In re George Parsons 1907 Trust

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 188
Docket: Cum-15-272
Argued: March 1, 2016
Decided: September 5, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent: HJELM and JABAR, JJ.

IN RE GEORGE PARSONS 1907 TRUST

SAUFLEY, C.J.

[¶1] Thomas Maxwell appeals from a summary judgment entered by

the Cumberland County Probate Court (Mazziotti, J.) in favor of David

Gourevitch, a qualified beneficiary of the George Parsons 1907 Trust, on his

complaint for a declaratory judgment that Maxwell is not a beneficiary of the

Trust. Because we agree with Maxwell that the undisputed facts establish that

Gourevitch’s claim was barred by the statute of limitations, we vacate the

judgment.

I. BACKGROUND

[¶2] The summary judgment record contains the following facts, which

are not in dispute. See Harlor v. Amica Mut. Ins. Co., 2016 ME 161, ¶ 7,

150 A.3d 793. On November 1, 1907, George Parsons executed an indenture

creating the George Parsons 1907 Trust. Parsons died on December 4, 1907,
2

without having amended or revoked the Trust. The Trust provides that it will

terminate twenty-one years after the death of the last member of a group of

named individuals. The last person in that group died in 2002. Thus, the

Trust will terminate in 2023.

[¶3] The dispute in this case has its genesis in the death of a descendant

of George Parsons—Philippa Wistrand—in May 1990, raising the question as

to who was to receive her share of the Trust distributions. Philippa was a

beneficiary of the Trust and was the unmarried, biological mother of Thomas

Maxwell, who was born in 1963 and was adopted by Philippa’s sister, Sylvie

Maxwell.1 Sylvie was also a descendant of George Parsons and a beneficiary of

the Trust in the same branch of the family tree. Pursuant to the applicable

portion of paragraph 5 of the Trust, Philippa’s share of the Trust income was

to be paid to her surviving “issue” upon her death, or if there was none, to any

surviving siblings or their issue if a sibling was already deceased, with other

provisions applying if no siblings survived. Therefore, upon Philippa’s death,

a question arose as to whether her share of the income was to be paid to

1 Thomas Maxwell’s name at birth was Christian Wistrand, but he was renamed when he was

adopted by Sylvie Maxwell.
 3

Thomas Maxwell as her surviving issue even though he was a nonmarital

child,2 or to Sylvie as her surviving sister.

[¶4] At the recommendation of the Trustees, in September and

November 1990, Sylvie executed documents to release any rights she had in

Philippa’s share of the Trust income and assign those rights to Maxwell. In

1990, the Trustees began distributing income to Maxwell.

[¶5] In 1994, addressing a separate matter, the Trustees petitioned the

Cumberland County Probate Court for instructions on whether adopted

children were included as beneficiaries of the Trust. Although Maxwell had

been adopted by Sylvie and received notice of the petition, the Trustees

agreed that the court’s decision would not “affect” him, and he did not

participate in the proceeding. In the resulting 1995 judgment, the court

(D. Childs, J.) determined that the provisions of the Trust should be

interpreted according to “the rules of construction set by common law during

the lifetime of George Parsons.” Applying the common law rules of

construction in effect in 1907, the court concluded that Parsons did not intend

to include adopted children as beneficiaries, and it instructed the Trustees

2 In this opinion, we use the term “nonmarital child” rather than the outdated phrase “child born

out of wedlock.”
4

that the two adopted children who were respondents in that matter were not

beneficiaries.

[¶6] In 1996, after the court had issued that judgment, one of the

Trustees became concerned that no formal decision had been made about

whether Maxwell was a beneficiary entitled in his own right to Philippa’s

share of income or whether he was entitled to receive income only by virtue

of the assignments executed by Sylvie. On July 26, 1996, the Trustees passed a

resolution recognizing Maxwell’s status as Philippa’s biological son and as a

beneficiary of the Trust.3 Maxwell will continue to receive monthly and

annual distributions of Trust income while the Trust continues, and will

receive ten percent of the corpus of the Trust when the Trust terminates in

2023 if he is then living.

[¶7] In April 2014, Gourevitch filed a complaint in the Cumberland

County Probate Court requesting a declaratory judgment that Maxwell, as a

nonmarital child, cannot be a beneficiary of the Trust. Gourevitch is a

descendant of George Parsons under the same branch of the family tree as

Philippa, Sylvie, and Maxwell and served as a Trustee from 1999 to 2002.
3 Gourevitch averred in his affidavit, which he referenced in his statement of material facts, that

after Sylvie died in 2012, the Trustees “voted to go ahead and make distributions” to Maxwell as a
beneficiary. He argues on appeal that this is the date when distributions became wrongful. By that
date, however, Maxwell had already been receiving benefits since 1996 based on the Trustees’
determination of his status as Philippa’s biological son—the status that Gourevitch now challenges.
 5

[¶8] Gourevitch also alleged in his complaint that Maxwell is not a

beneficiary of the Trust because he is an adopted child and requested a

declaratory judgment to that effect. As the Probate Court (Mazziotti, J.)

ultimately noted, however, “Maxwell’s status as an adopted child of Sylvie

Maxwell is of no consequence in this proceeding” because, as a result of the

court’s 1995 judgment, adopted children are not beneficiaries. Neither party

challenges that conclusion on appeal.

[¶9] Gourevitch moved for a summary judgment, see M.R. Civ. P. 56(a),4

arguing that the terms of the Trust entitled him to a judgment as a matter of

law because Maxwell was indisputably born to Philippa when she was not

married. Maxwell opposed Gourevitch’s motion and filed a cross-motion for a

summary judgment.5 He argued, among other things, that Gourevitch’s claim

was barred by the statute of limitations.

