010-634, Julie Shelton & a. v. Samuel A. Tamposi, Jr. & a.

No. 2010-634 Hillsborough County Probate Court

, of Boston, Massachusetts (Robert S. Frank,, of Concord, on the brief, Ransmeier & Spellman, P.C.

Hillsborough County Probate Court (Cassavechia, J.) that dismissed the Tamposi Trusts (the EMT trusts), appeals a lengthy and detailed order of the PER CURIAM. Petitioner Julie Shelton, trustee of the Elizabeth M.

brief), for the respondents. reporter@courts.state.nh.us Barradale, O’Connell, Newkirk & Dwyer, of Bedford (Pamela J. Newkirk on the LLP, of Boston, Massachusetts (Michael Kendall on the brief and orally), and Concord (Frank E. Kenison on the brief and orally), McDermott Will and Emery Robert A. Stein ___________________________, of

THE SUPREME COURT OF NEW HAMPSHIRE petitioner Julie Shelton. Jr. and Robert M. Buchanan, Jr. on the brief, and Mr. Frank orally), for Choate, Hall & Stewart LLP to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as for declaratory judgment, seeking a ruling that they could participate in the p. 2 Later that year, Nick and Betty and their children filed their own petition

interests in the trust property.” expressed interest in a possible ‘buy-out’ or separation of their beneficial would incur no liability. The petition “alleged that Betty and Nick had

written directions of the investment directors, and that, in doing so, the trustee

sought a ruling that the trustee was required to act in accordance with the directors, and Prunier filed a petition for declaratory judgment in which they the original trustee, David Tulley. In 2000, Sam, Jr. and Steve, as investment

investment directors of the twelve sibling subtrusts. Gerald Prunier succeeded

provisions of the amended 1992 trust, Sam, Jr. and Steve became the

Sam, Sr. died in 1995. At the time of his death, in accordance with the

as the SAT Sr. Trust. agreement of the parties; we refer to them collectively for purposes of our analysis The 1992 and 1994 trusts were eventually consolidated pursuant to a settlement Irrevocable Trust; he named David Tulley as his successor trustee for this trust. Sam, Sr. also subsequently established the Samuel A. Tamposi Sr. 1994 nicknames, we also do so to allow ease of reference to the record before us. 1 Because the trial court and parties refer to the Tamposi patriarch and his six children by their

in part and remand.

investment directors that are more commonly vested in a trustee.” amendment to the trust “confer[red] certain fiduciary responsibilities on the that a trustee would also be appointed. The trial court found that the third Sam, Jr. and Steve would serve as investment directors of the twelve trusts and skipping transfer tax and six contained non-exempt assets. It also provided that Intervenors”; and (4) removing Shelton from her position as trustee. We affirm

(sibling trusts); six trusts contained assets exempt from the federal generation Shelton to pay the attorneys’ fees “of both the Respondents and the voluntary to be divided into twelve separate trusts for each of his children and their issue complaint, Elizabeth Tamposi violated the in terrorem clause; (3) ordering his death. In its final form, it specified that after his death, the trust corpus was construing the governing trust instrument; (2) ruling that, by filing the his six children and their issue. It was amended four times by Sam, Sr. prior to Trust, which was designed to benefit him during his lifetime and, after his death, Stephen (Steve).1 In 1992, Sam, Sr. established the Samuel A. Tamposi, Sr. 1992 Jr. (Sam, Jr.), Michael, Elizabeth (Betty), Nicholas (Nick), Celina (Sally) and the record before us. Samuel Tamposi, Sr. (Sam, Sr.) had six children: Samuel, The following facts are found in the trial court’s order or are supported by

and (2) Elizabeth M. Tamposi. Shelton argues that the trial court erred in: (1) complaint filed by: (1) Shelton, in her capacity as trustee of the EMT Trusts; p. 3 Tamposi Companies.” They filed an amended complaint in March 2009.

