James Buckley Heath et al. v. Benjamin W. Heath et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ¹

On June 10, 2009, the plaintiffs, James Buckley Heath, John Buckley, Priscilla L. Hamill, Pamela Palmer, Elizabeth H. Harmon and Timothy Heath, filed the three-count complaint ² in this action against the following defendants:  Benjamin W. Heath (Heath), Bank of America (bank),³ Cameron O. Smith and James L. Buckley (trustees).⁴  In the complaint, the plaintiffs allege the following facts.   The plaintiffs are six of the ten children ⁵ of Aloise Buckley Heath (decedent), who died in 1967, in Connecticut, and Benjamin W. Heath.   Heath, currently age 96, was the decedent's husband at the time of her death in 1967.   Pursuant to her will, the decedent created a testamentary trust.   Heath and the bank are being sued in their capacities as fiduciaries and trustees for the trust.   The assets of the trust consist of interests in oil, gas and mineral rights (royalty interests).   During her life, the decedent was a settlor/beneficiary of a trust indenture, drafted in 1953, known as the Hembt Trust wherein the same royalty interests had been deposited.   The terms of the Hembt Trust provided that, upon the decedent's death, the royalty interests would pass to her “legal representatives, heirs-at-law or next of kin.”   The trustees determined that this provision required the royalty interests to pass into the decedent's estate in accordance with her will as a result of which the royalty interest were distributed between a marital trust and trusts for her ten children.   The distribution of the assets was determined and agreed to be 54.3936% to the marital trust and 45.6064% to the children's trusts.   Since that time until this lawsuit was brought, the royalty interest has been distributed according to these percentages.   The basis of the plaintiffs' complaint is that 100% of the royalty interests should have been distributed to them as the decedent's heirs-at-law, and should not have passed to her estate.

In count one, the plaintiffs allege that Smith and Buckley, in their capacities as trustees of the Hembt Trust, breached their fiduciary duty to the plaintiffs by failing to uphold the terms of the trust and failing to distribute all of the royalty interests to the decedent's heirs-at-law.   The plaintiffs also allege that Heath and the bank, in their capacities as fiduciaries for the testamentary trust, breached their fiduciary duty to the plaintiffs by misappropriating and improperly disposing of a portion of the royalty interests, and by aiding and abetting Smith and Buckley.   Count two incorporates the foregoing allegations and adds a claim of unjust enrichment as to Heath.   Count three also incorporates the foregoing allegations and adds a claim of theft, misappropriation of funds and/or conversion as to Heath and the bank.   The plaintiffs seek damages, an accounting, a declaratory judgment that the trust assets are properly transferred to the plaintiffs, treble damages pursuant to General Statutes § 52–564 ⁶ and such other legal and equitable relief as the court deems appropriate.

Heath raises the following special defenses:  laches, waiver and equitable estoppel.   The trustees join in Heath's arguments and special defenses.⁷  The bank also joins in Heath's arguments and raises the following special defenses:  failure to state a claim upon which relief may be granted;  and laches.⁸  Presently before the court are three motions for summary judgment, which were filed by Heath, the trustees and the bank, and the plaintiffs' objections thereto.

Resolution of these motions depends on the interpretation of the words “legal representatives, heirs-at-law or next of kin” as they are used in paragraph three of the trust (paragraph three).   That paragraph provides:  “The interest of such a deceased Beneficiary in the Trust Fund and the accumulated undistributed net income to the date of death shall pass to his or her legal representatives, heirs-at-law or next of kin in accordance with the provisions of law applicable to the domicile of the deceased Beneficiary.”

Summary Judgment Standard

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

Heath's Motion for Summary Judgment

On December 14, 2010, Heath filed a motion for summary judgment on all three counts and a supporting memorandum of law, in which he argues that there is no sufficient basis in law or equity to reverse the distribution of the trust assets to the decedent's estate.   The trustees and the bank join Heath in these arguments.   Heath presents arguments concerning interpretation of the trust provisions, both generally and where extrinsic evidence is permitted.   Heath also raises special defenses of waiver, laches, and equitable estoppel.

The focal point of this case is the parties' arguments regarding the interpretation of paragraph three of the Hembt trust indenture.   Heath argues that, under Connecticut law, the term “legal representatives,” as used in the trust document is an ambiguous term that must be interpreted based on the circumstances of the case.   He notes that, as a general rule in Connecticut, this term refers to the executor or administrator of a beneficiary.   He contends that the intention of the settlors/beneficiaries of the trust was that, upon the death of a beneficiary, the interests of the decedent would be transferred according to the following three, prioritized options:  first, to a beneficiary's legal representatives, meaning that person's executors or administrators, if they existed;  next, to a beneficiary's heirs-at-law, if the beneficiary was intestate;  and last, to a beneficiary's next of kin, if the beneficiary did not have any heirs-at-law.   Heath's position is that this is the only reasonable interpretation of the term “legal representatives” as used in the trust document because the sentence was constructed using the term “or,” rather than “and,” which shows that the three choices are distinct;  the three choices were not ordered alphabetically, but were ordered by priority;  and this interpretation is consistent with will construction, in which it is presumed that a testator does not intend for intestacy statutes to control.   Heath contends that the Black's Law Dictionary definitions of “legal representative,” “representative” and “personal representative” support the proposition that the term refers to an executor or administrator.   Heath argues that the term “legal representative” must be given effect if it has any reasonable meaning, and it is questionable that its meaning could be “heirs-at-law,” because that would cause the clause to be repetitive.   Additionally, Heath contends that if the trust language is ambiguous, the court should consider extrinsic evidence to determine its meaning.

