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23-P-391 Appeals Court
THOMAS P. JALKUT, trustee,1 vs. CITY OF QUINCY & others.2
No. 23-P-391.
Norfolk. January 8, 2024. – April 30, 2024.
Present: Milkey, Massing, & Neyman, JJ.
Collateral Estoppel. Judgment, Preclusive effect. Trust,
Charitable trust, Assets of trust. Deed, Construction.
Real Property, Deed, Ownership. Municipal Corporations,
Property. Practice, Civil, Judgment on the pleadings.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 4, 2019.
Motions to intervene and to amend the complaint were heard
by Kimberly S. Budd, C.J.
Following transfer to the Superior Court Department, the
case was heard by Paul D. Wilson, J., on a motion for judgment
on the pleadings.
1 Of the Adams Temple and School Fund. Thomas P. Jalkut was
substituted as successor trustee in the place of the original
plaintiff, James R. DeGiacomo. To avoid confusion, we refer to
DeGiacomo as the successor trustee and to Jalkut as the current
trustee.
2 The Woodward School for Girls, Inc.; Quincy Historical
Society; and the Attorney General.
2
James S. Timmins, City Solicitor, for city of Quincy.
Nelson G. Apjohn for the plaintiff.
John C. Blessington for The Woodward School for Girls, Inc.
MILKEY, J. This is the latest chapter of a long-running
saga regarding the administration of certain gifts that
President John Adams made in 1822. See DeGiacomo v. Quincy, 476
Mass. 38 (2016); The Woodward Sch. for Girls, Inc. v. Quincy,
469 Mass. 151 (2014) (Woodward School). The current dispute
involves the ownership of an acre and a half parcel located at 8
Adams Street in the city of Quincy (city). The competing
claimants to title are the Adams Temple and School Fund (Adams
Fund) and the city, which formerly served as trustee of the
Adams Fund. In 2019, the person who succeeded the city as
trustee of the Adams Fund (successor trustee) sought judicial
approval to sell the land. The city moved to intervene,
claiming that the parcel in question was never part of the Adams
Fund. While that dispute was playing out, the city recorded an
order of taking that seized the property by eminent domain.
Although the city's taking resolved who owns the property going
forward, it did not fully moot the dispute, because resolution
of the city's claim that it already owned the property prior to
the taking obviously is critical to how much just compensation,
if any, the Adams Fund is owed. Following an assented-to
substitution of trustees, a Superior Court judge allowed the
3
current trustee's motion for judgment on the pleadings based on
the preclusive effect of earlier litigation that had treated the
property as part of the Adams Fund. Because we agree with the
judge that the ownership of the property already had been
adjudicated, we affirm.
Background. 1. The deeds. By an initial deed dated June
29, 1822, President Adams transferred to the city two
"[p]astures" that he had acquired.3 It is undisputed that such
land was given to the city in trust to fund the building of a
Congregational "Temple to be built of stone, to be taken from
the premises," as well as of a "School for the teaching of the
Greek and Latin languages, [and] arts and sciences." In a
related transaction that occurred a month later, President Adams
deeded various additional parcels to the city, including one to
be used as the actual site of the school referenced in the
earlier deed. The second deed specified that the "School
House," like the church, was to be constructed of stone, and
that the building "shall be erected over the cellar which was
under [a particular] house," the historic nature of which the
deed chronicled in flowery detail, including the house's
3 For simplicity, we refer to Quincy as a city even though
for much of the relevant time period, it remained a town.
4
significance as the birthplace of John Hancock.4 The deed also
spelled out in detail President Adams's personal thoughts about
the curriculum to be taught at the school, including a prolonged
discussion of the merits of learning Latin, Greek, and Hebrew.
The property in dispute traces to this second deed.
