Lead Opinion
Mаjority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent: HJELM and JABAR, JJ.
[¶ 1] Thomas Maxwell appeals from a summary judgment entered by the Cumberland County Probate Court (Mazziotti, J.) in favor of David Gourevitch, a qualified beneficiary of the George Parsons 1907 Trust, on his complaint for a declaratory judgment that Maxwell is not a beneficiary of the Trust. Because we agree with Maxwell that the undisputed facts establish that Gourevitch’s claim was barred by the statute of limitations, we vacate the judgment.
I. BACKGROUND
[¶2] The summary judgment record contains the following facts, which are not in dispute. See Harlor v. Amica Mut. Ins. Co.,
[¶ 3] The dispute in this case has its genesis in the death of a descendant of George Parsons — Philippa Wistrand — in May 1990, raising the question as to who was to receive her share of the Trust distributions. Philippa was a beneficiary of the Trust and was the unmarried, biological mother of Thomas Maxwell, who was born in 1963 and was adopted by Philippa’s sister, Sylvie Maxwell.
[¶ 4] At the recommendation of the Trustees, in September and November 1990, Sylvie executed documents to release any rights she had in Philippa’s share of the Trust income and assign those rights to Maxwell. In 1990, the Trustees began distributing income to Maxwell.
[¶ 5] In 1994, addressing a separate matter, the Trustees petitioned the Cumberland County Probate Court for instructions on whether adopted children were included as beneficiaries of the Trust. Although Maxwell had been adopted by Sylvie and received notice of the petition, the Trustees agreed that the court’s decision would not “affect” him, and he did not participate in the proceeding. In the resulting 1995 judgment, the court (JD. Childs, J.) determined that the provisions of the. Trust should be interpreted according to “the rules of construction set by common law during the lifetime of George Parsons.” Applying the common law rules of construction in effect in 1907, the court concluded that Parsons did not intend to include adopted children as beneficiaries, and it instructed the Trustees that the two adopted children who were respondents in that matter were not beneficiaries.
[¶ 6] In 1996, after the court had issued that judgment, one of the Trustees became concerned that no formal' decision had been made about whether Maxwell was a beneficiary entitled in his own right to Philippa’s share of income or whether he was' entitled to receive income only by virtue of the assignments executed by Sylvie. On July 26/1996, the Trustees passed a resolution recognizing Maxwell’s status as Philippa’s biological son and as a beneficiary of the Trust.
[¶ 7] In April 2014, Gourevitch filed a complaint in the Cumberland County Probate Court requesting a' declaratory judgment that Maxwell, as a nonmarital child, cannot be a beneficiary of the Trust. Gour-evitch is a descendant of George Parsons under the same branch of the family tree as Philippa, Sylvie, and Maxwell and served as a Trustee from 1999 to 2002.
[¶ 8] Gourevitch also alleged in his complaint that Maxwell is not a beneficiary of the Trust because he is an adopted child and requested a declaratory judgment to that effect. As the Probate Court (Maz-ziotti, J.) ultimately noted, however, “Maxwell’s status as an adopted child of Sylvie Maxwell is of no consequence in this procеeding” because, as a result of the court’s 1995 judgment, adopted children are not beneficiaries. Neither party challenges that conclusion on appeal;
[¶ 9] Gourevitch moved for a summary judgment, see M.R. Civ. P. 56(a),
[¶ 10] In May 2015, the court denied Gourevitch’s motion and granted Maxwell’s cross-motion for a summary judgment based on the statute of limitations. Although the court determined, as a matter of law, that the terms of the Trust did not include nonmarital children as beneficiaries, the court concluded that Gourev-itch’s cause of action to challenge Maxwell’s status was barred by the statute of limitations because it accrued, at the latest, in 1996, when the Trustees formally recognized Maxwell as Philippa’s son and as a beneficiary of the Trust, In reaching that conclusion, the court rejected Gourev-itch’s argument that each monthly payment to Maxwell constituted a breach of fiduciary duty giving rise to a new cause of action. The court likened Gourevitch’s argument to the common law “continuing tort doctrine,” McLaughlin v. Superintending Sch. Comm. of Lincolnville,
[¶ il] On May 19, 2015, Gourevitch filed a timely motion to alter or amend the judgment, see M.R. Civ. P. 59(e),
[¶ 12] While the motion ‘ to alter’ or amend was pending, Gourevitch appealed based on the statute of limitations issue, and Maxwell -cross-appealed the court’s separate determination that, as a nonmari-tal child, he was not a beneficiary. See 18-A M.R.S. § 1-3Ó8 (2016); M.R. App. P. 2. The court then granted Gourevitch’s Rule 59 motion and entered an amended summary judgment in his favor.