The plaintiffs counter that the defendants' interpretation of paragraph three is not reasonable because it renders the words “heirs-at-law or next of kin” superfluous.   The plaintiffs argue that their interpretation, which is that “legal representatives, heirs-at-law or next of kin” means lineal heirs, is the only explanation that gives meaning to all of the words of the phrase, and is, therefore, the preferred interpretation.   The plaintiffs agree that the term “legal representatives” must be interpreted based on the circumstances of the case, but contend that the phrase “legal representatives, heirs-at-law or next of kin,” taken as a whole, is not ambiguous, because the interests of the trust beneficiaries must pass to an identifiable recipient or a defined class of recipients, otherwise, depending on which of the three terms (legal representatives, heirs-at-law or next of kin) is given effect, conflict, uncertainty and chaos would ensue.   They also contend that all three terms are synonymous, and create no confusion, if they are read to refer to the decedent's lineal descendants (her children);  and paragraph three is unambiguous and the settlors' intent must be determined from the instrument, and not from extrinsic evidence.   In their surreply,⁹ the plaintiffs maintain that there is no authority for the defendants' contentions that priority should be given to “legal representatives” because it is listed first in paragraph three, and that if the terms were meant to be synonymous they would have been listed alphabetically.   Alternatively, the plaintiffs contend that if paragraph three is ambiguous, then the meaning of the words must be decided as a matter of fact, not law, and the motion for summary judgment must be denied.

Heath responds that, contrary to the plaintiffs' argument, the terms “heirs-at-law,” which includes a surviving spouse, and “next of kin,” which does not include a surviving spouse, are not synonymous terms.   Distribution of the trust interest to executors or administrators will not result in conflict and uncertainty, he contends, because it will be done in accordance with the laws of the deceased beneficiary's domicile, and the purpose of this language is to ensure that the interest of a deceased beneficiary survives by preventing the trust from conflicting with local law.

In discussing construction of wills and trusts, our Supreme Court has stated:  “[W]e cannot rewrite a will or a trust instrument.   The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the testator or settlor when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries, and their situation and condition.   The construing court will put itself, as far as possible, in the position of the ․ [settlor], in the effort to construe ․ [any] uncertain language used by him in such a way as shall, conformably to the language, give force and effect to his intention ․ But [t]he quest is to determine the meaning of what the ․ [settlor] said and not to speculate upon what he meant to say.”  (Citation omitted, internal quotation marks omitted.)   Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278–79, 170 A.2d 130 (1961).  “The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable.”  (Internal quotation marks omitted.)  Spencer v. Spencer, 71 Conn.App. 475, 482, 802 A.2d 215 (2002).

“[T]he term ‘legal representatives' ․ has been characterized as an ambiguous or equivocal term whose meaning can often be determined only by the context and the situation of the testator with reference to the natural objects of his bounty ․ It may mean those entitled to take by inheritance, or it may mean the executors or administrators of a deceased person and thus be in effect a term of limitation;  other meanings are also attributed to it ․ Presumptively, words have the same meaning when repeated in a will, unless the context indicates a contrary intent.  (Citations omitted.)  Smith v. Groton, 147 Conn. 272, 274–75, 160 A.2d 262 (1960).   In Smith v. Groton, supra, 147 Conn. 275, the testamentary clause at issue was ‘my aforesaid children and their legal representatives.’  Id. 274.   The administrators of the estates of some of the testator's deceased children filed suit, claiming that they were entitled to a portion of the property as legal representatives of the children.  Id., 274.   The court stated that the term ‘legal representatives,’ may mean those entitled to take by inheritance, or it may mean the executors or administrators of a deceased person and thus be in effect a term of limitation.”   The court determined that, under the facts of the case, “legal representatives” was a term of limitation and not of purchase because it was used as a term of limitation in three other places in the same will, and the plaintiffs did not acquire any interest as devisees.  Id., 275.

“[W]here the manifestation of the settlor's intention is integrated in a writing, that is, if a written instrument is adopted by the settlor as the complete expression of the settlor's intention, extrinsic evidence is not admissible to contradict or vary the terms of the instrument in the absence of fraud, duress, undue influence, mistake, or other ground for reformation or rescission ․ If a [trust instrument] is unambiguous within its four corners, intent of the parties is a question of law.  * * * If, however, the trust instrument is an incomplete expression of the settlor's intention or if the meaning of the writing is ambiguous or otherwise uncertain, evidence of the circumstances and other indications of the transferor's intent are admissible to complete the terms of the writing or to clarify or ascertain its meaning ․ Under such circumstances, the question of the decedent's intent ․ is a question of fact.”  (Citations omitted;  internal quotation marks omitted.)   Palozie v. Palozie, 283 Conn. 538, 547–48, 927 A.2d 903 (2007).

“The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used ․ rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn.App. 605, 609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008).

Paragraph three of the trust instrument ¹⁰ provides:  “The interest of such a deceased Beneficiary in the Trust Fund and the accumulated undistributed net income to the date of death shall pass to his or her legal representatives, heirs-at-law or next of kin in accordance with the provisions of law applicable to the domicile of the deceased Beneficiary.”   The term “legal representatives” is used in other parts of the instrument.   Paragraph one provides:  “During the term of this trust the Trustees shall pay quarterly the entire net income from the Trust Fund to the Settlors, their legal representatives or assigns, in proportion to the respective interests of the Settlors in said Trust Fund.” (Emphasis added.)   Paragraph twelve provides:  “[A]ny Settlor, his or her legal representatives or assigns, may ․ elect to withdraw from the provisions of this indenture ․ Upon the withdrawal of a Settlor becoming effective, the Trustees shall transfer, assign and pay over to such withdrawing Settlor, his or her legal representatives or assigns, the share of said withdrawing Settlor ․” (Emphasis added.)   A logical reading of these trust provisions reveals only that “legal representatives” means a successor who holds an interest other than by assignment.   The use of the term in the rest of the instrument does not support the arguments of either the defendants or the plaintiffs, regarding its meaning in paragraph three.

