TERRY K. MOND and WILLETTA PITTS-GIVENS, As They are the Temporary Co-Executors of the Estate of Lorenzo Pitts v. LORENZO PITTS, JR. and ROBERT PITTS.

I. INTRODUCTION

The temporary co-executors of the estate of Lorenzo Pitts, Sr. (“plaintiff” or the “Estate”), Terry K. Mond and Willetta Pitts-Givens, brought this action to have this court determine who holds title to certain properties on Walnut Avenue, in the Roxbury section of Boston (the “Esperanza Trust Properties”), and on Cedar Street, Hawthorne Street, and Highland Street also in Roxbury (collectively, the “Fort Hill Trust Properties”). This litigation grew out of disputes among parties, family members of the late Lorenzo Pitts, Sr., about the state of title to these income producing multi-family residential apartment projects at the time of his death. I am called upon to decide whether the title to these properties passed under his will, as the co- executors contend, or pursuant to the terms of the instruments establishing trusts into which the properties’ titles earlier were placed, as the defendants say.

II. PROCEDURAL HISTORY

On September 24, 2009, prior to the commencement of this action, Lorenzo Pitts, Jr., Willetta Pitts-Givens, and Terry Mond, Esq. petitioned the Suffolk Division of the Probate and Family Court Department of the Trial Court (“Probate Court”) to probate the last will and testament of Lorenzo Pitts, Sr. The action was opened on the Probate Court’s docket at Case No. 09P-2077-EA. Several of Lorenzo Pitts, Sr.’s other children appeared in the Probate Court to object; they advanced claims of undue influence. On July 19, 2011, the Probate Court issued a memorandum of decision and order granting the Estate’s motion to dismiss these objections. The Probate Court held there was insufficient evidence to support a finding of undue influence by Lorenzo Pitts, Jr. and Willetta Pitts-Givens upon Lorenzo Pitts, Sr. In the same memorandum, the Probate Court allowed the petition to probate the last will and testament of Lorenzo Pitts, Sr. The Probate Court left to this court the title question now before me, which requires an interpretation of the meaning and effect of the instruments governing the trusts in which title to the Esperanza and Fort Hill Trust Properties stood of record as of the death of Lorenzo Pitts, Sr.

On June 14, 2011, the court held a case management conference. At the conference, plaintiffs were instructed to amend the complaint to join all holders of any record interest in the locus, including mortgagees. On July 7, 2011, plaintiff filed an amended complaint, joining as interested parties Rockland Trust Company [Note 1] and the trustees of the “Lorenzo Pitts Trust of 2007.” On June 10, 2011, defendants filed a motion for judgment on the pleadings under Mass. R. Civ. P. 12(c). [Note 2] Plaintiff filed an opposition to the motion on October 20, 2011, and the motion was heard by the court on December 14, 2011. For the reasons expressed from the bench and set forth on the court’s docket for this case, the court (Piper, J.) denied defendants’ motion for judgment on the pleadings. The entry made that day stated, among other things, that:

In Light of Appeals Court Ruling in Tretola v. Tretola, 61 Mass. App. Ct. 518 (2004), It Appears Likely that Land Court Would Require Resort to Evidence Beyond the Record Title and Trust Documents to Determine Whether Applying Doctrine of Merger to the Subject Trust Would Frustrate Intent of Settlor, Or Otherwise Result in Injustice, Or Whether, Even If Merger Took Place, Evidence Proves Reinstitution or Reanimation of Trust. [Note 3]

On December 16, 2011, defendants filed an answer and counterclaim in response to plaintiff’s amended complaint.

On March 8, 2012, plaintiff answered defendants’ counterclaim. Defendants filed a motion for summary judgment in March, 2013; it was rejected by the court as being untimely. Defendants then filed an emergency motion for leave of court to file an untimely summary judgment motion. This court denied that motion on May 2, 2013:

...for Prudential Reasons and Not Merely Because of Untimeliness of Summary Judgment Motion, Which Was Filed Eight Months After Time Set in Case Management Tracking Orders. Court Is Not Convinced There Exists a Substantial Likelihood that Summary Judgment Motion Would Resolve All or Many Issues in this Case Without Need for Evidentiary Hearing.

The parties submitted a joint pretrial memorandum on May 6, 2013. [Note 4]

The parties appeared on September 26, 2013, September 27, 2013 and October 30, 2013 for trial. The parties introduced thirty-seven exhibits into evidence; those exhibits are incorporated into this decision for the purposes of any appeal. Terry K. Mond, Esq., Stephen M. Scolnick, Esq., Edward V. Casey, Esq., Willetta Pitts-Givens, William F. Barry, Esq., Mark W. Williamson, Esq., and Lorenzo Pitts, Jr. testified. A court reporter was present to transcribe all testimony and proceedings. At the close of the evidence, the court suspended the trial. Following receipt of the transcript for the first three days of trial, the parties submitted post-trial briefs and requests for findings of fact and rulings of law. Trial then resumed for closing arguments. After the submission of the final transcript, the court took the case under advisement. I now decide the case.

On all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, given my assessment of the credibility and persuasive force of the evidence which I carry out in my role as trier of fact, and taking into account the pleadings and the argument of the parties by their counsel, I find the following facts and rule as follows.

III. FINDINGS OF FACT

A. Background

1. Plaintiff is the estate of Lorenzo Pitts, Sr., by its temporary co-executors, Terry K. Mond and Willetta Pitts-Givens (“Plaintiff” or the “Estate”). Lorenzo Pitts, Sr. (“Pitts, Sr.”) died in 2009.

2. Terry K. Mond, Esquire (“Attorney Mond”) is an attorney at the law firm of Gordon, Mond & Ott. In January, 2005, Attorney Mond and his firm began providing legal representation to Pitts, Sr. regarding estate planning matters. Attorney Mond currently holds the position of temporary co-executor of Pitts, Sr.’s estate.

3. Willetta Pitts-Givens (“Pitts-Givens”) is a daughter of Pitts, Sr., and also temporary co- executor of Pitts, Sr.’s estate.

4. Defendant Dr. Lorenzo Pitts, Jr. (“Sonny”) [Note 5] is the eldest son of Pitts, Sr. Sonny earlier was temporary co-executor of Pitts, Sr.’s estate, but was removed by the Probate Court.

5. Defendant Robert Pitts (“Robert”) also is a son of Pitts, Sr. Robert Pitts has, and for some time has had, a substance abuse problem; he did not attend the trial at any time, and did not participate directly in the proceedings or testify.

