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Bank of America, N.A. v. Evangelista

Superior Court of Rhode Island

January 30, 2018

BANK OF AMERICA, N.A., in its capacity as Co-Trustee of the Michael Pierce Metcalf 1950 Trust f/b/o Hannah Metcalf Childs, Petitioner,
v.
RENEE A.R. EVANGELISTA, in her capacity as Co-Trustee of the Michael Pierce Metcalf 1950 Trust f/b/o Hannah Metcalf Childs, CHARLES E. CLAPP, III, in his capacity as Co-Trustee of the Michael Pierce Metcalf 1950 Trust f/b/o Hannah Metcalf Childs, HANNAH METCALF CHILDS, JAMES M. CHILDS, JR., GEORGE M. CHILDS, and THAYER CHILDS, Respondents.

         Providence County Superior Court

          For Plaintiff: Paul M. Sanford, Esq. Benjamin C. Caldwell, Esq.

          For Defendant: Kyle Zambarano, Esq. David T. Riedel, Esq. Stacey P. Nakasian, Esq.

          DECISION

          SILVERSTEIN, J.

         Before the Court for decision is a petition for instructions by Bank of America, N.A. (herein Bank of America or Petitioner) in its capacity as co-trustee of the Michael Pierce Metcalf 1950 Trust f/b/o Hannah Metcalf Childs (Hannah 1950 Trust).[1] Petitioner seeks instructions regarding whether it should honor or dishonor an instrument of removal as trustee issued by its two co-trustees, Renee A.R. Evangelista (Evangelista) and Charles E. Clapp, III (Clapp) (collectively referred to herein as Co-Trustees or Respondents) to Bank of America. Jurisdiction is pursuant to G.L. 1956 § 8-2-13.

         I Facts and Travel

         In December of 1950, George Pierce Metcalf (the Settlor) executed a deed of trust for the benefit of his son, Michael Pierce Metcalf, and others, specifically referred to as the Michael Pierce Metcalf 1950 Trust (Michael 1950 Trust). Rhode Island Hospital Trust Company (RIHT), a corporate predecessor to Bank of America, served as one of the original trustees in the Michael 1950 Trust. The Michael 1950 Trust further contemplated the possibility of RIHT merging with another entity and directed the successor entity-here, Bank of America-to continue as a co-trustee.

         In 2013, the then three co-trustees petitioned for approval to divide and modify the Michael 1950 Trust. This petition sought to divide the Michael 1950 Trust into three equal shares for the benefit of Michael's three children-Hannah, Lucy, and Jesse. The petition was granted by this Court, and the Michael 1950 Trust was divided into three separate trusts-including the Hannah 1950 Trust at issue here-containing terms and conditions essentially identical to the Michael 1950 Trust.

         Shortly following the division of the Michael 1950 Trust, Evangelista-at the request of Hannah Metcalf Childs (Hannah)-and Clapp-by recommendation of Evangelista-were appointed as co-trustees, succeeding Charlotte S. Metcalf and Joseph E. Fellows, respectively. On May 5, 2017, Evangelista sent electronic correspondence to Bank of America informing it of Hannah's desire to remove Bank of America as co-trustee of the Hannah 1950 Trust. No complaints or misconduct was reported to Bank of America precipitating its removal. On or about September 15, 2017, Bank of America received an Instrument of Removal of Trustee, dated September 14, 2017, purporting to remove Bank of America as a co-trustee of the Hannah 1950 Trust. The Instrument of Removal of Trustee was signed by the remaining Co-Trustees, Evangelista and Clapp. In addition to the Instrument of Removal of Trustee, Bank of America also received seven assents to removal of a co-trustee, representing a majority of the Settlor's issue of full age and then living.

         Bank of America initially filed its petition for instructions on October 5, 2017 and amended its petition on October 13, 2017. Soon thereafter, Respondents filed their answer to Bank of America's petition. Bank of America subsequently filed a motion for instructions, accompanied by a memorandum and a statement of undisputed facts. Respondents submitted their response and accompanying memorandum, to which Bank of America filed a reply memorandum.

         II Analysis

         The "primary objective when construing language in a will or trust is to ascertain and effectuate the intent of the testator or settlor as long as that intent is not contrary to law." Lazarus v. Sherman, 10 A.3d 456, 462 (R.I. 2011) (quoting Steinhof v. Murphy, 991 A.2d 1028, 1033 (R.I. 2010)) (internal quotation marks omitted). In interpreting a trust instrument, the Court first examines the "trust's 'plain language.'" Id. (quoting Fleet Nat'l Bank v. Hunt, 944 A.2d 846, 851 (R.I. 2008)); see also Prince v. Roberts, 436 A.2d 1078, 1081 (R.I. 1981) ("When construing the trust instrument words should be given their primary, ordinary, and common meaning unless it plainly appeared that they were used in some other sense."). The Court's examination, however, should be "with reference to the whole trust." Steinhof, 991 A.2d at 1033.

         Article 9 of the Hannah 1950 Trust[2] reads as follows:

"Any Trustee may be removed at any time by the other two (2) Trustees then acting hereunder by an instrument in writing signed and acknowledged by them, assented to in writing by a majority of the issue of the Settlor of full age and legal capacity then living, such removal to be effective forthwith, provided, however, that no Trustee may be so removed unless there be three (3) Trustees hereunder immediately prior to such removal and unless there be one ...

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