MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 188 Docket: Cum

- 15

- 272 Argued : March	1,	2016 Decided: September	5 ,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM , and HUMPHREY, JJ. Majority : SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD, GORMAN, and	HUMPHREY,	JJ. Dissent : HJELM	and JABAR, JJ.

IN	RE	GEORGE	PARSONS 1907 TRUST

SAUFLEY , C. J. [¶1] Thomas Maxwell	 appeals	 from	 a	 summary	 judgment	 entered	 by

t he	 Cumberland	 County	 Probate	 Court	 ( Mazziotti,	 J. )	 in	 favor	 of	 David Gourevitch ,	a qualified beneficiary	 of	 the George	 Parsons 1907 Trust, on	 his complaint	for	a	declaratory	judgment	that Maxwell is	not a	beneficiary of	the
Trust

. Because	w e agree	with	Maxwell	that the	undisputed	facts	establish	that Gourevitch’s	 claim	 was barred	 by	 the	 statute	 of	 limitations,	 we vacate	 the judgment.
I.		BACKGROUND [¶ 2 ] T he summary	judgment	record contains the	following	facts ,	which are	 not	 in	 dispute

. See Harlor	 v.	 Amica	 Mut.	 Ins.	 Co. ,	 2016	 ME	 161,	 ¶ 7, 150 A.3d	793

. On	November	1,	1907,	George	Parsons	executed	an	indenture creating the	George	Parsons 1907 Trust .		Parsons	died	on	December	4,	1907,2 wi thou t having amend ed	or	revoked the	T rust.		The Trust provides	that	it will
terminate twenty
- one	years	after	 the	death	of	 the	last member of a group of named	 individuals.	 	 The	 last person	 in	 that	 group died	 in	 2002.	 	 Thus, the
Trust will	terminate	in	2023. [¶ 3 ]		The dispute in	this	case has	its	genesis	in the	death of a	descendant of	George	Parsons

— Philippa	Wistrand

— in	May	1990 , raising	the	question as
to who	 was	 to	 receive her	 share	 of	 the	 Trust	 distributions

. Philippa was a beneficiary	of	the	T rust and was	the unmarried, biological	mother	of Thomas Maxwell ,	who	was	born	in	1963	and was adopted	by Philippa’s	sister,	Sylvie Maxwell

. 1 Sylvie was also	a	descendant	of	George	P arsons	and	a	beneficiary of the	 T rust in	 the	 same	 branch	 of	 the	 family	 tree

. Pursuant	 to the	 applicable portion	of paragraph	5	of	the Trust ,	Philippa’s share	of	the Trust income	was to	be	paid	to	her	surviving “ issue ” upon	her	death, or	if	there	was	none,	to	any surviving siblings	or	 their	issue	if	a	sibling	was	already	deceased,	w ith	other provisions	applying	if	no	siblings	survived

. Therefore,	upon	Philippa’s	death,

a question	 arose	 as	 to	 whether her share	 of	 the	 income	 was	 to	 be	 paid	 to

1 Thomas	Maxwell’s	name at	birth was	Christian	Wistrand,	but	he	was	renamed	when	he	was adopted	by	Sy l vie	Maxwell.3 T homas	 Maxwell	 as	 her	 surviving	 issue even	 t hough	 he	 was	 a	 nonmarital child, 2 or to Sylvie	as her	surviving	sister

. [¶ 4 ] At	 the	 recommendation	 of	 the	 T rustees,	 i n	 September and November	1990 , Sylvie	executed documents	 to release	any	rights	she had in Philippa’s	 share	 of	 the Trust income and	 assign	 those	 rights	 to Maxwell. I n 1990, the	T rustees began	distributing	income	to	Maxwell. [¶ 5 ] In	1994, addressing	a	separate	matter, the	T rustees	petitioned	the Cumberland	 County Probate	 Court for	 instructions	 on whether	 adopted children wer e	included	 as	 beneficiaries	 of	 the Trust

. Although	Maxwell had been adopted	 by	 Sylvie and	 received	 notice	 of	 the	 petition ,	 the T rustees agreed	 that	 the	 court’s	 decision	 would	 not	 “affect” him ,	 and he	 did	 not participate	 in	 the proceeding. In	 the resul ting 1995 judgment,	 the	 court ( D. Childs,	 J. ) determin ed	 that the provisions	 of	 the	 Trust should	 be interpreted	according	to	“the	rules	of	construction	set	by	common	law	during the	 lifetime	 of	 George	 Parsons. ” Applying	 the	 common	 law	 rules	 of

const ruction	in	effect	in	1907,	the	c ourt	concluded	that	Parsons	did	not	inten d to	 include	 adopted	 children as beneficiaries,	 and it ins tructed	 the	 T rustees

2 In	this	opinion,	w e	use	the	term	“nonmarital	child” rather	than	the	outdated	phrase	“child	born out	of	wedlock

. ”4 that	the	two	adopted	children	who	were	respondents	in	that	matter	were	not beneficiaries

. [¶ 6 ] In	 1996,	 after	 the	 court	 had	 i ssued that judgment ,	 one	 of	 the
T rustees	 became concerned	 that	 no	 formal	 decision	 had	 been	 made	 about whether	 Maxwell	 was	 a	 beneficiary entitled in	 his own	 right to Philippa’s share	of	income or	whether	he	was	entitled	to	receive	income	only	by	virtue of	the	assignments	executed	by	Sylvie

. On	July	26, 1996 ,	t he	T rustees	passed	a resolution recognizing	Maxwell’s	 status	 as	 Philippa’s	 biological	 son and	 as	 a beneficiary	 of	 the	 Trust

. 3 Maxwell w ill	 continue	 to receive monthly	 and annual distributions of Trust income while	 the	 Trust	 continues,	 and will
receive ten	 percent of	 the	 corpus	 of	 the	 T rust when	 the	 T rust terminates	in 2023	if	he	is	then	living. [¶ 7 ] In	 April	 2014,	 Gourevitch f iled	 a	 complaint in	 the	 Cumberland County	 Probate	 Court requesting	 a	 declaratory	 judgment	 that	 Maxwell , as	 a nonmarital	 child, cannot	 be a	 beneficiary of	 the	 Trust

. Gourevitch	 is	 a descendant	 of	 George	 Parsons	 under	 the same branch of	 the	 family	 tree	 as Philippa,	Sylvie,	and	Maxwell and served	as	a	T rustee	from	1999	to	2002.