2. The Adams Academy. President Adams died on July 4,
1826, and decades went by before his wish for a school on his
former land became a reality.5 In 1870, a granite schoolhouse
was constructed at 8 Adams Street, and a private school known as
4 According to the deed, the house whose cellar would be
used to build the new school was:
"anciently built by the Rev. Mr. John Hancock, the father
of John Hancock, that great generous[,] disinterested,
bountiful benefactor of his country, once President of
Congress, and afterwards Governor of this State, to whose
great exertions and unlimited sacrifices this nation is so
deeply indebted for her independence and present
prosperity, who was born in this house; and which house was
afterwards purchased and inhabited by the reverend,
learned, ingenious, and eloquent Lemuel Bryant, Pastor of
this congregation; which house was afterwards purchased
[and] inhabit[ed] by an honorable friend of my younger
years, Col. Josiah Quincy, and also inhabited by his son,
Josiah Quincy Junior[,] a friend of my riper years, a
brother barrister at law, with whom I have been engaged in
many arduous contests at the Bar, who was as ardent a
patriot as any of his age, and, next to James Otis, the
greatest orator."
5 Under the deeds, the "temple" was to be constructed first,
with the school to be constructed only once sufficient
additional funds had been generated from trust assets. The
church, which became First Parish Church, was completed in 1828.
According to the city, sufficient income to build the school did
not accumulate until much later.
5
the Adams Academy opened there two years later. Hence, the
parcel has become known as the Adams Academy property. Sadly,
the school closed in 1907. The granite school building still
stands, and it has been designated a national historic landmark.
3. The cy pres actions. The demise of the Adams Academy
left the Adams Fund without a designated beneficiary. In 1918,
a single justice of the Supreme Judicial Court issued a decree
that, by application of the cy pres doctrine, allowed the city
to use income from the Adams Fund for its public high school and
public library. In 1953, however, the city brought another cy
pres action to designate The Woodward School for Girls (Woodward
School) as the income beneficiary of the Adams Fund.6
4. The Quincy Historical Society lease. The Woodward
School has its own campus and therefore does not itself occupy
the Adams Academy property. In 1972, with the express prior
approval of a single justice of the Supreme Judicial Court, the
city leased the Adams Academy building and property to the
Quincy Historical Society for a term of fifty years.7 The
monthly rent was a nominal $100.
6 The Woodward School was founded by Dr. Ebenezer Woodward,
a cousin of John Adams. Following President Adams's example,
Dr. Woodward in 1894 left property in trust to the city to
generate income and eventually establish a school for girls.
7 The Quincy Historical Society was founded by Charles
Francis Adams, Jr., the great-grandson of President Adams and
6
5. The Woodward School litigation. Over time, the
Woodward School became concerned that it might not be receiving
the beneficence to which it legally was entitled. In part, this
related to the fact that the repurposing of the Adams Academy
building to a different public end had the effect of limiting
the income that the property would generate for the designated
beneficiary. In 2007, the school brought an accounting action
against the city, in its capacity as trustee of the Adams Fund,
regarding its administration of the Adams Fund (Woodward School
litigation or Woodward case).8 The school later amended its
action to add a claim that the city had breached the fiduciary
duties it owed to the school.
Following extensive fact-finding by a special master and a
thirteen-day trial, a Probate and Family Court judge ruled in
favor of the Woodward School. Finding that the city had
breached its fiduciary duties to the school in its
administration of the trust assets, the final judgment removed
the city as trustee of the Adams Fund, and appointed the
successor trustee in its place.
the grandson of President John Quincy Adams. See National Park
Service, Charles Francis Adams (1807-1886),
https://www.nps.gov/adam/learn/historyculture/charles-francis-
adams-1807-1886.htm [https://perma.cc/4QQ5-G5E5].
8 The litigation also involved the city's administration of
a separate fund that had been created by a bequest from Charles
Francis Adams, Sr., for the support of the Adams Academy.
