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Gray v. Gray

United States District Court, D. New Hampshire

May 14, 2019

Evan W. Gray
v.
Chester L. Gray, III

          Evan W. Gray, pro se

          Adam M. Hamel, Esq.

          Ralph F. Holmes, Esq.

          Bradley M. Lown, Esq.

          Royi S. McCandless, Esq.

          Neil B. Nicholson, Esq.

          Andrea J Schweitzer, Esq.

          ORDER

          Joseph A. DiClerico Jr. United States District Judge.

         In 1996, Barbara Gray and Chester L. Gray, Jr., [1] created, respectively, the “BJG Trust” and the “CLG Trust.” In 2011, they restated the terms of their respective trusts by executing the trust documents at issue in this case.

         Barbara and Chester served as the initial co-trustees of both the CLG Trust and the BJG Trust, which were revocable until their respective settlor's death, at which point they became irrevocable under their provisions. Among the assets included in the CLG Trust is real estate located in Grafton and Springfield, New Hampshire.

         One of the principal purposes of the CLG Trust is to hold and maintain the Grafton and Springfield real estate for Barbara and Chester's descendants “as long as is reasonably and prudently possible.” Doc. 15-1 at 5. To that end, the CLG Trust provides that, after Chester's death, the real estate will be held in a Continuing Trust, which shall exist until certain conditions outlined in Article 2.2.A(2)-(4) of the CLG Trust are met.

         In addition, after Chester's death, the CLG Trust provides for the creation of a “maintenance fund” for the real estate, which is to be funded with assets valued at $820, 000 adjusted for inflation. After all of the CLG Trust provisions have been satisfied, the remainder of the CLG Trust's assets are to be distributed equally among Barbara and Chester Gray's three sons, Skip Gray, Scott Gray, and Evan Gray.

         The BJG Trust provides for the management of Barbara's assets before and after her death. Barbara died in 2013. Following her death, Chester became sole trustee of both trusts.

         Under the BJG Trust, after Barbara's death the income from the trust was payable to Chester “in convenient installments, at least quarterly during his lifetime.” Art. 2.3.A(1), doc. 15-2 at 4. Chester was also allowed to receive “from the principal of the trust from time to time such amounts as are in [the] trustee's discretion necessary for his support and maintenance in his accustomed manner of living and for his health care, after taking into account the income payable to him hereunder and all other resources available to him.” Art. 2.3.A(2), doc. 15-2 at 4. The “power to use principal for [Chester's] benefit shall not be exercised without the consent of an independent trustee or one of [Barbara's] children.” Id.

         Chester remained as trustee of both the BJG Trust and the CLG Trust until his death in 2017. The BJG Trust includes provisions that became effective after the death of both Barbara and Chester. One of the principal provisions of the BJG Trust is Article 2.4.A which provides:

If at the time of the death of my husband and myself, the amount of liquid assets held in the continuing trust for real estate located in Grafton and Springfield, New Hampshire as set forth in my husband's trust is less than [$820, 000 adjusted for inflation], I direct that my trustee distribute from my trust an amount of property that will increase the sums held in said continuing trust of my husband's to [$820, 000 adjusted for inflation].

Doc. 15-2 at 5. Any remaining money and assets are to be distributed equally among Skip, Scott, and Evan.

         After Chester's death, Skip, Scott, and Evan became co-trustees of the BJG Trust, and Skip became sole trustee of the CLG Trust. Skip was also named executor of Chester's estate (the “CLG Estate”).

         This case involves disputes among Skip, Scott, and Evan. Evan brought suit against Skip as executor of the CLG Estate; as sole trustee of the CLG Trust; and as co-trustee of the BJG Trust. Evan alleges that his father, Chester, prior to his death, breached his fiduciary duties while he was the trustee of the BJG Trust. Evan also alleges that Skip has breached his fiduciary duties as trustee of the CLG Trust, and he seeks removal of Skip as co-trustee of the BJG Trust based on alleged conflicts of interest.

         In his capacities as executor of the CLG Estate and trustee of the CLG Trust, Skip filed counterclaims for indemnification and for a declaratory judgment concerning the application of the BJG Trust's “pour over” provision, Article 2.4.A (the “CLG Estate ...


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