FRANK J. BAILEY, Bankruptcy Judge.
By his complaint in this adversary proceeding, the chapter 7 trustee, Harold
On November 28, 2007, Ernest and his wife, Michelle Felice ("Michelle"), filed a joint petition for relief under chapter 7 of the Bankruptcy Code.
On November 21, 2008, Murphy commenced the present adversary proceeding. The defendants are Ernest, Michelle, Danielle J. Felice ("Danielle"), who is Ernest's sister, and Ernest O. Felice ("Ernest Senior"), who is Ernest's father. Ernest Senior is a defendant both individually and in his capacity as trustee of the Ernest 0. Felice Family Trust ("the Family Trust"). By his amended complaint in the adversary proceeding (the "Complaint"), Murphy seeks the following relief: (i) in Count I, a declaration, especially as against Danielle, that when Ernest and Michelle filed their bankruptcy petition, Ernest held all, and Danielle held none, of the beneficial interest in the Family Trust; (ii) also in Count I, a declaration that, notwithstanding the spendthrift clause in the Family Trust, the beneficial interest that Ernest held in that trust at the time of the bankruptcy filing is property of his bankruptcy estate under 11 U.S.C. § 541; (iii) in Count II, reformation of a deed executed by Ernest Senior by which he intended to transfer Mandalay Drive into a trust, referred to herein as the 2001 Realty Trust, which in turn transferred it to the Family Trust; (iv) in Counts III and VII, avoidance and recovery for the benefit of the estate of Ernest's post-petition transfer of one-half of his beneficial interest in the Family Trust to Danielle; (v) in Count VIII, a declaration that Ernest and Michelle have no right to claim Ernest's beneficial interest in the Family Trust as exempt; and (vi) in Count IX, denial of discharge against both Ernest and Michelle under 11 U.S.C. §§ 727(a)(2)(B), 727(a)(3), and 727(a)(4)(A).
On May 3, 2010, Ernest filed the first of the two motions under consideration: a motion in the adversary proceeding for a determination that, by virtue of the spendthrift, clause, his beneficial Interest in the Family Trust is not property of the bankruptcy
As a preliminary matter, I earlier determined the extent to which the various counts are "core proceedings" within the meaning of 28 U.S.C. § 157(b) and, in light of Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), within the authority of the bankruptcy court to enter final judgment. See Murphy v. Felice (In re Felice), 480 B.R. 401 (Bankr. D.Mass.2012). I determined that the count that is the subject of Ernest's present motion — Murphy's request in Count I for a determination that notwithstanding the spendthrift clause, Ernest's beneficial interest in the Family Trust is property of his estate — is both a core proceeding and within my authority to enter final judgment. Because I resolve that count in favor of Ernest and that resolution renders moot each of the other counts put in issue by Murphy's motion for summary judgment, I may enter final judgment as to each count that the present motions place in controversy.
In 1981, just prior to formation of the Felice Realty Trust (the "1981 Trust"), Ernest's parents, Ernest Senior and Phyllis Felice ("Phyllis"), owned Mandalay Drive as tenants by the entirety. On September 21, 1981, Ernest Senior, by execution of a declaration of trust, settled the 1981 Trust, and Ernest Senior and Phyllis deeded Mandalay Drive to Ernest Senior as trustee of the 1981 Trust. Phyllis was the initial beneficiary and Ernest Senior the trustee of the 1981 Trust. As trustee, Ernest Senior had broad powers. He could exercise all rights of ownership in Mandalay Drive, including to sell and borrow against the property. The declaration of trust permitted Ernest Senior to amend the terms of the 1981 Trust at any time. The declaration of trust also stated that the 1981 Trust "shall terminate in twenty (20) years from the date hereof or at the death of the beneficiary." Once either of these termination events occurred, Mandalay Drive would revert to the "Donor," and "it shall be the duty of the Trustee, then acting to convey the property to said Donor." On January 10, 2001, Ernest Senior executed an amendment to the 1981 Trust (the "January Amendment") naming himself as the new beneficiary with a 100% beneficial interest. At some point thereafter, Phyllis died; the date of death is not in evidence.
On September 27, 2001, Ernest Senior and his children, Ernest and Danielle, executed a series of documents relating to the disposition of Mandalay Drive. In her deposition, Maureen E. Lane, the attorney who prepared these documents for Ernest
There is nothing in the record to indicate the precise order in which Ernest Senior, Ernest, and Danielle executed the documents. They are discussed below in a sequence that best clarifies the purported mechanics of the disposition as a whole.
