser Trust — 1991 to correct a drafting error that they contend frustrates the intent of the settlor and her husband to provide for their descendants in an efficient and tax-advantageous manner. Apart from the Commissioner of Internal Revenue, who has not appeared, the parties with competency to do so have stipulated for themselves and their minor, unborn, and unascertained issue to the facts underlying the complaint and assented to the relief requested. A single justice of this court reserved and reported the case to the full court.[4] Background. As part of their estate plans, George C. Houser (George Sr.) and Mary R. Houser (Mary) established trusts to provide income for their sons, George C. Houser, Jr. (George Jr.), and Horace M. Houser (Horace), while preserving principal for future generations. The George C. Houser Trust — 1980 (George Houser Trust) became irrevocable on George Sr.’s death in 1983. It established two trusts for Mary’s benefit during her lifetime, and gave her a power of appointment over one of the trusts (the marital trust). On Mary’s death in 1993, the principal remaining in the George Houser Trust was divided into two “share trusts,” one for each of the Housers’ sons. Each son was given a power to “appoint by his will” any property remaining in his respective share trust on his death “to such one or more of the Donor’s issue” or to trusts for their benefit. The parties represent that the property contained in the share trusts is not subject to the Federal generation skipping transfer (GST) tax.[5] The George Houser Trust provided that each share trust: “shall terminate whenever after the death of said child of the Donor [George Sr.] no issue of said child is living, or upon the expiration of twenty-one (21) years after the death of the last survivor of the Donor, the Donor’s wife MARY and all of the Donor’s issue by blood living at the Donor’s death, whichever shall first occur.” (Emphasis added). After George Sr.’s death and enactment of the GST tax, […]