DONNA L. BRENNAN v. DIANE M. BURKE and SANDRA ANN McINTOSH.

Donna L. Brennan filed this S-Case on August 8, 2011. In her Petition to Amend Title, Brennan seeks to strike a life estate in the subject property held by defendant Sandra Ann McIntosh. Brennan and defendant Diane M. Burke each also hold life estates. The citation was issued on January 10, 2012. Burke’s and McIntosh’s Motion to Dismiss was denied on July 13, 2012. At a conference on August 2, 2013, the parties agreed that the issues to be determined in this action are (a) the validity of the life estate of Sandra Ann McIntosh and (b) the identity and interests of the beneficiaries of the Rigoli Realty Trust. Burke and McIntosh filed Respondents’ Motion for Summary Judgment and Respondent’s Statement of Fact in Support of Motion for Summary Judgment Pursuant to Rule 56 on August 5, 2013. The parties filed their Assented to Motion to Correct Scrivener’s Error on September 6, 2013. Brennan filed Petitioner’s Opposition to Motion for Summary Judgment and the Affidavit of Donna L. Brennan in Response to Respondent’s Motion for Summary Judgment Pursuant to Rule 56 and Motion to Strike. The court heard argument on the Respondents’ Motion for Summary Judgment on October 3, 2013, and took the motion under advisement. For the reasons stated below, the Motion to Dismiss is ALLOWED IN PART AND DENIED IN PART, with an order entering declaring the parties’ interests.

Background

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the Court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

The following material facts are not in dispute:

Brennan, Burke, and McIntosh are the three daughters of Joseph and Lena Rigoli. The Rigolis owned the subject property, a two-family house at 37 Lawrence Street, East Falmouth, Massachusetts (the “Property”). Title to the Property was registered in the Barnstable Land Court Registry District (“registry”) on October 18, 1963, by document no. 84179. The Declaration of Trust Establishing the Rigoli Realty Trust, dated July 15, 1998, was registered in the registry as document no. 734,707 on July 29, 1998. By a deed dated July 15, 1998 and registered in the registry on July 29, 1998 as document no. 734,706, certificate no. 149519, Joseph P. Rigoli, trustee of the Lena M. Rigoli Trust, conveyed the Property to Joseph P. Rigoli, trustee of the Rigoli Realty Trust.

The Rigoli Realty Trust has two beneficiaries, each with a 50% beneficial interest: (1) the Joseph P. Rigoli Trust, under a declaration of trust dated July 15, 1998, as amended by the First Amendment to the Joseph P. Rigoli Declaration of Trust, dated August 24, 1999, the Second Amendment to the Joseph P. Rigoli Declaration of Trust, dated October 23, 2002, and the Third Amendment to the Joseph P. Rigoli Declaration of Trust, dated November 2, 2008 (“Joseph Trust”), and (2) the Lena M. Rigoli Trust, under a declaration of trust dated July 15, 1998, as amended by the First Amendment to the Lena M. Rigoli Declaration of Trust, dated August 24, 1999, the Second Amendment to the Lena M. Rigoli Declaration of Trust, dated October 23, 2002, and the Third Amendment to the Lena M. Rigoli Declaration of Trust, dated February 9, 2004 (“Lena Trust”).

By a deed dated October 2, 2002 and registered in the registry on October 9, 2002 as document no. 888,690, certificate no. 166859, Lena M. Rigoli conveyed the Property to the Rigoli Realty Trust for nominal consideration, and granted a life estate in the Property to Brennan and Burke. [Note 1] By a “deed of life estate” dated May 31, 2005 and registered in the registry on June 6, 2005 as document no. 1,003,675, Joseph P. Rigoli as trustee of the Rigoli Realty Trust granted a life estate in the Property to McIntosh. On July 8, 2009, Brennan filed in this Court a Petition for Partition of the Property. On November 6, 2009, this Court granted the motion of Burke and McIntosh to transfer the action to the Barnstable Probate and Family Court.

Lena M. Rigoli died on April 24, 2010, and Joseph P. Rigoli died on August 30, 2010. The Lena Trust provides that after Lena’s and Joseph’s deaths, the trust estate would be divided into three equal shares for Brennan, Burke, and McIntosh. The Joseph Trust provides that after Joseph’s death, if Lena has predeceased Joseph, the trust estate would be divided into two equal shares for Burke and McIntosh.

On January 27, 2011, the Barnstable Probate and Family Court dismissed the Petition for Partition that this court had received in 2009. In an earlier order explaining the dismissal, the Probate Court had stated that a number of questions regarding legal ownership of the Property required resolution before partition could commence. The Court suggested “that the Land Court be the appropriate Court to resolve these questions.”