“Legal representatives” is “an ambiguous or equivocal term whose meaning can often be determined only by the context and the situation of the testator.”   Smith v. Groton, supra, 147 Conn. 274.   Correspondence in the record ¹¹ shows that the ambiguity of the term, as it is used in paragraph three, has been perceived by persons other than the plaintiffs.   Thus, extrinsic evidence is “admissible to complete the terms of the writing or to clarify or ascertain its meaning ․ Under such circumstances, the question of the decedent's intent ․ is a question of fact” (citations omitted;  internal quotation marks omitted);  Palozie v. Palozie, supra, 283 Conn. 547–48;  and the fact finder must determine the decedent's intent through analysis of admissible extrinsic evidence.

Next, we turn to the parties' arguments regarding interpretation of the extrinsic evidence.   Heath argues that there is no support for the plaintiffs' position that “legal representatives” means “lineal descendants.”   He also contends that the drafting history of the trust supports his position that “legal representatives” means executor or administrator because, in an earlier draft of the trust,¹² paragraph three stated that in the case of the death of a beneficiary his or her interest was to pass to “his or her executor and not to his or her heirs-at-law,” which reveals that the drafter's intent in making the change was to broaden the class of executors and administrators to include other legal representatives that might exist, such as in other countries.¹³

The plaintiffs counter that the change from the earlier draft is significant because the prior draft recognizes that passage of the beneficial interest to an “executor or administrator” is inconsistent with passage to “heirs-at-law.”   They argue that the change is also significant because, if, as the plaintiffs contend, “legal representatives” is merely a different way of saying “executor or administrator” then the only effect of the change was to cause confusion as to which persons are meant to receive the deceased beneficiary's interest.   The change must, the plaintiffs contend, be viewed as having been intended to create a workable document;  “legal representatives” must not create a conflict with the simultaneous passage of the decedent's interest to the “heirs-at-law” and “next of kin”;  only an interpretation of “legal representatives” that is synonymous with “heirs-at-law” and “next of kin” can be correct;  and all three terms must, therefore, mean “lineal descendants.”

Both the plaintiffs and Heath have identified possible interpretations of the drafting history of paragraph three.   The meaning of the change in the language of paragraph three, viewed in the light most favorable to the non-moving plaintiffs, is not “indisputable”;  Spencer v. Spencer, supra, 71 Conn.App. 482;  and the fact that the change was made is insufficient to establish, as a matter of law, the intended meaning of the term “legal representatives.”

Heath also argues that at least nine other participants in the trust have died, and in every case their interest in the trust passed through their estate.   In their surreply, the plaintiffs contend that, because this is the first time a court has construed the trust language, the fact that the defendants' construction has been applied when other beneficiaries have died is not controlling.

Prior interpretations of paragraph three may be evidence of, but do not indisputably prove, the decedent's intent.   See Spencer v. Spencer, supra, 71 Conn.App. 482.   Viewed in the light most favorable to the non-moving plaintiffs, the prior interpretations are insufficient to establish, as a matter of law, the intended meaning of the term “legal representatives.”

Heath contends that the plaintiffs offer only two items of extrinsic evidence, which do not defeat summary judgment.   The plaintiffs' first item of extrinsic evidence is the recollection of the plaintiff Palmer, as stated in her affidavit,¹⁴ that the decedent stated that William F. Buckley, Sr. (the decedent's father) had provided for the decedent and her children through a trust.   Heath contends that the statement is inadmissible hearsay, and alternatively, even if it is admissible, it does not preclude summary judgment because another trust (the Home Trust ¹⁵ ) was established to benefit the descendants of William F. Buckley, Sr. It is the plaintiff's position that Palmer's recollection is admissible to show the decedent's intent.

Heath's deposition testimony that the Home Trust exists and benefits the descendants of William F. Buckley, Sr. is insufficient to show the nonexistence of genuine issues of material fact regarding the Hembt trust and that Heath is entitled to summary judgment as a matter of law.   Thus, we do not reach the issues of whether Palmer's statement is admissible ¹⁶ or whether it contradicts the movant's evidence.   Heath's motion for summary judgment must be denied on this ground.

Heath argues that the second item of extrinsic evidence relied upon by the plaintiffs is correspondence from the 1950s, in which Buckley (who was one of the original settlors) and John E. Boice, Jr. (who, the plaintiffs allege, was the primary drafter of the trust) provided advice about paragraph three to the original trustees.   Heath contends that the correspondence shows that Buckley was sure that the settlors did not wish to lock themselves into the laws of intestacy, and the drafter did not think an amendment was necessary to clarify the point.   Additionally, Heath contends that the correspondence shows that the trust beneficiaries were meant to have complete dominion over the royalty interests, which logically extends to control over the interests upon death.   Heath maintains that this explanation is consistent with the general rules governing contract interpretation.

The plaintiffs respond that the correspondence only reveals that various opinions exist about the meaning of paragraph three, and does not reveal the decedent's intent.   Moreover, the plaintiffs argue, the opinions of persons other than the decedent is inadmissible hearsay, and may not be considered by the court for purposes of a motion for summary judgment.

The correspondence ¹⁷ reveals the following:  an attorney questioned the language of paragraph three in 1958;  Buckley addressed the issue with a drafter of the trust;  the drafter did not think the language was ambiguous, but suggested a possible amendment to the trust;  the trust was not amended;  and the original trustees were informed that there would be no amendment.   The correspondence, viewed in the light most favorable to the nonmoving plaintiffs, does not show the nonexistence of material issues of fact regarding the meaning of paragraph three or that Heath is entitled to judgment as a matter of law.

Heath further argues that the decedent's will, which provided that each child's share of her estate was to be held in trust to be distributed in halves as the children reached certain ages, shows that the decedent's intent was to disallow any child from having immediate unrestricted access to funds.   This is consistent with Heath's position that the decedent did not intend to have the royalty interests distributed outright to her children immediately upon her death.   Moreover, Heath argues, the decedent's will contains an elaborate estate plan, which demonstrates her desire to control how her property would pass at her death.   The plaintiffs' interpretation of paragraph three would be inconsistent with that intent because the decedent would have left her largest asset to pass under the laws of intestacy.