3 Gourevitch	averred	in	his	affidavit , which	he referenced	in	his	statement	of	material	facts,	that after	Sylvie	died	in	2012,	the	Trustees “voted	to	go	ahead	a nd	make	distributions”	to	Maxwell	as	a beneficiary

. H e argues on	appeal that	this	is	the	date	when	distributions	became wrongful

. By	that date,	 however, Maxwell	 had	 already	 bee n	 receiving	 benefits since	 199 6 based	 on the	 Trustees’ determination	of his	st atus	as	Philippa’s biological son — the	status	t hat	Gourevitch	now	challenges.5 [¶ 8 ] Gourevitch also alleged	 in	 his	 complaint	 that	 Maxwell	 is	 not	 a beneficiary	 of	 the	 Trust	 because	 he	 is	 an	 adopted	 child	 and	 requested	 a declaratory	 judgment	 to	 that	 effect. As	 the	 Probate	 Court ( Mazziotti, J. ) ultimately noted,	 however,	 “Maxwell’s	 status	 as	 an	 adopted child	 of	 Sylvie Maxwell	is	 of	 no consequence	in	 this	 proceeding ”	 because , as	a	 result	 of	 the court’s	1995	judgment,	adopted	children	are	not	beneficiaries.		Neither	party challenges	that	conclusion	on	appeal. [¶ 9 ] Gourevitch moved	for a	summary	judgment, s ee M.R.	Civ. P. 56(a) , 4 arguing that the	terms	of	the	Trust	entitled him to	a	judgment	as	a	matter	of law because	 Maxwell	 was	 indisputably	 born	 to	 Philippa	 when	 she	 was	 not married

. Maxwell opposed	Gourevitch’s	motion and filed	a cross - motion for a summary	judgment. 5 He	argued ,	among	other	things, that Gourevitch’s	claim

was barred	by the statute	of	limitations. [¶1 0 ] I n	May 2015,	 the	court denied Gourevitch’s	motion and	granted Maxwell’s	 cross

- motion	 for	 a	 summary	 judgment based	 on	 the	 statute	 of limitations

. Although	t he	court determined ,	as	a	matter	of	law, that the	terms

4 “Rule	56	 of	 the	Maine	Rules	 of	Civil	Procedure	governs	procedure	in	all	 formal	probate	and civil	proceedings	in	the	Probate	Courts.” M.R.	Prob.	P.	56

.
5 The	Trustees	also	 filed	a n	opposition	and cross - motion	 for	a	summary	judgment	supporting Maxwell’s	 position.	 	 In	its	 final	judgment,	 the	 court	 denied	 the	Trustees’	motion,	and	 they	 do	 not appeal.6 of	 the	 Trust	 did	 not include nonmarital	 c hildren	 as	 beneficiaries , the	 court concluded that Gourevitch’s cause	of	action to	challenge	Maxwell’s	status was barred	by	 the	statute	of	limitations	because	it accrued ,	at	 the	latest, in	1996 , when	 the	 T rustees formally	 recognized Maxwell	 as Philippa ’s	 son and	 as a beneficiary	 of	 the	 Trust

. In	 reaching	 that	 conclusion,	 t he	 court	 rejected Gourevitch’s	 argument that each	monthly	 payment	 to	Maxwell consti tuted a breach	of	fiduciary	duty giving	rise	to	a	new	cause	of	action

. The	court	likened Gourevitch’s	 argument	 to	 the	 common	 law “continuing	 tort	 doctrine , ” McLaughlin	 v.	 Superintending	 Sch. Comm. of	 Lincolnville ,	 2003	 ME	 114, ¶ 23 n.6,	 832	 A.2d	 782 ,	 and	 concluded	 that	 the	 doctrine did not	 apply here because	 the	 1996	 resolution	 was	 a	 discrete	 action	 that	 created	 the	 harm	 of which	 Gourevitch	 complained

. The	 court concluded	 that Gourevitch’s claim therefore was outside the six

- year limitations	 period , see 14	 M.R.S.	 § 752 (2016 ) ,	and	that	Maxwell	was	entitled	to	a	judgment	as	a	matter	of	law	on	that basis. [¶1 1 ] O n	 May	 19,	 2015, Gourevitch	 filed	 a timely motion	 to	 alter	 or

am end	 the	 judgment, s ee M.R.	 Civ.	 P. 59(e) , 6 based	 on a	 decision that the Supreme	 Court of	 the United	 States had issued on the	 previous	 day holding

6 “Rule	59	 of	 the	Maine	Rules	 of	Civil	Procedure	governs procedure	in	all	 formal	probate	and civil	proceedings	in	the	Probate	Courts.” M.R.	Prob.	P.	59

.7 that a	new	cause	of	action	accrues	each	time	a	trustee	breaches	a continuing fiduc iary	 duty owed	 to	 a	 beneficiary “ to	 monitor	 investments and	 remove imprudent	 ones

. ” S ee Tibble	 v.	 Edison	 Int’l ,	 575	 U. S.