Samuel A. Tamposi, Sr. 1994 Irrevocable Trust, and as Directors of the Tamposi, Sr. 1992 Trust and the Elizabeth M. Tamposi Trust created under and the Elizabeth M. Tamposi Trust both created under the Samuel A.

“Individually and as Investment Directors of Elizabeth M. Tamposi GST Trust

and Betty filed a pleading entitled “Complaint” against Sam, Jr. and Steve, The case giving rise to this appeal began in October 2007, when Shelton

February 22, 2007. Betty appointed Shelton as her trustee in August 2007.

Trust as a result of the settlement agreement were approved by the court on and Nick’s subtrusts pending their liquidation. Changes made to the SAT Sr. Steve would resign as investment directors over all but ten assets in Betty’s

(2) Nick and Betty could appoint his or her own trustee; and (3) Sam, Jr. and

child would be merged into his or her respective non-exempt sibling sub-trust;

reached which provided that: (1) the SAT Sr. 1994 Trust for the benefit of each their siblings continued. Following mediation, a settlement agreement was Between 2001 and 2006, disagreements between Betty and Nick and

approximately two months later. breach of fiduciary duties.” Betty and Nick took a voluntary non-suit as trustee for the Samuel A. Tamposi, Sr. 1994 Irrevocable Trust; this time for

made available to the EMT Trusts so that the Trustee can fulfill her fiduciary role of Petitioner Trustee Julie Shelton to determine what amounts need to be

Gerald Prunier, individually and as trustee; and David Tulley, individually and

by the actions of Respondents.” They also sought “a declaration that it is the

(2) order the removal of Sam, Jr. and Steve as investment directors of the EMT Shelton and Betty as petitioners. For ease of reference, we do so also. created by the 1992 Trust Instrument and from the control of the respondents; 2 Shelton and Betty filed a complaint and amended complaint. The trial court order refers to order the “decoupling” of the EMT Trust assets from the other subtrusts

suit against “Sam, Jr. and Steve, individually and as investment directors; The trial court also found that in September 2001, Betty and Nick filed

them “their attorneys’ fees and costs in this action, and any other costs caused Respondents’ breaches of their fiduciary duties to Petitioners”; and (4) award respondents “for all losses to the EMT Trusts and the Gifted Assets caused by

their amended complaint, Shelton and Betty requested that the trial court: (1)

were dismissed by agreement in November 2000.

Hampshire law, the in terrorem clause would not be triggered. Both petitions but sought only to uphold fiduciary standards under the trust and New not attempt to challenge the validity of the trust or authenticity of documents,

contained in the 1992 trust. The probate court ruled that as long as they did action initiated by Sam, Jr. and Steve without triggering the in terrorem clause this appeal would appear to be interlocutory. See p. 4 and costs to be awarded to the respondents and the intervenors. Accordingly,

We note that the trial court has not yet determined the amount of fees

We subsequently granted with prejudice Betty’s motion to withdraw her appeal. receipt of further filings. Both Shelton and Betty filed appeals with this court.

award attorneys’ fees and costs to the respondents and intervenors following

interest in the trust.” In its order, the trial court indicated that it intended to the trust had been violated and, accordingly, Betty “forfeited her right, title and filed by the respondents. The court also found that the in terrorem clause of

petitioners’ complaint and amended complaint, and granted several motions

After a trial of more than five weeks, the probate court dismissed the

certain provisions of the 2006 settlement agreement, and a 2007 court order. trust instrument, the first, third and fourth amendments executed by Sam, Sr.,

the time this litigation began, the SAT Sr. Trust was comprised of the original

by Michael Tamposi and Celina Tamposi Griffin. The trial court found that at August 2008, the trial court granted without objection the motion to join filed intention of the settlor. Lowy In January 2008, counsel for trustee Prunier filed an appearance. In