6. In addition to Sonny, Robert and Willetta, Pitts, Sr.’s children were: Glynn Pitts, Samuel Pitts, Juanita Pitts, Katherine Pitts (now deceased), Geneva Pitts, Edward Pitts, Charles Pitts, Jerome Pitts, and Gwendolyn Brown.

7. Lorenzo Pitts, Sr. was married twice. Helen Pitts, Pitts, Sr.’s first wife, was mother to Robert and Sonny. Rosie Lee Pitts, Pitts, Sr.’s second wife, was mother to the remaining ten children.

8. Sondra Brick is an woman who had a close personal relationship with Lorenzo Pitts, Sr. for a number of years. Their relationship ended sometime around 1997. Prior to 1997, Sondra Brick was employed by Pitts, Sr. at his real estate management company, Lorenzo Pitts, Inc.

9. Prior to his death, Pitts, Sr. had spent his life building a business renting apartments and managing apartment building properties. Many of the rentals were to low-income tenants in government-subsidized residential multi-family apartment buildings. Pitts, Sr.’s holdings included several real estate developments, the majority of which, including the properties in dispute in this litigation, were operated as subsidized housing and subject to management and subsidy contracts with agencies such as the Boston Housing Authority, the Massachusetts Housing Authority, the Massachusetts Housing Investment Corporation, and the U.S. Department of Housing and Urban Development (“HUD”).

10. Pitts, Sr.’s holdings, and their record ownership prior to his death, were:

a. Certain property on Fayston Street, Intervale Street, and Lawrence Avenue, Dorchester, and Greenville Street, Mt. Pleasant Street, and Vine Street, Roxbury, (collectively, the “Lawrenceville Apartments”), owned by “Lorenzovest Holdings, LLC.” [Note 6]

b. Certain property on Thane Street, Roxbury, (collectively, the “Thane Street Apartments”), owned by “GCT Limited Partnership.” [Note 7]

c. Certain property on Brunswick Street, Dorchester (collectively, the “Infill I & II”), owned by Lorenzovest Holdings, LLC.

d. Certain property on Gardner Street and Roxbury Street, Roxbury (collectively, the “Gardner Apartments”), owned by GCT Limited Partnership.

e. Certain property on Crawford Street, Roxbury (collectively, the “Crawford House Apartments”), owned by GCT Limited Partnership.

f. One unit at 691 River Street, Hyde Park (“691 River Street”), owned by Pitts, Sr., individually.

g. The Esperanza Trust Properties on Walnut Avenue, Roxbury owned by Pitts, Sr., as trustee of the Esperanza Trust.

h. The Fort Hill Trust Properties on Cedar Street, Hawthorne Street, and Highland Street, Roxbury, owned by Pitts, Sr., as trustee of the Fort Hill Trust.

11. According to the inventory filed with the Probate Court, these properties amount to approximately $4,792,410.82 in combined value. The Esperanza and Fort Hill Trust Properties constitute $3,685,094.77, or more than seventy-six percent of the total value in the inventory. [Note 8]

12. Both the Esperanza and Fort Hill Trust Properties are residential apartment complexes, composed of low-income subsidized rental housing units.

13. Lorenzo Pitts, Inc. (“LPI”) is a real estate management company established by Pitts, Sr. LPI manages and oversees all of Pitts, Sr.’s real estate holdings.

B. The Esperanza Trust

14. Pitts, Sr. established the Esperanza Trust by declaration of trust, dated February 13, 1980 and recorded February 21, 1980 at the Suffolk County Registry of Deeds (“Registry”) in Book 9385, Page 247.

15. On February 20, 1980, the Secretary of Housing and Urban Development, acting by and through the Federal Housing Commissioner, conveyed by deed 80-82 Walnut Avenue, Boston, Massachusetts and 84 Walnut Avenue, Boston, Massachusetts (comprising the Esperanza Trust Property) to Lorenzo Pitts, Sr. and Sondra Brick as trustees of the Esperanza Trust. The deed was recorded on February 21, 1980, at the Registry in Book 9835, Page 253.

16. The Esperanza Declaration of Trust contains the following relevant provisions:

a. Paragraph Two states: “This Trust shall terminate at the expiration of forty (40) years from the date hereof.” [Note 9]

b. Paragraph Three states: “The Trustees under this Declaration of Trust shall be:–Lorenzo Pitts, Sr. and Sondra Brick, both of Dorchester, Suffolk County, Commonwealth of Massachusetts.”

c. Paragraph Four states: “In the event of the inability to act, resignation, or death of either Trustee, a certificate, signed and acknowledged by the surviving Trustee setting forth the fact that his Co-Trustee is unable to act, has resigned or has died, when recorded in the Suffolk County Registry of Deeds, shall be conclusive evidence of the facts therein contained and thereupon the surviving Trustee shall become the sole Trustee. If the succeeding Trustee shall become unable to act, shall resign or die, a certificate setting forth such facts, recorded in the Suffolk County Registry of Deeds, shall be conclusive evidence of the facts therein contained, thereupon said Trust shall terminate.”

d. Paragraph Seven states: “The beneficiary of the Trust shall be Lorenzo Pitts, Sr. or if said beneficiary is not living, then the beneficiaries shall be Lorenzo Pitts, Jr. and Robert Pitts in equal shares, share and share alike or to the survivor of them if either shall have died.”

e. Paragraph Eight states in part:

...Neither the death of a beneficiary, nor transfer by operation of law, of the interest of a beneficiary, during the continuance of this Trust, shall operate to terminate the Trust, nor shall it entitle their wives or legal representatives, as the case may be, to any accounting or to take any action in the courts or otherwise against the Trust or Trustees, but the family or legal representative, as the case may be, of such beneficiary shall succeed to all his rights under this Trust.

f. Paragraph Nine states in part:

The Trustees shall have exclusive and absolute management of property, real and personal, at any and all time held by them under this Trust and shall manage and conduct the same in any manner that they shall deem for the interest of the beneficiaries, as if the Trustees were the absolute owners of the Trust property, subject, however, to any express limitations imposed by this instrument. They shall have the power to improve and develop the property of the Trust by the erection of buildings or otherwise, to tear down, repair and rebuild, to lease real estate or personal property, both as lessor and lessee for any term, the whole or any part of the property, whether or not said term is beyond the duration of this Trust, may create easements, adjust boundary lines, make party- wall agreements, acquire land and buildings by purchase or exchange, convey any part of the trust property, comprise and settle claims and disputes of any kind that affect the said Trust property.

g. Paragraph Ten states:

The Trustees shall have the power and authority to pay such dividends to the beneficiaries out of the net profits as they may from time to time deem expedient. They may invest and re-invest any moneys in their possession at any time belonging to said Trust in real or personal property, as they may deem wise and to hold and employ the same for the benefit of the Trust as they may deem proper. The decision of the Trustees as to the division of the charges between capital and income shall be final and binding upon all beneficiaries.

h. Paragraph Thirteen states: “At the termination of this Trust, the Trustees shall sell or transfer the Trust property and divide the proceeds thereof among the beneficiaries if living, or to their heirs at law, in proportion to their respective interests.”

