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SJC-12070

MICHAEL J. FERRI, trustee,1 & others2 vs. NANCY POWELL-FERRI

& another.3

Suffolk. November 8, 2016. - March 20, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd, 

JJ.4

Trust, Assets of trust, Distribution, Irrevocable trust, 

Spendthrift provision.

Certification of a question of law to the Supreme Judicial 

Court by the Connecticut Supreme Court.

Charles L. Solomont (Nathaniel Bruhn also present) for the 

plaintiffs.

Jeffrey J. Mirman for Paul John Ferri, Jr.

 

1 Of the Paul John Ferri, Jr., Trust and of the Declaration 

of Trust for Paul John Ferri, Jr.

2 Anthony J. Medaglia, trustee of the Paul John Ferri, Jr., 

Trust and of the Declaration of Trust for Paul John Ferri, Jr.;

and Maurice T. FitzMaurice, trustee of the Declaration of Trust 

for Paul John Ferri, Jr.

3 Paul John Ferri, Jr.

4 Justice Botsford participated in the deliberation on this 

case prior to her retirement.
2

Kenneth Walton (Patricia B. Gary also present) for Nancy 

Powell-Ferri.

GAZIANO, J. In this case we are asked to answer three 

questions certified to us by the Connecticut Supreme Court

concerning the authority of a trustee to distribute (i.e., to 

decant) substantially all of the assets of an irrevocable trust 

into another trust. The questions, arising out of divorce 

proceedings pending in Connecticut between Nancy Powell-Ferri 

and her husband Paul John Ferri, Jr., the beneficiary of a 

Massachusetts irrevocable trust, are as follows:

"1. Under Massachusetts law, did the terms of the 

Paul John Ferri, Jr. Trust (1983 Trust) . . . empower its 

trustees to distribute substantially all of its assets 

(that is, to decant) to the Declaration of Trust for Paul 

John Ferri, Jr. (2011 Trust)?

"2. If the answer to question 1 is 'no,' should 

either 75% or 100% of the assets of the 2011 Trust be 

returned to the 1983 Trust to restore the status quo prior 

to the decanting?

"3. Under Massachusetts law, should a court, in 

interpreting whether the 1983 Trust's settlor intended to 

permit decanting to another trust, consider an affidavit of 

the settlor . . . , offered to establish what he intended 

when he created the 1983 Trust?"

For the reasons we discuss, we answer the first question and 

third questions yes, and do not answer the second question.

1. Facts and procedural history. We recite the relevant 

facts presented in the Connecticut Supreme Court's statement of 

facts for certification to this court.
3

The Paul John Ferri, Jr. Trust, dated June 24, 1983 (1983 

Trust), was settled by Paul J. Ferri for the sole benefit of his 

son, Paul John Ferri, Jr. (Ferri Jr. or beneficiary), when Ferri 

Jr. was eighteen years old. The trust was created in 

Massachusetts and is governed by Massachusetts law.

The 1983 Trust establishes two methods by which trust 

assets are distributed to the beneficiary. First, the trustee 

may "pay to or segregate irrevocably" trust assets for the 

beneficiary.5 Second, after the beneficiary reaches the age of 

thirty-five, he may request certain withdrawals of up to fixed 

percentages of trust assets, increasing from twenty-five per 

cent of the principal at age thirty-five to one hundred per cent 

after age forty-seven.

Ferri Jr. and Powell-Ferri were married in 1995. In 

October, 2010, Powell-Ferri filed an action in the Connecticut 

Superior Court to dissolve the marriage. See Ferri v. PowellFerri, 317 Conn. 223, 225 (2015). In March, 2011, the then 

trustees of the 1983 Trust, Michael J. Ferri and Anthony J. 

Medaglia, created the Declaration of Trust for Paul John Ferri,

Jr. (2011 Trust). They subsequently distributed substantially

 

5 The beneficiary also may request, within thirty days of a 

gift to the trust, and subject to the donor's veto of any or all 

such distribution, to withdraw up to the amount of the gift, 

preferably from the gift property.
4

all of the assets of the 1983 Trust to themselves as trustees of 

the 2011 Trust.

As with the 1983 Trust, Ferri Jr. is the sole beneficiary 

of the 2011 Trust. The 2011 Trust is a spendthrift trust; under 

paragraph 1(a), the trustee exercises complete authority over 

whether and when to make payments to the beneficiary, if at all, 

and the beneficiary has no power to demand payment of trust 

assets. The spendthrift provision, in paragraph 4(b), bars the 

beneficiary from transferring or encumbering his interest and, 

as with similar provisions in the 1983 Trust, shields the trust 

from the beneficiary's creditors. The trustees decanted the 

1983 Trust out of concern that Powell-Ferri would reach the 

assets of the 1983 Trust as a result of the divorce action. 