[¶10] In May 2015, the court denied Gourevitch’s motion and granted

Maxwell’s cross-motion for a summary judgment based on the statute of

limitations. Although the court determined, as a matter of law, that the terms

4 “Rule 56 of the Maine Rules of Civil Procedure governs procedure in all formal probate and

civil proceedings in the Probate Courts.” M.R. Prob. P. 56.

5 The Trustees also filed an opposition and cross-motion for a summary judgment supporting

Maxwell’s position. In its final judgment, the court denied the Trustees’ motion, and they do not
appeal.
6

of the Trust did not include nonmarital children as beneficiaries, the court

concluded that Gourevitch’s cause of action to challenge Maxwell’s status was

barred by the statute of limitations because it accrued, at the latest, in 1996,

when the Trustees formally recognized Maxwell as Philippa’s son and as a

beneficiary of the Trust. In reaching that conclusion, the court rejected

Gourevitch’s argument that each monthly payment to Maxwell constituted a

breach of fiduciary duty giving rise to a new cause of action. The court likened

Gourevitch’s argument to the common law “continuing tort doctrine,”

McLaughlin v. Superintending Sch. Comm. of Lincolnville, 2003 ME 114,

¶ 23 n.6, 832 A.2d 782, and concluded that the doctrine did not apply here

because the 1996 resolution was a discrete action that created the harm of

which Gourevitch complained. The court concluded that Gourevitch’s claim

therefore was outside the six-year limitations period, see 14 M.R.S. § 752

(2016), and that Maxwell was entitled to a judgment as a matter of law on that

basis.

[¶11] On May 19, 2015, Gourevitch filed a timely motion to alter or

amend the judgment, see M.R. Civ. P. 59(e),6 based on a decision that the

Supreme Court of the United States had issued on the previous day holding

6 “Rule 59 of the Maine Rules of Civil Procedure governs procedure in all formal probate and

civil proceedings in the Probate Courts.” M.R. Prob. P. 59.
 7

that a new cause of action accrues each time a trustee breaches a continuing

fiduciary duty owed to a beneficiary “to monitor investments and remove

imprudent ones.” See Tibble v. Edison Int’l, 575 U.S. ---, 135 S. Ct. 1823,

1828-29 (2015). Gourevitch contended that his complaint was timely because

the Trustees had a continuing duty to distribute income only to beneficiaries,

and therefore each payment to Maxwell constituted a new injury.

[¶12] While the motion to alter or amend was pending, Gourevitch

appealed based on the statute of limitations issue, and Maxwell

cross-appealed the court’s separate determination that, as a nonmarital child,

he was not a beneficiary. See 18-A M.R.S. § 1-308 (2016); M.R. App. P. 2. The

court then granted Gourevitch’s Rule 59 motion and entered an amended

summary judgment in his favor.7 Accordingly, the court’s final judgment

integrates its earlier determination that, as a matter of law, Maxwell is not a

beneficiary of the Trust, and its later conclusion, based on Tibble, that

Gourevitch’s claim was timely.

[¶13] Although the court’s ultimate judgment was in Gourevitch’s favor

and he is defending it, in most respects, on this appeal, he remains an

7 With respect to the pending appeal, in response to the Trustees’ motion to stay, we enlarged

the time for the Probate Court to transmit its record to twenty-one days after it disposed of all
pending post-judgment motions. See M.R. App. 2(b)(3), (4), 3(b)(4).
8

appellant because he was the first party to file a notice of appeal. See M.R.

App. P. 2(c)(3).

II. DISCUSSION

[¶14] A party is entitled to summary judgment when the statements of

material fact and referenced evidence establish that there is no genuine issue

of material fact and that a party is entitled to a judgment as a matter of law.

M.R. Civ. P. 56(c). We review de novo the grant of a motion for summary

judgment. Fiduciary Tr. Co. v. Wheeler, 2016 ME 26, ¶ 8, 132 A.3d 1178. A

genuine issue of fact exists if “sufficient evidence supports a factual contest to

require a factfinder to choose between competing versions of the truth at

trial.” Baillargeon v. Estate of Daigle, 2010 ME 127, ¶ 12, 8 A.3d 709

(quotation marks omitted).

[¶15] Maxwell argues that Gourevitch’s claim for a declaratory

judgment, commenced in 2014, is barred by 14 M.R.S. § 752, which provides

that “civil actions shall be commenced within 6 years after the cause of action

accrues and not afterwards.” A cause of action accrues when a claimant

sustains a “judicially cognizable injury.” Estate of Miller, 2008 ME 176,

¶ 25, 960 A.2d 1140 (quotation marks omitted). When the relevant facts are

not in dispute, determining when a cause of action accrued and whether a
 9

claim is time-barred are legal questions subject to de novo review. See Estate

of Weatherbee, 2014 ME 73, ¶ 14, 93 A.3d 248; McLaughlin, 2003 ME 114,

¶ 12, 832 A.2d 782.

[¶16] As courts of other jurisdictions have held, a cause of action based

on the breach of a trust accrues, and the statute of limitations begins to run, at

the time of the breach. See Renz v. Beeman, 589 F.2d 735, 743 (2d Cir. 1978)

(holding that the statute of limitations was measured from the time of the

breach of the trust), cert. denied, 444 U.S. 834 (1979); Harris Tr. Bank of Ariz. v.

Superior Court, 933 P.2d 1227, 1231 (Ariz. Ct. App. 1996) (holding that the

statute of limitations began to run when the trustee “violate[d] one or more of

his obligations to the beneficiary or repudiate[d] the trust”); see also Cecil v.