17. On or about June 11, 1997, Sondra Brick resigned as co-trustee of the Esperanza Trust, and a certificate of notice of resignation was duly recorded at the Registry in Book 21478, Page 268.

C. The Fort Hill Trust

18. Pitts, Sr. established the Fort Hill Trust by declaration of trust dated December 1, 1984, recorded at the Registry June 14, 1985 in Book 11658, Page 152.

19. By deed dated April 16, 1985, S. John Loscocco, as sole surviving partner of Fort Hill Gardens, conveyed the Fort Hill Trust Property at 58-80 Cedar Street, 15-21 Hawthorne Street, and 112-132 Highland Street, Roxbury to Lorenzo Pitts, Sr. as trustee of Fort Hill Trust. The deed was recorded on June 14, 1985, at the Registry in Book 11658, Page 167.

20. The Fort Hill Declaration of Trust contains the following relevant provisions:

a. Paragraph Two states: “This Trust shall terminate at the expiration of thirty (30) years from the date hereof.” [Note 10]

b. Paragraph Three states: “The Trustee under this declaration of trust shall be Lorenzo Pitts of Dorchester, Suffolk County, Commonwealth of Massachusetts.”

c. Paragraph Four states in part: “If the Trustee shall become unable to act, shall resign or die, a certificate signed and acknowledged by the surviving beneficiaries setting forth such facts, recorded in the Suffolk County Registry of Deeds, shall be conclusive evidence of the facts therein contained, thereupon said Trust shall terminate.”

d. Paragraph Seven states:

The beneficial interest in the Trust hereunder shall be as follows: ninety-nine (99%) per cent to Lorenzo Pitts [Sr.] and one (1%) per cent to Sondra Brick. If Lorenzo Pitts [Sr.] is not living, then the beneficiaries shall be Lorenzo Pitts, Jr., and Robert Pitts, in equal shares, share and share alike or to the survivor of them if either shall have died.

e. Paragraph Eight states in part:

...Neither the death of a beneficiary, nor transfer of operation of law, of the interest of a beneficiary, during the continuance of this Trust, shall operate to terminate the Trust, nor shall it entitle their wives or legal representatives, as the case may be, to any accounting or to take any action in the courts or otherwise, against the Trust or Trustees, but the family or legal representatives, as the case may be, of such beneficiary shall succeed to all his rights under this Trust.

f. Paragraph Nine states in part:

The Trustees shall have exclusive and absolute management of the property, real and personal, at any and all times held by them under this Trust and shall manage and conduct the same in any manner and that they shall deem for the interest of the beneficiaries, as if the Trustees were the absolute owners of the Trust property, subject, however, to any express limitations imposed by this instrument. They shall have the power to improve and develop the property of the Trust by the erection of buildings or otherwise, to tear down, repair and rebuild, to lease real estate or personal property, both as lessor and lessee for any term, the whole or any part of the property, whether or not said term is beyond the duration of this trust, may create easements, adjust boundary lines, make party-wall agreements, acquire land and buildings by purchase or exchange, convey any part of the Trust property, comprise and settle claim and disputes of any kind that affect the said Trust property.

g. Paragraph Ten states:

The Trustees shall have the power and authority to pay such dividends to the beneficiaries out of the net profits as they may from time to time deem expedient. They may invest and re-invest any moneys in their possession at any time belonging to said Trust in real or personal property, as they may deem wise and to hold and employ the same for the benefit of the Trust as they may deem proper. The decision of the Trustees as to the division of the charges between capital and income shall be final and binding upon all beneficiaries.

h. Paragraph Thirteen states: “At the termination of this Trust, the Trustees shall, in accordance with the directions hereinabove set forth, sell or transfer the Trust property and divide the proceeds thereof among the beneficiaries if living, or to their heirs at law, in proportion to their respective interests.”

21. On or about April 26, 2005, Sondra Brick assigned her one percent beneficial interest in Fort Hill Trust to Pitts, Sr.

D. Refinancing of the Properties and Estate Planning by Lorenzo Pitts, Sr.

22. In 2004 and 2005, Pitts, Sr. refinanced the Esperanza and Fort Hill Trust Properties with lender Rockland Trust Company (“Rockland Trust”). Pitts, Sr. retained the Law Office of Russo & Scolnick, and worked with Attorney Robert Russo and Attorney Stephen Scolnick during the refinance. Rockland Trust was represented by Attorney William Barry, of the Law Office of William F. Barry.

23. Attorney Scolnick executed an Opinion of Counsel letter dated December 29, 2004, opining to Rockland Trust that the borrower, Esperanza Trust:

(a) ...is duly formed and in good standing, (b) ...[is] duly authorised to execute the loan documents, (c) ...execution of the loan documents are valid, binding and enforceable in accordance with their terms, (d) ...execution of the loan documents does not violate any law, regulation or ordinance, (e) the loan documents do not conflict with the [Esperanza Trust’s] by-laws or any other documents creating or giving the [Esperanza Trust] authority, and are not in violation with any other agreement of [Esperanza Trust] and (f) no material litigation is, to my/our knowledge, pending or threatened against the [Esperanza Trust] or the Property.

24. On December 30, 2004, a certificate of trustee for the Esperanza Trust was recorded at the Registry in Book 36206, Page 289. The certificate was signed under oath by Lorenzo Pitts, Sr. as Trustee on December 29, 2004, and stated, referring to the declaration of trust dated February 13, 1980 and recorded with the Registry in Book 9385, Page 247:

(1) Said Trust has not been terminated, revoked or expired and is in full force and effect, without modification or change. (2) All the beneficiaries are of legal age. (3) All the beneficiaries are competent. (4) All the beneficiaries have consented to undertaking a loan from Rockland Trust Company in the original principal amount of $1,000,000.00 and in connection therewith to grant a first mortgage securing the same to Rockland Trust Company on the trust property located at 80-82-84 Walnut Avenue, Roxbury, MA ... (5) The undersigned is the sole Trustee of the Trust.

