NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

18-P-871 Appeals Court

18-P-872

IN THE MATTER OF THE ESTATE OF DAVID E. STACY.

DEBORAH A. STACY, personal representative,1 & others2 vs. IANA

A. STACY.3

Nos. 18-P-871 & 18-P-872.

Barnstable. March 1, 2019. - November 8, 2019.

Present: Green, C.J., Neyman, & Henry, JJ.

Devise and Legacy, Intestacy, Personal property. Husband and 

Wife, Antenuptial agreement. Contract, Construction of 

contract, Antenuptial agreement. Trust, Distribution.

Petition for probate of a will filed in the Barnstable 

Division of the Probate and Family Court Department on February

26, 2014.

A petition to render an inventory and account, filed on 

April 7, 2016, was heard by Robert A. Scandurra, J., on a 

statement of agreed facts.

Complaint in equity filed in the Barnstable Division of the 

Probate and Family Court Department on July 23, 2015. 

 

1 Of the estate of David E. Stacy.

2 Elaine Kelley and David Kelley.

3 Although the two cases were argued separately, because 

they have overlapping facts and legal issues, we have 

consolidated them for purposes of decision.
2

The case was heard by Robert A. Scandurra, J.

R. Alan Fryer for the plaintiffs.

Heidi A. Grinsell for the defendant.

HENRY, J. At the heart of these cases is the proper 

distribution of the assets of the decedent, David E. Stacy, in 

light of a premarital agreement executed by him and his wife, 

Iana Stacy (Iana or wife),4 and the fact that his will did not 

provide for his wife and expressly excluded his son from a prior 

marriage. These issues have arisen in the context of two 

separate cases: (1) a petition brought by the wife against the 

personal representative of the estate to render an inventory and 

account (in 18-P-871, which we shall call the inventory action), 

and (2) an equity action commenced by the personal 

representative to recover items belonging to the estate that are

in the wife's possession (in 18-P-872, which we shall call the 

estate asset recovery action). Because our de novo review of 

the premarital agreement differs from that of the Probate and 

Family Court judge, which in turn impacts the outcome of the 

decedent's estate plan, we vacate and modify portions of the 

judgment and decree and remand for further proceedings as 

necessary.

 

4 We use the first names of those who have a common surname.
3

Factual background. The decedent died on February 12, 

2014. He was survived by his wife of approximately six years, 

Iana, and his minor son from a prior marriage. He was also 

survived by his biological mother, Elaine Kelley (Elaine); his 

sister, Deborah Stacy (Deborah); and his adoptive mother, Joan 

Bentinck-Smith, who adopted the decedent in 1995 when he was 

thirty-four years old. 

1. The decedent's last will and the David E. Stacy 

Revocable Trust of 2001. The decedent executed his last will on 

August 19, 2003 (decedent's will), and nominated Deborah as the 

executor of his will. Subsequently, she was appointed personal 

representative of his estate. The decedent's will bequeathed 

all of his property to the trustee of the David E. Stacy 

Revocable Trust of 2001 (2001 Trust). The decedent expressly 

omitted from his will his son, a former wife, and his adoptive 

mother, Bentinck-Smith. 

As amended in 2003, the 2001 Trust named as sole 

beneficiary the decedent's biological mother, Elaine. The 

decedent also excluded from the 2001 Trust his son, former wife, 

and adoptive mother as beneficiaries. The 2001 Trust, as 

amended, appointed Deborah as trustee. 

The wife is not named as a beneficiary in either the 

decedent's will or the 2001 Trust, which were both executed 

prior to their 2008 marriage. 
4

2. The premarital agreement. The decedent and the wife 

entered into a premarital agreement on July 18, 2008. The 

parties dispute the interpretation of this agreement. However, 

it is undisputed that the premarital agreement enumerated the 

parties' separate property owned by each of them at the time of 

the marriage.5 The decedent included in his list of assets 

something called "Pigeon Trust." Bentinck-Smith created the 

Pigeon Trust, an irrevocable life insurance trust, naming as 

"the beneficiaries" only one beneficiary: David E. Stacy, the 

decedent. Article VI of the Pigeon Trust, identifying the 

decedent as the beneficiary, did not expressly identify the 

decedent's estate as a beneficiary should he predecease the 

donor, although other provisions did identify the decedent's 

estate. The decedent's list of assets in the premarital 

agreement described the Pigeon Trust, (a) identifying himself as 

the beneficiary, (b) identifying the successor beneficiary as 

"___," (c) stating the principal value of this asset as of July

14, 2008, and (d) noting there would be no distribution of trust 

 