Discussion

Life estate of Sandra Ann McIntosh. Brennan alleges that the Rigoli Realty Trust’s grant of a life estate to McIntosh is invalid and should be struck. Burke and McIntosh argue that the life estate was validly granted to McIntosh and that she holds a 1/3 life estate along with Brennan and Burke. As discussed below, McIntosh’s life estate is valid, but it is a life estate only in the remainder interest of the Rigoli Realty Trust, to be exercised only after the life estates of Brennan and Burke have terminated.

There are no grounds in the record for questioning the validity of the Rigoli Realty Trust’s grant of a life estate to McIntosh. The express terms of the Rigoli Realty Trust’s Declaration of Trust states that all beneficiaries must authorize actions taken regarding the Trust Estate. The beneficiaries of the Rigoli Realty Trust are Lena Rigoli and Joseph Rigoli as the trustees of the Joseph Trust and the Lena Trust, respectively. The Trustee Certificate accompanying the deed conveying a life estate to McIntosh states that the Rigoli Realty Trust received the authorization of all beneficiaries to make the conveyance. Moreover, under the terms of the Rigoli Realty Trust, the deed conveying McIntosh’s life estate is itself “conclusive evidence” of authorization of the execution by the beneficiaries. As Brennan is not a beneficiary of the Rigoli Realty Trust, her authorization was not required in order for the realty trust to convey McIntosh’s life estate.

The conveyance by Lena M. Rigoli to the Rigoli Realty Trust on October 2, 2002 conferred a life estate to Brennan and Burke and the remainder in fee simple to the realty trust. The corresponding rights and characteristics of these two types of interests—life estates and remainder interests—are well-established in the law. The holder of a remainder interest has the power to transfer that interest or any part thereof. Restatement (First) of Property §162 (1) (1936) (Restatement). Thus the Rigoli Realty Trust, as holder of a remainder in fee simple in the Property, could transfer a life estate to McIntosh even after it transferred life estates to Brennan and Burke.

At the same time, the holders of possessory life estates, such as Brennan and Burke, see id. §117, com. a, have the right to exclusive possession of the Property. See Hershman- Tcherepnin v. Tcherepnin, 452 Mass. 77 , 88 n.20 (2008) (citing H.J. Alperin & L.D. Shubow, Summary of Basic Law § 17.15, 585 (3d ed. 1996)). They also enjoy the right that their possession not be disturbed. Tinkham v. Wind, 319 Mass. 158 , 160 (1946) (citing Restatement §117, 118). This right operates as if Brennan and Burke held the Property in fee simple, Restatement §117, subject to certain exceptions that do not apply in the present case. See id., com. c. It also operates against individuals holding future interests, such as the Rigoli Realty Trust. Id. §117, com. d. Any subsequent or successive life estate granted by the remainderperson is only a life estate in the remainder interest. Indeed, successive life estates like this are expressly contemplated under Massachusetts law. See, e.g., G.L. c. 242, §2 (cause of action for waste available to successor interests); Howe v. Howe, 179 Mass. 546 , 552 (1901) (discussing rights of successive life estates); see also Restatement §191.

The Rigoli Realty Trust’s conveyance of a life estate to McIntosh, therefore, while valid, cannot affect the right of Brennan and Burke to exclusive and undisturbed ownership of the Property. To hold otherwise would give the Rigoli Realty Trust the ability to continually create additional present ownership interests in the Property, no matter the approval of its current life tenants; such a power is inconsistent with those life tenants’ right to exclusive and undisturbed possession of the Property. The life estate to Brennan and Burke exists prior in time to McIntosh’s interest. McIntosh therefore holds a life estate in the Rigoli Realty Trust’s remainder interest. She must wait until the expiration of the Brennan-Burke life estate until her life estate vests. The fact that the deed to McIntosh manifests an intent to convey three “equal” life estates, is immaterial; the Rigoli Realty Trust had no power to make such a conveyance.

Identity and interests of the beneficiaries of the Rigoli Realty Trust. The Rigoli Realty Trust still holds title to the Property. The Joseph Trust and the Lena Trust each held a 50% beneficial interest in the Rigoli Realty Trust. By the terms of the Lena Trust, after the deaths of Lena Rigoli and Joseph Rigoli, the trust assets would be distributed to Brennan, Burke, and McIntosh in equal 1/3 shares, including the 50% beneficial interest in the Rigoli Realty Trust held by the Lena Trust. Thus, through the Lena Trust, Brennan, Burke, and McIntosh each hold a 16 2/3 % beneficial interest in the Rigoli Realty Trust (i.e., 1/3 of 50%). By the terms of the Joseph Trust, after the deaths of Lena Rigoli and Joseph Rigoli, that trust’s assets would be distributed to Burke and McIntosh in equal 50% shares, including the 50% beneficial interest in the Rigoli Realty Trust held by the Joseph Trust. Thus, through the Joseph Trust, Burke and McIntosh each hold a 25% beneficial interest in the Rigoli Realty Trust (i.e., 1/2 of 50%). This means that Brennan has a 16 2/3 % beneficial interest (16 2/3 % from the Lena Trust and no interest from the Joseph Trust), Burke has a 41 2/3 % beneficial interest (16 2/3 % from the Lena Trust and 25% from the Joseph Trust), and McIntosh has a 41 2/3 % beneficial interest in the Rigoli Realty Trust (16 2/3 % from the Lena Trust and 25% from the Joseph Trust).

