Marsman v. Nasca

573 N.E.2d 1025 (1991)

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Marsman v. Nasca

Massachusetts Appeals Court
573 N.E.2d 1025 (1991)

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In her will, Sara Wirt Marsman left one-third of the residue of her estate in trust to her second husband, T. Frederick Marsman (Cappy) with the income to be distributed to Cappy during his lifetime and the remainder to her daughter, Sally Marsman Marlette. The trust also directed the trustee to distribute principal as he would “deem advisable” for Cappy’s “comfortable support and maintenance,” which the trustee was to determine “after having considered the various available sources of support” available to Cappy. Additionally the trust contained a provision protecting the trustee from liability “except for his own willful neglect or default.” The trustee, James F. Farr (defendant) also was the drafting attorney of Sara’s will. Prior to Sara’s death, Sara and Cappy had a very comfortable lifestyle and owned a residence together as tenants by the entirety (the Residence). Although the residence passed to Cappy by operation of law after Sara’s death in 1971, Cappy was forced to retire from his job and his income after Sara’s death substantially declined. Cappy married Margaret (plaintiff) in 1972. Due to the reduction in his income, Cappy took out a mortgage and requested principal from the trust. Farr sent $300 and instructed Cappy to provide a written explanation before he would release additional principal. Cappy did not make any further requests for trust principal and instead turned to Sally and her husband Marlette in 1974 for assistance with paying the costs of maintaining the Residence. In return, Cappy agreed to deed the Residence to them upon his death. However in 1973, Cappy had drafted a will leaving the Residence to Margaret. Cappy died in 1987 and Marlette became sole owner because Sally had died in 1983. Marlette sent Margaret a notice to vacate the Residence and Margaret brought an action in probate court. The probate court held that Farr breached his fiduciary duty to Cappy by failing to inquire into Cappy’s need for distributions of principal and that Cappy would not have deeded the Residence to Sally and Marlette if Farr had made appropriate distributions of principal as directed by the terms of the trust. The probate court ordered Marlette to transfer the Residence to Margaret and Farr to refund the bills paid by Sally and Marlette from the remaining balance of the trust, and if that was not sufficient, to be paid by Farr personally. Farr and Marlette appealed the judgment.

Rule of Law


Holding and Reasoning (Dreben, J.)

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