They did so without informing the beneficiary and without his 

consent.

At the time of the decanting, pursuant to art. II.B of the 

1983 Trust, Ferri Jr. had a right to request a withdrawal of up 

to seventy-five per cent of the principal. During the course of 

this action, his vested interest matured into one hundred per

cent of the assets the 1983 Trust.

In August, 2011, the plaintiff trustees of the 1983 Trust 

and the 2011 Trust (trustees) commenced a declaratory judgment 

action against Powell-Ferri and Ferri Jr. in the Connecticut 

Superior Court, seeking a declaration that (1) the trustees 
5

validly exercised their powers under the 1983 Trust to 

distribute and assign the property and assets held by them as 

trustees of the 1983 Trust to the 2011 Trust; and (2) PowellFerri has no right, title, or interest, directly or indirectly, 

in or to the 2011 Trust or its assets, principal, income, or 

other property. Powell-Ferri moved for summary judgment, and 

the trustees file a cross motion. In support of their cross

motion, to demonstrate the intent of the settlor of the 1983 

Trust, the trustees filed an affidavit from Paul J. Ferri, Sr.,

dated July 11, 2012.

In August, 2013, the trial judge granted Powell-Ferri's 

motion for summary judgment and denied the trustees' cross

motion, after first having allowed Powell-Ferri's motion to 

strike the affidavit. In a subsequent memorandum of decision 

explaining the reasons for the allowance of Powell-Ferri's 

motion, and awarding specific remedies, the judge ordered

restoration of seventy-five per cent of the assets of the 2011 

Trust, as they were held in the 1983 Trust; an accounting of the 

2011 Trust from inception to the date of restoration; and an 

award of reasonable attorney's fees to Powell-Ferri.

2. Discussion. The interpretation of a written trust is a 

matter of law to be resolved by the court. See Mazzola v. 

Myers, 363 Mass. 625, 633 (1973). The rules of construction of 

a contract apply similarly to trusts; where the language of a 
6

trust is clear, we look only to that plain language. See 

Harrison v. Marcus, 396 Mass. 424, 429 (1985). "Determining the 

existence of a contract ambiguity [also] presents a question of 

law for the court; when a trial judge undertakes the 

interpretation of an unambiguous contract, the judge's ruling is 

subject to plenary review on appeal." Bank v. Thermo Elemental 

Inc., 451 Mass. 638, 648 (2008), and cases cited.

In deciding whether there is ambiguity, "the court must 

first examine the language of the contract by itself, 

independent of extrinsic evidence concerning the drafting 

history or the intention of the parties." Id. at 648, citing 

General Convention of the New Jerusalem in the U.S. of Am., Inc. 

v. MacKenzie, 449 Mass. 832, 835–836, 838 (2007) (analyzing 

indemnity provision in lease of real property held in trust). 

Language is ambiguous "where the phraseology can support a 

reasonable difference of opinion as to the meaning of the words 

employed and the obligations undertaken." Bank, 451 Mass. at 

648, quoting President & Fellows of Harvard College v. PECO 

Energy Co., 57 Mass. App. Ct. 888, 896 (2003). If a court 

concludes that such ambiguity exists, "[w]hen interpreting trust 

language, . . . we do not read words in isolation and out of 

context. Rather we strive to discern the settlor's intent from 

the trust instrument as a whole and from the circumstances known 

to the settlor at the time the instrument was executed." 
7

Hillman v. Hillman, 433 Mass. 590, 593 (2001), citing Pond v.

Pond, 424 Mass. 894, 897 (1997).

"It is fundamental that a trust instrument must be 

construed to give effect to the intention of the donor as 

ascertained from the language of the whole instrument considered 

in the light of circumstances known to the donor at the time of 

its execution." Watson v. Baker, 444 Mass. 487, 491 (2005), 

quoting Powers v. Wilkson, 399 Mass. 650, 653 (1987).

"[E]xtrinsic evidence may be admitted when a contract is 

ambiguous on its face or as applied to the subject matter. The 

initial ambiguity must exist, however . . . . [E]xtrinsic 

evidence cannot be used to contradict or change the written 

terms, but only to remove or to explain the existing uncertainty 

or ambiguity." General Convention of the New Jerusalem in the 

U.S. of Am., Inc., 449 Mass. at 836. "In determining the 

meaning of a contractual provision, the court will prefer an 

interpretation 'which gives a reasonable, lawful and effective 

meaning to all manifestations of intention, rather than one 

which leaves a part of those manifestations unreasonable, 

unlawful or [of] no effect'" (citation omitted) Siebe, Inc. v. 