Cecil, 712 S.W.2d 353, 355 (Ky. Ct. App. 1986) (holding that the statute of

limitations began to run when a beneficiary received written notice of a

termination of trust agreement); cf. Tersavich v. First Nat’l Bank & Tr. Co. of

Rockford, 551 N.E.2d 815, 819-20 (Ill. App. Ct. 1990) (holding that the statute

of limitations on an illegitimate child’s claim seeking construction of a trust

runs from the later of (1) the child’s reaching the age of majority or (2) the
10

time when the child knows, or should know, that the trustee has “repudiated,

disavowed or acted in hostility to the trust” (quotation marks omitted)).8

[¶17] In some circumstances, determining the date of the breach may

be complicated, such as when a beneficiary claims that a trustee has

imprudently retained an investment. See Tibble, 575 U.S. ---, 135 S. Ct. at

1828-29. For good reason, the Supreme Court of the United States has held

that a trustee has an ongoing duty to monitor the ever-changing performance

of investments, which may bring the date of accrual within a statute of

limitations. See id.

[¶18] There is no legal basis, however, to support a continuing duty to

monitor a person’s status as a beneficiary of a heritable trust. To the contrary,

as the Court of Appeal of California held, a beneficiary’s challenge to his

proportion of trust income may be barred if proportionate shares have been

paid for the requisite limitation period. See Getty v. Getty, 187 Cal.

App. 3d 1159, 1168-69 (Cal. Ct. App. 1986). In Getty, a beneficiary’s claim was

barred because he did not take legal action until after distributions had been

8 See also George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 951,

at 638 (rev. 2d ed. 1995) (“To cause the Statute to begin running during the life of the trust there
must be some unequivocal act in violation of the duties of the trustee . . . .”).
 11

made in consistent proportions for about twenty-five years following his

attainment of adulthood. Id.

[¶19] We have also previously held that statutes of limitations begin to

run when discrete events make potential litigants aware of possible claims.

Specifically, we held that a health care trust’s cause of action for unjust

enrichment against its beneficiary accrued upon the beneficiary’s settlement

of an automobile insurance claim and did not continue to accrue each time

monthly annuity payments to the injured beneficiary were made pursuant to

the terms of that settlement. Me. Mun. Emps. Health Tr. v. Maloney,

2004 ME 51, ¶¶ 2-3, 10, 846 A.2d 336.

[¶20] Nor do Maine’s statutes establish any “continuing” duty to

determine who is a beneficiary. A trustee may fulfill the duty to administer a

trust “in accordance with its terms and purposes,” 18-B M.R.S. § 801 (2016),

and “considering . . . distributional requirements,” 18-B M.R.S. § 804 (2016),

by determining, upon the death of a beneficiary, whether there are any new

beneficiaries and who those beneficiaries are. The determination of

beneficiaries is not a decision that requires repeated reconsideration simply

because the trust calls for the periodic distribution of trust income.
12

[¶21] Having a fixed date of accrual is consistent with the purpose of

statutes of limitations “to provide eventual repose for potential defendants

and to avoid the necessity of defending stale claims.” Angell v. Hallee,

2012 ME 10, ¶ 8, 36 A.3d 922 (quotation marks omitted). To hold to the

contrary would allow a trust beneficiary to initiate a court challenge at any

time after another beneficiary is determined, as long as income distributions

are being made. Such a holding would improperly elevate each ordinary

income distribution to a fresh determination of beneficiary status and would

result in a statute of limitations that, for no meaningful reason, may apply

differently to trusts that call for income distribution as compared with trusts

that do not.

[¶22] Turning to the facts at issue here, as the Probate Court held

before reaching a new holding based on Tibble, 575 U.S. ---, 135 S. Ct. at

1828-29, any cause of action arising from the determination that Maxwell was

a beneficiary of the Trust accrued no later than 1996 when a formal resolution

was passed recognizing Maxwell as Philippa’s biological son and determining

that Maxwell was a legally cognizable beneficiary. That is the event that

triggered the running of the six-year statute of limitations. See 14 M.R.S.

§ 752.
 13

[¶23] The only way Gourevitch’s complaint could proceed would be if

the statute of limitations were tolled. The common law discovery rule tolls

the statute of limitations only if there is “a fiduciary relationship between the

plaintiff and defendant, the plaintiff must rely upon the defendant’s advice as

a fiduciary, and the cause of action [is] virtually undiscoverable absent an

independent investigation that would be destructive of the fiduciary

relationship.” Nevin v. Union Tr. Co., 1999 ME 47, ¶ 25, 726 A.2d 694.

[¶24] The pertinent facts are these. Maxwell’s biological mother died in

1990. His adoptive mother released her then additional share to Maxwell

voluntarily. In 1994, the trustees sought clarification from the Cumberland

County Probate Court about whether adopted children could be beneficiaries

pursuant to the terms of the trust, and the court determined that they could

not.

[¶25] In 1996, the trustees passed a formal resolution determining that

Maxwell was Philippa’s biological son and was a beneficiary of the Trust.

Thereafter, Maxwell continued to receive regular payments as the child of his

biological mother. These were the circumstances that existed when

Gourevitch became a trustee in 1999.
14

[¶26] Gourevitch was a trustee from 1999 to 2002, during which time

he had the full ability to determine why Maxwell was receiving Trust income

distributions while the woman Gourevitch believed to be Maxwell’s mother

was still living—a circumstance that is fully contrary to the Trust’s provision

that “in no case does issue take till the death of the parent whom it

represents.” Instead, Gourevitch participated as a trustee in continuing to

make distributions to Maxwell. He does not receive the benefit of tolling

because he had both the reason and the ability to discover the claim when he

was serving as a trustee but did not commence legal action until 2014—

twelve years after ending his service as a trustee and eighteen years after the

date of the Trustees’ resolution declaring Maxwell to be a beneficiary as the

child of Philippa. See id.