- - - ,	 135 S.	 Ct.	 1823 , 1828

- 29 (2015)

. Gourevitch contend ed	that his	complaint	was	timely because the	T rustees	had	a	continuing	duty	to	distribu te	income	only	to	beneficiaries , and therefore each	payment	to	M axwell	constituted	a	new	injury

. [¶1 2 ] While	 the motion	 to	 alter	 or	 amend was	 pending ,	 Gourevitch appealed	 based	 on	 the	 statute	 of	 limit ations	 issue,	 and	 Maxwell

cross - appealed	the	court’s separate determination	that ,	as	a	nonm arital	child, he was not	a	beneficiary. S ee 18

- A	M.R.S.	§	1

- 308	(2016) ; M.R.	App.	P.	2

. The

court then granted	 Gourevitch’s Rule	 59 motion and entered an	 amended summary	 judgment	 in his	 favor

. 7 Accordingly, the	 court’s fin al	 judgment integrates	its earlier	determination	 that , as	a	matter	of	law, Maxwell	is	not	a beneficiary of	 the	 T rust ,	 and its	 later	 conclusion,	 based	 on Tibble , that Gourevitch’s claim was timely

. [¶1 3 ] Although	the	court’s	ultimate judgment was in Gourevitch’s favor and	 he	 is	 defending	 it,	 in	 most	 respects, on	 this	 appeal , he	 remains	 an

7 With	respect	to	the	pending	appeal,	in	response	to	the	Trustees’	motion	to	stay,	we	enlarged the	 time	 for	 the	 Probate	 Court	 to	 transmit	 its	 record	 to	 twenty

- one	 days	 after	 it	 disposed	 of	 all pending	post

- judgment	motions. See M.R.	App.	2(b)(3),	(4), 3(b)(4).8 appellant because	 he	 was	 the	 first party	 to	 file	 a	 notice of	 appeal

. See M.R. App.	P.	2(c)(3).
II.		DISCUSSION [¶1 4 ]		A party	is	entitled	to	summary	judgment	when	the	statements	of material	fact	and	referenced	evidence	establish	that	there	is	no	genuine	issue of	material	 fact	and	 that	a	party	is	entitled	 to	a	judgment	as	a	matter	of	law. M.R.	 Civ.	 P.	 56(c).	 	 We	 review de novo the	 grant	 of	 a motion	 for	 summary judgment

. Fiduciary	 Tr

. Co. v.	Wheeler ,	 20 16	ME	 26,	 ¶	 8,	 132	 A.3d	 1178. A genuine	issue of	fact exists if “ sufficient	evidence	supports	a	factual	contest	to require	 a factfinder to	 choose	 between	 competing	 versions	 of	 the	 truth	 at trial.” Baillargeon	 v.	 Estate	 of	 Daigle ,	 2010	 ME	 127,	 ¶	 12,	 8	 A.3d	 709 (quotation	marks	omitted). [¶1 5 ] Maxwell	 argues	 that	 Gourevitch’s	 claim	 for	 a	 declaratory judgment,	commenced	in	2014,	is	barred by 14	M.R.S.	§	752,	which	provides that	“civil	actions	shall	be	commenced	within	6	years	after	the	cause	of	action accrues	 and	 not	 afterwards.” A	 cause	 of	 action	 accrues	 when	 a	 claimant
sustains a	 “judicially	 cognizable	 injury.” Estate	 of	 Miller ,	 2008 ME 176, ¶ 25, 960	A.2d	1140 (quotation	marks	omitted)

. When	the	relevant	 facts	are

not in	 dispute,	 d etermining when a	 cause	 of	 action	 accrued	 and	 whether	 a9 claim	is	time

- barred	are	legal	questions	subject	to	de	novo	review. See Estate of	 Weatherb ee ,	 2014 ME	 73,	 ¶	 14,	 93	 A.3d	 248 ; McLaughlin ,	 2003	 ME	 114, ¶ 12,	832	A.2d	782

. [¶1 6 ]		As	courts	of	other	jurisdictions	have	held,	a	cause	of	action	based on	the	breach	of	a	trust	accrues,	and	the	statute	of	limitations	begins	to	run,	at the	time	of	the	breach. S ee Renz	v.	Beeman ,	589	F.2d	735,	743	(2d	Cir.	1978) (holding	 that	 the	 statute	 of	 limitations	 was	 measured	 from	 the	 time	 of	 the breach	of	the	trust) , cert.	denied , 444	U.S.	834	(1979) ; Harris	Tr. Bank of	Ariz. v. Superior	 Court ,	 933	 P.2d	 1227,	 1231	 (Ariz. Ct.	 App.	 1996) (holding	 that	 the statute	of	limitations	began	to	run	when	the	trustee	“violate[d]	one	or	more	of his	 obligations	 to	 the	 beneficiary	 or	 repudiate[d]	 the	 trust”); see	 also Cecil	v. Cecil ,	 712	 S.W.2d	 353,	 355	 (Ky.	 Ct.	 App.	 1986) (holding	 that the	 statute	 of limitations	 began	 to	 run	 when	 a	 beneficiary	 received	 written	 notice	 of	 a termination	 of	 trust	 agreement); cf. Ters a vich	 v.	 First	Nat’l	 Bank	 &	 Tr. Co. of Rockford ,	551	N.E. 2d	815,	819

- 20	(Ill.	App.	Ct.	1990) (holding	that	the	statute of	limit ations	 on	 an	illegitimate	 child’s	 claim	 seeking	 construction	 of	 a	 trust runs	 from	 the	later	 of	 (1)	 the	 child’s	 reaching	 the	age	 of	majority	 or	 (2)	 the10 time	when	the	child	knows,	or	should	know,	that	the	trustee	has	“ repudiated, disavowed	or acted	in	hostil ity	to	the	trust”	(quotation	marks	omitted)). 8 [¶1 7 ]		 In	some	circumstances,	determining	 the	date	of	 the	breach	may be	 complicated,	 such	 as	 when	 a	 beneficiary	 claims	 that	 a	 trustee	 has imprudently	 retained	 an	 investment. See Tibble , 575 U .S.