(2007) (amended 2011); see the terms of a trust and the disposition of trust property. RSA 564-B:1-112

possible, from the express terms of the trust itself.” Appeal of Lowy intention of a settlor is paramount, and we determine that intent, whenever 4

construction of trust language that would defeat the clear and expressed

disposition of property by will also apply as appropriate to the interpretation of

trust instrument. As she concedes, when we construe a trust instrument, “the

Supreme Court Rule 8, see applies to all trusts created before, on, or after its effective date). We reject any amount requested by the trustee.” RSA 564-B:11-1104 (a) (1) (Uniform Trust Code the investment directors’ responsibility is to provide funds when and in the authority to determine appropriate distributions from the EMT Trusts; and that 57, 61 (2007). The rules of construction that apply to the interpretation of and

Shelton first argues that the trial court erred in construing the governing

merits.

interlocutory when we accepted the appeal, we waive the requirements of Voorhees, 151 N.H. 679, 681 (2005). To the extent that it may have been

EMT Trusts so that the needs are met.” The trial court summarized this as a Samuel A. Tamposi, Jr. and Stephen A. Tamposi to manage the assets of the reasonable comfort and it is the role of the Respondents Investment Directors

EMT Trusts to provide for their education and maintenance in health and obligations to make the appropriate distributions to the beneficiaries of the that Sam, Sr. “conferred on Sam, Jr. and Steve unequivocal authority to make

p. 5 After reviewing all the applicable documents, the probate court found

question upon any such direction by the investment directors. responsibility for any loss that may occur by reason of acting without

cash included in the trust property. The trustee shall have no

is also applicable to the administration of the trust. It provides, inter education and maintenance in health and reasonable comfort.” Article Tenth-B such proportions among them as the trustee considers necessary for their

trust property and to direct the purchase of property with any principal the retention or sale of all other assets from time to time included in the (e) The investment directors shall have full power and authority to direct

child . . . such amounts from the net income and principal of the trust and in

Fifth and Sixth, which authorize the trustee to “pay to or for the benefit of the

entities. control and handling of such real estate interests or other operating trustee assume any responsibility in connection with the management,

We briefly examine the language at issue. Shelton relies upon Articles

the trust.

time to time included in the trust property. In no event shall the

fails to give appropriate weight to Article Tenth-B of the Third Amendment of

of any and all real estate interests and other operating entities from

individual EMT sub-trusts. The respondents argue that Shelton’s construction timing of distributions that are to be made from the SAT Sr. Trust to the distributed from the EMT Trusts to the beneficiaries but also the amount and

management, control, handling, financing, refinancing and structuring (d) The trustee shall entrust to the investment directors the

trust documents give her the authority to determine not only what is

writing.

direct them in making suitable investments.” In essence, she argues that the are owned by the Trustees. The role of the Investment Directors is only to make ‘distributions to the trustees.’” She contends that “all of the trust assets

entities only as the investment directors from time to time may direct in dispositions of securities, real estate interests and other operating (c) The trustee shall make purchases, pledges, sales or other

“does not empower the Investment Directors to make decisions on whether to

equal initial distribution of assets to the individual trusts, she argues that it Although Shelton concedes that the trust instrument contemplates an

Onthank, 152 N.H. 16, 18 (2005). of fact to be determined by competent evidence and not by rules of law. King v. isolation. See p. 6 melded all provisions of the trust, rather than reading any one provision in

“vitiated” the effect of Articles Fifth and Sixth, the trial court’s construction

source of the distributions.

under this article, “[t]he trustee is expressly prohibited

disagree. Contrary to her assertion that the trial court’s interpretation authority given to the trustee under Articles Fifth and Sixth of the trust. We whether distributions should be made to the subtrusts and the timing and Shelton argues that the trial court’s interpretation is in conflict with the

purchase of property with cash principal.” The trial court further found that,

language that provides the investment directors discretion in determining language of the trust in any other manner would fail to give effect to its specific from the trust; they do not address distributions to the trust. To interpret the

authority to make dispositions of trust property only 6 the trustee is subordinate to that of the investment directors. The trustee has authority to direct the retention or sale of all trust assets; and to direct the In each of the three provisions cited by the trial court, the authority of finance, and structure all real estate assets and operating entities; full court also found that the investment directors have the authority “to control,

reserved exclusively to the investment directors.