[¶27] Because the statute of limitations has run, we do not reach

Maxwell’s challenge to the Probate Court’s ruling, on the merits of

Gourevitch’s complaint, that Maxwell would not have been a beneficiary of the

Trust had the challenge been made in a timely manner. We vacate the Probate

Court’s amended judgment and remand the matter for the court to deny

Gourevitch’s motion for summary judgment and grant Maxwell’s motion for

summary judgment.
 15

The entry is:

Judgment vacated. Remanded for the court to
deny Gourevitch’s motion for summary
judgment and grant Maxwell’s motion for
summary judgment.

HJELM, J., with whom JABAR, J., joins, dissenting.

[¶28] Today, the Court concludes that a trust beneficiary is not entitled

to commence a cause of action arising from allegedly wrongful distributions of

trust income made within the limitations period, so long as the trustees’ initial

decision to begin those ongoing distributions is made outside the limitations

period. Court’s Opinion ¶¶ 22, 27. In my view, this holding is contrary to

established Maine law and the principle that a trustee is bound by the highest

ongoing fiduciary duties of good faith and loyalty to trust beneficiaries. I

therefore conclude, as a matter of law, that this action is not barred by the

statute of limitations. Because I also conclude that the summary judgment

record contains genuine issues of material fact on the merits of this action, I

would vacate the summary judgment entered by the Cumberland County

Probate Court (Mazziotti, J.) and remand for further proceedings. For these

reasons, I respectfully dissent.
16

[¶29] I will first address the reasons why the statute of limitations does

not bar David Gourevitch’s claim for a declaratory judgment. I will then

discuss the factual issues revealed in the record that preclude a

determination, as a matter of law, that Thomas Maxwell, a nonmarital child, is

a beneficiary of the George Parsons Trust—factual disputes that require this

case to be remanded for further proceedings in the Probate Court.

A. Statute of Limitations

[¶30] Title 14 M.R.S. § 752 (2016) provides that “civil actions shall be

commenced within 6 years after the cause of action accrues and not

afterwards.” As the Court states, a cause of action based on a breach of a trust

accrues at the time of the breach, Court’s Opinion ¶ 16, because that is when

the claimant sustains a “judicially cognizable injury,” Estate of Miller, 2008 ME

176, ¶ 25, 960 A.2d 1140 (quotation marks omitted).

[¶31] The Probate Court concluded, as a matter of law, that

Gourevitch’s 2014 complaint was timely because a new breach occurred each

time the Trustees made a monthly distribution of income—allegedly

wrongfully—to Maxwell. The court’s conclusion was predicated on its

determination that trustees in Maine have a continuing duty, accompanying

each distribution to a beneficiary, to ensure that the recipient is entitled to that
 17

distribution. In my opinion, that legal assessment of the continuing nature of

the Trustees’ duties is correct because it is supported by Maine law and is

consistent with the essential nature of a trust and a trustee’s fiduciary duties.

[¶32] “A trust . . . is a fiduciary relationship with respect to property . .

. subjecting the person who holds title to the property to duties to deal with it

for the benefit of” another. Restatement (Third) of Trusts § 2 (Am. Law Inst.

2003). Because of “the intimate nature of the [trustee] relationship,” and “the

great control of a trustee over the property of the beneficiary,” the law

demands of a trustee “an unusually high standard of ethical or moral conduct.”

Amy Morris Hess et al., The Law of Trusts and Trustees § 1 at 5 (3d ed. 2007).

Indeed, the fiduciary duties of a trustee are “the highest known to the law.” La

Scala v. Scrufari, 479 F.3d 213, 219 (2d Cir. 2007) (quotation marks omitted);

see also Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (“Not honesty

alone, but the punctilio of an honor the most sensitive, is . . . the standard of

[trustee] behavior.”).

[¶33] Within that “unusually high standard” of conduct and fidelity,

Hess et al., The Law of Trusts and Trustees § 1 at 5, “the extent and limits of [a

trustee’s] authority” are defined by the trust itself, In re Marble, 136 Me. 52,

56, 1 A.2d 355 (1938) (quotation marks omitted). Accordingly, with respect
18

to a trustee’s specific responsibilities, the trustee is “bound, in the first place,

to conform strictly to the directions of the trust. This is in fact the corner-stone

upon which all other duties rest, the source from which all other duties take

their origin. . . . If the trust is express, created by deed or will, then the

provisions of the instrument must be followed and obeyed.” Id. (emphases

added) (quotation marks omitted). Additionally, in fulfilling the primary

obligation to execute the trust’s directions, a trustee is bound to act

consistently with duties defined by statute. Specifically, trustees have a duty

to “administer the trust in good faith, in accordance with its terms and

purposes and the interests of the beneficiaries and in accordance with [the

Maine Uniform Trust Code].” 18-B M.R.S. § 801 (2016) (emphasis added). In

addition, trustees have a duty to “administer the trust as a prudent person

would, by considering the purposes, terms, distributional requirements and

other circumstances of the trust.” 18-B M.R.S. § 804 (2016) (emphasis added).