5 "Separate property of a party" is defined in the 

premarital agreement in part as "all property owned by that 

party prior to the marriage in his or her name individually, in 

trust or otherwise, including but not limited to property owned 

or to become owned as a beneficiary of any trust, or in any form 

of ownership whatsoever with any other person (other than the 

other party)." 
5

principal until the death of the donor, who was his adoptive 

mother, Bentinck-Smith.6 

As already stated, Bentinck-Smith survived the decedent. 

The surrender value of the life insurance policy held by the 

Pigeon Trust as of December 5, 2016, was $1,648,879.45. 

We reserve recitation of additional terms of the premarital 

agreement and the Pigeon Trust for discussion below.

Procedural background. The largest asset in dispute is the 

Pigeon Trust. Thus, before turning to the two lawsuits on 

appeal, we first address an earlier action that the personal 

representative filed concerning disposition of the Pigeon Trust.

1. Litigation regarding the Pigeon Trust. In May 2015, 

Deborah, as personal representative of the decedent's estate, 

filed a petition to terminate the Pigeon Trust early. Later, 

the trustees of the Pigeon Trust (Pigeon trustees) filed a 

petition for instructions as to whether the rightful beneficiary 

of the trust was the decedent's estate or the decedent's 

descendant.7 The court consolidated these two petitions. After 

 

6 The decedent's list of assets in the premarital agreement

also included several real properties, the "2003 D.E.S. Support 

Trust (Irrevocable)," a $990,990 judgment, jewelry worth 

$186,000, a coin collection, other collections, tools and 

equipment, several specific bank accounts and investments, three 

automobiles, a boat, arts and antiques, loose gemstones, and a 

business, Stacy Imports, Inc. 

7 While the terms of the Pigeon Trust limited amendments to 

correction of scrivener's errors and prohibited amendment to the 
6

mediation, Deborah, individually and in her dual capacities as 

personal representative of the decedent's estate and as trustee 

of the 2001 Trust; the Pigeon trustees; a guardian ad litem for 

Bentinck-Smith; and a guardian ad litem for the decedent's son

eventually came to a "Non-Judicial Settlement Agreement" 

(settlement agreement). This settlement agreement essentially 

called for dividing the trust res in half, minus fees, and 

distributing one half to a trust for the son's benefit, and the 

other half to Deborah, as trustee of the 2001 Trust, the 

remainder beneficiary of the decedent's will. 

The wife objected to only so much of the settlement 

agreement as called for distribution of Pigeon Trust principal 

to Deborah as trustee of the 2001 Trust, rather than to Deborah 

as personal representative of the decedent's estate. The judge 

approved the settlement agreement, reserving, with Deborah and 

the wife's agreement, the question whether the Pigeon Trust 

distribution to Deborah should be in her capacity as personal 

representative of the decedent's estate or in her capacity as 

trustee of the 2001 Trust. This question was to be resolved in 

the inventory action. 

 

article designating a beneficiary, several amendments were 

executed over the next two decades changing the terms of the 

mandatory distribution article, including who would benefit from 

mandatory distribution. 
7

2. Estate asset recovery action. On July 23, 2015,

Deborah, in her capacity as personal representative, filed an 

equity complaint alleging that the wife had taken from the 

marital home personal property belonging either to the estate or 

to Elaine and her husband, David Kelley (David). The amended 

complaint asserted claims against the wife for constructive 

trust, conversion, unjust enrichment, and violation of G. L. 

c. 190B, § 3-709.8 The complaint also sought a declaratory 

judgment interpreting the premarital agreement as it related to 

the wife's interest in the estate's assets and the wife's 

obligations to return property, as well as the wife's liability 

for the value of any property taken and all damages caused to 

the estate. The amended complaint included the decedent's 

mother, Elaine, and her husband, David, as plaintiffs seeking to 

recover their property from the wife. The wife also filed a 

counterclaim asserting that the personal representative 

committed a breach of her fiduciary duty toward the wife. 

After a trial, the judge deemed the premarital agreement 

null and void upon the decedent's death and concluded that it 

"shall have no applicability relative to the estate of David E. 

