Home KATHLEEN M. VITELLO v. LOUISE BROWN, individually and as successor Trustee of the Louise Kaszanek Trust of April 8, 1968

MISC 12-459863

January 22, 2013

Sands, J.


Plaintiff filed her unverified Complaint on February 28, 2012, pursuant to G. L. c. 240, § 6, seeking to quiet title to property located at 222 Winter Street, Hanson, MA (“Locus”). A case management conference was held on April 4, 2012, at which Defendant Louise Brown (“Brown”), individually and as successor Trustee of the Louise Kaszanek Trust of April 8, 1968 (the “Trust”) failed to appear. This court issued a Fifteen Day Order to which Defendant did not respond. Defendant was defaulted on August 23, 2012. Plaintiff filed her Motion for Summary Judgment on September 20, 2012, together with supporting brief, Statement of Material Facts, and Index containing Affidavits of Wesley A. Morris, Esq. and Kathleen M. Vitello. Brown did not file an opposition. There was no oral argument.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Defendant Louise Brown (f/k/a Louise Kaszanek) (Brown, defined, supra) is the mother of Brenda Louise Kaszanek (“Brenda”) (born November 14, 1961) and Plaintiff Kathleen Marie Kaszanek Vitello (born May 1, 1963).

2. By deed dated July 22, 1976, Kenneth H. Soble and Martin B. Shulkin, Trustees of the Frances H. McKay Indenture of Trust II under a declaration of trust dated August 17, 1973, recorded with Plymouth County Registry of Deed (the “Registry”) at Book 3924, Page 242, conveyed Locus to Martin W. Cohen and John F. McCarthy, Trustees of Louise Kaszanek Trust dated April 8, 1968, and recorded with the Registry at Book 4182, Page 618 (the Trust, defined, supra).

3. The Trust provides in part as follows:

SECOND: The trust property shall be disposed of in the following manner:

B. When the youngest of the said children, Brenda Louise Kaszanek and Kathleen Marie Kaszanek, shall attain the age of thirty (30), the trust shall terminate and the Trustees shall pay over and distribute the trust property free of any trust, to the said children who are then living in equal shares . . .

ELEVENTH: Any vacancy in the Trusteeship hereunder caused by the death, resignation, refusal or inability to serve on the part of the Trustee, Martin W. Cohen, or any successor to him, or his successors, shall be filled by the Donor [Louise Brown]; and any vancancy [sic] in the Trusteeship hereunder caused by the death, resignation, refusal or inability to serve on the part of the Trustee, John F. McCarty, or any successor to him, or his successors, shall be filled by the husband of the Donor, Carl Kaszanek. [Note 1]

4. Brown lives at Locus today; the Trust is still the record owner of Locus. Brown is the sole surviving trustee of the Trust.

5. By document dated October 24, 2011, Brown notified Plaintiff that “you are forbidden to enter or remain in or upon the building and land owned by me [Locus]. If you fail to abide by this order, I will have no recourse but to avail myself of the full remedies afforded by law.”


Plaintiff argues that the Trust has been terminated by operation of law, and that she and her sister Brenda are the owners of Locus. There was no opposition filed by Brown.

The summary judgment record indicates that Brown is the sole Trustee of the Trust, which holds record title to Locus. The Trust provides that, effective May 1, 1993 (the date that Plaintiff turned thirty), the Trust “shall terminate” and the Trustees “shall pay over and distribute [Locus] free of any trust” to Plaintiff and Brenda in equal shares. Where a trust is to terminate upon the happening of an event, e.g. upon the attainment of the age of thirty of a beneficiary, “[t]he trust will be terminated upon the expiration of the period or the happening of the event.” Restatement (Second) of Trusts, § 334 comment a; see also Alfau v. Miller, 306 Mass. 572 , 578 (1940) (the trust terminated under a will upon the beneficiary having become thirty years of age). As such, I find that the Trust terminated upon the happening of Plaintiff turning thirty on May 1, 1993.

Notwithstanding the foregoing, “the duties and powers of a trustee do not cease until the trustee has divested itself of trust property. Rothwell v. Rothwell, 283 Mass. 563 , 570 (1933). “[The] powers and duties [of the trustee] subsequent to the happening of the event are limited to matters looking to a conveyance of the property.” Id. Plaintiff argues that Brown has breached her fiduciary duty by maintaining possession and refusing to transfer title to Locus to Plaintiff and Brenda. “Throughout all his transactions in connection with his trust the fiduciary is held to the rule of good faith and due diligence.” Young v. Tudor, 323 Mass. 508 , 515 (1948).

The general principles governing the conduct of a fiduciary in dealing with trust property have been frequently declared by this court. A trustee must exercise good faith and act solely in the interests of the beneficiaries in administering the trust. He must lay aside self-interest when it becomes adverse to the rights of the cestuis que trust, for the office of trustee cannot be subverted to fostering the personal advantage or individual gain of the incumbent. There can be no divided loyalty. This principal has always been rigorously enforced. Boston Safe Deposit and Trust Co. v. Lewis, 317 Mass. 137 , 140 (1944).

It is clear from the plain, unambiguous language of the Trust that Brown should have conveyed Locus to Plaintiff and Brenda when the Trust terminated on May 1, 1993. “If the trust is terminable...when the beneficiary reaches a certain age or after the expiration of a certain period of years, the trustee should ordinarily prepare for the termination of the trust before the time for termination arrives.” Restatement (Second) of Trusts, § 345 comment e. The Trust terminated almost twenty years ago, which is objectively more than enough time for Brown, as Trustee, to wind up the affairs of the Trust, to deliver possession, and to convey record title to Locus to Plaintiff and Brenda. To this date, Brown has neither transferred record title nor has she delivered possession of Locus to Plaintiff and Brenda, and therefore I find that Brown has breached her fiduciary duty as trustee of the Trust. See Restatement (Second) of Trusts, § 345, supra.

The sole remaining power and duty of Brown is to convey Locus to Plaintiff and Brenda. Within thirty days from the date of this Decision, Brown, as Trustee of the Trust, shall convey Locus by deed to Plaintiff and Brenda as tenants in common. [Note 2]

As a result of the foregoing, Plaintiff’s Motion for Summary Judgment is ALLOWED IN PART.

Judgment to enter accordingly.


[Note 1] Martin W. Cohen (December 8, 1992), John F. McCarty (January 19, 2008), and Carl Kaszanek (June 9, 1987) are all deceased.

[Note 2] The Complaint requested that Plaintiff be granted immediate possession of Locus. Brenda, however, was not a party to this action. As a result, it is unclear as to whether Plaintiff and Brenda want immediate possession of Locus. Plaintiff and Brenda will need to resolve the issue of possession between themselves, as tenants in common.