[¶34] A trustee’s statutory duty to administer a trust “in good faith,” “as

a prudent person would,” necessarily encompasses the duty to ascertain that

each individual whom the trustees designate to receive trust income is

actually entitled to those payments pursuant to the terms of the trust—in

other words, that the settlor intended to include that person as a beneficiary.
 19

See Restatement (Third) of Trusts § 76 (Am. Law Inst. 2007) (stating that a

trustee’s duty to administer a trust “in good faith, in accordance with the

terms of the trust” includes the responsibility to “ascertain[] . . . the

beneficiaries and purposes of the trust”); Id. § 77 cmt. c (stating that to fulfill

the duty of prudence, a trustee must “acquire a reasonable understanding of

the terms of the trust” and “the rights and interests of the beneficiaries”);

George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees

§ 583 at 348-49 (rev. 2d ed. 1980) (“After a trustee has accepted the trust . . . it

becomes his duty to carefully examine the terms of the trust and the trust

assets in order to determine exactly what property forms the subject-matter

of the trust, who are the beneficiaries, and what are the trustee’s duties with

respect to the trust property and the beneficiaries.” (emphasis added)

(footnotes omitted)).

[¶35] Contrary to the Court’s analysis, however, a trustee’s initial

determination of who is a “beneficiary” is not the end of the matter. We have

explained that a trustee’s duty of prudence in Maine is “ongoing.” Nevin v.

Union Tr. Co., 1999 ME 47, ¶¶ 26-28, 726 A.2d 694. A trustee is therefore not

discharged from her fiduciary duties when that trustee simply makes an initial

or interim discrete decision. See George Gleason Bogert & George Taylor
20

Bogert, The Law of Trusts and Trustees § 541 at 160 (rev. 2d ed. 1978,

replacement vol. 1993) (“The trustee must continually demonstrate good faith

in administering the trust and in dealing with beneficiaries.” (emphasis

added)). Rather, the fiduciary duties defined by statute attach to each action a

trustee takes in executing the terms of the trust, including each decision—

whether ministerial or otherwise—to distribute trust income to a particular

person.

[¶36] In addition to being a violation of a trustee’s statutory duties, a

trustee’s distribution of trust income to an individual who is not entitled to

receive the payments is a violation of that trustee’s primary obligation “to

conform strictly to the directions of the trust.” In re Marble, 136 Me. at 56,

1 A.2d 355 (quotation marks omitted); see also George Gleason Bogert

& George Taylor Bogert, The Law of Trusts and Trustees § 814 at 315 (rev. 2d

ed. 1981) (stating that a trustee has “an unconditional obligation to follow the

applicable provisions regarding payments and distributions” (emphasis

added)). If a trustee repeatedly makes distributions to an improper recipient,

then with each subsequent payment the trustee acts in derogation of the

terms of the trust not only by allowing an ineligible person to participate, but

also by diminishing the amount of the payments that the true beneficiaries are
 21

entitled to receive because of the expanded pool of recipients. In other words,

each time a trustee makes an improper payment, the trustee breaches his or

her fiduciary duty owed to the true beneficiaries, causing a new injury to

them, because the amount of the distribution they receive is less than it

should be. The injury does not end when the trustees first decide to make

those ongoing payments.

[¶37] Accordingly, based on fundamental principles of trust law, I

conclude that even after a trustee makes an initial distributional decision, that

trustee has a fiduciary duty to ensure, on an ongoing basis, that income is

being distributed only to proper beneficiaries consistent with the terms of the

trust. Consequently, the accountability of trustees to the beneficiaries does

not end when they make that initial distributional decision.9 Rather, they

remain liable for the ongoing actions placed in motion by their initial decision.

9 Renz v. Beeman, which the Court cites as support for the proposition that the statute of

limitations begins to run at the time of the initial breach, Court’s Opinion ¶ 16, is inapposite because
that case involves a claim based on a one-time event, rather than ongoing or repeated actions in
derogation of a trust, as is the case here. 589 F.2d 735, 743, 748-49 (2d Cir. 1978) (concluding that
a one-time breach of trust occurred, and the statute of limitations began to run, on the date when a
trustee purchased certain shares of stock). The cases cited by the Court as further support for this
point are not helpful to an analysis of the case at bar. See Harris Tr. Bank of Ariz. v. Superior Court,
933 P.2d 1227, 1231-32 (Ariz. Ct. App. 1996) (addressing the question of whether a particular
statute of limitations applied at all, not when it began to run); Cecil v. Cecil, 712 S.W.2d 353, 355
(Ky. Ct. App. 1986) (applying a unique statute of limitations where the triggering event was not an
alleged breach of trust, but rather the beneficiary’s “receipt of [a] final account or statement”).

Getty v. Getty, 187 Cal. App. 3d 1159 (Cal. Ct. App. 1986), on which the Court also relies,
Court’s Opinion ¶ 18, similarly is inapposite. That case involved a beneficiary’s claim to reform a
trust to increase his share of trust income and principal so that it would be equal to that of his
22

[¶38] In their discussion of the statute of limitations and their analysis

of when Gourevitch’s cause of action accrued, the parties have focused on

Tibble v. Edison International, 575 U.S. --, 135 S. Ct. 1823 (2015). Tibble itself

does not bear directly on this issue but, to the extent that it does provide

guidance here, it supports the conclusion that the Trustees have an ongoing

duty to ensure that the interests of the beneficiaries are protected.

[¶39] The Tibble Court considered “whether a fiduciary’s allegedly

imprudent retention of an investment is an ‘action’ or ‘omission’ that triggers

the running of the 6-year limitations period” applicable to claims brought

pursuant to the Employee Retirement Income Security Act of 1974 (ERISA),

29 U.S.C.S. §§ 1001-1461 (LEXIS through Pub. L. No. 115-45).10 Tibble, 575

brothers, Getty, 187 Cal. App. 3d at 1167-68—it was not a case based on an alleged breach of trust.
An intermediate-level court held that the beneficiary’s action for reformation was time-barred
because the trustees had “distributed income to the beneficiaries in exactly the amounts required
under the declaration of trust” for over forty-two years, and the beneficiary had actual or
constructive knowledge of the settlors’ alleged mistake for thirty-nine years before filing suit. Id. at
1169 (emphasis added). By seeking reformation of the trust, the beneficiary in Getty expressly
acknowledged that there was no continuing violation because, as the court found, the trustees were
distributing income in the amounts required by the trust. See id. Rather, the question was whether
the terms of the trust that mandated those distributions should be altered. See id.