Louis M. Gerson Co., 74 Mass. App. Ct. 544, 550 n.13 (2009).
8

We first authorized the trustee of an irrevocable trust to 

decant a trust in Morse v. Kraft, 466 Mass. 92, 99 (2013).

6 In 

that case, we allowed the trustee to decant four subtrusts into 

four new subtrusts, one for each of the named beneficiaries, who 

had been minors when the first trust was created and who had 

reached the age of majority before the trust was decanted. Id. 

at 93. In doing so, we relied on specific language in the 

trust, which did not explicitly authorize decanting, and the 

trustee's broad powers under that trust instrument. Id. at 97, 

99. We declined, however, to recognize an inherent power 

allowing a trustee to decant irrespective of the language of the 

trust. Id. at 99. Accordingly, a trustee's decanting authority 

turns on the facts of each case and the terms of the instrument 

that establishes the trust. Id. at 97.

With these standards in mind, we turn to consideration of 

the questions certified by the Connecticut Supreme Court.

a. Question 1. The term decanting ordinarily is "used to 

describe the distribution of [irrevocable] trust property to 

another trust pursuant to the trustee's discretionary authority 

to make distributions to, or for the benefit of, one or more 

beneficiaries [of the original trust]." Morse, 466 Mass. at 95. 

Decanting has the effect of "amend[ing] an unamendable trust, in 

 

6 That decision was issued during the pendency of the 

proceedings in the Connecticut court; the trustees filed a copy 

of the decision in that court in July, 2013.
9

the sense that [the trustee] may distribute the trust property 

to a second trust with terms that differ from those of the 

original trust." Id. The rationale underlying the authority to 

decant is that if a trustee has the discretionary power to 

distribute property to or for the benefit of the beneficiaries, 

the trustee likewise has the authority to distribute the 

property to another trust for the benefit of those same 

beneficiaries. Id.

In the absence of a specific statutory provision allowing 

decanting, we have determined that a trustee of a Massachusetts 

irrevocable trust may be given the authority to decant assets in 

further trust through language in the trust. Id. In 

determining whether a trustee has such authority, the intent of 

the settlor is "paramount." Id. at 98. See C.E. Rounds, Jr., & 

C.E. Rounds, III, Loring & Rounds: A Trustee's Handbook § 6.1.2 

(2017) (Loring & Rounds). See also P.M. Annino, Estate Planning 

§ 13.42 (3d ed. 2007) (trust decanting). While we explicitly 

have declined to adopt a formulaic rule regarding trustees'

powers to decant trust assets, see Morse, 466 Mass. at 99, some 

general principles provide guidance. The authority to decant 

need not be expressly granted to the trustee in the declaration 

of trust, id. at 98; a court may conclude that such authority 

exists based on other trust language, id. at 96-97. The 

determination is reached by assessing the terms of a particular 
10

trust instrument and other relevant evidence of the settlor's 

intent. Id. at 97. When deciding whether a particular trust 

authorized a trustee to decant, "the language used by the donor 

viewed in light of the rule of law in effect . . . at the time 

the powers in question were created" is "particularly 

significant" (citation omitted). Id. at 98. See S.M. Dunphy,

Probate Law and Practice § 39.2 (2d ed. 1997) (powers of 

trustees).

Here, after having examined the extremely broad authority 

and discretion afforded the trustees by the 1983 Trust 

declaration of trust, the anti-alienation provision of the 1983 

Trust, the beneficiary withdrawal rights afforded under the 

terms of the 1983 Trust, and the settlor's affidavit, we 

conclude that the terms of the 1983 Trust, read as a whole, 

demonstrate the settlor's intent to permit decanting.

i. Trustee's discretion. A trustee's broad discretion to 

distribute the assets of an irrevocable trust may be evidence of 

a settlor's intent to permit decanting. In Morse, 466 Mass. at 

98, for instance, we noted the trustee's "almost unlimited" 

discretion, and that the only constraint on the discretion to 

"distribute property directly to, or [to apply it] for the 

benefit of, the trust beneficiaries, [was] . . . that such 

distributions must be 'for the benefit of' such beneficiaries." 

We considered also that the trustee in that case had the 
11

authority to "exercise his 'full power' and 'discretion,'"

without seeking prior court approval. Id. at 99. States that 

have enacted explicit decanting provisions similarly look to a 

trustee's broad authority to distribute principal from the trust 

for the benefit of one or more of the beneficiaries when 

determining whether the trustee has the authority to decant. 

See, e.g., Fla. Stat. § 736.04117.7 Indeed, having reviewed what 

she concluded were the then eleven states to have enacted 

explicit statutory provisions allowing decanting, the 

Connecticut trial court judge noted this in her decision and 

commented that, if appropriate at all, the authority to decant 

would be, in her view, contingent upon a very broad discretion 

on the part of a trustee.