 

8 General Laws c. 190B, § 3-709 (b), provides that "[w]ho 

ever injuriously intermeddles with any personal property of a 

deceased person, without being thereto authorized by law, shall 

be liable as a personal representative in his own wrong to the 

person aggrieved."
8

Stacy." Additionally, the judge found that the wife possessed 

certain enumerated pieces of the decedent's personal property 

worth $76,875 and additional property of unknown value, and 

credited the wife's denial that she possessed other items. Per 

the personal representative's request, the judge ordered that 

the wife return all of the decedent's property to the personal 

representative. However, sua sponte, the judge also ordered 

that if the wife did not return the property, the personal 

representative could deduct the value of assets in the wife's 

possession from the wife's share of the estate. 

The judge further found that the personal representative's 

claims of conversion, unjust enrichment, and violation of G. L. 

c. 190B, § 3-709, and request for imposition of a constructive 

trust were based on the assertion that the premarital agreement 

applied in the event of death and took precedence over the 

otherwise applicable provisions of G. L. c. 190B, §§ 2-102, 2-

301, 2-403 (a), and 2-404 (a). Given his conclusion that the 

premarital agreement was null and void, the judge concluded that 

those claims failed. Finally, the judge dismissed the wife's 

counterclaim, finding that the personal representative had not 

breached her duty toward the wife. In this matter, all parties 

appealed. 

3. Inventory action. On April 7, 2016, the wife brought a 

petition to order the personal representative of the estate to 
9

render an inventory and account. As noted above, consolidated 

with this petition was the issue of the capacity in which 

Deborah would receive the distribution of the Pigeon Trust 

settlement agreement proceeds: as personal representative of 

the decedent's estate or as trustee of the 2001 Trust.

Based on the parties' legal briefs and an agreed statement 

of facts, to which the Pigeon Trust and its multiple amendments 

were attached, the judge determined that the Pigeon Trust 

settlement agreement proceeds should be distributed to the 

decedent's estate. The judge also allowed the personal 

representative's account, with the judge's amendments, and 

concluded that the wife "as surviving spouse is entitled to the 

first $100,000 plus one-half of the balance of the decedent's 

probate estate."9 The judge further concluded that after the 

wife received her share, the remainder of the estate assets 

would pour over into the 2001 Trust. In this matter, the wife 

and personal representative both appealed. 

Discussion. In 2008, the Legislature overhauled the law 

governing the probate process by adopting nearly the entire 

Uniform Probate Code (code). See St. 2008, c. 521, §§ 9 and 44, 

as amended by St. 2011, c. 224, and made effective March 31, 

 

9 See G. L. c. 190B, § 2-102 (4) ("the first $100,000 plus 

1/2 of any balance of the intestate estate, if 1 or more of the 

decedent's surviving descendants are not descendants of the 

surviving spouse"). 
10

2012; G. L. c. 190B. As relevant here, G. L. c. 190B, § 2-301

(a), of the code provides that where a surviving spouse married 

the testator after the testator executed a will, as occurred 

here, "the surviving spouse is entitled to receive, as an 

intestate share, no less than the value of the share of the 

estate the spouse would have received if the testator had died 

intestate as to that portion of the testator's estate, if any, 

that neither is devised to a child of the testator who is born 

before the testator married the surviving spouse and who is not 

a child of the surviving spouse [nor a descendent of such child] 

. . . ." This right is subject to the terms of the premarital 

agreement. See generally Austin v. Austin, 445 Mass. 601, 603-

604 (2005). We begin our discussion there. 

1. The premarital agreement. The wife argues that, as in 

other contexts involving waivers of statutory rights, any waiver 

of her statutory right of intestate succession must be clear and 

unmistakable. See, e.g., Crocker v. Townsend Oil Co., 464 Mass.

1, 14 (2012) ("[an agreement] purporting to release all possible 

existing claims . . . will be enforceable as to the statutorily 

provided rights and remedies conferred by the Wage Act only if 

such an agreement is stated in clear and unmistakable terms"); 

Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 

390, 398 (2009) (same for G. L. c. 151B rights and remedies). 
11

We agree with the wife that no provision of the premarital 

agreement clearly and unmistakably waives one spouse's rights of 

intestacy. That, however, does not end our inquiry. 