25. Attorney Scolnick executed an Opinion of Counsel letter dated May 31, 2005, representing to Rockland Trust that the borrower, Fort Hill Trust:

(a) ...is duly formed and in good standing, (b) ...[is] duly authorised to execute the loan documents, (c) ...execution of the loan documents are valid, binding and enforceable in accordance with their terms, (d) ...execution of the loan documents does not violate any law, regulation or ordinance, (e) the loan documents do not conflict with the [Fort Hill Trust’s] by-laws or any other documents creating or giving the [Fort Hill Trust] authority, and are not in violation with any other agreement of [Fort Hill Trust] and (f) no material litigation is, to my/our knowledge, pending or threatened against the [Fort Hill Trust] or the Property.

26. On June 1, 2005, a certificate of trustee for the Fort Hill Trust was recorded at the Registry in Book 37204, Page 96. The certificate was signed under oath by Lorenzo Pitts, Sr. on May 31, 2005, and stated:

(1) Said Trust has not been terminated, revoked or expired and is in full force and effect, without modification or change. (2) All the beneficiaries are of legal age. (3) All the beneficiaries are competent. (4) All the beneficiaries have consented to undertaking a loan from Rockland Trust Company in the original principal amount of $1,200,000.00 and in connection therewith to execute and deliver a Promissory Note in the same original amount and to grant a first mortgage securing same to Rockland Trust Company on the trust property located and 58-80 Cedar Street, 15-21 Hawthorne Street and 122-132 Highland Street, Roxbury, MA.(5) The undersigned is the sole Trustee of the Trust.

27. In 2005, Pitts, Sr. retained the law firm of Gordon, Mond & Ott to handle his estate planning. From 2005 until Pitts, Sr.’s death in 2009, Pitts, Sr. and Sonny worked with Attorney Terry Mond and the law firm Gordon, Mond & Ott to prepare an estate plan.

28. Attorney Mond, Pitts, Sr. and Sonny met on January 8, 2005, to begin a discussion of Pitts, Sr.’s estate planning goals. Attorney Mond detailed the substance of this meeting in a memorandum to Pitts, Sr. and Sonny, dated January 19, 2005. That memorandum stated, in part:

Mr. Pitts [Sr.] indicated that, whatever solution we might devise for his estate planning, he would like to remain in control for as long as he has the desire and remains in good health. His expressed wish was that his son, Lorenzo Pitts, Jr., take over should he become disabled or at the time of his death. Mr. Pitts [Sr.] would also like that the business continue following his death for the benefit of his chosen heirs, and that it not be liquidated. Lorenzo, Jr. indicated that he has agreed to take on that role.

29. Attorney Mond, Pitts, Sr., and Sonny met on May 6, 2005, to continue the discussion regarding Pitts, Sr.’s estate planning. At that meeting, Attorney Mond provided Pitts, Sr. and Sonny with a questionnaire listing open issues to discuss regarding Pitts, Sr.’s estate planning goals. Sonny took notes on his copy of the questionnaire. Under question 1: “Who will be the ultimate beneficiaries of the bulk of Mr. Pitts’ estate after he dies?”, Sonny wrote: “All children (12).” He also noted that Pitts, Sr. was considering setting up sub-trusts for the inheritances for his son Robert and daughter Katherine.

30. As a follow up to the May 6, 2005 meeting, Attorney Mond prepared a memorandum to Pitts, Sr. and Sonny, dated May 26, 2005. The memorandum stated, among other things:

Mr. Pitts expressed the desire that, once Sonny succeeds him, that Sonny have the broadest possible discretion in making decisions regarding the management of the partnership, including the extent that income should be distributed or reinvested in the partnership, whether assets should be held or sold, etc. Mr. Pitts [Sr.] also indicated that if the properties needed to be sold, whether to pay estate taxes or for other reasons, his preference would be that Fort Hill and Esperanza, which are low income housing units, be retained and not sold, as he feels that maintaining these properties is his way of contributing to general welfare of the community.

31. Around this time, Pitts, Sr. established the “Pitts Property Management Corporation,” with himself as president. On June 21, 2006, Pitts, Sr. executed a limited partnership agreement establishing the “Pitts Family Limited Partnership” (“FLP”). Lorenzo Pitts, Sr. was the ninety-nine percent limited partner, and the Pitts Property Management Corporation was the one percent general partner.

32. In connection with the estate planning process, and with the approval of Pitts, Sr. and Sonny, Attorney Mond had all of Pitts, Sr.’s properties appraised. This included appraisal of the values of the Esperanza and Fort Hill Trust Properties.

33. On November 13, 2006, Attorney Mond sent Sonny an electronic mail message regarding the transfer of properties into the FLP. In the message, Attorney Mond expressed concern regarding the status of ownership of the Esperanza Trust:

Unfortuately, [sic] the trust creates significant problems for our plans. The trust does not state that it is revocable, or that the Trustee has an authority to transfer property back to the grantor (Lorenzo Sr.). I have researched Massachusetts law, and it clearly provides that if a trust does not specifically say that it is revocable, then it is not, and cannot be terminated or otherwise changed by the grantor or anyone else. This makes transferring the property out of the trust to the FLP problematic, at best, although there are perhaps a few things we could consider if there are no better options.

Furthermore, the trust provides that Lorenzo Sr. may receive the income of the trust during his lifetime, but does not provide for distributions of principal. Therefore, we cannot just distribute the property out of the trust to him. And it also provides that, upon your father’s death, “then the beneficiaries shall be Lorenzo Pitts, Jr. and Robert Pitts, in equal shares, share and share alike or to the survivor of them if either shall have died.” In other words, Lorenzo, Sr. is the current beneficiary, and upon his death you and your brother Robert become equal beneficiaries, but if one of you has died, the other becomes the sole beneficiary. There is a provision in the trust that is contrary to this, however, saying that upon the death of a beneficiary, “the family or legal representative, as the case may be, of such beneficiary shall succeed to all his rights under the trust.”

Finally, the trust provides that the trust terminates 40 years after its execution, which would be in the year 2020. Upon its termination the trust property is to be distributed to the “beneficiaries if living, or to their heirs at law, in proportion to their respective interests.” It is unclear what this means, given the provisions above. If your father was still living at that time, one reading would be that he would get the entire property back. (Emphasis added).

34. In response to the November 13, 2006 message, Sonny requested Attorney Mond rank the properties in order of ease with which Pitts, Sr. might transfer them to the FLP.

35. On March 27, 2007, Attorney Mond responded to this request with a memorandum regarding the legal status of Pitts, Sr.’s various real estate holdings.