The plaintiffs respond that there is no authority for the proposition that one should look to the decedent's will when determining her intent regarding her trust.   They contend that the fact that the decedent's will postponed distributions to her children could be construed as evidence that she wanted the royalty interests to benefit them immediately.

As discussed, “[w]e cannot rewrite a will or a trust instrument.   The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the testator or settlor when the instrument was executed, including the condition of [her] estate, [her] relations to [her] family and beneficiaries, and their situation and condition.”  Spencer v. Spencer, supra, 71 Conn.App. 482.   “If, however, the trust instrument is an incomplete expression of the settlor's intention or if the meaning of the writing is ambiguous or otherwise uncertain, evidence of the circumstances and other indications of the transferor's intent are admissible to complete the terms of the writing or to clarify or ascertain its meaning ․ Under such circumstances, the question of the decedent's intent ․ is a question of fact.”  (Citations omitted;  internal quotation marks omitted.)  Palozie v. Palozie, supra, 283 Conn. 547.

The decedent's will may be “evidence of the circumstances and other indications of the transferor's intent”;  Palozie v. Palozie, supra, 283 Conn. 547.   The will is, however, insufficient to show that there are no genuine issues of material fact, entitling Heath to judgment as a matter of law.

Heath contends that Buckley, who was involved in the creation and administration of the trust, testified in his deposition that a deceased beneficiary's interest was intended to pass according to his or her will, if one existed.   The plaintiffs do not raise any counter-arguments regarding this assertion.

Buckley's affidavit may be “evidence of the circumstances and other indications of the transferor's intent”;  Palozie v. Palozie, supra, 283 Conn. 547–48.   The affidavit is, however, insufficient to show that there are no genuine issues of material fact, entitling Heath to judgment as a matter of law.

Alternatively, Heath contends that if the plaintiffs are correct the amounts paid to the decedent's children would increase from approximately 46 percent to approximately 66.7 percent, not 100 percent;  and that he, as the decedent's surviving spouse, would be entitled to the balance, free of trust.   The plaintiffs argue that the defendants' argument regarding percentages of trust income is not relevant to the question of whether the court should grant the defendants' motions for summary judgment.   The court agrees with the plaintiffs on this point.

Heath raises the following special defenses:  laches, waiver and equitable estoppel.   The plaintiffs argue that their affidavits show they were not aware of their claims until 2008, and they did not intend to waive any of their rights or claims.   They contend that they relied on the defendants, who are fiduciaries with a duty of full and fair disclosure to the plaintiffs.

Heath argues that the plaintiffs' claims are barred by laches, on the following bases:  the actions on which the plaintiffs' claims are based occurred during the time period from 1967 to 1974, when the decedent's estate was probated, and the plaintiffs had ample opportunity to challenge those actions, and they failed to do so;  the plaintiffs did not complain about their trust distributions for thirty-five years;  and the plaintiffs each knew or should have known about the trust language between 1967 and 1986, depending on when each plaintiff reached the age of majority and they signed a trust indenture.   Health alleges that he has been prejudiced because he has relied on the trust distributions for forty-three years and he has an estate plan which relies on continued income from the trust.   Heath testified in his deposition that records and testimony may be difficult to obtain because of the passage of time.

The plaintiffs argue that laches is an equitable defense, which does not apply to their claims for damages, but, if applicable, may apply to their claim for a declaratory judgment.   The plaintiffs' contend that whether the plaintiffs' claims are barred by laches is a question of fact that cannot be resolved by summary judgment;  the fact that Heath may have relied on the income generally does not support a claim of laches;  the fact that Heath relied on the income in making his estate plan does not prevent him from making a different estate plan;  Heath's deposition testimony that the passage of time may harm his ability to find records and testimony is conclusory and cannot be considered for summary judgment purposes;  and any such records and testimony are extrinsic evidence, which is not admissible.

Our Appellate Court has stated:  “A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law ․ The defense of laches, if proven, bars a plaintiff from seeking equitable relief ․ First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ․ The burden is on the party alleging laches to establish that defense ․ The mere lapse of time does not constitute laches ․ unless it results in prejudice to the [opposing party] ․ as where, for example, the [opposing party] is led to change his position with respect to the matter in question.”  (Internal quotation marks omitted.)  R.F. Daddario & Sons, Inc. v. Shelansky, 123 Conn.App. 725, 737, 3 A.3d 957 (2010).

Heath has provided an affidavit,¹⁸ in which he states that he has relied on the income from the trust for forty-three years;  he has an estate plan, which assumes and relies on continued income from the trust;  he no longer has any records which may have been made while probating the decedent's estate between 1967 and 1974;  the attorney who drafted the trust is now deceased and Heath does not know if any of the attorney's records exist;  the original trustees are deceased;  his memories and the memories of others from 1967 to 1974 have faded;  and the plaintiffs have been aware at all times during their adult lives of the distribution percentages.

The plaintiffs have provided counter affidavits,¹⁹ in which they state that when they signed documents regarding the trust they acted on the advice, direction and request of Heath or the trustees or an attorney working for Heath or the trustees;  they never sought independent advice regarding the trust;  they did not read or understand the trust;  they did not know that paragraph three had an ambiguity or another interpretation;  they were not advised of the prior draft of the trust before the commencement of this action;  and they did not intend to waive or release any rights regarding the trust.   In the affidavit of Palmer she also states that, in 1966, she had a conversation with the decedent in which the decedent stated that the decedent's father had provided for her and her children through a trust, and Palmer's understanding of that conversation is that the decedent was referring to the assets in the Hembt Trust.

Heath has provided evidence, in the form of his affidavit, that he has been prejudiced by the passage of time from when the decedent's estate was probated and when this action was filed.   There is, however, conflicting evidence regarding whether the delay was inexcusable.   The record contains signed trust indentures ²⁰ that indicate that the plaintiffs were on notice of the language at issue.   The record also contains the plaintiffs' affidavits stating that they did not have notice of their claims until recently.   This evidence, viewed in the light most favorable to the nonmoving parties, is insufficient to show the nonexistence of genuine issues of material fact, and it does not entitle Heath to judgment as a matter of law.