The premarital agreement identified each party's separate 

property and expressly provided that after the marriage, that 

property was to remain the individual's property, was to be 

treated as if no marriage had occurred, and would not be subject 

to any claims arising from the marriage. It is well settled 

that through a premarital agreement, future spouses may 

relinquish claims to assets identified by each at the time of 

the marriage. See Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588

(2009) (death). See also DeMatteo v. DeMatteo, 436 Mass. 18

(2002) (divorce).

Notwithstanding the express waiver of any interest in the 

decedent's separate property, the wife contends that the 

agreement applies only in the event of divorce, and not in the 

event of death. The wife points to numerous provisions in the 

premarital agreement that address divorce in support of her 

argument.10 "[W]e construe a contract as a whole, so as 'to give 

reasonable effect to each of its provisions.'" James B. Nutter 

 

10 The premarital agreement is titled "G. L. c. 208, § 34 

AGREEMENT," which pertains to divorce, but the parties agree 

that it was mistitled. 
12

& Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018), quoting 

J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986). 

The premarital agreement contained provisions related to 

divorce,11 but the entire agreement was not expressly limited to 

divorce. Numbered par. 4 contains broad language, providing 

that after the marriage, the parties shall retain all right and 

title to their separate properties as if the marriage had never 

taken place.12 As previously stated, the Pigeon Trust and other 

assets were identified as the decedent's separate property.

There is no ambiguity as to how the parties chose to define 

and treat their separate property upon the marriage.13 As in 

 

11 For example, numbered par. 1 provided in pertinent part:

"The parties intend at this time and by this instrument to 

make a final and complete settlement of all matters 

relating to the interest and obligations of each with 

respect to all future property matters, including but not 

limited to alimony, support, maintenance, property 

assignment, and the rights of the parties under G. L. 

c. 208, § 34, as amended, in the event of a divorce." 

12 Specifically, numbered par. 4 provides:

"After the marriage takes place, each of the parties shall 

separately retain all rights in his or her property owned 

at the time of the marriage, including appreciation 

attributable to such property that may occur during the 

marriage, with the same effect as if no marriage had been 

consummated between them. Each party shall have the 

absolute and unrestricted right to dispose of his or her 

separate property, free from any claim of the other based 

upon their marriage."

13 The wife points to extrinsic evidence from the attorneys 

involved in drafting the agreement to support her claim that 
13

Pisano v. Pisano, 87 Mass. App. Ct. 403, 412-413 (2015), "[w]e 

start with the observation, made clear from paragraph[] [4] of 

the premarital agreement, that each party sought to protect from 

the other his or her separate property, . . . and any 

appreciation in value of . . . that property. That the parties 

were to control all aspects of their separate property . . . is 

. . . manifest in paragraph [4], which allows the parties to 

control, use, and dispose of their separate property in the same 

manner as if the marriage had not taken place." In Pisano, we 

concluded that although the agreement at issue did not contain 

express language waiving alimony, the foregoing provision 

ensured that the wife's separate property was not available to 

the husband for any alimony claim. Id. at 414. Similarly, 

here, although the premarital agreement did not contain an 

express waiver of the wife's intestate share of the decedent's 

estate, she did agree that certain identified assets would 

remain the decedent's separate property "free from any claim

. . . based on their marriage."14

 

application of the premarital agreement at death was not 

discussed. However, the wife does not expressly argue that the 

agreement is ambiguous; thus, her reliance on extrinsic evidence 

is misplaced. See Redstone v. O'Connor, 70 Mass. App. Ct. 493,

498 n.14 (2007). We do not consider the extrinsic evidence.

14 Numbered par. 4 is not the only provision of the 

premarital agreement that applies in a context other than 

divorce. Numbered par. 15 on page six of the agreement (there 

are two paragraphs labeled 15, one on page five and one on page 
14

Even if the possibility of divorce was the guiding force 

behind the premarital agreement, the parties, with the advice of 

counsel, chose to permanently waive any interest in one 

another's identified property throughout the marriage and 

afterwards without condition "as if no marriage had been 

consummated between them."15 Moreover, the wife waived any 

future claim to the decedent's separate property "based upon 

their marriage." Nothing in the agreement suggests that the 

wife's waiver terminated upon the death of her spouse. To now 

claim an intestate share in those assets through the decedent's 

estate is in contravention of the premarital agreement. Indeed, 

the wife asks us to insert language into the premarital 

agreement that provides that she and the decedent agreed to 

 

six) sets forth waivers of one another's qualified joint and 

survivor annuities, qualified preretirement survivor annuities,

and all retirement plans. The wife correctly concedes in her 

brief that par. 15 would apply even in the absence of divorce.