36. Pitts, Sr. executed a last will and testament in 2007 (the “2007 Will”); Sonny was named executor, with Willetta Pitts-Givens as successor executor. In summary, Pitts, Sr. acknowledged that he had twelve children (one of whom, Katherine, has since passed away), to whom he gave his tangible personal property equally. He gave the remainder of his property to the “Lorenzo Pitts, Sr. Trust of 2007” (the “2007 Trust”) that was executed concurrently with this will:

I give, devise and bequeath all the rest, residue and remainder of my property, whether real, personal or mixed, of whatever kind, nature and description, and wherever situated, of which I shall be entitled at the time of my death or over which I shall possess any power of appointment (the foregoing being referred to herein as “my residuary estate”) to the Trustees at the time of the distribution of my estate under a Trust Agreement known as the Lorenzo Pitts, Sr. Trust of 2007.

37. The 2007 Trust appoints Lorenzo Pitts, Sr. and Sonny as co-trustees, and instructs that upon the death of the donor (Pitts, Sr.), the surviving trustee shall pay death taxes, debts and expenses, and then make gifts of $100,000 each to Roxbury Community College and the United Negro College Fund, both for the purpose of funding educational scholarships. Pitts, Sr.’s stock in the Pitts Property Management Corporation (a fifty percent interest), is to be given to Sonny, and the remaining trust property is to be divided as follows: Sonny and Pitts-Givens receiving twenty-five percent each, and the remaining nine children, as well as the issue of the deceased child (Katherine), receiving five percent each. The 2007 Trust further mandates that the real estate be transferred into a family limited partnership, with the beneficiaries being Pitts, Sr.’s children in the same proportions referred to above.

38. On March 24, 2009, Pitts, Sr. executed a “First Codicil to the Last Will and Testament of Lorenzo Pitts, Sr.,” appointing Sonny, Pitts-Givens, and Attorney Terry Mond to serve jointly as co-executors of his estate. [Note 11] The codicil affirmed the balance of the 2007 Will.

39. On the same day, March 24, 2009, Pitts, Sr. also executed a “First Amendment to the Lorenzo Pitts, Sr., Trust of 2007,” appointing Pitts-Givens, Sonny, and Richard Murstein (Pitts, Sr.’s long-time accountant), as co-trustees of the 2007 Trust, [Note 12] and giving Pitts, Sr.’s fifty percent interest in the FLP to Pitts-Givens instead of Sonny. [Note 13] The remainder of the 2007 Trust was affirmed.

40. Pitts, Sr. was diagnosed with cancer in April, 2009. He died on September 3, 2009.

41. Sonny, Pitts-Givens, and Attorney Mond were appointed temporary co-executors of Pitts, Sr.’s estate on October 13, 2009.

42. On February 16, 2010, the co-executors of Pitts, Sr.’s estate filed an estate inventory with the Probate Court. In the inventory, the co-executors attached a “Schedule of Real Estate in Values as of Date of Death,” that included the Esperanza and Fort Hill Trust Properties.

43. On December 1, 2010, the co-executors submitted a United States Estate Tax Return. The Esperanza and Fort Hill Trust Properties were listed on the tax return.

44. The co-executors successfully defended the 2007 Will, as amended in 2009, in the Probate Court, against objections raised by Pitts, Sr.’s other children. [Note 14]

45. On June 27, 2011, the temporary co-executors filed a complaint in the Probate Court requesting an accounting as to the proceeds of the 2007 Trust. The Probate Court has deferred taking action on this request pending the decision by this court in this proceeding.

E. Current Litigation

46. Throughout 2011, Attorney Mond and Willetta Pitts-Givens received various complaints regarding Sonny’s work schedule, erratic attendance, demeanor, and behavior at the office of LPI. In response, Attorney Mond sent Sonny several emails to discuss these employment issues. After Attorney Mond received no response from Sonny, Attorney Mond and Pitts-Givens met in their capacity as the board of directors of LPI, and chose to terminate Sonny’s employment. This was the first and only formal board of directors meeting in LPI’s history.

47. The temporary co-executors of the estate of Pitts, Sr. brought this action to compel Sonny and Robert to prove their claim that they hold the title interest in the properties. As counsel have agreed, this court has tried this action treating it as a request by both parties for a declaration as to the status of the title of the Esperanza and Fort Hill Trust Properties.

48. Robert Pitts did not appear at trial. On September 26, 2013, the parties filed a “Stipulation of Parties on Robert Pitts Testimony,” laying out what the parties agreed would be the evidence had Robert testified. The stipulation states, in part:

(1) [Robert] did not know about the Fort Hill or Esperanza Trusts until approximately April, 2011 when he was told of them by Lorenzo Pitts, Jr. (2) [Robert] was surprised to learn he was a beneficiary of the Trusts. (3) Lorenzo Pitts, Sr. had never told Robert Pitts that Robert had any interest in the properties, which Robert thought were owned by his father as part of his company, Lorenzo Pitts Inc.

49. The Esperanza and Fort Hill Trust Properties are subject to mortgages held by Rockland Trust. The parties have stipulated that the mortgages held by Rockland Trust will be honored by the prevailing party in this action.

IV. DISCUSSION

A. Ambiguity

Defendants read the Esperanza and Fort Hill trust instruments to grant Sonny and Robert each a fifty percent beneficial interest in the Esperanza and Fort Hill Trust Properties, unambiguously. Plaintiffs contend, among other things, that the trusts are ambiguous, and that in light of extrinsic evidence presented at trial, the defendants’ interpretation of the trusts would not coincide with Lorenzo Pitts, Sr.’s true intentions. [Note 15]

When asked to interpret a trust instrument, a court will look first within the four corners of that document to decipher its meaning. “When interpreting trust language, however, we do not read words in isolation and out of context. Rather we strive to discern the settlor's intent from the trust instrument as a whole and from the circumstances known to the settlor at the time the instrument was executed.” Hillman v. Hillman, 433 Mass. 590 , 593 (2001), and cases cited. When “a given word or phrase is ambiguous, we may accept and consider extrinsic evidence showing the circumstances known to the settlor when he or she executed the document.” Id.

“A patent ambiguity is one created by obvious conflicts in the language” of a document. Flannery v. McNamara, 432 Mass. 665 , 668 (2000). Such a conflict requires a choice between varying interpretations. “A trust or one or more of its provisions may be unenforceable because of impossibility of accomplishment (citations omitted), or because of indefiniteness.” 22 Mass. Prac., Probate Law and Practice § 37.7 (2d ed.), and cases cited. A conflict between provisions must be resolved whenever possible, to make possible enforcement of the trust.