First. Ernest Senior executed a quitclaim deed which reads as follows:
At the February 26 hearing, both the Trustee and the Defendants stipulated to a scrivener's error in the granting language.
The 2001 Deed purported to transfer Mandalay Drive into the "Felice Realty Trust U/D/T dated September 27, 2001." This is understood by all concerned to refer to the Ernest O. Felice Realty Trust, settled on September 27, 2001 (the "2001 Realty Trust") by a declaration of trust executed by Ernest and Danielle. Ernest and Danielle have at all times been trustees of the 2001 Realty Trust. The declaration of trust identifies the 2001 Realty Trust as a "nominee trust" and, accordingly, provides that "the Trustees shall have no power to deal in or with the Trustees
The declaration of trust is silent as to how a beneficiary "directs" a trustee to
Upon termination, the trustee of the 2001 Realty Trust is to transfer the trust property to the beneficiaries. The 2001 Realty Trust was recorded in the Essex South Registry of Deeds on January 11, 2002. The 2001 Realty Trust further provides: "This Trust instrument may be amended from time to time by an instrument in writing signed by the then Trustee(s) hereunder and by all of the beneficiaries."
Exhibit A to the 2001 Realty Trust indicates that 100 percent of the beneficial interest in the trust resides in "Danielle J. Felice and Ernest J. Felice, Co-Trustees or their successor in Trust, under the Ernest O. Felice Family Trust, dated September 27, 2001." In other words, the beneficiaries of the 2001 Realty Trust are Ernest and Danielle in their capacity as trustees of another trust, executed on the same day, called "The Ernest O. Felice Family Trust" (the "Family Trust"). The Family Trust owns 100 percent of the beneficial interest in the 2001 Realty Trust.
The Family Trust was created by a declaration of trust, the Family Trust Declaration of Trust, that was executed on September 27, 2001 by Ernest Senior, identified therein as donor and grantor, and by Ernest and Danielle as co-trustees. Ernest and Danielle have at all times been trustees of the Family Trust. As attorney Lane explained in her deposition:
The trustees of the Family Trust have the power to sell, lease, or borrow against the trust property. It is unclear whether the co-trustees must act together to use these powers or whether they can exercise them unilaterally.
The Family Trust Declaration of Trust, at Section 10 of Article VII, entitled "General Provisions," contemplates trust amendments:
Section 10 notwithstanding, the Family Trust Declaration of Trust fails to describe exactly who has the power to amend or terminate the Family Trust. The right to alter or amend the Family Trust is not
A section of the Family Trust Declaration of Trust entitled "Successor Trustees, Resignation, Limitation," provides: "At no time may an individual who has any interest as a beneficiary under this indenture be appointed Trustee, the beneficiary's spouse, or any of the beneficiary's issue be appointed Trustee (sic)."
The Family Trust Declaration of Trust contains a spendthrift clause (the "Spendthrift Clause"), which states:
Article V of the Family Trust Declaration of Trust, entitled "Disposition of Trust Property," specifies how the trust property shall be held, administered, and paid over. Article V states as follows. First, "So long as [Ernest] or Joseph M. Felice [Ernest's brother] are living, the property located at 20 Mandalay Drive shall be held in this trust and can be used as their primary residence.... Joseph M. Felice shall have the sole light to use the first floor and the basement of the property as his residence. [Ernest] shall have the sole right to use the second floor of the property as his residence." Second, the trustee shall have discretion to pay both the net income and the principal from the trust over to the beneficiary in such amounts and at such times as the trustee may deem advisable for the benefit of the beneficiary; and, upon termination of the trust, the property shall be distributed to the beneficiary "free of all trust." Third, if a beneficiary dies before the Trust terminates, that beneficiary's issue shall take by right of representation; and, "[a]t the time of the second beneficiary's death, this trust shall cease and all trust property shall be distributed to whoever survives: [Ernest], Joseph M. Felice, or [Danielle]." Joseph Felice died on November 2, 2002.
On March 24, 2002, Ernest and Danielle, acting in their capacity as co-trustees of the 2001 Realty Trust, amended that trust to add their brother Joseph as a co-trustee. The amendment provides that upon the death of any co-trustee, the successor trustee would be the then-competent original trustees. Therefore, when Joseph died in 2002, Ernest and Danielle automatically reverted back to being co-trustees, as they were the original trustees of the 2001 Realty Trust.