The 1983 Trust contains three provisions relative to the 

trustee's discretion to distribute assets that are virtually 

 

7 Florida Statutes § 736.04117 provides in relevant part:

"(1)(a) Unless the trust instrument expressly provides 

otherwise, a trustee who has absolute power under the terms 

of a trust to invade the principal of the trust, referred 

to in this section as the 'first trust,' to make 

distributions to or for the benefit of one or more persons 

may instead exercise the power by appointing all or part of 

the principal of the trust subject to the power in favor of 

a trustee of another trust, referred to in this section as 

the 'second trust,' for the current benefit of one or more 

of such persons under the same trust instrument or under a 

different trust instrument; provided:

"1. The beneficiaries of the second trust may include 

only beneficiaries of the first trust . . . ." 
12

identical to provisions in the Morse trust. Article II.A 

provides, "So long as [the beneficiary] is living, [the trustee] 

shall, from time to time, pay to or segregate irrevocably for 

later payment to [the beneficiary], so much of the net income 

and principal of this trust as [the trustee] shall deem 

desirable for [the beneficiary's] benefit . . . ." Article V.A 

states, "Wherever provision is made hereunder for payment of 

principal or income to a beneficiary, the same may instead be

applied for his or her benefit." In addition, art. VI provides 

that the trustee "shall have full power to take any steps and do 

any acts which he may deem necessary or proper in connection 

with the due care, management and disposition of the property 

and income of the trust hereunder . . . in his discretion, 

without order or license of court."

The 1983 Trust also contains a number of additional 

provisions authorizing the trustee to distribute assets. 

Article II (Disposition of the Trust Property) sets forth the 

means by which the trustee may "dispose of the trust property" 

during the beneficiary's life. Article II.A states that, so 

long as the beneficiary is living, the trustee shall "from time 

to time, pay to or segregate irrevocably for later payment to 

[the beneficiary], as much of the net income and principal of

this trust as [the trustee] shall deem desirable for [the 

beneficiary's] benefit" (emphasis supplied).
13

Viewing the language of the 1983 Trust in its entirety, the 

trustee's extremely broad discretion is evident throughout the 

trust instrument. The 1983 Trust plainly allows the trustee far 

more expansive discretion to act than even the broad discretion 

we recognized in Morse, supra, with no oversight other than the 

requirement to provide reporting from time to time at the 

request of the beneficiary.

The explicit authority of the trustee of the 1983 Trust to 

"segregate irrevocably for later payment to" the trust 

beneficiary further indicates the settlor's intention to allow 

decanting. In common usage, to "segregate" means "to separate

or set apart from others or from the general mass or main body: 

isolate," "to cause or force the separation of," "to separate or 

withdraw (as from others or from a main body)." Webster's Third 

New International Dictionary 2056-2057 (2003) (Webster's). See 

Black's Law Dictionary 1563 (10th ed. 2014) (defining 

"segregate" as "[t]o separate or make distinct from others or 

from a general aggregate; to isolate" and "[t]o cause or require 

separation from others"). "Irrevocable" means "incapable of 

being recalled or revoked" and "unalterable." Webster's, supra

at 1196. Decanting trust assets to an irrevocable trust is one 

way to "segregate" assets "irrevocably." See Morse, 466 Mass. 

at 98, quoting Loring v. Karri-Davies, 371 Mass. 346, 349-350 

(1976) ("We believe that 'it is fair to suppose that the [donor] 
14

in using the language which appears in the [trust] had in mind 

the interpretation of similar words and clauses").

This interpretation of art. II.A is supported by language 

in art. V.A: "Wherever provision is made hereunder for payment 

of principal or income to a beneficiary, the same may instead be 

applied for his or her benefit" (emphasis supplied). This power 

parallels the language and grant of authority that we concluded

authorized decanting in Morse, 466 Mass. at 96-98 (trust 

authorized decanting under trustee's power to "pay to" 

beneficiary or to apply payments of income or principal for 

benefit of beneficiary). We stated explicitly in Morse that we 

declined to rely on a particular form of words in determining 

whether the language of a particular trust allowed decanting, 

and that we would focus foremost on determining the settlor's 

intent. Here, however, where the language of the trust is 

almost identical to that we found to have conveyed the authority 

to decant in Morse, and where the settlor's intention to convey

to the trustee almost unlimited discretion to act is evident, 

the conclusion that the settlor intended to authorize decanting

would seem to follow necessarily.