7
In ruling in favor of the Woodward School, the probate
judge issued 220 paragraphs of findings. One does not have to
delve deeply into those findings to see that the judge
unquestionably viewed the Adams Academy property as an asset of
the Adams Fund that President Adams had placed in trust by
operation of the second 1822 deed; this is established by the
opening paragraphs.9 In fact, the judge went on to treat the
Adams Academy parcel not only as a trust asset, but as "the most
valuable asset in the Adams Temple and School Fund." The judge
found that the city had breached its fiduciary duties to the
Woodward School in several respects, including by "its
effectuating a 50 year lease [for the Adams Academy parcel] to
the Quincy Historical Society." The judgment enjoined the city
from renegotiating the terms of that lease prior to the
successor trustee's assuming that role, and it expressly
9 In paragraphs two and three of the findings, the judge
expressly found that by means of the first 1822 deed, "President
Adams conveyed a portion of his real estate holdings into a
trust," and that by means of the second 1822 deed, "President
Adams made a further conveyance into the trust." Then, in
paragraph four, the judge found that "by said two deeds, as of
July 27, 1822, President John Adams had conveyed into a trust,
which trust was thereafter referred to as the 'Adams Fund,' and
later the 'Adams Temple and School Fund,' one hundred and sixty-
one and a half acres of land, plus two additional parcels of
land of unknown acreage, in Quincy and Braintree."
8
recognized that the new trustee could sell the Adams Academy
property thereafter.10
The city appealed, arguing in part that the judge's finding
that it had breached its fiduciary duties was erroneous in some
respects. See Woodward School, 469 Mass. at 153. The city did
not argue that the judge erred in treating the Adams Academy
property as part of the Adams Fund, and, in any event, the city
lost its appeal as to liability. Id. The city prevailed with
respect to damages, and the damages award was modified on remand
(with no further appeal taken).
6. The DeGiacomo litigation. The fifty-year lease under
which the Quincy Historical Society was occupying the Adams
Academy property was not due to expire until 2022. In 2014, the
successor trustee filed an action seeking to rescind that lease
and seeking restitution (DeGiacomo litigation). See DeGiacomo,
476 Mass. at 40. In that action, the successor trustee sought
to rely on the fact that the probate judge in the Woodward
School litigation already had determined that the city had
10While making it clear that he was "not, in any manner,
directing the successor Trustee to sell the Adams Academy
property," the judge noted that "[t]he present rate of return on
the property is approximately 0.00064 percent." The judgment
also stated that "[t]he successor Trustee should, over the
coming years, take such action as is prudent with regard to the
property in keeping with the interests of the income beneficiary
while preserving, to the greatest extent possible, the historic
and unique nature of the Adams Academy."
9
breached its fiduciary duties by entering into that lease. Id.
Together with the Quincy Historical Society, the city defended
the action by pointing to the fact that its entering into the
lease specifically had been authorized by the 1972 judgment
issued by a single justice of the Supreme Judicial Court. Id.
Thus, the parties raised dueling claims of issue preclusion.
After grappling with the fact that the Attorney General, but not
the Woodward School, had been a party to the 1972 litigation,
the Supreme Judicial Court ruled in favor of the city. Id. at
42-49. The court reasoned that the city was entitled to rely on
the preclusive effect of the 1972 judgment, because the very
purpose of that litigation "was to protect the trustee from any
subsequent claim that it had committed a breach of its fiduciary
duty by executing the lease." Id. at 49.
7. The current action. In 2019, the successor trustee
filed a new equity action seeking judicial approval to sell the
Adams Academy property subject to the lease. The city sought to
intervene in that action claiming -- for the first time -- that
it, not the successor trustee, actually owned title to the
property. In support of that claim, the city pointed to
differences in the wording of the two 1822 deeds: the first
deed included express trust language, while the second one
deeded the property "to the inhabitants of the town of
Quincy . . . in their corporate capacit[ies]." As a result, the
10
city argued, the land itself was given to the city in ordinary
fee simple free of the trust, and only the Adams Academy
building (which had been built with trust income) was a trust
asset. The city maintained that the judgment entered in the
Woodward School case therefore did not transfer title to the
Adams Academy property to the successor trustee and that title
instead remained with the city.