Also on March 24, 2002, Ernest and Danielle, as co-trustees of the Family Trust, amended that Trust to add Joseph as a co-trustee. The amendment contains an identical provision concerning the death or incapacity of a trustee and, therefore, upon Joseph's death, Ernest and Danielle became the two co-trustees of the Family Trust. As attorney Lane explained at her deposition, Ernest Senior directed her to
On January 14, 2003, after Joseph's death, Ernest and Danielle executed a second amendment to the Family Trust. In her deposition, attorney Lane explained that Ernest Senior directed her to prepare this amendment and to have Ernest and Danielle sign it. This amendment changed Article V of the Family Trust Declaration of Trust, entitled "Disposition of Trust Property." First, the amendment removed Joseph's interest in Mandalay Drive and divided "ownership" between Ernest and Danielle.
On January 28, 2008, Ernest and Danielle executed a third amendment to the Family Trust.
Summary judgment is appropriate when there is no genuine issue of material fact and, on the uncontroverted facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56, made applicable by Fed. R. Bankr.P. 7056; Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.1994). Where, as here, the burden of proof at trial would fall on the party seeking summary judgment, that party must support its motion with evidence — in the form of affidavits, admissions, depositions, answers to interrogatories, and the like — as to each essential element of its cause of action. The evidence must be such as would permit the movant at trial to withstand a motion for directed verdict under Fed.R.Civ.P. 50(a). Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Where the moving party would not bear the burden of proof at trial, the movant's initial burden is simply to demonstrate or point out a lack of evidence to support at least one essential element of the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the opposing party to adduce such evidence on each of the disputed elements as at trial would be sufficient to withstand a motion for directed verdict. Anderson v. Liberty Lobby. Inc.. supra.
In their Opposition to Murphy's Motion for Summary Judgment, the defendants argue that the 2001 Deed failed to convey anything to the 2001 Realty Trust because the 1981 Trust had expired under its own terms on September 21, 2001 — six days prior to the execution of the 2001 Deed and the settlement of the 2001 Realty Trust. In their Motion for Determination, the defendants argue that Ernest's interest in Mandalay Drive is excluded from property of the bankruptcy estate by operation of 11 U.S.C. § 541(c)(2) because the Spendthrift Clause in the Family Trust would protect Ernest's interest from creditors under Massachusetts law.
In his Motion for Summary Judgment, Murphy argues that the Spendthrift Clause in the Family Trust is unenforceable as to Ernest's creditors under Massachusetts because the Trust is self-settled. According to Murphy, when the 2001 Realty Trust and Family Trust are read together, Ernest appears as a donor, trustee, and beneficiary of the Family Trust. When Ernest Senior executed the 2001 Deed transferring the remainder interest in Mandalay Drive to the 2001 Realty Trust, he lost control of the remainder interest, leaving him nothing to transfer to the Family Trust. Therefore, it was impossible for Ernest Senior to be the donor of the Family Trust. Murphy thus concludes that Ernest and Danielle, as trustees of the Family Trust, are its only logical donors, and it is Ernest's status as donor that makes the Family Trust self-settled and renders the Spendthrift Clause unenforceable. Without the protection of the Spendthrift Clause, Ernest's interest in Mandalay Drive is property of the estate, subject to administration by the chapter 7 trustee.
At the hearing on summary judgment, Murphy also made an alternative, related argument: that the spendthrift clause is ineffective, and Ernest's interest in the
The commencement of a bankruptcy case creates an estate comprised in part of all legal or equitable interests of the debtor in property as of the commencement of the case. See 11 U.S.C. § 541(a)(1). Although the creation and scope of the bankruptcy estate are functions of federal law, especially of § 541(a)(1) and § 541(c)(2), federal law looks to state law to determine whether the debtor has a property interest in the assets at issue and whether the Family Trust's Spendthrift Clause is enforceable. See Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Therefore, Massachusetts law will determine whether Ernest Senior's conveyance of Mandalay Drive to the 2001 Realty Trust was effective, whether the Spendthrift Clause is enforceable, and the extent of Ernest's interest in the Family Trust and of his power to dispose of Mandalay Drive.
As a threshold matter, the Defendants contend that the 2001 Realty Trust has no interest in Mandalay Drive — and therefore neither Ernest nor Danielle can have any interest in that property — because Ernest Senior did not then hold title in the capacity in which he purported to convey it, and therefore his initial transfer into the 2001 Realty Trust via the 2001 Deed failed as a matter of law. The Defendants are incorrect: by virtue of the doctrine of merger, the transfer was effective.