There are, however, two sections of the trust language that 

might suggest, as Powell-Ferri argues, a conclusion to the 

contrary, and we turn next to these provisions.
15

ii. Anti-alienation provision. Article V.B of the 1983 

Trust provides that "[n]either the income nor the principal of 

any trust hereunder shall be alienable by any beneficiary . . . 

and the same shall not be subject to be taken by his or her 

creditors by any process whatever." When interpreting trust 

language, words should not be read "in isolation and out of 

context." Hillman, 433 Mass. at 593. Courts "strive to discern 

the settlor's intent from the trust instrument as a whole and 

from the circumstances known to the settlor at the time the 

instrument was executed." Id. Viewing the 1983 Trust document 

"as a whole, and giving due weight to all of its language," id., 

we conclude that empowering the trustee to decant is consistent 

with this anti-alienation provision.

We have said, when confronting similar language, that this

type of anti-alienation provision "evidences the settlor's 

intent to protect the trust income and principal from invasion 

by the beneficiary's creditors." Bank of New England v. 

Strandlund, 402 Mass. 707, 709 (1988). It follows that if a

settlor intended a trust's assets to be protected from 

creditors, he or she necessarily intended that the trustee have 

the means to protect the trust assets, consistent with his or 

her fiduciary duties.8

 

8 Nancy Powell-Ferri argues that, under Massachusetts law, a 

party to a divorce is not a "creditor" for the purposes of this 
16

iii. Beneficiary withdrawal provisions. Article II.B of 

the 1983 Trust provides that the trustee "shall pay to [the 

beneficiary] after he has attained the age of thirty-five (35) 

years such amounts of principal as he may from time to time in 

writing request," with explicit limitations on the percentage of 

the principal that may be withdrawn at different ages, up to the 

age of forty-seven, after which the beneficiary is entitled to 

withdraw one hundred per cent of the trust assets.9

At the time the trustees decanted the 1983 Trust assets 

into the 2011 Trust, under the terms of art. II.B, the 

beneficiary had the right to request a withdrawal of up to 

seventy-five per cent of the principal of the 1983 Trust.

During the pendency of this action, the beneficiary reached the 

age of forty-seven, and his irrevocable vested interest matured 

into one hundred per cent of the corpus of the trust. The 

beneficiary states that, throughout the life of the 1983 Trust, 

 

type of provision, and that a trust is marital property subject 

to equitable distribution notwithstanding an anti-alienation 

provision. See Lauricella v. Lauricella, 409 Mass. 211, 216-217

(1991). Any question concerning the equitable distribution of 

the trust assets is not part of the certified questions to this 

court and is not properly before us. See DiFiore v. American 

Airlines, Inc., 454 Mass. 486, 488 n.4 (2009).

9 The limitations on the percentage of the principal that 

the beneficiary may withdraw are as follows: beginning at age 

thirty-five, the beneficiary could request in writing a 

distribution of up to twenty-five per cent of the trust 

principal; after reaching age thirty-nine, up to fifty per cent;

and beginning at age forty-three, up to seventy-five per cent. 

Beginning at age forty-seven, there is no limitation.
17

he has requested and received only a small percentage of the 

trust assets.

Powell-Ferri argues that the beneficiary's right under the 

1983 Trust to request a withdrawal of a certain percentage of 

trust assets is wholly inconsistent with the authority to 

decant. She contends that decanting the 1983 trust into the 

2011 spendthrift trust impaired the interests of the beneficiary 

to withdraw trust assets upon written request.

We do not agree, for three reasons. First, Powell-Ferri's 

contention runs counter to our mandate to read trust provisions 

consistently with the entire trust document, and in a manner 

that gives effect to all trust language. See Hillman, 433 Mass. 

at 593 ("When interpreting trust language, . . . we do not read 

words in isolation and out of context. Rather, we strive to 

discern the settlor's intent from the trust instrument as a 

whole . . ."). If the trustee were unable to decant the portion 

of trust assets made "withdrawable" as the beneficiary reached 

certain age milestones, the trustee correspondingly would lose 

the ability to exercise his or her fiduciary duties (including 

the duty to invest and protect the assets' purchasing power)

over those assets, eventually losing power to control one 

hundred per cent of the assets upon the beneficiary turning 

forty-seven years of age, pursuant to art. II.B. Under PowellFerri's interpretation, the trustee effectively would be without 
18

a role upon the beneficiary's reaching the age of forty-seven. 

This interpretation makes little sense.

Second, a trustee holds "full legal title to all property 

of a trust and the rights of possession that go along with it." 

McClintock v. Scahill, 403 Mass. 397, 399 (1988). See Welch v. 

Boston, 221 Mass. 155, 157 (1915) ("It is one of the fundamental 

characteristics of trusts that the full and exclusive legal

title is vested in the trustee"). Here, at the time the 

trustees decanted substantially all of the 1983 Trust's assets 

to the 2011 Trust, the beneficiary had withdrawn only a small 

percentage of the assets under art. II.B. Therefore, a 

substantial portion of the trust assets remained in the 1983 

Trust, subject to the trustee's authority and stewardship.