Heath further argues that the plaintiffs have waived their claims because all of the plaintiffs except Timothy Buckley were given notice of the 1973 and 1974 probate hearings where the distribution of the royalty interests, was determined;  by the time of the probate hearings at least four of the plaintiffs had signed the trust document;  James Heath signed the trust document in 1967, and the other five plaintiffs were represented by counsel at the probate proceedings.   Additionally, Heath argues, in 1986, each plaintiff assigned his or her interest in the trust to another trust (the Westmont Royalty Trust), which is identical to this trust as far as the language that is at issue, and did not raise these claims at that time.   The plaintiffs' conduct was a signal to the defendants that they had no issues with the trust distributions.

The plaintiffs counter that the party against whom waiver is asserted must have known of the existence and possible efficacy of a claim.   They contend that they were not aware of their claims;  they were not provided with documents that would have alerted them to the existence of their claims;  and they relied on their fiduciaries' trust interpretation.   They argue that the evidence, viewed in the light most favorable to the nonmoving plaintiffs does not support a clear inference of waiver, which would be necessary for summary judgment.

“Waiver involves an intentional relinquishment of a known right ․ There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it ․ Waiver may be inferred from the circumstances if it is reasonable so to do ․ Whether conduct constitutes a waiver is a question of fact ․ The issue of waiver is a question of fact, dependent on all of the surrounding circumstances and the testimony of the parties.”  (Citation omitted;  internal quotation marks omitted.)  Roy v. Metropolitan Property & Casualty Ins. Co., 98 Conn.App. 528, 532, 909 A.2d 980 (2006).

Heath has provided evidence that the plaintiffs, or their guardians ad litem, had notice of the language of paragraph three when the decedent's estate was probated, and that the plaintiffs signed trust indentures with language that is similar to the language in paragraph three.   The plaintiffs have countered that evidence with affidavits, in which they attest that they had no knowledge of their claims and no intention to relinquish them.   This evidence, viewed in the light most favorable to the nonmoving parties, is insufficient to show that there are no genuine issues of material fact, entitling Heath to judgment as a matter of law.

Finally, Heath argues that the plaintiffs' claims are barred by equitable estoppel, on the basis that the plaintiffs have accepted royalty payments for years without notifying Heath of any challenge to the distribution percentages or his actions as co-executor or co-trustee.   Heath maintains that James B. Heath was of the age of majority when the decedent's estate was opened, and he signed a waiver of notice for a hearing on the admission of the decedent's will to probate; ²¹  the other plaintiffs were represented in the probate proceedings by a guardian ad litem;  and as four of the other plaintiffs reached the age of majority during the administration of the estate they received notice of the proceedings; ²²  and the Hembt Trust assets were included as “foreign assets” as part of the residue of the decedent's estate.   Heath contends that the plaintiffs acquired actual knowledge of the trust provisions as they each turned twenty-one, when the trustees sent copies of the Hembt Trust to them and asked them to sign and return a copy.²³  The plaintiffs also signed trust indentures, which were in exactly the same form as the trust signed by the decedent, in the following years:  1967 for James Heath;  1973 for John Buckley, Pamela Palmer and Priscilla L. Hamill;  and 1986 for Elizabeth H. Harmon and Timothy Heath.²⁴  In 1973 the plaintiffs signed a trust indenture extension agreement,²⁵ in 1986, they transferred their interests in the Hembt Trust to the Westmont Royalty Trust, which is identical to the Hembt Trust as to paragraph three, and, in 2007, they transferred their interests back to the Hembt Trust.²⁶  Heath maintains that he relied on the income he has already received, and he has relied on future income that is based on the current distribution percentages in creating his estate plan.

The plaintiffs counter that none of the evidence shows that they concealed anything or attempted to mislead the defendants.   They claim that whether there has been an estoppel is a factual issue and it cannot be resolved by summary judgment.

“The doctrine of equitable estoppel is well established.  [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time ․ Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, we have recognized that [t]here are two essential elements to an estoppel the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done ․ [T]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury ․ In the absence of prejudice, estoppel does not exist.  (Citations omitted;  internal quotation marks omitted.)  Coss v. Steward, 126 Conn.App. 30, 41–42, 10 A.3d 539 (2011).  “The party claiming estoppel ․ has the burden of proof ․ Whether that burden has been met is a question of fact ․” (Internal quotation marks omitted.)  Harley v. Indian Spring Land Co., 123 Conn.App. 800, 826, 3 A.3d 992 (2010).  “ ‘Broadly speaking, the essential elements of an equitable estoppel ․ as related to the party to be estopped, are:  (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;  (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons;  and (3) knowledge, actual or constructive, of the real facts.’   28 Am.Jur.2d 640, Estoppel and Waiver § 35 (1966).”  Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 209, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).  “[I]t is well settled that a party who has not engaged in misleading conduct cannot be estopped.”  (Internal quotation marks omitted.)  River Dock & Pile, Inc. v. Ins. Co. of North America, 57 Conn.App. 227, 233, 747 A.2d 1060 (2000).

Under these principles, the plaintiffs may be barred from pursuing their claims if Heath proves that they had knowledge of the real facts;  see Johnnycake Mountain Associates v. Ochs, supra, 104 Conn.App. 209;  and their acceptance of royalty payments was an intended deception or gross negligence amounting to constructive fraud, which misled Heath to his detriment.   See Coss v. Steward, supra, 126 Conn.App. 41–42.

The evidence in the record shows that the plaintiffs were either adults or were represented during the probate of the decedent's estate;  some of the plaintiffs were given copies of the Hembt Trust, and some of the plaintiffs signed documents with language similar to the language in paragraph three.   The plaintiffs do not dispute that they have accepted royalty payments from the trustees.   There is no evidence that the plaintiffs intended to deceive Heath, or that their failure to realize the existence of their potential claims amounted to gross negligence.   Viewed in the light most favorable to the non-moving plaintiffs, this evidence is insufficient to show, as a matter of law, that there are no genuine issues of fact and that Heath is entitled to summary judgment.