will as a whole). Articles Fifth and Sixth control the distributions to be made

applicable ascertainable standard.” Citing Article Tenth-B (d) and (e), the trial

and to direct the purchase of property with any principal cash reserves is assets. The full power and authority to direct the retention or sale of assets will not read in isolation; rather their meaning is determined from language of any responsibility for the management, control and handling of the trust

, e.g., In re Estate of Donovan, 162 N.H. 1, 4 (2011) (clauses in

distributions to beneficiaries.” beneficiaries, and the investment directors are ‘excluded fiduciaries’ regarding beneficiaries and distributing appropriate funds to them in accordance with the and discretion to determine the amount and timing of distributions to the the trust assets, while the trustee is tasked with determining the needs of the authority and have the responsibility for the investment and management of investment and management of trust assets.” See

the investment directors. The trustee is specifically prohibited from assuming

ruling, the trial court also recognized that “the trustee retains the authority

in a trustee. The trial court found that the investment directors “are given RSA 564-B:7-711, the trustee is an ‘excluded fiduciary’ with respect to decisions about the investment or sale of trust assets, and in the parlance of investment directors, for the 12 sibling sub-trusts, from making any that the Third Amendment set up two classes of fiduciaries, a trustee and two

responsibilities given to the investment directors were more commonly vested

reversible by the trustee.” In construing the documents, the trial court found investment decisions and rendered their decisions neither reviewable nor participated as a petitioner in that court.

p. 7 address the issue of standing because Betty, a beneficiary of the EMT Trusts,

that we interpret RSA 567-A:1. We note that the trial court was not required to finding that the litigation violated the in terrorem clause of the trust requires To determine whether Shelton has standing to appeal the trial court’s

court.” supreme court on questions of law in accordance with rules of the supreme person’s interest in a matter before the court may appeal therefrom to the

appointment, grant or denial of a judge of probate which may conclude that

probate court. It provides: “A person who is aggrieved by a decree, order, RSA 567-A:1 (2007) governs appeals to the supreme court from the

of first impression for this court.

a beneficiary violates an in terrorem clause of the trust instrument is an issue

award against her “is inextricably linked to the Court’s decision on the in 7

Tamposi (“Betty”) was included in the section of the Order captioned ‘In trial court stated: “Although the award of fees against Shelton and Elizabeth basis for its award of fees against Shelton. In its order following remand, the court’s ruling that litigation brought both by her in her official capacity and by The specific issue of whether a trustee has standing to contest a trial

fiduciary duty to defend the settlor’s intent; (2) the trial court’s attorneys’ fee

After this case was argued, we remanded it to the trial court to clarify the

envisioned and implemented for them.”

that she has standing “for at least three reasons”: (1) as trustee, she has a contention that she does not have standing to contest this ruling, she argues of the petition violated the in terrorem clause. In response to the respondents’

harmless. See

from those of her siblings and their issue in contradiction of what her father relation to their endeavor to sever Betty and her [progeny’s] beneficial interests consequence of violating the clause but for their actions and conduct in terrorem Clause,’ the court did not intend to suggest that they flowed as a

Shelton next argues that the trial court erred in concluding that the filing

surcharge motion that is pending in the trial court. terrorem trust documents. Accordingly, to the extent that there was error, it was clause issue”; and (3) the in terrorem ruling is the basis for a reliance was in error, it did not alter the trial court’s initial interpretation of the evidence of Sam, Sr.’s intent. Even if we assume without deciding that such

entire record that no injury has been done, judgment will not be disturbed). appears error did not affect outcome below, or where court can conclude from

Appeal of Ann Miles Builder, 150 N.H. 315, 320 (2003) (where it

Shelton also cites as error the trial court’s reliance upon extrinsic created by the terms of the trust.” Restatement (Third) of Trusts p. 8 must act impartially and with due regard for the diverse beneficial interests impartial with respect to the various beneficiaries of the trust[;]. . . the trustee