Conversely, here, Gourevitch sued for a declaratory judgment to determine whether the
Trustees’ repeated and ongoing distributions of trust income to Maxwell violate the actual terms of
the Trust. Because Getty did not involve ongoing conduct by the trustees that was in violation of the
trust, it has no bearing on whether Gourevitch’s cause of action accrues anew with each income
distribution.
10 The statute of limitations on ERISA claims provides, in pertinent part, that “[n]o action may be

commenced under this title with respect to a fiduciary’s breach of any responsibility, duty, or
obligation . . . after the earlier of . . . six years after (A) the date of the last action which constituted a
part of the breach or violation, or (B) in the case of an omission, the latest date on which the
 23

U.S. --, 135 S. Ct. at 1826. The Court stated “that an ERISA fiduciary’s duty is

derived from the common law of trusts,” id. at 1828 (quotation marks

omitted), and explained that

under trust law, a fiduciary normally has a continuing duty of some
kind to monitor investments and remove imprudent ones. A
plaintiff may allege that a fiduciary breached the duty of prudence
by failing to properly monitor investments and remove imprudent
ones. In such a case, so long as the alleged breach of the
continuing duty occurred within six years of suit, the claim is
timely.

Id. at 1828-29 (emphasis added). Therefore, although Tibble involved the

fiduciary duty to prudently oversee trust investments rather than the duty to

distribute trust income only to proper beneficiaries, the opinion confirms the

ongoing nature of the fiduciary duties that trustees are bound to discharge.

[¶40] Further, despite the Court’s analytical reliance on Maine

Municipal Employees Health Trust v. Maloney, 2004 ME 51, 846 A.2d 336,

Court’s Opinion ¶ 19, that case does not support the Court’s view that the legal

responsibility of a trustee is limited to the trustee’s initial distributional

decision—in fact, it does not involve fiduciary responsibilities at all. Rather, in

Maloney, a health care plan paid medical expenses incurred by a covered

person who had sustained injuries arising from another person’s tortious

fiduciary could have cured the breach or violation.” 29 U.S.C.S. § 1113 (LEXIS through Pub. L. No.
115-45).
24

conduct and who later settled the resulting tort claim. Maloney, 2004 ME 51,

¶ 2, 846 A.2d 336. Seven years after the settlement, the plan brought a claim

against the covered individual alleging unjust enrichment—not breach of

fiduciary duty—and seeking reimbursement of the medical expenses it had

paid. Id. ¶¶ 3-4. We rejected the plan’s argument that its claim was not

time-barred because it “accrue[d] anew with each monthly annuity payment,”

concluding that the injury had in fact occurred when the participant first

settled his claim against the tortfeasor. Id. ¶¶ 9-10. The litigants in Maloney,

however, were merely parties to a health insurance contract, see id. ¶ 6, and

there is no suggestion that the covered individual owed any fiduciary duty to

the plan, let alone a continuing duty. Rather, the alleged wrongdoer, namely,

the insured, was a health care plan participant—not a trustee—who merely

received periodic payments from a third party. See id. ¶ 2.

[¶41] Conversely, here, the Trustees are fiduciaries and are bound by

continuing obligations that run to Gourevitch as a beneficiary of the Trust.

Accordingly, the Trustees’ repeated decisions to pay Trust income to Maxwell,

allegedly in violation of their continuing fiduciary obligations in the

administration of the Trust, represent discrete “judicially cognizable

injur[ies],” Estate of Miller, 2008 ME 176, ¶ 25, 960 A.2d 1140 (quotation
 25

marks omitted), each giving rise to a new cause of action. Maloney is therefore

inapplicable.

[¶42] For these reasons, I conclude that a new cause of action accrued

each time the Trustees made a distribution of Trust income to Maxwell,

because he allegedly was not entitled to those payments pursuant to the terms

of the Trust. With each such payment, the true beneficiaries allegedly

sustained a new injury, resetting the clock for purposes of the statute of

limitations. This conclusion is the product of Maine law and the law of trusts

that establish the continuing nature of a trustee’s duty to comply with the

provisions of a trust, including its distributional requirements.11 Accordingly,

because the undisputed facts establish that Gourevitch commenced this action

for a declaratory judgment challenging Maxwell’s beneficiary status within six

years of at least one of the Trustees’ monthly payments to Maxwell, the claim

is timely.12 See McLaughlin v. Superintending Sch. Comm. of Lincolnville,

11 I agree with the Court that, as the Probate Court concluded, Gourevitch is not entitled to the

benefit of the common law discovery rule, which tolls the statute of limitations “until the plaintiff
discovers or reasonably should have discovered the cause of action.” Nevin v. Union Tr. Co.,
1999 ME 47, ¶ 25, 726 A.2d 694; Court’s Opinion ¶¶ 23-26. My conclusion that Gourevitch’s claim
is timely does not rely on the application of the common law tolling rule.
12 Contrary to the Court’s statement, Court’s Opinion ¶ 21, a holding that Gourevitch’s claim is

timely would not detract from the essential purpose of statutes of limitations “to provide eventual
repose for potential defendants and to avoid the necessity of defending stale claims,” Angell v.
Hallee, 2012 ME 10, ¶ 8, 36 A.3d 922 (quotation marks omitted). Rather, a trustee would enjoy that
repose when any other alleged wrongdoer would, namely, six years after the last injury she
26

2003 ME 114, ¶¶ 11-12, 19, 832 A.2d 782 (explaining that summary judgment

on a statute of limitations defense is proper when there is no genuine issue of

material fact as to whether the cause of action accrued within the limitations

period).