In analyzing the meaning of this provision, it is 

instructive to consider the circumstance of the termination of a 

trust. When a trust terminates, the beneficiaries obtain a 

vested interest in the trust property that is not unlike the 

beneficiary's withdrawal right here. Notwithstanding this 

vested right, however, the trustee of a terminated trust retains

ongoing duties to control and protect the trust assets, and may 

continue to act pursuant to the powers provided under the trust 

instrument. See Rothwell v. Rothwell, 283 Mass. 563, 570, 572 

(1933) (following trust's termination date, "the duties and 

powers of the trustees do not cease" until trust property is 
19

conveyed, and, until such conveyance, "the trustees [have] power 

to perform any act incidental to the conservation of the [trust]

property"). See Loring & Rounds, supra at § 8.2.3 ("A trustee 

of a terminated trust has continuing fiduciary 

responsibilities. . . . It is not until the trustee is done 

'winding up' the trust's administration, to include making 

distribution 'in a manner consistent with the purposes of the 

trust and the interests of the beneficiaries,' is the trustee 

relieved of fiduciary duties" [citations omitted]).

Third, this mechanism for the beneficiary's withdrawal of 

trust assets does not limit the trustee's decanting authority. 

The two mechanisms for distribution provided under art. II are 

not mutually exclusive. We read arts. II.A and II.B as 

comprising a unified framework governing distribution of the 

trust assets whereby, under art. II.B, the beneficiary has a 

graduating right of withdrawal of those trust assets that have

not been distributed pursuant to the trustee's payment to him or 

to the irrevocable sequestering of trust property under art. 

II.A.

Further, in reading arts. II.A and II.B as a coherent 

whole, we note that the 1983 Trust empowers the trustee to 

segregate assets irrevocably for "[s]o long as [the beneficiary]

is living," in other words, both before the beneficiary's 

withdrawal rights began to vest at the age of thirty-five, and 
20

thereafter. This authority is counter to Powell-Ferri's 

argument that the settlor intended to bar decanting after the 

beneficiary gained withdrawal rights at the age of thirty-five. 

If decanting were so barred, art. II.A would not have allowed 

irrevocable sequestration for "[s]o long as [the beneficiary] is 

living."

Accordingly, reading the entirety of art. II in harmony, it 

provides that, unless and until all of the trust assets were

distributed in response to the beneficiary's request for a 

withdrawal, the trustee could exercise his or her powers and 

obligations under the 1983 Trust, including the duty to decant 

if the trustee deemed decanting to be in the beneficiary's best 

interest.10,11

b. Question 3. The third certified question asks whether, 

under Massachusetts law, a court should consider an affidavit by 

the settlor, stating his intent in establishing the 1983 Trust, 

 

10 We are cognizant that the Connecticut judge relied 

heavily in her determination that the decanting was not 

authorized under the terms of the 1983 Trust based on her

understanding of divorce law in Connecticut, and its policies 

that all assets of a marriage on the date that an action for 

dissolution is filed are available for later distribution. We 

note in this regard, as the trial judge herself apparently 

already has anticipated by suggesting an alternative order for 

payment of alimony if the decanting is deemed proper, that the 

alimony order may be revised in light of this determination as 

to the trust assets. See Pfannenstiehl v. Pfannenstiehl, 475

Mass. 105, 106 (2016).

11 Given this, we need not reach Question 2, which is 

applicable only if we were to have answered "No" to Question 1.
21

in reaching a determination whether, in creating the 1983 Trust, 

the settlor intended to permit decanting to another trust.

Where, as here, there is any question of ambiguity concerning 

the settlor's intent, Massachusetts courts may consider 

extrinsic evidence. See, e.g., General Convention of the New 

Jerusalem in the U.S. of Am., Inc., 449 Mass. at 835-836.

In determining the settlor's intent on the question of 

decanting in Morse, 466 Mass. at 99, we considered the settlor's 

affidavit and noted that it provided "affirmative evidence of 

the settlor's intent that the terms of the [Morse trust] give 

the plaintiff decanting power in the form of affidavits from the 

settlor, draftsman, and trustee." We also cited the Restatement 

(Third) of Property as further support for the use of 

postexecution affidavits as affirmative evidence. See id.; 

Restatement (Third) of Property: Wills and Other Donative 

Transfers § 10.2 & comment g (2003) ("In seeking to determine 

the donor's intention, all relevant evidence, whether direct or 

circumstantial, may be considered, including the text of the 

donative document and relevant extrinsic evidence"). See also 

Loring & Rounds, supra at Introduction ("In the case of an 

irrevocable inter vivos trust, the settlor's intentions at the 

time of funding are what determine its terms. That having been 

said, postfunding statements of the settlor might be admissible 

to clarify what those intentions were" [emphasis in original; 
22

footnote omitted]). Indeed, this court has allowed the 

reformation of a trust instrument to conform to the settlor's 

intent, and has permitted the introduction of an affidavit by

the drafter to show that the language of the instrument was

inconsistent with the intent of the settlor. See Walker v. 