A single justice of the Supreme Judicial Court denied the
city's motion to intervene after concluding -- in light of the
judgment in the Woodward School case -- that the city's claim to
title of the Adams Academy property was barred by issue
preclusion. While the city's interlocutory appeal of the denial
of its motion to intervene was pending, the city recorded its
order of taking. This prompted the successor trustee to move to
amend his complaint. The single justice allowed that motion
and, in doing so, she specified that her earlier ruling on the
city's motion to intervene should not be viewed as a definitive
resolution of whether the city was precluded from raising its
new claim that it held title to the land portion of the Adams
Academy property.11 She transferred the matter to the Superior
11Specifically, the single justice stated as follows:
"Although I denied the city's motion to intervene on the basis
that it is precluded from raising the ownership issue, my order
did not focus on the distinction between ownership of the
11
Court, with the directive that a judge there resolve "whether
ownership of the land was definitively adjudicated in the
earlier litigation and whether the city is thus precluded from
relitigating the matter."
In the Superior Court, the successor trustee filed a new
complaint that named the city as a defendant, and the city filed
a counterclaim that asserted its claim of title to the land
portion of the Adams Academy property. As noted, the current
trustee filed a motion for judgment on the pleadings based on
issue preclusion and related grounds.12 In a thoughtful and
comprehensive opinion, the Superior Court judge ruled in the
current trustee's favor, and a judgment declaring that the Adams
Fund was the legal owner of the property, including the land,
entered accordingly.
Discussion. If viewed as an original matter, the city's
claim that it held title of the Adams Academy property prior to
the taking would not be without some force. The two 1822 deeds
executed less than a month apart do indeed utilize quite
building and ownership of the land, the latter of which is now
the key issue in dispute."
12The current trustee also argued claim preclusion and
judicial estoppel. The judicial estoppel argument was based on
the city's having successfully defended the DeGiacomo litigation
by arguing that the 1972 decree authorized the city to lease the
Adams Academy property in its capacity as trustee. Given how we
rule, we need not reach those alternative grounds.
12
different language, thereby providing some support for an
argument that a different form of ownership was intended. Cf.
Boston Safe Deposit & Trust Co. v. Wilbur, 431 Mass. 429, 433-
434 (2000) (deriving intent of testator from use of certain
language in one part of will and omission of such language in
another). At a minimum, it is not immediately clear why the
grantor here -- among the most storied legal draftsmen in
Massachusetts history -- chose different language in the two
deeds.13 This is not to say that the interpretation of the
second 1822 deed that the city now offers necessarily would have
prevailed had the city timely raised it.14 In the end, we need
not resolve that debate, because we agree with the Superior
Court judge that it is too late for the city to assert that
President Adams did not transfer the Adams Academy property into
the Adams Fund.
13Adams's reputation for legal draftsmanship was
principally forged in areas outside of conveyancing practice.
14We note that the city appears to acknowledge that it was
given some trust-like duties with respect to the Adams Academy
property even if the property was not formally held in trust.
See American Inst. of Architects v. Attorney Gen., 332 Mass.
619, 624 (1955) (property not formally held in trust may still
be subject to "quasi trust"). We additionally note that the
city's position that the legal effect of the second deed was the
neat result that the city would own the land while the Adams
Fund would own the building lacks some degree of doctrinal
coherence.
13
Before turning to the elements of issue preclusion, we
address the fact that the judgment did not, by its express
terms, transfer the deed to the Adams Academy property to the
successor trustee. But nor did that judgment order the city to
transfer any other property held in the Adams Fund to the
successor trustee. Rather, it is plain that the judgment
presupposed that the substitution of trustees by itself was
sufficient to effect a transfer of title to trust assets.15 The
city has not argued that such a transfer could have been
accomplished only by separate transaction.16 Rather, the
gravamen of the city's argument is that the Adams Academy
property was never a trust asset to begin with but instead was
15This is well illustrated by how the judgment handled a
different parcel of trust land. One of the disputes at the
trial of the Woodward School case involved a small parcel known
as the Vigoda property. That property was a net drain on city
resources, and the city in fact disclaimed that it owned it in
trust. The probate judge found that the city did own that
property in trust and that it in fact had violated its fiduciary
duties by retaining it. By way of relief, the judge ordered the
successor trustee to deed the property back to the city (thus
allowing the Adams Fund to shed a property that had a negative
income). This presupposed that the appointment of the successor
trustee would transfer title from the city to the successor
trustee by operation of law.