B. Status of Nonmarital Children

[¶43] I next address the merits of the parties’ arguments because if—as

I conclude—Gourevtich’s claim is not time-barred but the undisputed facts

nevertheless were to establish that Maxwell is a proper beneficiary of the

Trust, then this matter would have to be remanded for entry of a summary

judgment for Maxwell in any event. For the following reasons, I disagree with

that result. Rather, I conclude that neither party is entitled to a judgment as a

matter of law on the issue of whether Maxwell is a proper beneficiary, and I

would therefore remand this matter to the Probate Court for further

proceedings.

[¶44] The specific issue is whether the court erred by concluding, as a

matter of law, that the terms used to identify Trust beneficiaries—“issue” and

“descendants”—must be construed to omit nonmarital children.

participated in creating, which here consisted of allegedly making a wrongful payment of trust
assets.
 27

[¶45] “The cardinal rule is to give effect to the intention of the testator

gathered from the language of the will [creating the trust] . . . .” Me. Nat’l Bank

v. Petrlik, 283 A.2d 660, 664 (1985). The court must determine a settlor’s

intent at the time the trust was created, without regard to sensibilities that

may have evolved later.13 See id.; New England Tr. Co. v. Sanger, 151 Me. 295,

301, 118 A.2d 760 (1955). “The intent of the settlor, as determined by

unambiguous language in the [trust], is a question of law that we review de

novo.” Fiduciary Tr. Co. v. Wheeler, 2016 ME 26, ¶ 9, 132 A.3d 1178 (quotation

marks omitted). Conversely, if the trust contains an ambiguity, a court’s

determination of the settlor’s intent is a question of fact to be adjudicated in

the trial court. See Newick v. Mason, 581 A.2d 1269, 1273-74 (Me. 1990). If “a

showing of all the relevant extraneous circumstances provides no basis for a

fair conclusion as to the meaning” of a particular term, a court may apply the

“presumptive” meaning—namely, a meaning based on common law

principles, Ziehl v. Me. Nat’l Bank, 383 A.2d 1364, 1372 (Me. 1978), superseded

by statute on other grounds, P.L. 1979, ch. 540, § 1 (effective Jan. 1, 1981)

13 For this reason, the rule of construction in the Maine Probate Code, which states that “persons

born out of wedlock are included in class gift terminology and terms of relationship in wills and in
trust instruments,” does not apply to these proceedings because that statute became effective in
1981, long after the Trust was created. P.L. 1979, ch. 540, § 1 (effective Jan. 1, 1981) (codified as
amended at 18-A M.R.S. § 2-611 (2016)); see also Hall v. Cressey, 92 Me. 514, 516, 43 A. 118 (1899)
(stating that “[m]odern sentiment[s] as expressed in modern statutes” have no bearing on the
interpretation of an instrument executed before the statutes were adopted).
28

(codified as amended at 18-A M.R.S. § 2-611 (2016)), so long as the

presumption was applied during the settlor’s lifetime and “may be supposed

to have been in the mind of the testator at the time” the will creating the trust

was made. Petrlik, 283 A.2d at 664.

[¶46] Paragraph 5 of the Trust—which is the source of Maxwell’s

claimed interest—provides that a deceased descendant’s share of Trust

income is payable to his or her “issue.” In the context of a summary judgment

analysis, the question therefore is whether a nonmarital child such as Maxwell

indisputably must be considered “issue” of his biological mother within the

meaning of the Trust.

[¶47] We have previously stated that the term “issue” is ambiguous and

that its meaning varies according to the intention of the settlor who uses it.

Gannett v. Old Colony Tr. Co., 155 Me. 248, 249, 153 A.2d 122 (1959); Fiduciary

Tr. Co. v. Brown, 152 Me. 360, 371-72, 131 A.2d 191 (1957); Union Safe Deposit

& Tr. Co. v. Dudley, 104 Me. 297, 306, 72 A. 166 (1908). Although, here,

Parsons expressly defined “issue” in Paragraph 8 of the Trust to mean “all

descendants,” that provision fails to provide any additional definitional

meaning because, as we have noted in the past, the term “issue” is

synonymous with the term “descendants.” Fiduciary Tr. Co., 152 Me. at
 29

371-72, 131 A.2d 191; see also Morse v. Hayden, 82 Me. 227, 230, 19 A. 443

(1889) (stating that “issue . . . is synonymous with lineal descendant”)

(quotation marks omitted); Union Safe Deposit & Tr. Co., 104 Me. at 307, 72 A.

166 (stating that “the word ‘issue’ is to be interpreted according to its primary

signification as importing descendants”); Newick, 581 A.2d at 1273 (“‘Issue’ is

commonly interpreted as meaning ‘[a]ll persons who have descended from a

common ancestor.’” (quoting Black’s Law Dictionary 746 (5th ed. 1979)). As

the Probate Court noted, the definition of “issue” included in the Trust merely

indicates that the terms “issue” and “descendants” had “like meanings for the

purposes of defining the beneficiaries.” Because the term “issue” is

ambiguous, and because the term “descendants”—which Parsons used to

define “issue”—is merely a synonym that does not provide additional

definitional content, neither term has a fixed meaning that can be discerned as

a matter of law.