--- ,	 135	 S. Ct.	 at
1828

- 29 .		 For	good	 reason,	 the	Supreme	Court	 of	 the	United	States	has	held that	a	trustee	has	an	ongoing	duty	to	monitor	the	ever

- changing	performance of	 investments,	 which	 may	 bring	 the	 date	 of	 accrual	 within	 a	 statute	 of limitations. See	id. [¶1 8 ]		There	is	no	legal	basis,	however,	to	support	a	continuing	duty	to monitor	a	person’s	status	as	a	beneficiary	of	a	heritable	trust.		To	the	contrary, as	 the	 Court	 of	 Appeal	 of	 California	 held,	 a	 beneficiary’s	 challenge	 to	 his proportion	of	 trust	income may	be	barred	if	proportionate	shares	have	been paid	 for	 the	 requisite	 limitation	 period. See Getty	 v.	 Getty ,	 187	 Cal. App. 3d 1159,	1168

- 69	(Cal.	Ct.	App.	1986) .		In Getty ,	a	beneficiary’s	claim	was barred	because	he	did	not	take	legal	action	until	after distributions	had	been

8 See	also George	Gleason	Bogert	&	George	Taylor	Bogert, The	Law	of	Trusts	and	Trustees §	951, at	638	(rev.	2d	ed.	1995)	(“To	cause	the	Statute	to	begi n	running	during	the	life	of	the	trust	there must	be	some	unequivocal	act	in	violation	of	the	duties	of	the	trustee	.	.	.	.”).11 made	 in	 consistent	 proportions	 for	 about	 twenty

- five	 years	 following	 his attainment	of	adulthood. Id. [¶1 9 ]		We	have	also	previously held that	statutes	of	limitations	begin	to run	 when	 discrete	 events	 make	 potential	 litigants	 aware	 of	 possible	 claims. Specifically,	 we	 held	 that	 a health	 care trust’s	 cause	 of	 action for	 unjust enrichment against	its	beneficiary	accrued	upon	 the	beneficiary’ s	settlement of	 an	 automobile	 insurance	 claim	 and	 did	 not	 continue	 to	 accrue	 each	 time monthly	annuity	payments	to	the	injured	beneficiary	were	made	pursuant	to the	 terms	 of	 that	 settlement. Me.	 Mun. Emps

. Health	 Tr. v.	 Maloney , 2004 ME 51,	¶¶	2

- 3,	10 , 84 6	A.2d	336

. [¶ 20 ]	 	 Nor	 do Maine ’s statutes	 establish	 any	 “continuing”	 duty	 to determine	who	is	a	beneficiary.		A	trustee	may	fulfill	the	duty	to	administer	a trust	 “in	accordance	with	its	 terms	and	purposes,” 18

- B M.R.S.	 § 801	 (2016) , and	 “considering	 .	 . .	 distributional	 requirements,” 18

- B	M.R.S.	 § 804	 (2016) , by	determining,	upon	 the	death	 of	a	beneficiary,	whether	 there	are	any	new beneficiaries	 and	 who	 those	 beneficiaries	 are.	 	 The	 determination	 of beneficiaries	is	not	a	 decision	 that	 requires	 repeate d	 reconsideration	 simply because	the	trust	calls	for	the	periodic	distribution	of	trust	income.12 [¶ 2 1]	 	Having	a	 fixed	date	 of	accrual	is	consistent	with	 the	purpose	 of statutes	 of	 limitations	 “to	 provide	 eventual	 repose	 for	 potential	 defendants and	 to	 avo id	 the	 necessity	 of	 defending	 stale	 claims.” Angell	 v.	 Hallee , 2012 ME	 10,	 ¶	 8,	 36	 A.3d	 922 (quotation	 marks	 omitted) .	 	 T o	 hold	 to	 the contrary would	 allow	 a	 trust	 beneficiary	 to	initiate	 a	 court	 challenge	 at	 any time	after	another	beneficiary	is	determined,	as	long	as	income	distributions are	 being	 made. Such	 a holding would	 improperly	 elevate each	 ordinary income	distribution	to	a	 fresh	determ ination	of	beneficiary	status	and would result in	 a	 statute	 of	 limitations	 that,	 for	 no	 meaningful	 reason,	 may	 apply differently	to	trusts	that	call	for	income	distribution	as	compared	with	trusts that	do	not. [¶ 22 ]	 	 Turn ing	 to	 the	 facts	 at	 issue	 here, as the	 Probate	 Court	 held before	 reaching	 a	 new	 holding	 based	 on Tibble , 575	 U.S.