II

The Trustees' Motion for Summary Judgment

Buckley and Smith move for summary judgment on count one (breach of fiduciary duty), which is the only claim against them, on the grounds that the plaintiffs interpretation of paragraph three finds no support in the text of the trust, contemporaneous records or historical practice.   The trustees incorporate by reference the arguments and special defenses in Heath's memorandum in support of his motion for summary judgment.   Additionally, they argue that summary judgment is appropriate because the original trustees' interpretation of paragraph three was developed in good faith without improper motive, and reflects a prudent and reasonable exercise of judgment;  and it is well-settled law that trustees are shielded from liability in these circumstances.

The plaintiffs respond that, first, the concept of good faith is only applicable to their claim for liability and damages, and not to their claim for declaratory relief that the court determine the rights of the parties regarding distribution of future trust income, and the motion for summary judgment must, therefore, be denied.   Second, the plaintiffs argue that, while good faith is a defense to a claim that a trustee has been negligent or breached a duty with respect to discretionary conduct, the trustees in this case failed to implement the trust according to its terms, which are not discretionary, and the trustees are liable.   Third, the plaintiffs contend that even if the court deems that the trustees' good faith applies to the issue of their liability, whether they acted in good faith is a question of fact.   Evidence in the record shows that Buckley was aware that the trust did not provide that the interests of a deceased beneficiary were to pass to the executor of his or her estate,²⁷ and even though Buckley thought an amendment would be advisable, none was ever prepared.²⁸  Further, the plaintiffs argue, a trustee has the burden of proving good faith by clear and convincing evidence, and the conflicting evidence in the record is insufficient to meet that burden.

“[N]o language in a trust will be so construed as to remove a trustee from equitable control.   To the extent to which the trustees had discretion, the court will not attempt to control their exercise of it as long as they have not abused it.  * * * [I]n circumstances where trustees have abused their discretion, have failed to perform the duties of their trust or have acted dishonestly, a court of equity may intervene to protect and preserve the trust.   In such circumstances, all fiduciaries are subject to judicial control.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 34–37, 347 A.2d 81 (1974).  “Trustees have no powers not expressly or impliedly conferred on them by the terms of the trust ․ Their obligation to obey the instructions of the donor of the trust is the cornerstone upon which all other duties rest.”  (Citation omitted.)  Conway v. Emeny, 139 Conn. 612, 620, 96 A.2d 221 (1953).

“In common usage, the term good faith has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation ․ It has been well defined as meaning [a]n honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious ․ It is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives ․ Whether good faith exists is a question of fact to be determined from all the circumstances.”   (Citation omitted;  internal quotation marks omitted.)  Bhatia v. Debek, 287 Conn. 397, 412–13, 948 A.2d 1009 (2008).

“[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated ․ The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.”  (Internal quotation marks omitted.)  Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006).  “[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”  Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).

The following evidence is in the record:  Exhibit P to Heath's memorandum in support of his motion for summary judgment consists of a letter, dated July 23, 1958, from Huntington T. Day, an attorney, to Buckley, questioning whether the language in paragraph three could be construed as allowing a deceased trust beneficiary's interest to pass according to the intestacy statutes.   Exhibit Q consists of a letter, dated July 28, 1958, from Buckley to Boice, expressing the same concern.   Exhibit R consists of a letter, dated July 28, 1958, from Buckley to Day, stating that he will address the concern with the drafter of the trust, and that “I agree that the provision does sound as if the statutes governing the distribution of intestate estates might be controlling, which I am sure was not the intent.”   Exhibit S consists of a letter, dated August 1, 1958, from Boice to Buckley, in which Boice states:  “It was certainly the intention of the provision ․ that the share of any deceased beneficiary would pass to his or her executor to be distributed in accordance with the Last Will and Testament of the beneficiary ․ I personally feel that the present wording of the trust instrument clearly spells out such an intention.”   Boice then goes on to suggest a possible amendment to make the trust language clear.   Exhibit T consists of a letter, dated August 7, 1958, from Buckley to Boice, in which he states that he feels it best to amend the trust instrument.   Exhibit U consists of a letter, dated May 3, 1960, from Buckley to the original trustees, in which he asks if the trust was ever amended.   Exhibit V is a letter, dated May 5, 1960, from the original trustees stating that there has been no amendment.   The letter contains a handwritten note, dated August 31, 1960, which states:  “JLB said he felt there would be no amendment at this time.   Purely technical.”

In the present case, whether the trustees' interpretation of paragraph three was erroneous is an unresolved question of fact.   The evidence before the court shows that Buckley and the original trustees were aware that paragraph three could be interpreted in more than one way, considered the issue, and decided not to amend the trust.   This evidence is insufficient to show whether the trustees breached their fiduciary duty.   The evidence is sufficient to present a factual predicate for the trustees' argument that they acted in good faith, and whether they did so is a genuine issue of fact.   See Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 250.   However, the trustees are not entitled to summary judgment as a matter of law and their motion for summary judgment must be denied.

III

The Bank's Motion for Summary Judgment

The bank moves for summary judgment on count one (breach of fiduciary duty), and count three (theft, misappropriation and/or conversion), which are the only claims against it, on the grounds that it was not a trustee of the trust and was not required to determine the proper disposition of the royalty interests or second-guess the trustees.

Regarding count one, breach of fiduciary duty, the bank argues that it was co-executor of the decedent's will and had a duty to martial the assets of the estate.   The bank contends that even if the trustees distributed the royalty interests improperly, the bank is not responsible for their actions.   The bank joins the arguments of Heath, Buckley and Smith, that the trustees of the trust were correct in distributing the royalty interests to the decedent's estate.

The plaintiffs counter that the bank had no right to receive payments for disposition under the will.   Also, the plaintiffs argue, the bank is liable for its breach of duty because it has continued to distribute trust assets to Heath even after it became aware of this action.

