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,
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.
County Superior Court
Plaintiff: Paul M. Sanford, Esq. Benjamin C. Caldwell, Esq.
Defendant: Kyle Zambarano, Esq. David T. Riedel, Esq. Stacey
P. Nakasian, Esq.
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). 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.
Facts and Travel
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.
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.
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.
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.
"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.
9 of the Hannah 1950 Trust 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 ...