A patent ambiguity occurs when provisions of a trust instrument clearly conflict. Flannery, 432 Mass. at 668. When an ambiguous document can be read two conflicting ways, the court must use the extrinsic evidence promulgated at trial to determine which interpretation best will serve the settlor’s intent. Hillman, 433 Mass. at 593. Paragraphs Two [Note 16] and Four [Note 17] (the “termination clauses”) instruct how the trust may terminate–by expiration of a term of years, or by resignation or death of Pitts, Sr. The instrument becomes ambiguous when considering Paragraphs Seven and Thirteen (the “beneficiary clauses”), in light of these termination clauses. Paragraph Seven [Note 18] lists Sonny and Robert as beneficiaries upon the death of Pitts, Sr., but Paragraph Thirteen [Note 19] calls for the beneficiaries to be “beneficiaries if living, or to their heirs at law,” suggesting Pitts, Sr.’s heirs at law become beneficiaries at his death. The question then becomes: when the trust terminates by death, should the court enforce Paragraph Seven, or Paragraph Thirteen?

The trust is patently ambiguous because the provisions cannot be reconciled; the court must choose one of two interpretations for the trust instrument to have any coherent meaning. [Note 20] See id.; 22 Mass. Prac., supra, (“one or more...provisions may be unenforceable because of impossibility of accomplishment”). Further, each interpretation results in a very different outcome. The two possible outcomes are those strenuously advocated for by the parties to this suit. As discussed below, the record at trial supports the interpretation I reach--that the trust instruments result in Pitts, Sr.’s heirs as designated in his will–not Sonny and Robert–succeeding to the beneficial ownership of the properties held of record in the Esperanza and Fort Hill Trusts.

B. Extrinsic Evidence

Introduction of extrinsic evidence is appropriate when a trust instrument is ambiguous. Hillman, 433 Mass. at 593. Here, as I ruled at the hearing on defendants’ motion for judgment on the pleadings, the “Land Court Would Require Resort to Evidence Beyond the Record Title and Trust Documents” before making a determination in this case, and nothing in the succeeding proceedings, including at trial, has caused me to doubt or depart from this ruling and the others earlier made on dispositive motions.

The parties assisted the court by entering a large volume of evidence into the record at trial to assist me in discerning the intent of the settlor, Lorenzo Pitts, Sr. For the reasons I now supply, the evidence which I credit and find persuasive convinces me, and I find and rule, that Lorenzo Pitts, Sr.’s intent was for the title to the Esperanza and Fort Hill Trust Properties to pass upon his death free of trust under his will to his designated heirs and devisees. The will, through its residuary clause, leaves these properties to a trust particularly set up as part of the estate planning exercise, the Lorenzo Pitts, Sr. Trust of 2007.

Pitts, Sr.’s estate planning was carried out from 2005 until his death in 2009, and involved many meetings and communications with and among Attorney Mond, Pitts, Sr., and Sonny. In connection with this expensive and lengthy process, the Esperanza and Fort Hill Trust Properties consistently were treated as fully part of the overall estate for which this planning effort was conducted. The values of the Esperanza and Fort Hill Trust Properties were appraised along with every other real estate holding. Indeed, they constituted by far the largest part of the combined valuation of the many parts of Pitts, Sr.’s residential empire. The Last Will and Testament of Lorenzo Pitts, Sr., as executed in 2007 and amended in 2009, states, in part:

I give, devise and bequeath all the rest, residue and remainder of my property, whether real, personal or mixed, of whatever kind, nature and description, and wherever situated, of which I shall be entitled at the time of my death or over which I shall possess any power of appointment (the foregoing being referred to herein as “my residuary estate”) to the Trustees at the time of the distribution of my estate under a Trust Agreement known as the Lorenzo Pitts, Sr. Trust of 2007.

The 2007 Will does not specify which real properties would pass through the 2007 Trust; instead, Pitts, Sr. chose to use the word “all.” There is no different or separate treatment in the will, the 2007 Trust, or elsewhere in the estate planning documents, of the Fort Hill and Esperanza Trust Properties. After Pitts, Sr.’s death, the Esperanza and Fort Hill Trust Properties continued to be treated as part of Pitts, Sr.’s estate; the inventory submitted to the Probate Court and the United States Estate Tax Return both included the Esperanza and Fort Hill Trust Properties.

The Esperanza and Fort Hill Declarations of Trust could have been structured to pass the properties to Sonny and Robert. Paragraph Thirteen could have been written to say: “To Lorenzo Pitts, Jr. and Robert Pitts, if living, or to their heirs,” to ensure the two sons inherited the property in any circumstance. Instead, the declarations were written so that Pitts, Sr. could resign and terminate the trust, regaining the properties at any time. If he lived past the term of years, he also would regain the properties without accounting to Sonny and Robert. During the entire period when the trusts existed, Pitts, Sr. was, as a matter of the reality of things, the sole trustee with the power to rent, sell, transfer and mortgage the properties, without answering to anyone. The trusts were drafted, I find, to keep Pitts, Sr. in complete control in every way possible.

The certificates of trustee filed in connection with the property refinancing of 2004-2005 made no mention of any current or future interest Sonny and Robert held or would later acquire in either trust. Pitts, Sr. chose not to use any such language. Instead, he signed a certificate swearing that every beneficiary had authorized the refinance loan and the grant of the Rockland Trust mortgages, when it is clear that neither Robert nor Sonny even knew about their involvement in the Esperanza and Fort Hill Trust Properties during that time. [Note 21]

Pitts, Sr. never acknowledged Sonny or Robert having any interest in these trusts. Nowhere on the record does it suggest Sonny ever conveyed his expectation of succeeding to ownership of these properties upon his father’s demise, nor did Pitts, Sr. ever suggest Sonny and Robert would get them. Rather, the evidence I credit supplies many examples of instances where Lorenzo Pitts, Sr. conveyed his expectation that Willetta Pitts-Givens and Sonny, not Robert and Sonny, would run the business upon his death. [Note 22] According to defendants’ interpretation of the trust instruments, the court would direct the transfer of these valuable properties only among Sonny and Robert. This is not in harmony with Pitts, Sr.’s intent, and is not supported by the facts I find based on the evidence in this case. The proper interpretation of the disputed trusts is that they terminated (if not sooner, see the discussion following) at Pitts, Sr.’s death, and the beneficial interest then devolved to Pitts, Sr.’s heirs, as designated in the last-amended version of his will.