“[T]he executor's primary duty is to the estate itself, and to fulfilling the intentions of the decedent with respect to the estate.   Only secondarily is the executor's duty to those with conflicting interests in the estate, vis-a-vis the decedent, with whom, nevertheless, the fiduciary is obligated to deal fairly.”  (Citation omitted.)  Cadle Co. v. D'Addario, 268 Conn. 441, 461, 844 A.2d 836 (2004).

In the present case, the bank's predecessor was a co-executor of the decedent's estate, and it had a fiduciary duty to fulfill “the intentions of the decedent with respect to the estate.”   See Cadle Co. v. D'Addario, supra, 268 Conn. 461.   As discussed, there is a genuine question of fact as to the correct interpretation of paragraph three, which determined the distribution of the decedent's royalty interests.   If the distribution is found to be improper, the executors of the estate may have liability for breach of fiduciary duty.

Regarding count three, theft/misappropriation/conversion, the bank contends that claims of conversion only apply to the unauthorized exercise of dominion and control over another's property;  the trustees had legal title to the property they transferred to the bank;  and one who receives property from the party with title to that property cannot be liable for conversion.

The plaintiffs argue that the bank's exercise of dominion and control over royalty interests that were wrongfully withheld from the plaintiffs was common law conversion.   The plaintiffs contend that conversion does not require wrongful intent and the bank's good faith or lack of knowledge does not excuse it from liability.   Because the trustees had no right to transfer trust assets to the decedent's estate, the plaintiff's assert, the bank's exercise of dominion and control over the trust assets was unauthorized.

“Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights ․ Similarly, statutory theft is the stealing of another's property or the knowing receipt and concealment of stolen property.   See General Statutes § 52–564 (‘[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages').   Statutory theft, however, requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property ․ Nonetheless, to prevail on either claim, the party alleging conversion or statutory theft must prove a sufficient property interest in the items in question.   See Falker v. Samperi, 190 Conn. 412, 419–20, 461 A.2d 681 (1983) (plaintiff's property rights are at heart of conversion, and proof of ownership is plaintiff's burden);  Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993) (prima facie case for conversion and statutory theft requires proof that property in question ‘belonged to’ plaintiff).”  (Citations omitted.)   Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418–19, 934 A.2d 227 (2007).  “To establish a prima facie case of conversion, the plaintiff [has] to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that the defendants deprived the plaintiff of that material for an indefinite period of time, (3) that the defendants' conduct was unauthorized and (4) that the defendants' conduct harmed the plaintiff.”  Stewart v. King, 121 Conn.App. 64, 74 n.4, 994 A.2d 308 (2010).

Here, whether the royalty interests were properly distributed, and whether a larger percentage of the interests “belongs” to the plaintiffs;  see Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, supra, 284 Conn. 418–19, and Stewart v. King, supra, 121 Conn.App. 74 n.4;  is a genuine issue of fact, and the bank has not shown that it is entitled to judgment as a matter of law.

In its answer, the bank raises two special defenses:  failure to state a claim on which relief may be granted;  and laches.  “The executors are the legally recognized representatives of the estate, and as such have a duty to protect the interests of both beneficiaries and creditors.  Cadle Company v. D'Addario, 268 Conn. 441, 461 (2004).”  Cadle Co. v. D'Addario, Superior Court, complex litigation docket at Stamford–Norwalk at Stamford, Docket No. X05 CV 024009795 (July 26, 2007, Shay, J.).   The bank's predecessor was a co-executor of the decedent's estate, and it had a duty to protect the interests of the beneficiaries.   See Cadle Co. v. D'Addario, supra, Superior Court, Docket No. X05 CV 024009795.   Thus, the complaint states a claim upon which relief can be granted.

As discussed earlier, there is conflicting evidence regarding whether the plaintiffs' delay in filing this action was excusable, and laches does not bar the plaintiffs' claims.   Therefore, the bank's motion for summary judgment must be denied.

CONCLUSION

Accordingly, for all the foregoing reasons, the defendants' motions for summary judgment are, in all respects, denied.

Peck, J.

FOOTNOTES

FN1. The defendants' motions for summary judgment were originally denied by judicial order entry on June 8, 2011..  FN1. The defendants' motions for summary judgment were originally denied by judicial order entry on June 8, 2011.

FN2. Although the plaintiffs filed an amended complaint on March 9, 2011, the complaint that was filed on June 10, 2009 is operative for purposes of this decision..  FN2. Although the plaintiffs filed an amended complaint on March 9, 2011, the complaint that was filed on June 10, 2009 is operative for purposes of this decision.

FN3. Bank of America is a successor to Connecticut Bank and Trust Company (CBT)..  FN3. Bank of America is a successor to Connecticut Bank and Trust Company (CBT).

FN4. James R. Joyce was also named as a defendant, but the plaintiffs withdrew their claims against him, on August 20, 2009.   James L. Buckley, is the material uncle of the plaintiffs..  FN4. James R. Joyce was also named as a defendant, but the plaintiffs withdrew their claims against him, on August 20, 2009.   James L. Buckley, is the material uncle of the plaintiffs.

FN5. The plaintiffs allege that the decedent had four other children who were given notice and elected not to participate in this litigation..  FN5. The plaintiffs allege that the decedent had four other children who were given notice and elected not to participate in this litigation.

FN6. General Statutes § 52–564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”.  FN6. General Statutes § 52–564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

FN7. In their answer, the trustees also claim, that General Statutes § 52–577 bars the plaintiffs' claims as to any conduct that occurred prior to January 2008.   The trustees do not, however, mention this special defense in their memoranda of law.   Therefore, this special defense is not addressed in this decision..  FN7. In their answer, the trustees also claim, that General Statutes § 52–577 bars the plaintiffs' claims as to any conduct that occurred prior to January 2008.   The trustees do not, however, mention this special defense in their memoranda of law.   Therefore, this special defense is not addressed in this decision.