Merger. To the extent any of the parties is arguing that the life estates have merged with the remainder interests, see Hurley v. A’Hearn, 338 Mass. 695 , 697 (1959); Johnson v. Johnson, 7 Allen 196 , 197-198 (1863), that argument was addressed in the court’s Order Denying Defendants’ Motion to Dismiss, and no facts have emerged that would change the court’s conclusion that there is no merger. First, the remainder interest is not held by the three daughters; it is held by the Rigoli Realty Trust. The daughters only hold beneficial interests in the Rigoli Realty Trust. While estates merge where the holder of life estate and remainder is also trustee under will, see Langley v. Conlan, 212 Mass. 135 , 137-138 (1912), that situation does not apply here. The life estate and remainder interests are not the same. Brennan and Burke each hold a 50% interest in their life estate; McIntosh holds a 100% successor life estate. Their percentage beneficial remainder interests are 41 2/3 % for Burke and McIntosh and 16 2/3 % for Brennan. Thus, the life estate and remainder interests are not equivalent. Moreover, there cannot be a unity of estate between the life estates and the remainder interests because the life estates of Brennan and Burke and of McIntosh are life estates in different interests. Brennan and Burke hold life estates in the Property with the remainder held by the Rigoli Realty Trust for the benefit of Brennan, Burke, and McIntosh. McIntosh holds a life estate in that remainder interest. Even after Brennan and Burke’s life estate ends (presumably at their deaths), their heirs’ remainder interest in the Property (as heirs of Brennan and Burke as beneficiaries of the Rigoli Realty Trust) will be subject to McIntosh’s life estate. When a party holds a life estate and a remainder interest, but another party also holds a remainder interest, there is no unity of title and therefore no merger. See Hurley, 338 Mass. at 696-697 (no merger where lessee holds ½ undivided remainder interest with her brother); Johnson, 7 Allen at 197-198 (holder of life estate and 5/6 remainder interest not entitled to merger while wife’s life estate still outstanding).

Undue influence claim. In her opposition to the Respondents’ Motion for Summary Judgment, Brennan argues that Joseph Rigoli was the subject of undue influence from McIntosh, and presents factual allegations that she claims supports her argument. This argument was not part of the issues before the court on summary judgment. The issue of undue influence is a subject best left to the Probate and Family Court in deciding the questions surrounding the estates of Joseph and Lena Rigoli. The court here decides only the question of the ownership interests in the Property.

“Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c). This is such a case. The Respondents’ Motion for Summary Judgment is allowed in part and denied in part. With respect to that portion of the motion that is denied, summary judgment will enter against Burke and McIntosh and in favor of Brennan. An order will enter declaring the life estate and ownership interests in the Property.

Conclusion

For the foregoing reasons, the Assented to Motion to Correct Scrivener’s Error is DENIED AS MOOT, as the court has corrected its scrivener’s error in this Order. The Motion to Strike is DENIED. The Respondents’ Motion for Summary Judgment is ALLOWED IN PART AND DENIED IN PART. It is hereby DECLARED that (a) Donna L. Brennan and Diane M. Burke each hold a 50% undivided life estate in the property known and numbered as 37 Lawrence Street, East Falmouth, Massachusetts (Property), by a deed dated October 2, 2002 and registered in the Barnstable Registry District (registry) on October 9, 2002 as document no. 888,690, certificate no. 166859, with the remainder held by the Rigoli Realty Trust, u/d/t dated July 15, 1998, and registered in the registry as document no. 734,707 on July 29, 1998; (b) Sandra Ann McIntosh holds a life estate in the remainder interest in the Property held by the Rigoli Realty Trust by a “deed of life estate” dated May 31, 2005 and registered in the registry on June 6, 2005 as document no. 1,003,675; and (c) the beneficiaries of the Rigoli Realty Trust are (i) Donna L. Brennan, with a 16 2/3 % beneficial interest, (ii) Diane M. Burke, with a 41 2/3 % interest, and (iii) Sandra Ann McIntosh, with a 41 2/3 % beneficial interest. [Note 2]

SO ORDERED