[¶ 13] Although the court’s ultimate judgment Ayas in Gourevitch’s favor and he
II. DISCUSSION
[¶ 14] A party is entitled to summary judgment when the statements of material fact and referenced evidence 'establish that there is no genuine issue of material fact and that a-party is entitled to a judgment as a matter of law. M.R. Civ. P. 56(c). We review de novo the grant of a motion for summary judgment. Fiduciary Tr. Co. v. Wheeler,
[¶ 15] Maxwell argues that Gour-evitch’s claim for a declaratory judgment, commenced in 2014, is barred by 14 M.R.S. § 752, which provides' that “civil actions shall be commenced within 6 years after the cause of action accrues arid not after-wards.” A cause of action accrues when a claimant sustains a “judicially cognizable injury.” Estate of Miller,
[¶ 16] As courts of other jurisdictions have held, a cause of action based on the breach of a trust. accrues, and the statute of limitations begins to run, at the time of the breach. See Renz v. Beeman,
[¶ 17] In some circumstances, determining the date of the breach may be. complicated, such as when a beneficiary claims that a trustee has imprudently retained an investment. See Tibble, 575 U.S. -,
[¶ 18] There is no legal basis, however, to support a continuing duty to moni
[¶ 19] We have also previously hеld that statutes of limitations begin to run when discrete events make potential litigants aware of possible claims. Specifically, we held that a health care trust’s cause of action for unjust enrichment against its beneficiary accrued upon the beneficiary’s settlement of an automobile insurance claim and did not continue to accrue each time monthly annuity payments to the injured beneficiary were made pursuant to the terms of that settlement. Me. Mun. Emps. Health Tr. v. Maloney,
[¶ 20] Nor do Maine’s statutes establish any “continuing” duty to determine who is a beneficiary. A trustee' may fulfill the duty to administer a trust “in accordance with its terms and purposes,” 18-B M.R.S. § 801 (2016), and “considering ... distributional requirements,” 18-B M.R.S. § 804 (2016), by determining, upon the death of a beneficiary, whether there áre any new beneficiaries and who those beneficiaries are. The determination оf beneficiaries is not a decision that requires repeated reconsideration simply because the trust calls for thé periodic distribution of trust income.
[¶ 21] Having a fixed date of accrual is consistent with the purpose of statutes of limitations “to provide eventual repose for potential defendants and to avoid the necessity of defending stale claims.” Angell v. Hallee,
[¶ 22] Turning to the facts at issue here, as the Probate Court held before reaching a new holding based on Tibble, 575 U.S. -,
[¶ 23] The only way Gourevitch’s complaint could proceed would be if the statute of limitations were tolled. The common law discovery rule tolls the statute of limitations only if there is “a fiduciary relationship between the plaintiff and defendant, the plaintiff must rely upon the defendant’s advice as a fiduciary, and the cause of action [is] virtually undiscoverable absent an independent investigation that would be destructive of the fiduciary relationship.” Nevin v. Union Tr. Co.,
[¶ 24] The pertinent facts are these. Maxwell’s biological mother died in 1990. His adoptive mother released her then ad
[¶ 25] In 1996, the trustees passed a formal resolution determining that Maxwell was Philippa’s biological son and. was a beneficiary of the Trust. Thereafter, Maxwell continued to receive regular payments as the child of his biological mother. These were the circumstances that existed when Gourevitch became a trustee in 1999.
[¶ 26] Gourevitch was a trustee from 1999 to 2002, during which time he had the full ability to determine why Maxwell was receiving Trust income distributions while the woman Gourevitch believed to be Maxwell’s mother was still living — a circumstance that is fully contrary to the Trust’s provision that “in no case does issue take till the death of the parent'whom it represents.” Instead, Gourevitch participated as a trustee in continuing to make distributions to Maxwell. He does not receive the benefit of tolling because he had both the reason and the ability to discover the claim when he was serving as a trustee but did not commence legal action until 2014— twelve years after ending his service as a trustee and eighteen years after the date of the Trustees’ resolution declaring Maxwell to be a beneficiary as the child of Philippa. See id.
[¶ 27] Because thе statute of limitations has run, we do not reach Maxwell’s challenge to the Probate Court’s ruling, on the merits of Gourevitch’s complaint, that Maxwell would not have been a beneficiary of the Trust had the challenge been made in a timely manner. We vacate the Probate Court’s amended judgment and remand the matter for the court to deny Gourev-itch’s motion for summary judgment and grant Maxwell’s motion for summary judgment. . •
The entry is:
Judgment vacated. Remanded.for the court to deny Gourevitch’s motion for summary judgment and grant Maxwell’s motion for summary judgment.