FN8. In its answer, the bank also claims “statute of limitations” as a special defense.   The bank does not, however, identify which statute it is referring to or mention this special defense in its memoranda of law.   Therefore, it is not addressed in this decision..  FN8. In its answer, the bank also claims “statute of limitations” as a special defense.   The bank does not, however, identify which statute it is referring to or mention this special defense in its memoranda of law.   Therefore, it is not addressed in this decision.

FN9. The plaintiffs' surreply was filed on February 18, 2011..  FN9. The plaintiffs' surreply was filed on February 18, 2011.

FN10. A copy of the original trust indenture is Exhibit B to Heath's memorandum in support of his motion for summary judgment.   It was authenticated by the affidavit of James R. Joyce, a former trustee, dated December 13, 2010 which is appended to the memorandum..  FN10. A copy of the original trust indenture is Exhibit B to Heath's memorandum in support of his motion for summary judgment.   It was authenticated by the affidavit of James R. Joyce, a former trustee, dated December 13, 2010 which is appended to the memorandum.

FN11. Exhibits P, Q, R, S, T, U and V to Heath's memorandum in support of his motion for summary judgment..  FN11. Exhibits P, Q, R, S, T, U and V to Heath's memorandum in support of his motion for summary judgment.

FN12. Exhibit N of Heath's memorandum in support of his motion for summary judgment..  FN12. Exhibit N of Heath's memorandum in support of his motion for summary judgment.

FN13. Heath notes that at least one of the original settlors was a resident of Canada..  FN13. Heath notes that at least one of the original settlors was a resident of Canada.

FN14. Palmer's affidavit is attached to the plaintiffs' memorandum in opposition to the motion for summary judgment..  FN14. Palmer's affidavit is attached to the plaintiffs' memorandum in opposition to the motion for summary judgment.

FN15. The Home Trust is described in pages 41–43 of Heath's deposition, which is attached to his reply memorandum, which was filed on February 14, 2011..  FN15. The Home Trust is described in pages 41–43 of Heath's deposition, which is attached to his reply memorandum, which was filed on February 14, 2011.

FN16. Our Appellate Court has stated:  “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․ Practice Book § [17–45].”  Gianetti v. Anthem Blue Cross and Blue Shield of Connecticut, 111 Conn.App. 68, 72, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009)..  FN16. Our Appellate Court has stated:  “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․ Practice Book § [17–45].”  Gianetti v. Anthem Blue Cross and Blue Shield of Connecticut, 111 Conn.App. 68, 72, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).

FN17. Exhibits P, Q, R, S, T, U and V to Heath's memorandum in support of his motion for summary judgment..  FN17. Exhibits P, Q, R, S, T, U and V to Heath's memorandum in support of his motion for summary judgment.

FN18. Heath's affidavit was filed on December 15, 2010..  FN18. Heath's affidavit was filed on December 15, 2010.

FN19. The plaintiffs' affidavits are attached to their memorandum in opposition to the motion for summary judgment..  FN19. The plaintiffs' affidavits are attached to their memorandum in opposition to the motion for summary judgment.

FN20. Exhibit GG to Heath's memorandum in support of his motion for summary judgment..  FN20. Exhibit GG to Heath's memorandum in support of his motion for summary judgment.

FN21. See exhibit C to Heath's memorandum in support of his motion for summary judgment..  FN21. See exhibit C to Heath's memorandum in support of his motion for summary judgment.

FN22. See exhibit BB to Heath's memorandum in support of his motion for summary judgment, which consists of the Probate Court's June 28, 1973 order of notice..  FN22. See exhibit BB to Heath's memorandum in support of his motion for summary judgment, which consists of the Probate Court's June 28, 1973 order of notice.

FN23. See exhibit FF to Heath's memorandum in support of his motion for summary judgment, which consists of copies of letters from the trustees to two of the plaintiffs (Priscilla and John).Because many of the plaintiffs' surnames have changed, only their first names are used here..  FN23. See exhibit FF to Heath's memorandum in support of his motion for summary judgment, which consists of copies of letters from the trustees to two of the plaintiffs (Priscilla and John).Because many of the plaintiffs' surnames have changed, only their first names are used here.

FN24. See exhibit GG to Heath's memorandum in support of his motion for summary judgment, which consists of copies of trust indentures signed by five of the plaintiffs (James, Priscilla, Pamela, John and Elizabeth)..  FN24. See exhibit GG to Heath's memorandum in support of his motion for summary judgment, which consists of copies of trust indentures signed by five of the plaintiffs (James, Priscilla, Pamela, John and Elizabeth).

FN25. See exhibit HH to Heath's memorandum in support of his motion for summary judgment, which consists of trust extension agreements signed by four plaintiffs (John, James, Priscilla, Pamela) and two persons with illegible signatures..  FN25. See exhibit HH to Heath's memorandum in support of his motion for summary judgment, which consists of trust extension agreements signed by four plaintiffs (John, James, Priscilla, Pamela) and two persons with illegible signatures.

FN26. See exhibit JJ to Heath's memorandum in support of his motion for summary judgment, which consists of transfers of trust interests signed by four of the plaintiffs (Priscilla, John, Elizabeth and Timothy) and withdrawals from the trust signed by two of the plaintiffs (Pamela and James)..  FN26. See exhibit JJ to Heath's memorandum in support of his motion for summary judgment, which consists of transfers of trust interests signed by four of the plaintiffs (Priscilla, John, Elizabeth and Timothy) and withdrawals from the trust signed by two of the plaintiffs (Pamela and James).

FN27. Exhibits P, Q and R to Heath's memorandum in support of his motion for summary judgment..  FN27. Exhibits P, Q and R to Heath's memorandum in support of his motion for summary judgment.

FN28. Exhibits T, U and V to Heath's memorandum in support of his motion for summary judgment..  FN28. Exhibits T, U and V to Heath's memorandum in support of his motion for summary judgment.

Peck, A. Susan, J.