--- ,	 135	 S. Ct. at 1828

- 29 , any	cause	of	action	arising	from	the	determination	that	Maxwell	was a	beneficiary of	the	Trust accrued	no	later	than	1996	when a	formal	resolution

w as	passed recognizing	Maxwell	as	Philippa’s	biological	son	and	determining that	 Maxwell	 was	 a	 legally	 cognizable	 beneficiary.	 	 That	 is	 the	 event	 that triggered	 the	 running	 of	 the	 six

- year	 statute	 of	 limitations. See 14	 M.R.S. § 752

.13 [¶ 23 ]		The	only	way Gourevitch’s	complaint	could	proceed	would	be	if the	 statute	 of	limitations	 were	 tolled. The	 common	law	 discovery	 rule	 tolls the	statute	of	limitations	only	if	there	is	“a	fiduciary	relationship	between	the plaintiff	and	defendant,	the	plaintiff	must	rely upon	the	defendant’s	advice	as a	 fiduciary,	 and	 the	 cause	 of	 action	 [is]	 virtually	 undiscoverable	 absent	 an independent	 investigation	 that	 would	 be	 destructive	 of	 the	 fiduciary relationship.” Nevin	v.	Union	Tr. Co. ,	1999	ME	47,	¶ 25,	726	A.2d	694

. [¶ 24 ] The	pertinent	facts	are	these.		Maxwell’s	biological	mother	died	in 1990.	 	 His	 adoptive	 mother	 released	 her	 then	 additional	 share	 to	 Maxwell voluntarily.	 	 In	 1994,	 the	 trustees	 sought	 clarification	 from	 the	 Cumberland County	Probate	Court	about	whether	a dopted	children	could	be	beneficiaries pursuant	 to	 the	 terms	of	 the	 trust,	and	 the	court	d etermined	 that	 they	could
not. [¶ 25 ] In	1996,	the	trustees	passed a	formal	resolution	determining	that Maxwell	 was Philippa’s	 biological	 son and was a	 beneficiary of	 the	 Trust

. Thereafter,	Maxwell	continued	to	receive	regular	payments	as	the	child	of	his biological	 mother.	 	 These	 were	 the	 circumstances	 that	 existed	 when
Gourev itch	became	a	trustee	in	1999.14 [¶ 26 ]		Gourevitch	was	a	trustee	 from	1999	to	2002, during which	time he	had	the	full	ability	to	determine	why	Maxwell	was	receiving	Trust	income distributions	 while	 the	 woman	 Gourevitch	 believed	 to	 be	 Maxwell’s	 mother was	still	living

— a	circumstance	that is	 fully contrary	to	the	Trust’s	provision that	 “in	 no	 case does	 issue	 take	 till	 the	 death	 of	 the	 parent	 whom	 it represents.”	 	 Instead,	 Gourevitch	 participated	 as	 a	 trustee	 in	 continuing	 to make	 distributions	 to	 Maxwell.	 	 He does	 not	 receive the	 benefit	 of	 tolling because	he	had	both	the	reason	and	the	ability	to discover	the	claim	when	he was	 serving	 as	 a	 trustee	 but	 did	 not	 commence	 legal	 action	 until	 2014

— twelve	years	after	ending	his	service	as	a	trustee and	eighteen	years	after the date	 of	 the	Trustees’	 resolution declaring	Maxwell	 to	 be	a	 beneficiary as the

c hild	of	Philippa

. See	id. [¶ 27 ] Because the	 statute	 of	 limitations	 has	 run, we	 do	 not	 reach Maxwell’s	 challenge	 to	 the	 Probate	 Court’s ruling , on	 the	 merits	 of Gourevitch’s	complaint , that	Maxwell	would	not	have	been	a	beneficiary	of	the Trust	had	the	challenge	been	made	in	a	timely	manner.		W e vacate	the	Probate Court’s amended judgment	 and	 remand	 the	 matter	 for	 the	 court	 to	 deny Gourevitch’s	motion	 for	 summary	 judgment and grant	Maxw ell’s	motion	 for summary	judgment.15 The	entry	is: Judgment	 vacated.	 	 Remanded	 for the	 court	 to deny	 Gourevitch’s	 motion	 for	 summary judgment and grant	 Maxwell’s	 motion	 for summary	judgment

.

HJELM,	J.,	with	whom	JABAR,	J.,	joins,	dissenting. [¶28] Today,	the Court	concludes	that	a	trust	beneficiary	is	not	entitled to	commence	a	cause	of	action	arising	from	allegedly	wrongful	distributions	of trust	income	made	within	the	limitations	period,	so	long	as	the	trustees’	initial decision	 to	begin	 those	ong oing	distributions	is	made	outside	 the	limitations period.	 	 Court’s	 Opinion	 ¶¶	 22,	 27.	 	 In	 my	 view,	 this	 holding	 is	 contrary	 to established	Maine	law	and	the	principle	that	a	trustee	is	bound	by	the	highest ongoing	 fiduciary	 duties	 of	 good	 faith	 and	 loyalt y	 to	 trust	 beneficiaries.	 	 I therefore	 conclude,	 as	 a	 matter	 of	 law,	 that	 this	 action	 is	 not	 barred	 by	 the statute	 of	 limitations.	 	 Because I	 also	 conclude	 that	 the	 summary	 judgment record	contains	genuine	issues	of	material	 fact	on	 the	merits	of	 this	acti on,	 I would	 vacate	 the	 summary	 judgment	 entered	 by	 the	 Cumberland	 County Probate	 Court	 ( Mazziotti,	J. )	 and	 remand	 for	 further	 proceedings.	 	 For	 these reasons,	I	respectfully	dissent.16 [¶29]		I	will	first	address	the	reasons	why	the	statute	of	limitations	d oes not	 bar	 David	 Gourevitch’s	 claim	 for	 a	 declaratory	 judgment.	 	 I	 will	 then discuss	 the	 factual	 issues	 revealed	 in	 the	 record	 that	 preclude	 a determination,	as	a	matter	of	law,	that	Thomas	Maxwell,	a	nonmarital	child,	is a	beneficiary	of	 the	George	Parso ns	Trust