Notes
. Thomas Maxwell’s name at birth was Christian Wistrand, but he was renamed when he was adopted by Sylvie Maxwell.
. In this opinion, we use the term "nonmari-tal child” rather than the outdated phrase "child bom out of wedlock."
. Gourevitch averred in his affidavit, which he referenced in his statement of material facts, that after Sylvie died in 2012, the Trustees "voted to go ahead and make distributions” to Maxwell as a beneficiary. He argues on appeal that this is the date when distributions became wrongful. By that date, however, Maxwell had already been receiving benefits since 1996 based on the Trustees' determination of his status as Philippa’s biological son — the status that Gourevitch now challenges.
."Rule 56 of the Maine Rules of Civil Procedure governs procedure in all formal probate and civil proceedings in the Probate Courts.” M.R. Prob. P. 56.
. The Trustees also filed an opposition and cross-motion for a summary judgment supporting Maxwell’s position. In its final, judgment, the court denied the Trustees’ motion, and they do not appeal.
. "Rule 59 of the Maine Rules of Civil Procedure governs procedure in all formal probate and civil proceedings in the Probate Courts.” M.R. Prob. P. 59.
.With respect to the pending appeal, in response to the Trustees' motion to stay, we enlarged the time for’ the Probate Court to transmit its record to twenty-one days after it disposed of all pending post-judgment motions. See M.R. App. 2(b)(3), (4), 3(b)(4).
. See also George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 951, at 638 (rev. 2d ed. 1995) ("To cause the Statute to begin running during the life of the trust there must be some unequivocal act in violation of the duties of .the trustee ....”),
Dissenting Opinion
with whom JABAB, J., joins, dissenting.
[¶ 28] Today, the Court concludes that a trust beneficiary is not entitled to commence a cause of action arising from allegedly wrongful distributions of trust income made within the limitations period, so long as the trustees’ initial decision to begin those ongoing distributions is made outside the limitations period. Court’s Opinion ¶¶ 22, 27. In my view, this holding is contrary to established' Maine law and the principle that a trustee is bound by the highest ongoing fiduciary duties of good faith and loyalty to trust beneficiaries. I therefore conclude, as a matter of law, that this action is not barred by the statute of limitations. Because I also conclude that the summary judgment record contains genuine issues of material fact on the merits of this action, I would vacate the summary judgment entered by the Cumberland County Probate Court (Mazziotti, J.) and remand for further proceedings. For these reasons, I respectfully dissent.
[¶ 29] I will first address the reasons why the statute of limitations does not bar David Gourevitch’s claim for a declaratory judgment. I will then discuss the factual issues revealed in the record that preclude a determination, as a matter of law, that Thomas Maxwell, a nonmarital child, is a beneficiary of the' George Parsons Trust— factual disputes that require this case to be remanded for further proceedings in the Probate Court.
[¶ 30] Title 14 M.R.S. § 752 (2016) provides that “civil actions shall be commenced within 6 years after the cause of action accrues and not afterwards.” As the Court states, a cause of action based on a breach of a trust accrues at the time of the breach, Court’s Opinion ¶ 16, because that is when the claimant sustains a “judicially cognizable injury,” Estate of Miller,
[¶ 31] The Probate Court concluded, as a matter of law, that Gourevitch’s 2014 complaint was timely because a new breach occurred each time the Trustees made a monthly distribution of income-r-allegedjy wrongfully — to Maxwell. The court’s conclusion was predicated on its determination that trustees in Maine have a continuing duty, accompanying each distribution to a beneficiary, to ensure that the recipient is entitled to that distribution. In my opinion, thaf legal assessment of thе continuing , nature of the Trustees’ duties is correct because it is supported by Maine law and is consistent with the essential nature of a trust and a trustee’s fiduciary duties.