 

15 By agreement, the wife did not, at any time during the 

marriage, gain any interest in the property identified in the 

premarital agreement as the husband's separate property. That 

intention is further demonstrated in the provisions directed at 

divorce, which repeated that the spouses' separate property 

would remain the property of each spouse to the exclusion of the 

other spouse and, depending on the length of the marriage, 

provided for progressive monetary payments to the wife. Any 

alimony obligation would terminate in any event upon the 

decedent's death. In no event contemplated by the agreement 

would the wife obtain a title interest to the decedent's 

separate property. 
15

treat their separate property as if there had been no marriage

unless one of them died. This we cannot to do.

Based on the plain language of the premarital agreement, we 

hold that the wife waived any right to the Pigeon Trust and all 

of the other property identified in the premarital agreement as 

the decedent's separate property. In other words, the 

decedent's interest in the Pigeon Trust is treated upon the 

occasion of his death as though the parties were never married, 

to the effect that the wife can claim no entitlement to a share 

of that property from his estate through intestacy by virtue of 

her status as spouse. While this separate property is part of 

the decedent's estate, it cannot be used for purposes of 

calculating or receiving the wife's intestate share of the 

decedent's estate.

2. The Pigeon Trust settlement agreement proceeds. We 

look to the terms of the Pigeon Trust to determine the proper 

distribution of the Pigeon Trust settlement agreement proceeds. 

As originally drafted, the Pigeon Trust is not a model of 

clarity as to the distribution of trust assets in the event that 

the decedent predeceased the donor, Bentinck-Smith. Two things 

are certain, however. First, the instrument provides that under 

no circumstances shall the trust property revert to the donor or 

her estate, in essence eliminating Bentinck-Smith as the 
16

intended contingent beneficiary.16 Second, when the Pigeon Trust 

was created, the 2001 Trust did not exist, nor did any 

subsequent amendment of the Pigeon Trust purport to add the 2001 

Trust as a beneficiary, contingent or otherwise. Thus, at no 

point was the 2001 Trust a contingent beneficiary of the Pigeon 

Trust.17

We agree with the judge that the decedent's estate was the 

contingent beneficiary in the event, as occurred, the decedent 

predeceased Bentinck-Smith. Read together, several provisions 

in the original trust instrument reflect Bentinck-Smith's intent 

to distribute the Pigeon Trust assets to the decedent's estate 

in the event that the decedent predeceased her.18 See Redstone

v. O'Connor, 70 Mass. App. Ct. 493, 499 (2007), quoting Harrison

 

16 No party argues that the gift to the decedent lapsed and 

the Pigeon Trust should be distributed to the donor. See 

Redstone, 70 Mass. App. Ct. at 494, 500-501. Bentinck-Smith's 

guardian, in any event, disclaimed any interest in the Pigeon 

Trust in the settlement agreement.

17 The personal representative also contends that the 2001 

Trust is the proper beneficiary because the decedent "could have 

been expected to place in[to] the 2001 . . . Trust any amounts 

distributed to him from the Pigeon Trust so as to minimize the 

exposure of his estate to estate tax liability." She cites no 

authority, however, for the proposition that we may speculate as 

to what the decedent might have done with the Pigeon Trust 

proceeds had he survived the donor. The argument is unavailing.

18 Because we rely on the original terms of the Pigeon 

Trust, we need not reach the personal representative's argument 

that the judge's conclusion is wrong because the parties had not 

agreed upon whether the trust amendments "were validly executed 

or remained in effect." 
17

v. Marcus, 396 Mass. 424, 429 (1985) ("A trust should be 

construed 'to give effect to the intention of the settlor as 

ascertained from the language of the whole instrument considered 

in the light of the attendant circumstances'").