— factual	disputes	 that	require	 this case	to	be	remanded	for	further	proceedings	in	the	Probate	Court.
A. Statute	of	Limitations [¶30]		Title	14	M.R.S.	§ 752	(2016)	provides	 that	“civil	actions	shall	be commenced	 within	 6	 years	 after	 the	 cause	 of	 a ction	 accrues	 and	 not afterwards.”		As	the	Court	states,	a	cause	of	action	based	on	a	breach	of	a	trust accrues	at	the	time	of	the	breach,	Court’s	Opinion	¶	16,	because	that	is	when the	claimant	sustains	a	“judicially	cognizable	injury,” Estate	of	Miller , 2008	ME 176,	¶	25,	960	A.2d	1140	(quotation	marks	omitted). [¶31]	 	 The	 Probate	 Court	 concluded,	 as	 a	 matter	 of	 law,	 that Gourevitch’s	2014	complaint	was	timely	because	a	new	breach	occurred	each time	 the	 Trustees	 made	 a	 monthly	 distribution	 of	 income

— alleg edly wrongfully

— to	 Maxwell.	 	 The	 court’s	 conclusion	 was	 predicated	 on	 its determination	 that	 trustees	in	 Maine	 have	 a	 continuing	 duty,	 accompanying each	distribution to	a	beneficiary,	to	ensure	that	the	recipient	is	entitled	to	that17 distribution.		In	my	op inion,	that	legal	assessment	of	the	continuing	nature	of the	 Trustees’	 duties	 is	 correct	 because	 it	 is	 supported	 by	 Maine	 law	 and	 is consistent	with	the	essential	nature	of	a	trust	and	a	trustee’s	fiduciary	duties. [¶32]		“A	trust	.	.	.	is	a	fiduciary	re lationship	with	respect	to	property	.	.

. subjecting	the	person	who	holds	title	to	the	property	to	duties	to	deal	with	it for	the	benefit	of”	another.		Restatement	(Third)	of	Trusts	§	2	(Am. Law	Inst. 2003).		Because	of	“the	intimate	nature	of	the	[trustee ]	relationship,”	and	“the great	 control	 of	 a	 trustee	 over	 the	 property	 of	 the	 beneficiary,”	 the	 law demands	of	a	trustee	“an	unusually	high	standard	of	ethical	or	moral	conduct.” Amy	Morris	Hess	et	al., The	Law	of	Trusts	and	Trustees §	1	at	5	(3d	ed.	2007 ). Indeed,	the	fiduciary	duties	of	a	trustee	are	“the	highest	known	to	the	law.” La Scala	v.	Scrufari ,	479 F.3d	213,	219	(2d	Cir.	2007)	(quotation	marks	omitted); see	 also Meinhard	 v.	 Salmon ,	 164	 N.E.	 545,	 546	 (N.Y.	 1928)	 (“Not	 honesty alone,	but	 the	pun ctilio	of	an	honor	 the	most	sensitive,	is	.	.	.	 the	standard	of [trustee]	behavior.”). [¶33]	 	 Within	 that	 “unusually	 high	 standard”	 of	 conduct	 and	 fidelity, Hess	et	al., The	Law	of	Trusts	and	Trustees §	1	at	5,	“the	extent	and	limits	of	[a trustee’s]	authority”	are	 defined	 by	 the	 trust	itself, In	 re	Marble ,	 136	Me. 52, 56,	1	A.2d	355	(1938)	(quotation	marks	omitted).		Accordingly,	with	respect18 to	a	trustee’s	specific	responsibilities,	the	trustee	is	“b ound,	in	the	first	place, to	conform	strictly	to	the	directions	of	the	trust .		This	is	in	fact	the	corner

- stone upon	which	all	other	duties	rest,	 the	source	 from	which	all	other	duties	 take their	 origin.	 .	 .	 .	 If	 the	 trust	 is	 express,	 created	 by	 deed	 or	 wi ll, then	 the provisions	 of	 the	 instrument	 must	 be	 followed	 and	 obeyed .” Id. (emphases added)	 (quotation	 marks	 omitted).	 	 Additionally,	 in	 fulfilling	 the	 primary obligation	 to	 execute	 the	 trust’s	 directions,	 a	 trustee	 is	 bound	 to	 act consistently	with	duti es	defined	by	statute.		Specifically,	trustees	have	a	duty to	 “administer	 the	 trust	 in	 good	 faith, in	 accordance	 with	 its	 terms and
purposes and	 the	 interests	 of	 the	 beneficiaries	 and	 in	 accordance	 with	 [the Maine	Uniform	Trust	Code].”		18

- B	M.R.S.	§	801	( 2016)	(emphasis	added).		In addition,	 trustees	 have	 a	 duty	 to	 “administer	 the	 trust	 as	 a	 prudent	 person would,	 by	 considering	 the	 purposes,	 terms, distributional	 requirements and other	circumstances	of	the	trust.”		18

- B	M.R.S.	§	804	(2016)	(emphasis	added)

. [¶34]		A	trustee’s	statutory	duty	to	administer	a	trust	“in	good	faith,”	“as a	prudent	person	would,”	necessarily	encompasses	the	duty	to	ascertain	that each	 individual	 whom	 the	 trustees	 designate	 to	 receive	 trust	 income	 is actually	 entitled	 to	 those	 p ayments	 pursuant	 to	 the	 terms	 of	 the	 trust

— in other	words,	that	the	settlor	intended	to	include	that	person	as	a	beneficiary.19 See Restatement	 (Third)	 of	 Trusts	 §	 76	 (Am.	 Law	 Inst.	 2007)	 (stating	 that	 a trustee’s	 duty	 to	 administer	 a	 trust	 “in	 good	 faith, in	 accordance	 with	 the terms	 of	 the	 trust”	 includes	 the	 responsibility	 to	 “ascertain[]	 .	 .	 .	 the beneficiaries	and	purposes	of	the	trust”); Id .	§	77	cmt.	c	(stating	that	to	fulfill the	duty	of	prudence,	a	 trustee	must	 “acquire	a	reasonable	understanding	of the	 terms	 of	 the	 trust”	 and	 “the	 rights	 and	 interests	 of	 the	 beneficiaries”); George	Gleason	Bogert	& George	Taylor	Bogert, The	Law	of	Trusts	and	Trustees §	583	at	348