C. The Merger Doctrine

Having concluded that the proper interpretation of the patently ambiguous trust documents does not result in the beneficial ownership vesting in Robert and Sonny at their father’s death, I turn to address the other principal issue in this case–whether those trusts had terminated during Pitts, Sr.’s, lifetime as a result of the unification of the beneficial and trustee interests, in keeping with the so-called “merger doctrine.” Plaintiffs ask this court to find and rule that the Esperanza Trust terminated due to the merger doctrine when Sondra Brick resigned as co-trustee in 1997, and that the Fort Hill Trust also terminated due to merger when Ms. Brick assigned her one percent beneficial interest to Pitts, Sr. in 2004. Both of these transactions had the effect of uniting all of the beneficial and trustee interests in one individual–Lorenzo Pitts, Sr. After reviewing the law controlling my decision on this point, and considering the facts as I find them to be after trial, I do conclude that mergers of the legal and beneficial interests in both of these two trusts took place during Pitts, Sr.’s lifetime, leaving the properties in dispute in his ownership at the time of his death, free of any trust under the Fort Hill and Esperanza instruments. I also determine that there never was, after the mergers took place, any revival or reinstitution of those trusts.

One difficulty plaintiffs face with their merger contention is the provisions of the trust instruments which say that if Pitts, Sr. as initial beneficiary “is not living, then the beneficiaries shall be Lorenzo Pitts, Jr. and Robert Pitts in equal shares, share and share alike or to the survivor of them if either shall have died.” The parties to this litigation square off about the meaning of these clauses, the status of Sonny and Robert under the quoted provisions, and the effect of that status on the possibility of merger. The plaintiffs argue that Sonny and Robert were merely contingent beneficiaries, and their unvested interests failed to defeat merger. Defendants contend that their future interests were “vested remainder interests subject to divestiture,” and defeated any potential merger, keeping the trusts intact notwithstanding the apparent unity of the trustee and beneficial interests in one individual. In light of the interpretation of the trust instruments which I have reached--one that passes title to the disputed properties under the provisions of those trust instruments to the heirs and successors of Pitts, Sr. designated in his will’s residuary clause--the entire issue of merger, and whether the trusts had terminated during Lorenzo Pitts, Sr.’s lifetime, is not essential to the disposition of the case before me. Whether the trusts continued in force through his passing, or terminated by merger earlier, leaving the disputed properties in his ownership individually, matters little, as in any event, even had no merger taken place, title to them now would pass, under the will’s residuary clause, to the 2007 estate planning trust. I nevertheless address the issue of merger on which the parties have spent considerable time and attention, and conclude that the trusts have come to an end as a result of that doctrine.

“It is a general principle that where property is given for the benefit of certain persons in such a way that no one else has or can have a possible interest in it, they are in effect absolute owners and should have the control and disposition. In such case equity will decree a dissolution of the trust.” Langley v. Conlan, 212 Mass. 135 , 138 (1912). “[W]here the legal and equitable title of real estate both vest in the same person, the equitable title will merge in the legal estate, and absolute ownership will ensue divested of the trust.” Id. A trust instrument is not to be enforced as such when a single individual is both trustee and beneficiary, because legal and beneficial title are no longer separated, and that individual simply owns the trust property outright, free of trust. [Note 23] Merger, however, “is an equitable doctrine and need not be applied if serious injustice would result or if the settlor's intent obviously would be frustrated.” See Tretola v. Tretola, 61 Mass. App. Ct. 518 , 523 n. 10 (2004) (quoting Bogert, Trusts and Trustees 129, at 398 (rev.2d ed. 1984)).

A trust beneficiary “includes a person who has any present or future interest, vested or contingent” in the trust property. G.L. c. 190B, § 1-201(3). An interest is vested, and not contingent, when “the interest is not subject to a condition precedent such as survivorship.” Charles E. Rounds, Jr., Loring: A Trustee’s Handbook 555 (2007). When the settlor retains control over the trust–by power of appointment, power to revoke, or power to amend–the future interest does not vest until the death of the settlor and the termination of that control. See State St. Bank & Trust Co. v. Reiser, 7 Mass. App. Ct. 633 , 636 (1969) (“[Settlor’s] powers to amend or revoke the trust, or to direct payments from it, obviously died with him, and the remainder interests of the beneficiaries of the trust become vested. The contingencies which might defeat those remainder interests could no longer occur.”).

“Interests of beneficiaries run the gamut from valuable substantialities to evanescent hopes.” Rounds, supra, at 194, citing Farkas v. Williams, 5 Ill. 2d 417 422-23 (1955). While a party with a contingent interest might be a “beneficiary” under Section 190B, supra, if that interest is a far-off, “evanescent hope,” merger still may occur, because the trustee has no real obligation whatsoever to such a “beneficiary.” It is the reality of the relationship, and in particular the duties and obligations a trustee has to the “beneficiaries” that will determine whether a trust in truth has been created or, even if it has, continues to exist. Rounds, supra, at 345 (“trustee’s general duty to account to someone other than himself is an indispensable one.”).

Merger occurs when a “single individual has the whole legal interest and the whole beneficial interest” of a trust. Faucher v. Therrien, No. 011892, slip op. at 2 (Mass. Super. Sept. 27, 2006), and cases cited. Here, I find that Pitts, Sr. held, as a practical and real-world matter, all the legal and beneficial interest of the Esperanza and Fort Hill Trusts, and that classic merger occurred. The inclusion of the names of the two sons in the trust instruments did not prevent that merger from coming about; Pitts, Sr. did not at any time have any current or fixed, vested obligation to Sonny and Robert as beneficiaries. Rounds, supra, at 345 (“trustee’s general duty to account to someone other than himself is an indispensable one.”). The freedom Pitts, Sr. reserved to regain complete ownership of the properties suggests strongly to me that Sonny and Robert had, at most, indefinite and ephemeral interests as contingent beneficiaries. Id. at 555 (“A trust beneficiary’s interest is vested if the interest is not subject to a condition precedent such as survivorship.”) (emphasis added). If Sonny and Robert were vested remaindermen, they would then each become a beneficiary unless they were divested of their interests by some affirmative act. Id. at 555-56. There are in this case, however, various scenarios in which Robert and Sonny would receive nothing; if Pitts, Sr. survived the trusts’ term of years, or, if Pitts, Sr. resigned as the sole trustee, the trust would terminate and the properties would belong outright to Pitts, Sr. free of any claims by the two sons. Sonny and Robert would have no legal recourse to halt the trust’s coming to its end, and their father would, without any approval needed from them at all, have become the sole owner outright. The two sons’ opportunities under the documents to take over the beneficial ownership of these properties were markedly contingent and conditional. Their rights were not of the solidity and permanence ordinarily expected to forestall merger from taking place.