For example, under art. VIII § D of the Pigeon Trust, 

distribution of trust principal was mandatory after the death of 

the donor and 

"[i]f the Trustee shall not have distributed all of the 

Trust Principal during the lifetime of the said 

Beneficiaries, then at the death of the first Beneficiary 

(living at the time of the execution of this Trust and at 

the time of my death) to die, the Trustee shall distribute 

all of the Trust Principal to the Beneficiaries or their 

estates, in equal shares, free of all Trust, and this Trust 

shall terminate."19 

Additionally, had the trust principal fallen below $50,000 after 

Bentinck-Smith's death and before mandatory distribution 

pursuant to § D, art. VIII § F permitted the trustees to 

terminate the trust and "distribute the Trust Principal to the 

Beneficiaries (or their estates, if any such Beneficiary has 

predeceased me), in equal shares." The trust instrument also

contemplated that both the donor and David might die before the 

Pigeon Trust assets were fully distributed, and named David's

estate as the contingent beneficiary in that eventuality. 

 

19 We recognize that § D is problematic in that there was 

only one named beneficiary and yet this provision came into play 

only if there was a beneficiary living at the time of the 

donor's death. That incongruity does not detract from the 

donor's intent to benefit the beneficiary's estate.
18

Significantly, the trust instrument disavowed a reversionary 

interest to the donor or her estate.20

Accordingly, we conclude that there were sufficient indicia 

of the donor's intent to determine that the decedent's estate 

was the intended contingent beneficiary of the Pigeon Trust 

should the decedent predecease Bentinck-Smith. Therefore, the 

Pigeon Trust settlement agreement proceeds should be distributed 

to Deborah, as the estate's personal representative.21,22

3. Wife's intestate share. As a result of the adoption of 

the code, a will executed prior to marriage is no longer void in 

 

20 We recognize that in Redstone, 70 Mass. App. Ct. at 499-

500, we noted that our courts have rejected arguments that a 

donor's intention to make a gift to an identified individual 

based upon one contingency was an adequate basis upon which to 

conclude that the donor would have made the same gift to the 

same individual where a different, unanticipated contingency 

came to pass. Here, however, the donor explicitly prohibited 

any gift from reverting to the donor.

21 The personal representative also argues that pursuant to 

Bongaards v. Millen, 440 Mass. 10, 17 (2003), because the Pigeon 

Trust was created by a third person, the trust assets should not 

be considered part of the decedent's probate estate. Although

Bongaards is distinguishable in several respects, for our 

purposes it suffices to say that Bongaards addresses a trust 

with a schedule of contingent beneficiaries that did not 

designate the decedent's estate as the contingent beneficiary. 

Id. at 12. Accordingly, we discern no merit in the personal 

representative's argument.

22 Given our conclusion, we need not address the personal 

representative's argument that the judge made an erroneous 

finding as to whether the 2001 Trust was funded prior to the 

decedent's death.
19

this Commonwealth.23 Because the wife is not a beneficiary of 

the will, the next question is the size of the wife's intestate 

share. Here, where the decedent was survived by his wife, his 

son (who is not a descendant of the surviving spouse), and his 

adoptive mother, we agree with the judge that the wife's 

intestate share is "the first $100,000 plus 1/2 of any balance 

of the intestate estate." G. L. c. 190B, § 2-102 (4). See 

G. L. c. 190B, § 2-301 (a). 

The wife contends that because (1) the son and adoptive 

mother joined in the settlement agreement, (2) the son in 

essence received a distribution pursuant to that agreement, and 

(3) the decedent expressly omitted his son from his will, all 

the remaining estate should pass to the wife, notwithstanding 

the decedent's will. We disagree. There simply is nothing in 

the statute that suggests that the way the decedent treated his 

descendants in his will alters the statutory calculation of a 

spouse's intestate share, and nothing in the settlement 

agreement suggests that the parties agreed that the wife is 

 

23 Pursuant to the former G. L. c. 191, § 9, see St. 1892, 

c. 118, repealed by St. 2008, c. 521, § 10, marriage acted as a 

revocation of a will made prior to the marriage, "unless it 

appears from the will that it was made in contemplation 

thereof." The code applies to the decedent's will. See St. 

2008, c. 521, § 43 (1) (providing, "[T]his act shall apply to 

pre-existing governing instruments, except that it shall not 

apply to governing instruments which became irrevocable prior to

the effective date of this act").
20

entitled to all the remaining assets of the estate.24 Moreover, 

the spousal share is derived from only that portion of the 

testator's estate, if any, that is not devised to the testator's 

child. See G. L. c. 190B, § 2-301 (a). Thus, the statutory 

provisions already take into account any distribution to a child 

in creating the formula for the wife's intestate share. Once

the wife's intestate share is established, the remainder of the 

estate passes according to the will.