On January 10, 2001 when Ernest Senior amended the 1981 Trust, replacing Phyllis with himself as beneficiary. This made Ernest Senior the sole trustee and sole beneficiary of the 1981 Trust. A court following Massachusetts law would apply what the Restatement (Third) of Trusts refers to as the "doctrine of merger" and decide that the 1981 Trust terminated at this point because legal and equitable title to Mandalay Drive had vested in one person. See Cunningham v. Bright, 228 Mass. 385, 389, 117 N.E. 909 (1917) ("One cannot in the same instance be both the single trustee and the sole beneficiary of the same estate."); Restatement (Third) of Trusts § 69 cmt. d (2003) ("The doctrine of merger applies to terminate a trust even though all of its purposes have not been accomplished, and even though some or all of the equitable interest(s) of the trustee-beneficiary are subject to a spendthrift restraint."). "Where the same person holds both legal and equitable title to the res, a trust is one in form only and not in function." In re Szwyd, 346 B.R. 290, 293 (Bankr.D.Mass.2006) (applying Massachusetts law).
Equitable termination under the doctrine of merger would give Ernest Senior title to Mandalay Drive in fee simple absolute. Equitable termination would not be considered a "termination event" under the 1981 Trust requiring Ernest Senior to follow the Trust's directive that the trustee convey the property to the donors (i.e., to himself and his wife Phyllis). Such
[M]erger 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, 811 N.E.2d 1037 (2004) (quoting Bogert, Trusts and Trustees § 129, at 398 (rev.2d ed. 1984)). In this case, the settlor's intent to transfer Mandalay Drive into a trust for his children is well established by attorney Lane's deposition testimony. My reliance on this testimony is supported by the Supreme Judicial Court:
See Walker v. Walker, 433 Mass. 581, 587, 744 N.E.2d 60 (2001).
Having considered the doctrine of merger, the terms of the 1981 Trust, and the intention of Ernest Senior, I find that the 2001 Deed effectively transferred a remainder interest in Mandalay Drive to the 2001 Realty Trust.
The expansive bankruptcy estate created by § 541(a), which includes all legal
A spendthrift clause in a trust is one that prohibits a beneficiary's creditors from reaching his or her beneficial interest for the satisfaction of the beneficiary's debts. In general, Massachusetts courts enforce spendthrift clauses in trusts. See Bank of New England v. Strandlund, 402 Mass. 707, 708, 529 N.E.2d 394 (1988). However, it is settled law that a settlor cannot place property in trust for his own benefit and keep it beyond the reach of creditors. See Ware v. Gulda, 331 Mass. 68, 70, 117 N.E.2d 137 (1953). The Supreme Judicial Court has endorsed the view articulated in the Restatement (Second) of Trusts § 156 that equity shall not enforce a spendthrift provision in a "self-settled" trust, one in which the settlor is also a beneficiary, as to the creditors of the settlor-beneficiary:
Cohen v. Comm'r of the Div. of Med. Assistance, 423 Mass. 399, 414, 668 N.E.2d 769 (1996).
In the present case, Murphy argues that the Spendthrift Clause is unenforceable because the Family Trust is self-settled. Murphy's argument fails for two reasons. First, his characterization of Ernest as a "settlor" does not comport with how that term is understood by courts that have declared trusts "self-settled." Second, the argument that the Family Trust is self-settled necessarily requires one to consider the Trust in isolation from the 2001 Deed and the 2001 Realty Trust. This type of analysis would be at odds with the practice of Massachusetts courts, which accept the use of multiple trusts interacting together to effectuate an estate plan and consider such trusts in unison.
In the context of trusts, a settlor is "[a] person who makes a settlement
In this case, Ernest might be considered a settlor of the 2001 Realty Trust insofar as his name appears on the document as one of two declarants: "I, DANIELLE J. FELICE and ERNEST J. FELICE, hereby declare that we and our successors in trust hereunder will hold any and all property that may be conveyed to us ... as Trustees hereunder." But this, without more, is not sufficient to make him a settlor for the purposes of establishing that the Family Trust is self-settled as to his beneficial interest. Murphy has not cited a single case, nor could I find one, where a court has determined a trust to be self-settled with respect to a beneficiary who did not fund the trust. Murphy cites Marrama v. Degiacomo, 316 B.R. 418, 422 n. 3 (1st Cir. BAP 2004), for the proposition that the person who creates a trust is the settlor. However, in Marrama, the debtor owned the property in question, which he then transferred into the trust. Id. at 420. In contrast, any interest Ernest has in Mandalay Drive inures to him through and on account of the 2001 Realty Trust and the Family Trust.