[¶ 32]' “A trust ,,, is a fiduciary relationship with respect to property ... subjecting the person who holds title to the property to duties to deal with it for the benefit of’ another. Restatement (Third) of Trusts § 2 (Am. Law Inst. 2003). Because of “the intimate nature of the [trustee] relationship,” and “the great control of a trustee over the property of the beneficiary,” the' law demands ‘of a trustee “an unusually high standard of ethical or moral conduct.” Amy Morris Hess et al., The Law of Trusts and Trustees § 1 at 5 (3d ed. 2007). Indeed, the fiduciary duties of a trustee are “the highest known to .the law.” LaScala v. Scrufari,
[IT 33] Within that “unusually high standard” of conduct and fidelity, Hess et al., The Law of Trusts and Trustees § 1 at 5, “the extent and limits of [a trustee’s] authority” are defined by the trust itself, In re Marble,
[¶ 34] A. trustee’s statutory duty to administer a trust- “in good faith,” “as a prudent person would,” necessarily encompasses the duty to ascertain that each individual whom the trustees designate to receive trust income is actually entitled to those payments pursuant to the terms of
[¶ 35] Contrary to the Court’s analysis, however, a trustee’s initial determination of who is a “beneficiary” is not the end of the matter. We have explained that a trustee’s duty of prudence in Maine is “ongoing.” Nevin v. Union Tr. Co.,
[¶ 36] In addition to being a violation of a trustee’s statutory duties, a trustee’s distribution of trust income to an individual who is not entitled to receive the payments is a violation of that trustee’s- primary obligation “to conform strictly to the directions of the trust.” In re Marble,
[¶ 37] Accordingly, based on fundamental principles of trust lav?, I conclude that even after a trustee makes an initial distributional decision, that trustee has a fiduciary duty to ensure, on an ongoing basis, that income is being distributed only to proper beneficiaries consistent with the terms of the trust. Consequently, the accountability of trustees to the beneficiaries does not end when they make that initial
[¶ 38] In their discussion of the statute of limitations and their analysis of when Gourevitch’s cause of action accrued, the parties have focused on Tibble v. Edison International, 575 U.S. -,
[¶ 39] The Tibbie Court considered “whether a fiduciary’s allegedly imprudent retention of an investment is an ‘action’ or ‘omission’ that triggers the running of the 6-year limitations period” applicable to claims brought pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.S. §§ 1001-1461 (LEXIS through Pub. L. No. 115-45).
under trust law, a fiduciary normally has a continuing duty of some kind to moro-itor investments and remove imprudent ones. A plaintiff may allege that a fiduciary breached, the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely.
Id. at 1828-29 (emphasis added). Therefore, although Tibbie involved the fiduciary duty to prudently oversee trust investments rather than the duty to distribute trust income only to proper beneficiaries, thé opinion confirms the ongoing nature of the fiduciary duties that trustees are bound to discharge.
[¶ 40] Further, despite the Court’s analytical reliance on Maine Municipal Employees Health Trust v. Maloney,
[¶ 41] Conversely, here, the Trustees are fiduciaries and are bound by continuing obligations that ran to Gourevitch as a beneficiary of the Trust. Accordingly, the Trustees’ repeated decisions to pay Trust income to Maxwell, allegedly in violation of their continuing fiduciary obligations in the administration of the Trust, represent discrete “judicially cognizable injur[ies],” Estate of Miller,
[¶ 42] For these reasons, I conclude that a new cause of action accrued each time the Trustees made k distribution of Trust income to Maxwell, because he allegedly was not entitled to those payments pursuant to the terms of the Trust. With each such payment, the true beneficiaries allegedly sustained: a new injury, resetting the clock for purposes of the statute of limitations. This conclusion is the product of Maine lаw and the law of trusts that establish the continuing nature of a trustee’s duty to comply with the-provisions of a trust, including its distributional requirements.
B. Status of Nonmarital Children
[IT 43] I next address the merits of the parties’ arguments because if — as I conclude — Gourevitch’s claim is not time-barred but the undisputed facts nevertheless were to establish that Maxwell is a proper beneficiary of the Trust, then this matter would have to be rеmanded for entry of a summary judgment for Maxwell in any event. For the following reasons, I disagree with that result. Rather, ,1 conclude that neither party is entitled to a judgment as a matter of law on the issue of whether Maxwell is a proper beneficiary, and I would therefore ’ remand this matter to the Probate Court for further proceedings.
[¶ 44] The specific issue is whether the court erred by concluding, as a matter of law, that the terms used to identify Trust beneficiaries — “issue” and “descendants”— must be construed to omit nonmarital children. •'
[¶ 45]' “The cardinal rule is to, give effect to the intention of the testator gathered from the language of the will [creating the trust] ....” Me. Nat'l Bank v. Petrlik,
[¶ 46] Paragraph 5 of the Trust — which is the source of Maxwell’s claimed interest — provides that a deceased descendant’s share of Trust income is payable to his or her “issue.” In the context of a summary judgment analysis, the question therefore is whether a nonmarital child such as Maxwell indisputably must be considered “issue” of his biological mother within the meaning of the Trust.