I conclude that Pitts, Sr.’s intention, once the resignation and assignment by Sondra Brick took place–leaving the trusts with Pitts, Sr. as the only trustee and beneficiary--was that the true ownership of the Esperanza and Fort Hill Trust Properties was effectively in him alone. The evidence I credit convinces me that at that point, he considered these apartment buildings his to do with as he thought best, free of any right held or duty owed to anyone else, including the defendants. I find that Pitts, Sr. at all relevant times behaved and conducted his affairs as if he was the only true owner of these projects. He did not in his dealings with others, including both strangers and third parties, and his family members as well, convey in any manner any sense that there was anyone other than he who had any title to the properties or any say in their management and disposition. Although the properties remained titled of record in Pitts, Sr. as the sole trustee of these two trusts, and he continued to deal with them of record in that fashion, I conclude that they were, effectively, in his title alone, free of any trust.

I draw this conclusion well aware that merger is not an iron rule. I recognize that what may seem, as a presumptive matter, to constitute a termination of a trust based only the facial unification of the legal and beneficial titles can, in appropriate circumstances, result in a finding that merger has not occurred. A court is not obligated to adhere reflexively to the merger doctrine. Merger is an “equitable doctrine,” and manifestation of a settlor’s intent to keep assets in trust will be sufficient reason to uphold that trust, despite a classic merger pattern. Tretola, 61 Mass. App. Ct. at 523.

But that is not what happened here. Nothing in the evidence I find persuasive leads me to worry that, notwithstanding the facts indicative of merger which took place, the trusts were intended to continue on in force. Rather, I find that Pitts, Sr. treated the properties as free of trust, meaning that they were not devoted in any binding way to the interests of anyone other than he. This is the essence of merger, and it would do violence to the intention of the elder Mr. Pitts to conclude that merger had not taken place.

In saying this, I do not ignore that after the time of merger, Pitts, Sr. continued to operate and hold these properties while they were titled in the trust form. He engaged in significant refinancing transactions with an institutional lender, granting mortgages from himself as trustee, and certifying in an unequivocal way that the trusts remained in force. I recognize that these facts well could signify either an intention that no merger at any point had taken place, or that, notwithstanding prior merger, the trusts be revived. [Note 24]

I decide, however, that neither intention was reflected by the refinancing transactions or by Pitts, Sr.’s ongoing carrying out of business in the name of the trusts. Instead, I make the finding that his ongoing employment of the trust form to hold title, and his certifications of the continuing existence of the trusts, were motivated only by expediency. He kept up his dealings with the Esperanza and Fort Hill Trust Properties in the name of the two trusts because that is how they long had been held of record, and it was easy and efficient to keep on going in that way, rather than to retitle the properties, with all the expense, bother, and delay that would have entailed.

Pitts, Sr. was not at any time an individual greatly concerned with legal niceties. This is what I find based on the whole of his dealings with counsel, lenders, and others in connection with his rental apartment properties. He would not have worried much, if at all, about the strict formalities of how his projects’ record title stood. When confronted with issues of a legal nature in his dealings with his real estate holdings, Pitts, Sr. dealt with those issues as simply and quickly as the circumstances (and the lawyers involved at the time) would permit. So, when he executed in 2004 and 2005 certifications under oath about the continuing existence of the trusts, he did so in a determined effort to close the pressing loan refinance transactions. He signed the trustee’s certificates to reassure the lender and the lawyers that the refinancing was properly authorized and the mortgage documents would be valid encumbrances on the properties’ titles. Cf. Tretola, 61 Mass. App. Ct. at 522, n.9 : “...we consider that the schedule was prepared to show that the amendment was properly consented to by the then sole beneficiary.”

Pitts, Sr. considered the two trusts as basic title holding entities, and continued throughout to own and operate the disputed properties under the nominal style of the trusts. But this did not, I find, constitute any intention on his part that rights in the properties be vested in anyone other than himself. He did not appreciate that the construct he used to hold title to the properties rested on a flawed premise–that, to constitute legally effective and existing trusts, there needed to be interests of more than himself under the trusts. Instead, I find, he treated the trusts as nothing different than a simple “doing business as” designation, see G.L. c. 110, §5. The form of the two trust instruments, as originally prepared, bespeak a straightforward title-holding intention on Pitts, Sr.’s part. The trust instruments do not give any real indication that they were intended to function as estate planning tools for post-mortem distribution of the assets being acquired when the trusts were set up. [Note 25] The lender in 2004 and 2005 accepted Pitts, Sr.’s certifications (and the opinions rendered by his counsel, prepared largely on forms suggested by the bank’s lawyer) and treated the mortgage refinancing as properly authorized. Noone involved looked to anyone other than Pitts, Sr. to demonstrate consent or prove authority. Noone thought Sonny and Robert had any say in the refinancing. The way these transactions were carried out by Pitts, Sr. reflects not an intention to reanimate trusts which had lapsed, but rather a purpose that the properties he alone owned and controlled be committed to the lender as good collateral for the refinancing. Appropriately, the parties all have agreed to recognize that as the legal effect of those transactions.

When the two trusts first were set up, there was at least facially a reason they did not violate the merger doctrine–the presence of a second individual, Sondra Brick, as either a trustee or a beneficiary. But when Sondra Brick’s interests as beneficiary and her service as trustee ended, I conclude that the trusts each then effectively terminated by merger, and left the disputed properties in Pitts, Sr. alone. Nothing that transpired after that caused the trusts again to arise. When Pitts, Sr. died in 2009, he alone held all the title to the Esperanza and Fort Hill Trust Properties, legal and beneficial. I conclude that he understood the properties to be his alone even though nominally held in the names of the trusts. That title, which Pitts, Sr. held at his death, all passed under the terms of his will to the estate planning trust set up in 2007 (and amended in March of 2009, at the time Pitts, Sr. also executed the will’s first codicil). [Note 26]

The preponderance of the evidence leads me to find and rule that the Esperanza Trust and the Fort Hill Trust terminated by merger well prior to the death of Lorenzo Pitts, Sr. Title to the disputed properties was held by him free of trust at the time of his death in 2009. By the same preponderance of the evidence, I decide that, even had the trusts not so terminated, they, properly interpreted, would have terminated at the time Pitts, Sr. died, and that the interests in the disputed properties would have passed under his will and codicil to the trustees of the Lorenzo Pitts, Sr. Trust of 2007, pursuant to its terms as amended.

Judgment accordingly.