Walker, 433 Mass. 581, 587 (2001).

The settlor's affidavit, dated July 11, 2012, states, in 

pertinent part:

"I intended to give to the trustee of the 1983 Trust 

the specific authority to do whatever he or she believed to 

be necessary and in the best interest of my son Paul John 

Ferri, Jr. with respect to the income and principal of the 

1983 Trust notwithstanding any of the other provisions of 

the 1983 Trust. . . . Therefore, if the trustee thought at

any time that the principal and income of the 1983 Trust 

could be at risk, the trustee could take any action 

necessary to protect the principal and income of the 1983 

Trust. . . . This authority to protect assets would also 

extend to a situation where creditors of Paul John Ferri, 

Jr. may attempt to reach the assets of the 1983 Trust such 

as in the event of lawsuit or a divorce."

Because, where there is ambiguity, a court may consider an 

affidavit of the settlor in interpreting whether the settlor 

intended to permit decanting to another trust, see, e.g., Bank, 

451 Mass. at 649, we consider the settlor's affidavit regarding 

his intentions at the time that he created the 1983 Trust, which 

the Connecticut trial court judge ordered struck on PowellFerri's motion. In considering this affidavit, we do not 

"create an ambiguity [where] the plain language is unambiguous." 

General Convention of the New Jerusalem in the U.S. of Am., 
23

Inc., 449 Mass. at 835. Nor do we agree with Powell-Ferri's 

argument that the affidavit was offered improperly to alter the 

terms of the declaration of trust. Given that the declaration 

of the 1983 Trust expressly neither permits nor bars decanting, 

the affidavit does not contradict or attempt to vary the terms 

of the trust.

The statements in the settlor's affidavit further support

the settlor's evident intention in the language of the 

1983 Trust document, including the power to "segregate 

irrevocably" under art. II.A and the beneficiary's right to 

request withdrawals of trust assets at certain age milestones 

under art. II.B, to provide the trustee with the power to 

decant. Because the intent of the settlor is "paramount," 

Morse, 466 Mass. at 98, and the settlor's affidavit evidences 

the settlor's intent at the time of execution, the settlor's 

affidavit should be considered.

3. Disposition. An order shall issue to the Connecticut 

Supreme Court answering the certified questions as follows: We

answer Question 1, "Yes"; we do not answer Question 2; and we 

answer Question 3, "Yes."

The Reporter of Decisions is directed to furnish attested 

copies of this opinion to the clerk of this court. The clerk in 

turn will transmit one copy, under the seal of the court, to the 

clerk of the Connecticut Supreme Court, as the answer to the 
24

questions certified, and will also transmit a copy to each 

party.
GANTS, C.J. (concurring, with whom Lenk and Budd, JJ., 

join). I agree with the court, for all the reasons given by the 

court, that under Massachusetts law the terms of the 1983 Trust

empower its trustees to decant its assets to a trust newly 

created by the trustees. I write separately to emphasize what 

we did not decide in answering the reported questions certified 

to us by the Connecticut Supreme Court: whether Massachusetts 

law will permit trustees in Massachusetts to create a new 

spendthrift trust and decant to it all the assets from an 

existing non-spendthrift trust where the sole purpose of the 

transfer is to remove the trust's assets from the marital assets 

that might be distributed to the beneficiary's spouse in a 

divorce action.

The Connecticut Supreme Court held that, under Connecticut 

law, the public policy that would prevent one spouse during a 

divorce proceeding from transferring marital assets to deprive 

the other spouse of those assets did not apply here because it 

was undisputed that the beneficiary husband did not have a role 

in creating the new 2011 Trust or in decanting the assets from 

the 1983 Trust to the 2011 Trust. Ferri v. Powell-Ferri, 317 

Conn. 223, 233-234 (2015). The trial court had found that the 

trustees of the 1983 Trust, one of whom was the husband's 

brother, did not consult with the husband before taking these 

steps to frustrate the wife's equitable claim to these assets. 
2

Our opinion, because it simply answered certified questions from 

another State Supreme Court, appropriately did not address 

whether we would find the creation of a new spendthrift trust 

intended solely to deprive the beneficiary's spouse of marital 

assets during a divorce proceeding through a decanting to be 

invalid as contrary to public policy under Massachusetts law.