Murphy argues that because Ernest Senior had transferred his interest in Mandalay Drive into the 2001 Realty Trust (save a life estate for himself), he had no interest with which to "settle" the Family Trust. Therefore, Murphy reasons, only Ernest and Danielle can be the trust-donors of the Family Trust. I reject this argument because it fails to account for how the 2001 Realty Trust and the Family Trust work together and were intended and designed to work together.
The use of multiple trusts to effectuate a single transfer of real estate is frequently used in estate planning. Nominee trusts like the 2001 Realty Trust are often set up to "pour" into a second trust. Massachusetts courts will consider all "eight corners" of the trust documents in order to resolve a dispute concerning the disposition of trust property. See, e.g.,
Murphy argues that Ernest received an interest in Mandalay Drive as beneficiary of the 2001 Realty Trust, which he then used to "settle" the Family Trust. But even if I were to adopt the Trustee's myopic view of the Family Trust as an entirety independent entity, I would still conclude that Ernest lacked the legal capacity to be a settlor because when he received the beneficial interest in the 2001 Realty Trust, he did so in his capacity as co-trustee of the Family Trust, not in his individual capacity. See Markham v. Fay, 74 F.3d 1347, 1361 (1st Cir.1996) ("A trustee does not hold trust property as her own due to the fact that she holds legal title to it."). A person cannot self-settle a trust with property in which he has no equitable interest. See Chandler v. Lally, 308 Mass. 41, 43, 31 N.E.2d 1 (1941). In Chandler, the beneficiary of an estate was indebted to his uncle. To secure the payment of the debt, the beneficiary assigned his interest to the uncle, who was to use the money received from the estate to repay the debt and turn the remaining proceeds over to the beneficiary. A year later, the debt repaid, the beneficiary asked the uncle for an accounting. The uncle refused to return the remaining proceeds and proposed instead to hold the monies for the benefit of the beneficiary's wife and child. Following the death of the beneficiary and his uncle, the wife and child sued the uncle's estate to recover the remaining proceeds. The Court held that the wife and child never had an interest in the proceeds because the uncle had essentially held the proceeds as trustee for the beneficiary and, therefore, lacked the capacity to fund a different trust in favor of the wife and child. Id. at 43, 31 N.E.2d 1. The Court stated:
Id. Like the uncle in Chandler, Ernest has never held Mandalay Drive in any capacity that would allow me to consider him a settlor of either the 2001 Realty Trust or the Family Trust.
Accordingly, the Family Trust is not self-settled, and its Spendthrift Clause is enforceable under Massachusetts law.
At the hearing on the present motions, Murphy for the first time and with little
The relevant law is as follows. A Massachusetts court will allow a debtor's creditors to reach trust assets that the debtor holds as trustee if the debtor enjoys such pervasive control over the trust that he or she is capable of treating the property as his or her own. See State Street Bank and Trust Co. v. Reiser, 7 Mass.App.Ct. 633, 389 N.E.2d 768 (1979) (creditor of settlor/beneficiary could reach assets of inter vivos trust where settlor retained the power to amend or revoke the trust and the right during his lifetime to direct the disposition of principal and income); ITT Commercial Finance Corp. v. Stockdale, 25 Mass.App.Ct. 986, 987. 521 N.E.2d 417 (1988) (settlor's creditors could reach trust assets where settlor, acting as trustee, had general power' to amend and revoke and a specific power to substitute beneficiaries until his death). In every case where a court has found pervasive control, the person has been able to act unilaterally, usually in the capacity as settlor or trustee, to convey trust property to him — or herself through the power to amend or revoke the trust or substitute beneficiaries. See, e.g. In re Cowles, 143 B.R. 5, 10 (Bankr.D.Mass.1992) (holding that trust property was property of the bankruptcy estate when trust empowered the "donor" to withdraw trust property and "donor" referred solely to the debtor and not also his wife with whom he had originally transferred the property into the trust); Braunstein v. BJM Realty Trust (In re Beatrice), 277 B.R. 439, 448 (Bankr. D.Mass.2002) (applying State Street and concluding trust assets were property of the bankruptcy estate where debtor-settlor was the sole trustee); Braunstein v. Grassa (In re Grassa), 363 B.R. 650 (Bankr. D.Mass.2007) (holding that trust property was property of the bankruptcy estate when trust empowered the sole trustee to amend or revoke the trust and convey the res to herself even though she was not the settlor).