Specifically, a “trustee has a duty to administer the trust in a manner that is

beneficiaries, and in accordance with this chapter.” RSA 564-B:8-801 (2007). good faith, in accordance with its terms and purposes and the interests of the administer, invest and manage the trust and distribute the trust property in

thereby.” Hutchins v. Brown

Trust Code provides that “[u]pon acceptance of a trusteeship, the trustee shall

aggrieved by a decision unless he has some private right which is affected

challenge the ruling that the in terrorem clause was violated. The Uniform We conclude that, in this case, Shelton does not have standing to

We have held that “[g]enerally, it may be said that one cannot be

his representative capacity sufficient to maintain an appeal from a decree

appellant lacked standing to appeal.

issue before us. appealable interests, our previous case law provides some guidance on the

In Williams

(2007). While we have held that “an executor named in a will has an interest in

court. Because the 1975 amendment did not change the parameters of the

purpose of the underlying statute and concluded that because its protections the trial court establishing a guardianship over her brother, we examined the appellant in Williams, a guardianship case, had standing to appeal an order of International Dictionary 41 (unabridged ed. 2002). To determine whether the suffering from an infringement or denial of legal rights.” Webster’s Third New ordinary meaning of the term “aggrieved” is “having a grievance; specif[ically]; appeals to questions of law and directed that they be brought in the supreme, 159 N.H. at 324, we observed that the pertinent plain and established the same requirements for appeal. The 1975 amendment limited 159 N.H. 318 (2009). We find its analysis instructive in this case. Although RSA 567-A:1 was first enacted in 1975, its predecessor statute the term “aggrieved” as used in RSA 567-A:1 in In re Guardianship of Williams,

Ocasio v. Fed. Express Corp. possible, we ascribe the plain and ordinary meanings to the words used. when construing statutes we first examine the language used, and, where

be advanced by the entire statutory scheme. Id. better able to understand the statutory language in light of the policy sought to doing so, we are better able to discern the legislature’s intent and therefore in the context of the overall statutory scheme and not in isolation. Id. By

Our principles of statutory construction are well-established. Generally, the litigation in bad faith. She also argues that there is no precedent to

p. 9 the in terrorem clause ruling is not ripe for our review. See whether the surcharge motion would convey standing upon Shelton to appeal whether Shelton’s legal rights will be affected. Accordingly, the issue of

Shelton argues that the trial court erred in finding that she conducted

ruling, we cannot determine what relief, if any, the trial court will grant and

chargeable to and payable by the petitioners.” determination of attorneys’ fees and costs of the respondents and intervenors

probate court,” no ruling has been made on that motion. In the absence of a terrorem ruling “is the basis for a surcharge motion currently pending in the Finally, although Shelton argues that she has standing because the in

the trial court ruled: “After receipt of further filings, the court will make a

intervenors in defending this action. In its summary of the relief to be granted, reasonable attorney’s fees and costs incurred by the respondents and the petitioners’ request for attorney’s fees and costs and ordered them to pay the

terrorem ruling. given that she did not suffer the loss of any legal right as a result of the in her conduct may have contributed to its violation does not establish standing

conduct as trustee rather than any violation of the in terrorem clause. That

trial court found that the petitioners had acted in bad faith by bringing and and she was fully capable of protecting her own interests by doing so. Cf attorney’s fees “of both the Respondents and the voluntary Intervenors.” The herself had a personal interest sufficient to enable her to appeal such a ruling, Shelton next argues that the trial court erred in ordering her to pay the

fees given the trial court’s ruling that the award was based on her overall

clause ruling as a representative of the affected beneficiary. The beneficiary Tancrede, 135 N.H. 602, 604 (1992).

Nor can Shelton base her claim of standing on the trial court’s award of

court’s ruling on the in terrorem clause.