16At common law, the mere appointment of a successor
trustee was not deemed sufficient to transfer title to property
held in trust. See Glazier v. Everett, 224 Mass. 184, 187
(1916), citing Peabody v. Eastern Methodist Soc'y in Lynn, 5
Allen 540 (1863). That principle since has been eroded by
statute. Glazier, supra at 187-188. We need not address this
issue further because no party has raised it, and it therefore
long since has been waived.
14
held by the city outside of the Adams Fund. We turn to whether
that issue was resolved by prior litigation.
To establish issue preclusion, a litigant must demonstrate
the following: "(1) there was a final judgment on the merits in
the prior adjudication; (2) the party against whom preclusion is
asserted was a party . . . to the prior adjudication; and
(3) the issue in the prior adjudication was identical to the
issue in the current adjudication, was essential to the earlier
judgment, and was actually litigated in the prior action"
(quotation and citation omitted). DeGiacomo, 476 Mass. at 42.
The city argues that the third prong was not met, because title
to the Adams Academy property was not at issue in, or decided
by, the Woodward School litigation. Instead, the city
maintains, the dispute over title arose only later when the
successor trustee sought to sell the property. We are
unpersuaded.
As laid out above, the Woodward School brought the 2007
litigation for an accounting of the Adams Fund assets and for
breach of the city's fiduciary duties with respect to those
assets. Hence, central to both types of claims was the question
of what assets held by the city were subject to the trust. The
judge specifically found that the Adams Academy property was a
trust asset, and the judgment expressly recognized the successor
15
trustee's ability to sell that very parcel. The issue the city
now seeks to contest was decided.
We recognize that the DeGiacomo court declined to recognize
the full preclusive effect of the judgment entered in the
Woodward School litigation, and that it, in effect, allowed the
city to mount a collateral attack on that judgment insofar as it
related to the leasing of the Adams Academy property. See
DeGiacomo, 476 Mass. at 40-41. However, we view the import of
that aspect of the DeGiacomo case as limited to the special
circumstances presented there in which a trial court judge
adjudicated a legal question in a way that the court viewed as
at odds with an earlier judgment issued by a single justice of
the Supreme Judicial Court. Id. at 49. It was under those
unusual circumstances that the DeGiacomo court held that the
preclusive effect of the earlier judgment trumped the preclusive
effect of the subsequent one. Id. In the appeal before us,
unlike in DeGiacomo, the city is unable to point to any similar
reason why the preclusive impact of the judgment in the Woodward
School litigation should be ignored.
We conclude by pausing to reflect on where the matter now
stands. In 2011, the trial judge in the Woodward School case
observed that: "[w]ere he to be with us today, President Adams
would, most assuredly, not be pleased with the events of the
past fifty-seven years." Now, three appeals later, one can only
16
imagine how chagrined President Adams might be that the legal
dispute over his gifts continues unabated. We recognize that
today's ruling resolves only the narrow issue presented to us;
much remains unresolved, including the amount of just
compensation that the city owes the Adams Fund for the Adams
Academy property. We express no view on how the potentially
difficult issues subsumed by that question should be resolved.
As we sit in the court house that bears President Adams's name,
we are left simply to urge the parties to pursue final
resolution of this matter with the public-spiritedness that he
long exemplified.17
Judgment affirmed.
17Arguing that the city's appeal was frivolous, both the
current trustee and the Woodward School have requested that we
require the city to pay reasonable attorney's fees they incurred
in defending it. See Mass. R. A. P. 25, as appearing in 481
Mass. 1654 (2019). We are not unsympathetic to those requests,
and we view the particular legal arguments put forward by the
city as relatively weak. Viewing all relevant considerations,
however, we ultimately decline to order sanctions. For one
thing, although the ultimate issue we need decide is relatively
straightforward, it lies embedded within a dispute of historic
complexity. For another, strictly speaking, it was the
successor trustee who ultimately pressed for resolution of the
city's new argument. Having already convinced the single
justice that issue preclusion precluded the city from
intervening, it was the successor trustee who moved to amend his
complaint to take on the city's claim.