4. Administration of the estate. a. Credibility 

determinations. The personal representative argues that the 

judge erred in crediting the wife's testimony as to the 

decedent's assets allegedly in the wife's possession in light of 

evidence that the wife had been dishonest in other matters, 

particularly where, at trial, the wife had first denied having 

certain assets but then admitted to having them when faced with 

photographs or other evidence. The Supreme Judicial Court

rejected a similar argument in Buster v. George W. Moore, Inc., 

438 Mass. 635, 644 (2003), concluding that "[t]he judge was free 

to credit and discredit portions of each party's testimony." 

Accordingly, we defer to the judge's credibility determinations. 

See G.B. v. C.A., 94 Mass. App. Ct. 389, 395 (2018).

 

24 The wife's reliance on statutory provisions related to 

disclaimed shares of an estate or intestacy, other than the 

wife's intestate share, is unavailing.
21

b. Estate assets in the wife's possession. The judge 

found that the wife possesses some assets that were identified 

in the premarital agreement as the decedent's separate property

and that the personal representative requested that the wife 

return such assets. It was error to give the wife the option to 

keep assets and take a deduction for their value from her 

portion of the estate. Under the code, it is the option of the 

personal representative to require the wife to return those 

items or to deduct those items from the wife's intestate share. 

See G. L. c. 190B, § 3-709 (a) (upon request "every personal 

representative has a right to, and shall take possession or 

control of, the decedent's property").

c. Conversion, unjust enrichment, and G. L. c. 190B, § 3-

709. The judge found that the personal representative's claims 

of conversion, unjust enrichment, and violation of G. L. 

c. 190B, § 3-709, against the wife failed because the premarital 

agreement does not apply at death. Given our holding to the 

contrary, those claims must be reinstated.25

 

25 The wife argues that the judge failed to make allowances 

for joint assets other than an Avalanche automobile. She 

adopted the judge's recitation of the facts, however, and has 

not identified joint assets to which she claims she is entitled. 

In addition, although she claims that she has the right under 

G. L. c. 190B, § 2-403, to select property of the estate up to 

$10,000, the wife has not cited anywhere in the record 

indicating that she purported to do so. Nor do her requests for 

findings and rulings suggest she raised this issue below. As a 

result, we do not reach these arguments. To the extent the 
22

d. Estate assets in Elaine's possession. According to the 

agreed statement of facts, the State Police removed the 

decedent's guns from his home and brought them to Elaine and 

David Kelley's home. Elaine testified that because she holds an 

appropriate license, she took possession of the decedent's gun 

collection for the benefit of the estate. So far as the record 

reveals, the personal representative had not asked her to return 

the collection. See G. L. c. 190B, § 3-709 (a) (personal 

representative may leave decedent's property with "the person 

presumptively entitled thereto unless or until, in the judgment 

of the personal representative, possession of the property will 

be necessary for purposes of administration"). Although not 

requested by the parties, the judge nonetheless ordered Elaine 

to return the gun collection or the value of the collection to 

the personal representative "forthwith," providing, in the 

alternative, that if this were not done, the value of the 

collection would be deducted from Elaine's eventual share of the 

decedent's estate.26 While we agree that, upon request, Elaine 

 

personal representative pursues the claims that have been 

reinstated, however, nothing we have said should preclude the 

wife from raising these issues in defense.

26 We note that in the event a personal representative is 

also an heir or legatee, G. L. c. 140, § 129C (n), permits a 

firearm to be transferred from the decedent to said heir or 

legatee even if they do not possess the requisite license, so 

long as they obtain said license within 180 days of the 

transfer. Here, the record indicates that the personal 
23

must transfer the gun collection to the personal representative,

so much of the judgment as compels Elaine to return the 

collection now is premature. See G. L. c. 190B, § 3-709 (a).

e. The Kelleys' property. The Kelleys claimed and 

testified that the wife took items they owned but were in the 

decedent's home when he died.27 The judge found that "[w]ith the 

exception of the testimony provided by Mr. and Mrs. Kelley, no 

other evidence was presented with respect to these items." It 

is unclear whether the judge declined to credit the Kelleys' 

testimony or erroneously concluded that the Kelleys had to 

produce corroborating evidence to sustain their claim. A 

witness's testimony alone, without corroboration, may meet a 

party's burden of proof. See generally Cooper v. Keto, 83 Mass. 

