United States District Court, D. New Hampshire
Evan W. Gray
Chester L. Gray, III
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE
discussed in the court's prior orders, this case involves
disputes among Chester and Barbara Gray's three children,
Skip, Scott, and Evan Gray. 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. In his Amended Complaint,
Evan alleges that Chester, prior to his death, breached his
fiduciary duties while he was trustee of the BJG Trust
(Counts 1 and 2). Evan brings Counts 1 and 2 in his capacity
as a trustee of the BJG Trust and in his individual capacity.
Evan sues Skip in Skip's capacity as executor of the CLG
filed counterclaims,  the “CLG Estate Counterclaims,
” which were brought in his capacities as executor of
the CLG Estate and trustee of the CLG Trust. Doc. 36. The CLG
Estate Counterclaims are for indemnification (Count I) and
for a declaratory judgment regarding the BJG Trust's
“pour over” provision, Article 2.4.A (Count II).
moves for summary judgment in his favor on Counts 1 and 2 of
Evan's Amended Complaint to the extent Evan brought
Counts 1 and 2 in his individual capacity. Additionally, Skip
moves for summary judgment in his favor as to Count II of the
CLG Estate Counterclaims, arguing that he is entitled to
relief on the merits of that claim and that Evan cannot
prevail on his affirmative defense of equitable estoppel,
which he pled as the Fifth Defense to Count II.
opposes partial summary judgment. Scott, who in his capacity
as a co-trustee of the BJG Trust is a counterclaim defendant
as to the CLG Estate Counterclaims, did not file an
opposition to Skip's motion for summary
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Faiella v. Fed. Nat'l Mortg.
Assoc., 928 F.3d 141, 145 (1st Cir. 2019). “A
genuine issue of material fact only exists if a reasonable
factfinder . . . could resolve the dispute in that
party's favor.” Town of Westport v. Monsanto
Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal
quotation marks and citation omitted).
Trust & CLG Trust
1996, Chester and Barbara Gray each created a trust. Doc.
65-4 (creating the 1996 CLG Trust); Doc. 65-4 (creating the
1996 BJG Trust). The two trusts reserved the right of the
grantors (Chester and Barbara) to revoke or modify the
trusts. Doc. 65-5 at 22; Doc. 65-4 at 22.
2010 and 2011, Attorney Nicholas Harvey served as
Chester's and Barbara's estate planning counsel.
Chester, who was a retired lawyer, paid particular attention
to the details of the estate plans. Ultimately, Attorney
Harvey prepared two trust documents, which Barbara and
Chester executed in 2011: the “First Amendment and
Complete Restatement of the Chester L. Gray, Jr. Trust of
1996” and the “First Amendment and Complete
Restatement of the Barbara J. Gray Trust of 1996, ”
which have been referred to throughout this litigation as the
CLG Trust and the BJG Trust, respectively.
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.
Trust exists, in part, to hold and maintain the Grafton and
Springfield real estate for Barbara and Chester's
descendants “for as long as is reasonably and prudently
possible.” Doc. 62-3 at 4. 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.
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's three sons, Skip, Scott, and Evan.
Trust provides for the management of Barbara's assets
before and after her death. Barbara died on April 9, 2013.
Following Barbara's death, Chester became sole trustee of
both trusts. Chester remained as trustee of both the BJG
Trust and the CLG Trust until his death on April 26, 2017.
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. 62-4 at 4. The “remainder of the trust
property” is to be distributed equally among Skip,
Scott, and Evan. Id.
Chester's death, Skip, Scott, and Evan became co-trustees
of the BJG Trust, and Skip became sole trustee of the CLG
Trust. Skip petitioned the probate division of the New
Hampshire Circuit Court to open a probate administration and
appoint him to administer the CLG Estate. The New Hampshire
court granted Skip's petition for estate administration
and appointed him Executor on June 14, 2017.
originally retained Attorney Catherine Richmond of Stebbins
Bradley, PA, to represent him as fiduciary of the CLG Trust
and CLG Estate, before retaining current counsel Attorney
Ralph Holmes. After Chester's death in late April 2017,
Skip's counsel engaged in correspondence with Evan which
continued throughout 2017 and 2018 and culminated in this
litigation begun by Evan.
December 12, 2017, Evan sent to Skip, by registered mail, a
letter entitled “Notice of Claims and Demand for
Payment.” Doc. 62-8 at 1. In the letter, Evan listed
Skip twice, once as executor of the CLG Estate and once as
trustee of the CLG Trust. In the letter, Evan explained his
PLEASE TAKE NOTICE, pursuant to New Hampshire RSA Section
556:2, that Evan W. Gray, as Trustee of the Barbara J. Gray
Trust of 1996, asserts the following claim(s) against Chester
L. Gray, III, Executor of the Estate of Chester L. Gray, Jr.,
and Chester L. Gray III, Trustee of the Chester L. Gray, Jr.,
Trust of 1996:
Claim(s) for breaches of fiduciary duties by decedent Chester
L. Gray, Jr., as former sole trustee of the Barbara J. Gray
Trust of 1996 from April 9, 2014, through April 26, 2017 (the
“Period”), by: (i) managing the investments of
the Trust for his sole benefit as income beneficiary of the
Trust during the Period, to the detriment of the Trust and
the remainder beneficiaries of the Trust, including without
limitation by concentrating the investments of the trust
solely in municipal bonds and utility stocks bearing high
levels of current income but little or no capital growth,
such that the capital value of the Trust was $100, 000 (One
Hundred Thousand Dollars) less at the end of the Period than
at the beginning of the Period, whereas the Standard &
Poor 500 equity index increased 50% during the Period; (ii)
distributing capital of the Trust to himself in violation of
Paragraphs 2.3.A. (2) and (4) of the Trust instrument; and
(iii) using capital removed improperly from the Trust to
purchase real property in the center of the town of Grafton,
New Hampshire, and donating such real property to the town of
Grafton, New Hampshire, for the decedent's own charitable
benefit, to the detriment of the Trust and the remainder
beneficiaries of the Trust.
PLEASE TAKE FURTHER NOTICE, pursuant to New Hampshire RSA
Section 556:2, that based on the foregoing breaches, Evan W.
Gray, as Trustee of the Barbara J. Gray Trust of 1996,
DEMANDS that the Estate of Chester L. Gray, Jr., and the
Chester L. Gray, Jr., Trust of 1996 pay to the Barbara J.
Trust of 1996 damages in an amount to be ...