Moreover, there is no need to authorize Shelton to appeal the in terrorem

interests are adverse to all beneficiaries other than Betty. another). Indeed, it may be argued that by pursuing this appeal, Shelton’s

Trusts. See have standing as the trustee of the EMT Trusts to contest on appeal the trial Williams, 159 N.H. at 326-27. Accordingly, we conclude that Shelton does not

duty to each beneficiary precludes her from favoring one beneficiary over Ct. 1990) (unless terms of trust document provide otherwise, trustee’s fiduciary

, e.g., Northern Trust Co. v. Heuer, 560 N.E.2d 961, 964 (Ill. App.

The in terrorem ruling affects only one of several beneficiaries under the EMT disallowing the will,” Hutchins, 77 N.H. at 107, this is not an analogous case. expenses, including attorney’s fees “to any p. 10 authorizes the court, “as justice and equity may require,” to award costs and We turn then to the specific language of RSA 564-B:10-1004, which determining the amount. However, because we interpret statutes on a de of time that the award covers or the actual factors that it will consider in

this appeal was filed prior to any specific ruling by the trial court on the period

were voluntary parties. is authorized to award fees to the intervenors, where as Shelton contends, they require . . . establish a broad standard, one that certainly reaches beyond bad construed the specific language of RSA 564-B:10-1004. Moreover, we note that limited to her official capacity as trustee, and, if so, whether the probate court or from the trust that is the subject of the controversy.” We have not yet generally each party is responsible for his or her own fees. See including reasonable attorney’s fees, to any party, to be paid by another party language of this statute provides an exception to the American Rule that

Judicial Court of Massachusetts that the words “as justice and equity may Estate of King against a trustee in her personal capacity when her role in the litigation was, 920 N.E.2d 820, 827 (Mass. 2010). We agree with the Supreme

court’s decision. LaMontagne Builders v. Brooks from the trust that is the subject of the controversy.” (Emphasis added.) The this issue that has been briefed by the parties. Cf party, to be paid by another party or

issues of whether the probate court has the authority to assess legal fees Auburn v. McEvoy, 131 N.H. 383 (1988). We limit our review to the legal of Atkinson provides: “In a judicial proceeding involving the administration of a trust, the, 121 N.H. 581, 584 (1981), overruled on other grounds by Town of unsustainable exercise of discretion standard, giving deference to the trial. J.E.D. Assoc.’s, Inc. v Town conclude that the interests of judicial economy support our decision to decide basis, see, e.g., In re Guardianship of Eaton, 163 N.H. 386, 389 (2012), we

objecting party. Id

attorney’s fees in this case is governed by RSA 564-B:10-1004 (2007), which We review a trial court’s award of attorney’s fees under our The parties agree that the probate court’s authority to order payment of

EMT trusts. Works v. Mooney, 139 N.H. 621, 628 (1995). parties pay their own attorney’s fees. Board of Water Comm’rs, Laconia Water American Rule; that is, absent statutorily or judicially created exceptions, determination, we will affirm it. Id. New Hampshire generally follows the

clearly untenable or to an extent clearly unreasonable to the prejudice of the To be reversible on appeal, the discretion must have been exercised for reasons

she was a party to the litigation only in her official capacity as trustee of the support an award of attorney’s fees against her in her individual capacity when require that Shelton, rather than the innocent beneficiaries of the trust, bear

p. 11 parties since a decree will or may benefit or prejudice them.” G. Bogert, The

sustainably exercised its discretion in concluding that justice and equity

generally held that all beneficiaries (or the other beneficiaries) are necessary

faith. Based upon the record before us, we conclude that the trial court litigation constituted a breach of Shelton’s fiduciary duties and constituted bad the litigation giving rise to this appeal. These rulings included that the

trustee for construction or by one beneficiary to protect his interest, it is this case voluntarily.” As a preliminary matter, we note that “[i]n a suit by a attorney’s fees. Clipper Affiliates lacked authority to award fees to the intervenors, who, she observes, “joined in

, 138 N.H. 271 (1994), in its fee award was based on Shelton’s and Betty’s initiation and prosecution of

her counsel present during her testimony. Id

subjected to litigation should bear the burden of paying his or her own We are also not persuaded by Shelton’s argument that the trial court