[¶ 47] We have previously stated that the term “issue” is ambiguous and that its meaning varies according to the intention of the settlor who uses it. Gannett v. Old Colony Tr. Co.,
' [¶ 48] The Trust further states in Paragraph 8 that “[distribution of income among the issue of a ... descendant '... shall mean that such income shall be paid in equal shares to his or her children.” (Emphases added.) For reasons similar to those stated above, this provision does not allow any determination of the meaning of the term “issue” as a matter of law because the term “children,” likе the term “issue,” is ambiguous and must be construed based on Parsons’s intent when the Trust was created. See Ziehl,
[¶ 49] The express rule of construction that appears in Paragraph 28 of the Trust also does-not unambiguously resolve the question at issue here. Paragraph 28 states:
The laws of the State of Maine shall apply to and govern the validity, construction and operation of this agreement, except as the construction or legal effect of this instrument is expressly stated in the provisions of the deed itself, and all matters, things and proceedings now or hereafter arising or had hereunder.
By using the phrase “laws of the State of Maine,” Parsons did not distinguish between statutes and common law, and he could reasonably have been referring to either.
[¶ 50] The statutes in effect in 1907 included a provision that allowed an “illegitimate child” to inherit property from his or her biological mother who died intestate. R.S. ch. 77, § 3 (1903).
[¶ 51] Cases decided during Parsons’s lifetime, however, reveal a general com-mdn law principle that although nonmari-tal children were entitled to “take under any disposition by deed or will adequately describing them,” they were not entitled to participate in gifts to “issue” or “children.” 2 Thomas Jarman, A Treatise on Wills 205 (5th ed. 1881); see also Bolton,
[¶ 52] Because the rule of construction prescribed in Paragraph 28 of the Trust can lead to opposite results depending on whether it is read to invoke statutes or common law presumptions, I conclude that the record supports competing inferences
. Renz v. Beeman, which the Court cites as support for the proposition that the statute of limitations begins to run at the time of the initial breach, Court’s Opinion ¶ 16, is inap-posite because that case involves a claim based on a one-time event, rather than ongoing or repeated actions in derogation of a trust, as is the case here.
Getty v. Getty,
Conversely, here, Gourevitch sued for a declaratory judgment to determine whether the Trustees’ repeated and ongoing distributions of trust income to Maxwell violate the actual terms of the Trust. Because Getty did not involve ongoing conduct by the trustees that was in violation of the trust, it has no bearing on whether Gourevitch’s cause of action accrues anew with each income distribution.
. The statute of limitations on ERISA claims provides, in pertinent part, that "[n]o action may be commenced under this title with respect to a fiduciary’s breach of any responsibility, duty, or obligátion ... after the earlier of '... six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation.” 29 U.S.C.S. § 1113 (LEXIS through Pub. L. No. 115-45).
. I agree with the Court that, as the Probate Court concluded, Gourevitch is not entitled to the benefit of the common law discovery rule, which tolls the statute of limitations "until the plaintiff discovers or reasonably should have discovered the cause of action." Nevin v. Union Tr. Co., 1999 ME 47, ¶ 25,
. Contraiy to the Court’s statement, Court’s Opinion ¶21, a holding that Gourevitch’s claim is timely' would not detract from the essential purpose of statutes of limitations "to provide eventual repose for potential defendants and to avoid the necessity of defending stale claims," Angell v. Hallee,
. For this reason, the rule of construction in the Maine Probate Code, which states that “persons born out of wedlock are included in class gift terminology and terms of relationship in. wills and in trust instruments,” does not apply to these proceedings because that statute became effective in 1981, long after the Trust was created. P.L. 1979, ch. 540, § 1 (effective Jan. 1, 1981) (codified as amended at 18-A M.R.S. § 2-611 (2016)); see also Hall v. Cressey,
. In other places in the Trust, Parsons referred to statutory law specifically. For example, in Paragraph 8, Parsons expressly rejected the definition of "per stirpes" provided "under the statutes of distribution in the State of Maine.” The phrase "laws of the State of Maine” could therefore reasonably be construed to be broader than the reference to the "statutes of distribution” in Paragraph 8 of the Trust and include the common law,
. R.S. ch. 77, § 3 (1903) provided in full,
An illegitimate child born after March twenty-four, in the year of our Lord one thousand eight hundred and sixty-four, is the heir of his parents who intermarry. And ■ any such child, born at any time, is the heir of his mother. And if the father .of an illegitimate child adopts him or her into his family, or in writing acknowledges before some justice of the peace or notary public, that he is the father, such child is also the heir of his or her father. And in each case such child and its issue shall inherit from its parents respectively, and from their lineal and collateral kindred, and these from such child and its issue the same as if legitimate.