Under the Massachusetts Uniform Trust Code, G. L. c. 203E, 

§ 404, "A trust may be created only to the extent its purposes 

are lawful and not contrary to public policy." Where, as here, 

the trustees created a new spendthrift trust for the sole 

purpose of decanting the assets of an earlier trust that, at 

least in part, would be included within the marital assets 

available for distribution during a divorce proceeding, § 404 

would require us to consider whether the creation of the new 

spendthrift trust was contrary to public policy.

Before the enactment of § 404, we held under our common law 

that a trust is void when it is contrary to public policy. See 

Perkins v. Hilton, 329 Mass. 291, 294-295 (1952) (trust for 

mother's benefit was "illegal and invalid" where it was part of 

attempt by defendant to obtain special benefits of servicemen's 

readjustment act to which only veterans are entitled, and was 

"in effect a fraud upon the act and contrary to public policy");

Otis v. Prince, 10 Gray 581, 581 (1858) (trust that required 

trustee to pay net income from trust to testator's grandson only 
3

"so long as he shall remain unmarried" was void as contrary to 

public policy). See generally Restatement (Third) of Trusts 

§ 29 (2003) ("An intended trust or trust provision is invalid if 

its purpose or performance is unlawful or against public 

policy").

Similarly, under our common law of contract, we have 

declared that "it is a principle universally accepted that the 

public interest in freedom of contract is sometimes outweighed 

by public policy, and in such cases the contract will not be 

enforced." Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc., 

422 Mass. 318, 321 (1996). We have applied this principle by 

declining to enforce various contracts that we concluded were 

contrary to public policy. See, e.g., A.Z. v. B.Z., 431 Mass. 

150, 160 (2000) (contracts that "compel [a] donor [of frozen 

preembryos] to become a parent against his or her will" violate 

public policy); Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 

360-361 (1990) ("a provision in an insurance policy that 

provides coverage only when there is no liability is void as 

against public policy"); Osborne v. Osborne, 384 Mass. 591, 599 

(1981) ("certain contracts may so unreasonably encourage divorce 

as to be unenforceable").

Under our common law of employment, we have held that, in 

certain limited circumstances, an employer may be held liable 

for discharging an at-will employee "for a reason that violates 
4

clearly established public policy." Upton v. JWP Businessland, 

425 Mass. 756, 757 (1997). See, e.g., Flesner v. Technical 

Communications Corp., 410 Mass. 805, 810 (1991) (terminating atwill employee for cooperating with United States Customs Service 

officials who were investigating his employer violates public 

policy); DeRose v. Putnam Mgt. Co., 398 Mass. 205, 208-211 

(1986) (terminating at-will employee for failing to give false 

testimony against coworker violates public policy).

I do not offer any prediction as to whether this court 

might invalidate as contrary to public policy a new spendthrift 

trust created for the sole purpose of decanting the assets from 

an existing non-spendthrift trust in order to deny the 

beneficiary's spouse any equitable distribution of these trust 

assets. I simply make clear that, in this opinion, we do not 

decide this issue; we will await a case that presents such an 

issue before we decide it.

I also note that the Legislatures of at least twenty-five 

States have codified limitations on decanting from one trust to 

another by statute.12 If our Legislature were to choose to enact 

 

12 Alaska Stat. § 13.36.157; Ariz. Rev. Stat. Ann. § 14-

10819; Colo. Rev. Stat. §§ 15-16-901 et seq.; Del. Code Ann. 

tit. 12, § 3528; Fla. Stat. § 736.04117; 760 Ill. Comp. Stat. 

5/16.4; Ind. Code § 30-4-3-36; Ky. Rev. Stat. Ann. § 386.175; 

Mich. Comp. Laws §§ 556.115a, 700.7820a; Minn. Stat. § 502.851; 

Mo. Rev. Stat. § 456.4-419; Nev. Rev. Stat. § 163.556; N.H. Rev. 

Stat. Ann. §§ 564-B:4-418, 564-B:4-419; N.M. Stat. Ann. §§ 46-

12-101 et seq.; N.Y. Est. Powers & Trusts Law § 10-6.6; N.C. 
5

its own decanting statute, I would urge it to consider the use 

of decanting presented in this case.

 

Gen. Stat. § 36C-8-816.1; Ohio Rev. Code Ann. § 5808.18; R.I. 

Gen. Laws § 18-4-31; S.C. Code Ann. § 62-7-816A; S.D. Codified 

Laws §§ 55-2-15 to 55-2-21; Tenn. Code Ann. § 35-15-816; Tex. 

Prop. Code Ann. §§ 112.071 et seq.; Va. Code Ann. § 64.2-778.1; 

Wis. Stat. § 701.0418; Wyo. Stat. Ann. § 4-10-816.