In this case, the probate court made extensive findings and rulings that to them and should not be allowed to represent them.” Id

attorney’s fees to a party who sought to intervene for the sole purpose of having distinguished from this case. In Clipper Affiliates, the trial court awarded for payment of his or her own attorney’s fees. It is, however, easily exceptions to the general principle that each party to a lawsuit is responsible

support of her argument that a party who is neither forced to litigate nor under the Uniform Trust Code for attorney’s fees incurred by any party. See Shelton cites Clipper Affiliates v. Checovich

observes, “[their] interests may conflict and the trustee has an interest adverse Law of Trusts and Trustees § 871, at 179 (2d ed. rev. 1995). As Bogert

award attorney’s fees to any

trustee personally. her official duties, a trustee should not generally be held personally liable under certain circumstances, authorize the award of attorney’s fees against a at *6 (Utah August 3, 2012). Therefore, we conclude that the statute may, should be made. See 2001); Shurtleff v. United Effort Plan Trust, No. 20120300, 2012 WL 3176369, case by case basis. See Atwood v. Atwood, 25 P.3d 936, 947 (Okla. Ct. App. such an award, it gives the trial court flexibility to determine what is fair on a equity may require.” While the statute does not provide specific criteria for

that the use of the word “any” conveys broad authority upon the trial court to e.g., Garwood v. Garwood, 233 P.3d. 977, 985 (Wyo. 2010). We note, however,

We acknowledge at the outset that, when acting in the proper exercise of

trial court must provide a reason, grounded in equity, as to why such an award faith or wrongful conduct.” Nevertheless, before an award of fees is made, the not support its decision to remove her as trustee.

p. 12 a trustee is an extreme remedy and that the grounds cited by the trial court do

B:7-706 (b) were not present in this case. She also argues that the removal of trustee; rather, she argues that the grounds for removal set forth in RSA 564- Shelton does not challenge the authority of the court to remove her as

available. the trust, and a suitable cotrustee or successor trustee is the beneficiaries and is not inconsistent with a material purpose of

finds that removal of the trustee best serves the interests of all of

removal is requested by all of the qualified beneficiaries, the court (4) there has been a substantial change of circumstances or

beneficiaries; or

that removal of the trustee best serves the interests of the

trustee to administer the trust effectively, the court determines (3) because of unfitness, unwillingness, persistent failure of the

administration of the trust;

(2) lack of cooperation among cotrustees substantially impairs the

(1) the trustee has committed a serious breach of trust;

564:9, the court may remove a trustee if: (b) In addition to the power to remove a trustee pursuant to RSA

RSA 564-B:7-706 (b) provides:

own initiative. however, that RSA 564-B:7-706 (2007) authorized it to remove a trustee on its that they did not wish to have Shelton removed as trustee. The court ruled,

and Christina Goodlander, beneficiaries of the EMT Trusts, had testified at trial

both Betty and Shelton objected to the motion, and that Maggie Goodlander distribution decisions of Trustee Shelton.” The trial court also observed that beneficiaries of the EMT Trusts and that they had “not been aggrieved by the

Shelton’s removal, the trial court found that they were neither settlors nor

trustee of the EMT trusts. Although the respondents filed a motion requesting Shelton’s final argument is that the trial court erred in removing her as

opinion.

fee award in this case. We remand for proceedings consistent with this apportionment of fees, we express no opinion as to the propriety of a particular Because the trial court has not yet determined the factors it will consider in its LaMontagne Builders, 154 N.H. at 259-60; Bogart, supra § 871, at 179-80. the burden of paying fees to the parties based upon her own bad faith. See provide for Betty’s three children. Cf

p. 13 were so massive” that there were insufficient funds in the EMT Trusts to assets until six weeks after she was named trustee; and (5) “litigation costs expert, John Langbein”; (4) she did not request a transfer of the EMT trust

benefit analysis prior to bringing this litigation, as suggested by her own

litigation expenses and fees; (3) she did not conduct “an appropriate costlitigation counsel to bring this lawsuit which resulted in millions of dollars in investment directors”; (2) she participated with Betty in interviewing and hiring