- 49	(rev.	2d	ed.	1980)	(“After	a	trustee	has	accepted	the	trust	.	.	.	it becomes	 his	 dut y	 to	 carefully	 examine	 the	 terms	 of	 the	 trust	 and	 the	 trust assets	in	order	 to	determine	exactly	what	property	 forms	 the	subject

- matter of	 the	 trust, who	are	 the	beneficiaries ,	and	what	are	 the	 trustee’s	duties	with respect	 to	 the	 trust	 property	 and	 the	 be neficiaries.”	 (emphasis	 added) (footnotes	omitted)). [¶35]	 	 Contrary	 to	 the	 Court’s	 analysis,	 however,	 a	 trustee’s	 initial determination	of	who	is	a	“beneficiary”	is	not	the	end	of	the	matter.		We	have explained	 that	 a	 trustee’s	 duty	 of	 prudence	 in	 Maine	 i s	 “ongoing.” Nevin v. Union	Tr.	Co. ,	1999	ME	47,	¶¶	26

- 28,	726	A.2d	694.		A	trustee	is	therefore	not discharged	from	her	fiduciary	duties	when	that	trustee	simply	makes	an	initial or	 interim	 discrete	 decision. See George	 Gleason	 Bogert	 &	 George	 Taylor20 Bo gert, The	 Law	 of	 Trusts	 and	 Trustees §	 541	 at	 160	 (rev.	 2d	 ed.	 1978, replacement	vol.	1993)	(“The	trustee	must continually demonstrate	good	faith in	 administering	 the	 trust	 and	 in	 dealing	 with	 beneficiaries.”	 (emphasis added)).		Rather,	the	fiduciary	dutie s	defined	by	statute	attach	to each	action a trustee	 takes	 in	 executing	 the	 terms	 of	 the	 trust,	 including	 each	 decision

— whether	ministerial	 or	 otherwise

— to	 distribute	 trust	income	 to	a	 particular
person. [¶36]		 In	addition	 to	being	a	 violation	of	a	 trust ee’s	statutory	duties,	a trustee’s	 distribution	 of	 trust	income	 to	 an	individual	 who	is	 not	 entitled	 to receive	 the	 payments	 is	 a	 violation	 of	 that	 trustee’s	 primary	 obligation	 “to conform	 strictly	 to	 the	 directions	 of	 the	 trust.” In	 re	 Marble ,	 136 Me.	 at 56,
1 A.2d	 355	 (quotation	 marks	 omitted); see	 also George	 Gleason	 Bogert
& George	Taylor	Bogert, The	Law	of	Trusts	and	Trustees §	814	at	315	(rev.	2d ed.	1981)	(stating	that	a	trustee	has	“an unconditional	obligation to	follow	the applicable	 provisions	 regarding	 payments	 and	 distributions”	 (emphasis added)).		If	a	trustee	repeatedly	makes	distributions	to	an	improper	recipient, then	 with	 each	 subsequent	 payment	 the	 trustee	 acts	 in	 derogation	 of	 the terms	of	the	trust	n ot	only	by	allowing	an	ineligible	person	to	participate,	but also	by	diminishing	the	amount	of	the	payments	that	the	true	beneficiaries	are21 entitled	to	receive	because	of	the	expanded	pool	of	recipients.		In	other	words, each	 time a	 trustee	makes	an	improp er	payment,	 the	 trustee	breaches	his	or her	 fiduciary	 duty	 owed	 to	 the	 true	 beneficiaries,	 causing	 a	 new	 injury	 to them,	 because	 the	 amount	 of	 the	 distribution	 they	 receive	 is	 less	 than	 it should	 be.	 	 The	 injury	 does	 not	 end	 when	 the	 trustees	 first	 decide to	 make those	ongoing	payments. [¶37]	 	 Accordingly,	 based	 on	 fundamental	 principles	 of	 trust	 law,	 I conclude	that	even	after	a	trustee	makes	an	initial	distributional	decision,	that trustee	 has	 a	 fiduciary	 duty	 to	 ensure,	 on	 an ongoing basis,	 that	 income	 i s being	distributed	only	to	proper	beneficiaries	consistent	with	the	terms	of	the trust.	 	 Consequently,	 the	 accountability	 of	 trustees	 to	 the	 beneficiaries	 does not	 end	 when	 they	 make	 that	 initial	 distributional	 decision. 9 Rather,	 they remain	liable	for	t he	ongoing	actions	placed	in	motion	by	their	initial	decision.

9 Renz	 v.	 Beeman ,	 which	 the	 Court	 cites	 as	 support	 for	 the	 proposition	 that	 the	 statute	 of limitations	begins	to	run	at	the	time of	the	initial	breach,	Court’s	Opinion	¶	16,	is	inapposite	because that	 case	involves	a	 claim	 based	 on	a	 one

- time	event,	 rather	 than	 ongoing	 or	 repeated	actions	in derogation	of	a	trust,	as	is	the	case	here. 589	F.2d	735,	743,	748

- 49	(2d	Cir.	1978) ( conc luding	that a	one - time	breach	of	trust	occurred,	and	the	statute	of	limitations	began	to	run,	on	the	date	when	a trustee	purchased	certain	shares	of	stock ) .		The	cases	cited	by	the	Court	as	further	support	for	this point	are	not	helpful	to	an	analysis	of	t he	case	at	bar. See Harris	Tr. Bank of	Ariz. v.	Superior	Court , 933 P.2d	 1227,	 1231