[¶48] The Trust further states in Paragraph 8 that “[d]istribution of

income among the issue of a . . . descendant . . . shall mean that such income

shall be paid in equal shares to his or her children.” (Emphases added.) For

reasons similar to those stated above, this provision does not allow any

determination of the meaning of the term “issue” as a matter of law because
30

the term “children,” like the term “issue,” is ambiguous and must be construed

based on Parsons’s intent when the Trust was created. See Ziehl, 383 A.2d at

1369-70 (stating that the word “children” is ambiguous because in general

usage it is “associated with more than one category of external objects”); In re

Woodcock, 103 Me. 214, 216-17, 68 A. 821 (1907) (stating that the meaning of

“children” depends on the language of the testamentary instrument and the

circumstances existing when it was executed); Bolton v. Bolton, 73 Me. 299,

309-10 (1882) (same). Accordingly, regardless of what meaning may be

ascribed to the term “children” today, the plain language of the Trust does not

indisputably establish whether, in 1907, Parsons intended to include

nonmarital children as beneficiaries.

[¶49] The express rule of construction that appears in Paragraph 28 of

the Trust also does not unambiguously resolve the question at issue here.

Paragraph 28 states:

The laws of the State of Maine shall apply to and govern the
validity, construction and operation of this agreement, except as
the construction or legal effect of this instrument is expressly
stated in the provisions of the deed itself, and all matters, things
and proceedings now or hereafter arising or had hereunder.

By using the phrase “laws of the State of Maine,” Parsons did not distinguish

between statutes and common law, and he could reasonably have been
 31

referring to either.14 Applying the statutes and common law in effect during

Parsons’s lifetime, however, leads to competing conclusions as to whether he

intended to include nonmarital children in the gift to the “issue” of his

deceased descendants.

[¶50] The statutes in effect in 1907 included a provision that allowed

an “illegitimate child” to inherit property from his or her biological mother

who died intestate. R.S. ch. 77, § 3 (1903).15 Accordingly, if the phrase “laws

of the State of Maine” is construed to mean statutory law, and if the 1907

statutes of descent can reasonably be analogized to trusts, then the language

of the Trust reasonably allows the conclusion that Parsons intended to include

nonmarital children within the meaning of the terms “issue” and

“descendants.”

14 In other places in the Trust, Parsons referred to statutory law specifically. For example, in

Paragraph 8, Parsons expressly rejected the definition of “per stirpes” provided “under the statutes
of distribution in the State of Maine.” The phrase “laws of the State of Maine” could therefore
reasonably be construed to be broader than the reference to the “statutes of distribution” in
Paragraph 8 of the Trust and include the common law.

15 R.S. ch. 77, § 3 (1903) provided in full,

An illegitimate child born after March twenty-four, in the year of our Lord one
thousand eight hundred and sixty-four, is the heir of his parents who intermarry.
And any such child, born at any time, is the heir of his mother. And if the father of an
illegitimate child adopts him or her into his family, or in writing acknowledges
before some justice of the peace or notary public, that he is the father, such child is
also the heir of his or her father. And in each case such child and its issue shall
inherit from its parents respectively, and from their lineal and collateral kindred,
and these from such child and its issue the same as if legitimate.
32

[¶51] Cases decided during Parsons’s lifetime, however, reveal a

general common law principle that although nonmarital children were

entitled to “take under any disposition by deed or will adequately describing

them,” they were not entitled to participate in gifts to “issue” or “children.”

2 Thomas Jarman, A Treatise on Wills 205 (5th ed. 1881); see also Bolton,

73 Me. at 311 (explaining that nonmarital children “are not objects of a gift to

children or issue of any other degree, unless a distinct intention to that effect

be manifest upon the face of the will; and if by possibility, legitimate children

alone would have satisfied the terms of such gift, illegitimate children cannot

take” (quotation marks omitted)); Lyon v. Lyon, 88 Me. 395, 406, 34 A. 180

(1896) (“[W]here legacies or devises are given to a ‘child,’ or ‘children’ of

some person named . . . these words mean, prima facie, legitimate children

. . . .”); Hall v. Cressey, 92 Me. 514, 516, 43 A. 118 (1899) (“The authorities are

to the effect that the word ‘child’ in a will or deed means a legitimate child.”)

The presumptive, common law meaning of “issue” therefore did not comport

with 1907 statutory law, and leads to a different conclusion as to Parsons’s

intent.

[¶52] Because the rule of construction prescribed in Paragraph 28 of

the Trust can lead to opposite results depending on whether it is read to
 33

invoke statutes or common law presumptions, I conclude that the record

supports competing inferences as to whether Parsons intended to include

nonmarital children as beneficiaries of the Trust. The summary judgment

process therefore is not the appropriate means to resolve this dispute. This is

true even if there is no additional evidence beyond what is contained in the

summary judgment record that could be presented at a trial on remand. See

Rose v. Parsons, 2015 ME 73, ¶ 4, 118 A.3d 220 (“Summary judgment process

is not a substitute for trial . . . . When facts or reasonable inferences to be drawn

from the facts are in dispute, the court must engage in fact-finding, and

summary judgment is not available.”) (emphasis added). Accordingly, I would

vacate the summary judgment entered in favor of Gourevitch and remand for

a trial so that the court can determine the most persuasive among the parties’

competing views of historical facts and conclusions to be drawn from those

factual disputes.

Deborah M. Mann, Esq. (orally), and Brendan P. Rielly, Esq., Jensen Baird
Gardner & Henry, Portland, for appellant David Gourevitch

Dennis J. O’Donovan, Esq. (orally), and Jennifer L. Kruszewski, Esq., Epstein &
O’Donovan, LLP, Portland, for appellee Thomas Maxwell

Cumberland County Probate Court docket number 1994-1486
FOR CLERK REFERENCE ONLY