In Markham v. Fay, the First Circuit Court of Appeals considered whether a taxpayer's pervasive control over three trusts would allow the Internal Revenue Service's statutory lien to attach to the trusts' assets. See 74 F.3d at 1351. As in the present case, the issue was whether a creditor was entitled to reach trust assets
Id. at 1363. Therefore, to find the requisite pervasive control, I must consider the degree to which Ernest can independently alter the 2001 Realty Trust and the Family Trust to eliminate other interests and take Mandalay Drive for himself, free of trust.
To establish that the Trusts give Ernest pervasive control of Mandalay Drive, Murphy has made only the following argument, entirely on the record at the hearing and without citation to specific provisions in the Trusts:
I attach no importance to changes that were made or attempted by the trustees of the Family Trust except insofar as these are indicative of powers afforded the trustees. The crucial question is what powers Ernest may exercise. Accordingly, I understand Murphy to be arguing that Ernest has pervasive control of Mandalay Drive for the following reasons: (i) as one of two trustees of the Family Trust, he has unfettered discretion of the asset of that trust, which is the beneficial interest in the 2001 Realty Trust; (ii) as one of two co-trustees of the Family Trust, he may change the trustees of that trust, change the beneficiaries, and adjust the extent of the beneficiaries' interests; and (iii) Ernest and Danielle, as co-trustees of the Family Trust, are the sole beneficiaries of the 2001 Realty Trust and in that capacity may direct and cause the trustees of the 2001 Realty Trust to terminate the 2001 Realty Trust at any time.
I will assume without deciding that Ernest's powers are as extensive as Murphy alleges. Moreover, upon termination of the 2001 Realty Trust, the trustees of the 2001 Realty Trust would be obligated to transfer the trust property, Mandalay Drive, to the beneficiaries: that is, to Ernest and Danielle as trustees of the Family Trust. In that capacity, Ernest and Danielle would be free to distribute Mandalay Drive to the beneficiary or beneficiaries of
Notwithstanding these extensive powers, Ernest is not the sole trustee of the Family Trust, and for that reason he lacks the pervasive control over the trusts that would be necessary for me to conclude that Mandalay Drive is property of his bankruptcy estate. See Markham, 74 F.3d at 1357. Each power Ernest holds under the 2001 Realty Trust and the Family Trust he shares with Danielle. The Trusts state explicitly that a decision to terminate by the co-beneficiaries of the 2001 Realty Trust or the co-trustees of the Family Trust must be unanimous. As for selling, pledging, or partitioning the trust property, neither the 2001 Realty Trust nor the Family Trust provides any instruction as to how the trustees are to exercise those powers. In the absence of controlling language in the Trusts, 1 am bound to follow the common law rule that "[u]nless granted the specific power to do so by the terms of a trust, one trustee cannot act on behalf of the trust without the consent of his co-trustees." DeLongchamps v. Duquette, 24 Mass.App.Ct. 976, 976, 512 N.E.2d 1146 (1987): accord City of Boston v. Rabbins, 126 Mass. 384, 388 (1879) ("One of the trustees had no power to make conveyance of any part of the trust property, nor to make any agreement for disposing of any part of it, without the assent and cooperation of his co-trustee."); see also Restatement (Third) of Trusts § 39 ("Unless otherwise provided by the terms of the trust, if there are two trustees their powers may be exercised only by concurrence of both of them, absent an emergency or a proper delegation; but if there are three or more trustees their powers may be exercised by a majority."). Accordingly, unlike the trustees in State Street, ITT Commercial Finance Corp., and Markham, Ernest lacks the ability to unilaterally terminate the Trusts or otherwise transfer Mandalay Drive to himself free of trust. For this reason (if no other), the propositions articulated in those cases do not control the result here. Because Ernest lacks pervasive control over the 2001 Realty Trust and the Family Trust, Mandalay Drive is not property of his bankruptcy estate.
For the reasons herein stated, the Motion of the Defendants is GRANTED, and the Motion of the Trustee for Summary Judgment is DENIED as moot. Judgment will enter on the counts in question only at the close of adversary proceeding.
Id. at 100-01, 191 N.E. 422. The Court concluded:
Id. at 101-02, 191 N.E. 422. In this case, in spite of the clause in the granting language stating that Ernest Senior is transferring "as trustee," the 2001 Deed contains all the necessary language of a conveyance of land. Accordingly, applying the doctrine of merger, I would ignore that clause and find the transfer effective.
