Passero v. Fitzsimmons, et al. (Lawyers Weekly No. 11-105-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-1314 Appeals Court ELAINE PASSERO vs. PAULA LIA FITZSIMMONS, trustee,[1] & another.[2] No. 16-P-1314. Essex. May 3, 2017. – August 17, 2017. Present: Massing, Shin, & Ditkoff, JJ. Trust, Breach of trust, Trustee’s discretion, Exemption of trustee from liability, Removal of trustee, Trustee’s compensation, Beneficiary, Distribution. Damages, Breach of fiduciary duty. Probate Court, Removal of fiduciary, Fiduciary’s fees, Judicial discretion. Practice, Civil, Bias of judge, Waiver. Waiver. Civil action commenced in the Essex Division of the Probate and Family Court Department on August 23, 2013. The case was heard by Peter C. DiGangi, J. George P. Lordan, Jr., (Anthony S. Porcello & Dennis P. Derrick also present) for the defendants. Stefan L. Jouret (Rebecca Royer also present) for the plaintiff. SHIN, J. This case involves a dispute over the administration of a share of a trust established for the benefit of the plaintiff and two of her three children. The plaintiff brought suit against the defendant trustees, claiming, among other things, that they committed a breach of trust by paying for fifteen years of storage fees out of trust assets. A judge of the Probate and Family Court agreed, ordered the defendants to repay the storage fees and other unaccounted-for sums to the trust, and removed the defendants as trustees. We discern no error in these determinations and reject the various challenges that the defendants raise on appeal. Nevertheless, we conclude that remand is required for two reasons. First, the judge should not have appointed the plaintiff’s children as successor trustees because they are themselves beneficiaries of the trust. As such, they are interested parties and are barred by the trust document from exercising certain powers, including distributions. Second, the judge was without authority to order the successor trustees to make monthly distributions to the plaintiff in a specified amount. We therefore vacate the judgment as to the appointment of the successor trustees and the distribution of the trust’s assets and remand for appointment of a disinterested successor trustee, who shall have the discretion to make distributions in accordance with the trust instrument. We affirm the judgment in all other respects. Background. We summarize the detailed findings of fact made by the judge, reserving some facts for later discussion. The settlor — who is the father […]