party to the litigation and “colluded with Betty in creating controversy with the

procure an institutional trustee.” The court also found that: (1) Shelton was a “that she reluctantly agreed to serve as trustee because Betty was unable to In support of its decision, the trial court cited Shelton’s testimony at trial

cites Petition of Lovejoy

trial court’s decision to remove a trustee under RSA 564-B:7-706(b). Shelton

standard, the trustee shall exercise reasonable care, skill and caution.” RSA requirements, and other circumstances of the trust. In satisfying this prudent person would, by considering the purposes, terms, distributional

We have not previously addressed the standard of review applicable to a

would best serve the interest of the beneficiaries.

“administer, invest and manage the trust and distribute the trust property as a

her duties as trustee. Accordingly, it ruled that Shelton’s removal as trustee

the beneficiaries’ respective interests.” RSA 564-B:8-803. A trustee must also investing, managing, and distributing the trust property, giving due regard to more beneficiaries, “the trustee shall act impartially in administering,

Based on these findings, the court concluded that Shelton had violated

to have an institutional trustee, a professional trustee.”

reasonably made. See that these findings are not so plainly erroneous that they could not be, 227 N.E.2d 497, 500 (Mass. 1967), in support of her necessity to save trust property exists). After reviewing the record, we conclude has a duty of loyalty, RSA 564-B:8-802 (2007), and where the trust has two or

Shelton herself testified at trial that she “would really like for the EMT Trusts

S.W.3d 158, 179 (Mo. Ct. App. 2007) (trustee may be removed where clear interests of the beneficiaries, and in accordance with this chapter.” The trustee. Weldon Revocable Trust v. Weldon, 231 trust property in good faith, in accordance with its terms and purposes and the the trustee shall administer, invest and manage the trust and distribute the

RSA 564-B:8-801 (2007) provides: “Upon acceptance of a trusteeship,

so plainly erroneous that they could not be reasonably made. King v. Onthank

152 N.H. at 17. We review questions of law de novo. Id.

We will uphold the findings of fact of the judge of probate unless they are greater presumptive weight than the other evidence in a case. In the Matter of A f f i r m e d i n p a r t ; a n d p. 14 previously held, the recommendations of a guardian ad litem do not carry any erred in concluding that she had committed a breach of trust. As we have

guardian ad litem’s testimony as support for her argument that the trial court

fees.

of the trust property. We are not persuaded by Shelton’s citation of the

further proceedings to allow the trial court to consider the issue of attorney’s petitioners’ complaint and that removed Shelton as trustee; we remand for failed to satisfy her statutory duties of loyalty, impartiality and reasonable care Accordingly, we affirm the trial court’s order that dismissed the findings and other evidence support the trial court’s conclusion that Shelton not restate the findings of the trial court that we have previously cited. These

our unsustainable exercise of discretion standard. See

specially assigned under RSA 490:3, concurred. trial court’s decision to remove Shelton as trustee was sustainable. We need FAUVER, ARNOLD and FITZGERALD, JJ., retired superior court justices,

standard of review should apply, we will review the trial court’s ruling under

for the position of trustee. performance and, therefore, did not conclude that she was a “suitable person” Having reviewed the extensive record before us, we conclude that the applicable; in this case, the trial court found many deficiencies in Shelton’s Choy & Choy, 154 N.H. 707, 714 (2007). Nor do we find Petition of Lovejoy detrimental to interests of beneficiary subject to review for abuse of discretion).

the court to appoint someone else. Because no party argues that a different trustee, it was “arbitrary and capricious action and an abuse of discretion” for where all the beneficiaries were in agreement on the appointment of a qualified

court’s decision to remove trustee if continued appointment would be standard); see also Restatement (Third) of Trusts § 37, comment (d) (1987) (trial N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion

quotes the Massachusetts Supreme Judicial Court’s holding that, in a case argument that the trial court erred in removing her as trustee; she specifically