App. Ct. 798, 808 (2013) ("the mother's testimony alone properly 

supported [the judge's] findings").

In addition, the judge made no credibility determinations 

or findings concerning a cognac diamond pendant that Elaine 

testified she loaned to the wife for a photograph for a 

newspaper story; the wife admitted that she possessed the 

 

representative does not have an appropriate license but is 

silent as to whether she has applied to obtain one. See G. L. 

c. 269, § 10 (h) (1) (it is illegal to own, possess, or transfer 

a firearm without the requisite license).

27 The items include three pieces of artwork, a rototiller, 

a chainsaw, and a generator. 
24

pendant but claimed that Elaine and the decedent had given it to 

her as a gift. We conclude that the matter must be remanded for 

further findings on these issues in the estate asset recovery 

action. 

5. The wife's counterclaim. Finally, the judge rejected 

the wife's claim that the personal representative committed a 

breach of her duties toward the wife and should be removed as 

unsuitable and hostile to the wife. The personal 

representative's position that the wife was not entitled to 

escrowed Pigeon Trust settlement agreement proceeds, albeit for 

different reasons, was correct. We discern no basis, therefore, 

for the wife's claims and thus no error in the judge's decision 

to dismiss the wife's counterclaim.

Conclusion. 1. Docket no. 18-P-872 -- estate asset 

recovery action. So much of par. 1 of the judgment as declares 

the premarital agreement null and void is vacated, and the 

paragraph shall be modified to declare that the assets 

identified in the premarital agreement as the separate property 

of the decedent cannot be used for purposes of calculating the 

wife's intestate share of the decedent's estate. The judgment 

shall be further modified to declare that said separate property 

passes in accordance with the decedent's will.

Paragraph 2 of the judgment shall be modified by deleting 

the second sentence and substituting therefor a declaration 
25

that, unless the personal representative agrees to allow the 

wife to retain the property described therein and credit the 

value toward the wife's intestate share of the decedent's 

estate, the wife shall return the property to the personal 

representative within thirty days of issuance of the rescript of 

this decision. The second sentence of par. 2 of the judgment 

shall be further modified by adding a declaration that Elaine

Kelley must return the estate property in her possession 

described therein, including, without limitation, the guns and 

gun accessories (gun collection) to the personal representative 

within thirty days of any written request by the personal 

representative that she do so; that, absent such a request, 

Elaine may continue to store estate property, including, without 

limitation, the gun collection, provided that Elaine still holds 

a valid firearms license; that, if the personal representative 

takes physical possession of the gun collection, she shall store 

the firearms with a licensed holder or first obtain the 

appropriate license(s); and that, in her inventory, the personal 

representative must also account for the estate's personal 

property in any third party's possession.

The second sentence of par. 3 of the judgment shall be 

modified to declare that the wife shall return the property

described therein to the personal representative within thirty 

days of issuance of the rescript of this decision.
26

So much of par. 4 of the judgment as dismisses the personal 

representative's claims for conversion, unjust enrichment, 

violation of G. L. c. 190B, § 3-709, and imposition of a 

constructive trust is vacated, and those claims are reinstated.

As so modified, the judgment is affirmed, and the matter is 

remanded for further proceedings consistent with this opinion, 

including for further findings on the Kelleys' claims.

2. Docket no. 18-P-871 -- inventory action. Paragraph I

of the decree shall be modified to add a declaration that the 

Pigeon Trust settlement agreement proceeds cannot be used for 

purposes of calculating the wife's intestate share of the estate 

of David E. Stacy.

The first sentence of par. V of the decree shall be

modified by striking the phrase "which includes the Pigeon Trust 

settlement proceeds" and substituting therefor: "excluding the 

Pigeon Trust settlement agreement proceeds and any other 

separate property of the decedent identified in the premarital

agreement executed by David E. Stacy and Iana Stacy dated July 

18, 2008."

As so modified, the decree is affirmed.

So ordered.28

 

28 All parties' requests for attorney's fees are denied.