Home FLEET NATIONAL BANK, executor, [Note 1] & others, [Note 2] trustees, [Note 3] vs. SARAH ELIZABETH KAHN & others. [Note 4]

438 Mass. 1004

November 20, 2002

We granted the plaintiffs' application for direct appellate review. They seek to reform the Florence Roberta Gerlach Trust to authorize division of the trust into exempt and nonexempt shares in order to minimize Federal generation-skipping transfer (GST) taxes. [Note 5] We have previously allowed reformations of this specific type. After a thorough review of the record, we are satisfied that the proposed reform is consistent with the settlor's intent and should be allowed as a matter of Massachusetts law. The language of the trust reveals that the settlor was tax conscious, and there is no provision prohibiting this division of the trust. This type of trust reform is relatively minimal and represents a mere "fine tuning of the administration of the trust[] . . . in order to reduce, if not eliminate, the application of the GST tax." Fleet Nat'l Bank v. Mackey, 433 Mass. 1009 , 1010 n.11 (2001), quoting BankBoston v. Marlow, 428 Mass. 283 , 286 (1998), and First Agric. Bank v. Coxe, 406 Mass. 879 , 883 n.6 (1990). For essentially the same reasons, we allow the reform.

A judgment shall be entered in the Probate and Family Court reforming the Florence Roberta Gerlach Trust to authorize division of the trust into exempt and nonexempt shares. The court shall enter such further provisions in the judgment as are appropriate to fulfil the purposes of the division.

So ordered.

The case was submitted on briefs.

Raymond W. Rawlings for Fleet National Bank & others.


[Note 1] Of the will of Florence Roberta Gerlach.

[Note 2] Fleet National Bank and Raymond W. Rawlings.

[Note 3] Of the Florence Roberta Gerlach Trust.

[Note 4] Kristopher M. Kahn, Eric D. Graff, Kenneth C. Graff, Lorelei J. Chapman, and the Commissioner of the Internal Revenue Service.

[Note 5] Three adult beneficiaries have assented to the requested relief, and the Probate and Family Court allowed a waiver of the appointment of a guardian ad litem.


438 Mass. 1004

November 22, 2002

Abdur Nadheerul-Islam appeals from the denial of his petition pursuant to G. L. c. 211, § 3, by a single justice of this court. We dismiss the appeal as moot.

Page 1005

Nadheerul-Islam was indicted on several charges, including a charge of murder in the first degree. He pleaded guilty to murder in the second degree. Nadheerul-Islam subsequently filed a motion to withdraw his guilty plea and for a new trial, pursuant to Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). Approximately nine and one-half years later, and before his motion was acted on, he renewed his request to withdraw his guilty plea and obtain a new trial. Thereafter, Nadheerul-Islam filed a petition, pursuant to G. L. c. 211, § 3, requesting that a single justice of this court order the Superior Court judge to allow his motion. [Note 1] The single justice denied the petition without a hearing, and Nadheerul-Islam appealed.

While this appeal has been pending, the Superior Court judge issued a memorandum of decision and order denying Nadheerul-Islam's request to withdraw his guilty plea and for a new trial. The specific relief sought by Nadheerul-Islam, an order compelling the Superior Court to allow his motion, is therefore no longer available. Thus, his appeal is moot. [Note 2] Cf. Harvey v. Harvey, 424 Mass. 1009 (1997) (petition seeking order compelling court to schedule trial was moot because divorce case had been tried and judgment entered while appeal was pending); Matter of Rudnicki, 421 Mass. 1006 (1995) (petition for writ of mandamus seeking to compel assembly of record was moot following dismissal of case).

Appeal dismissed.

The case was submitted on briefs.

Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.

Abdur Nadheerul-Islam, pro se.


[Note 1] In essence, the relief Nadheerul-Islam requested is in the nature of mandamus. Mandamus is "extraordinary and may be granted only to prevent a failure of justice in instances where there is no alternative remedy." Callahan v. Superior Court, 410 Mass. 1001 , 1001 (1991), and cases cited. Mandamus is not appropriate "to direct a judicial officer to make a particular decision or to review, or reverse, a decision made by a judicial officer on an issue properly before him or her." Id., and cases cited.

Furthermore, the record is devoid of evidence that Nadheerul-Islam took the appropriate steps in the trial court to compel a decision on his motion. "[T]he first step a litigant can take is to make inquiry of the trial judge, directly, or through the register's or clerk's office. . . . A litigant may make a demand for action with the chief judge of the trial court concerned." Zatsky v. Zatsky, 36 Mass. App. Ct. 7 , 12 (1994).

[Note 2] Nadheerul-Islam's appeal from the Superior Court judge's ruling is currently pending in the Appeals Court.