- 32	 (Ariz.	 Ct.	 App.	 1996) (addressing	 the	 question	 of	 whether	 a	 particular statute	of	limitations	applied at	 all ,	not	when	it	began	 to	 run); Cecil	v.	Cecil ,	712	S.W.2d	353, 355 (Ky.	Ct.	App.	1986) (applying	a	unique	statute	of	limitations	where	the	triggering	event	was	not	an alleged	breach	of	trust,	but	rather	the	beneficiary’s	“receipt	of	[a]	final	account	or	statement”). Getty	 v.	 Getty ,	 187	 Cal.	 App.	 3d	 1159 (Cal.	 Ct. App .	 1986) ,	 on which	 the Court	 also relies, Court’s	Opinion	¶	18,	similarly	is	inapposite.		That	case	involved	a	beneficiary’s	claim	 to reform a trust	 to	 increase	 his	 share	 of	 trust	 income	 and	 principal	 so	 that	 it	 would	 be	 equal	 to	 that	 of	 his22 [¶38] In	their	discussion	of	the	statute	of	limitations	and	their	analysis of	 when	 Gourevitch’s	 cause	 of	 action	 accrued,	 the	 parties	 have	 focused	 on Tibble	v.	Edison	International ,	575	U.S.

- - ,	135	S.	Ct.	1823	(2015). Tibble itself does	 not	 bear	 directly	 on	 this	 issue	 but,	 to	 the	 extent	 that	 it	 does provide guidance	 here,	it	 supports	 the	 conclusion	 that	 the	Trustees	 have	an	 ongoing duty	to	ensure	that	the	interests	of	the	beneficiaries	are	pr otected. [¶39]	 	 The Tibble Court	 considered	 “whether	 a	 fiduciary’s	 allegedly imprudent	retention	of	an	investment	is	an	‘action’	or	‘omission’	that	triggers the	 running	 of	 the	 6

- year	 limitations	 period”	 applicable	 to	 claims	 brought pursuant	 to	 the	 Employ ee	 Retirement	 Income	 Security	 Act	 of	 1974	 (ERISA), 29	 U.S.C.S.	 §§	 1001

- 1461	 (LEXIS	 through	 Pub.	 L.	 No.	 115

- 45). 10 Tibble ,	 575

brothers, Ge tty ,	187	Cal.	App.	3d	at	1167

- 68

— it	was	not	a	case	based	on	an	alleged	breach	of	trust. An	 intermediate

- level	 court	 held	 that	 the	 beneficiary’s	 action	 for	 reformation	 was	 time

- barred because	 the	 trustees	 had	 “distributed	income	 to	 the	 beneficiaries in	 exa ctly	 the	 amounts	 required under	 the	 declaration	 of	 trust ”	 for	 over	 forty

- two	 years,	 and	 the	 beneficiary	 had	 actual	 or constructive	knowledge	of	the	settlors’	alleged	mistake	for	thirty

- nine	years	before	filing	suit. Id. at 1169	 (emphasis	 added).	 	 By	 seeki ng	 reformation	 of	 the	 trust,	 the	 beneficiary	 in Getty expressly acknowledged	that	there	was	no	continuing	violation	because,	as	the	court	found,	the	trustees	were distributing	income	in	the	amounts	required	by	the	trust. See	id. Rather,	the	question	was whether the	terms	of	the	trust	that	mandated	those	distributions should	be	altered

. See	id. Conversely,	 here,	 Gourevitch	 sued	 for	 a declaratory	 judgment to	 determine	 whether	 the Trustees’	repeated	and	ongoing	distributions	of	trust	income	to	Maxwell viola te the actual terms	of the	Trust.		Because Getty did	not	involve	ongoing	conduct	by	the	trustees	that	was	in	violation	of	the trust,	it	 has	 no	 bearing	 on	 whether	 Gourevitch’s	 cause	 of	 action	 accrues	 anew	 with	 each	income distribution.

10 The	statute	of	limitations	on	ERISA	claims	provides,	in	pertinent	part,	that	“[n]o	action	may	be commenced under	 this	 title with	 respect	 to	 a	 fiduciary’s	 breach	 of	 any	 responsibility,	 duty,	 or obligation	.	.	.	after	the	earlier	of	.	.	.	six	years	after	( A)	the	date	of	the	last	action	which	constituted	a part	 of	 the	 breach	 or	 violation,	 or	 (B)	 in	 the	 case	 of	 an	 omission , the	 latest	 date	 on	 which	 the23 U.S.

-- ,	135	S.	Ct.	at	1826.		The	Court	stated	“that	an	ERISA	 fiduciary’s	duty	is derived	 from	 the	 common	 law	 of	 trusts,” id. at	 1 828	 (quotation	 marks omitted),	and	explained	that under	trust	law,	a	fiduciary	normally	has	a continuing	duty	of	some kind	 to	 monitor	 investments	 and	 remove	 imprudent	 ones .	 	 A plaintiff	may	allege	that	a	fiduciary	breached	the	duty	of	prudence by	failing to	properly	monitor	investments	and	remove	imprudent ones.	 	 In	 such	 a	 case,	 so	 long	 as	 the	 alleged	 breach	 of	 the continuing	 duty	 occurred	 within	 six	 years	 of	 suit,	 the	 claim	 is timely. Id. at	 1828

- 29	 (emphasis	 added).	 	 Therefore,	 although Tibble involve d	 the fiduciary	duty	to	prudently	oversee	trust	investments	rather	than	the	duty	to distribute	trust	income	only	to	proper	beneficiaries,	the	opinion	confirms	the ongoing	nature	of	the	fiduciary	duties	that	trustees	are	bound	to	discharge. [¶40]	 	 Further, despite	 the	 Court’s	 analytical	 reliance	 on Maine Municipal	 Employees	 Health	 Trust	 v.	 Maloney ,	 2004	 ME	 51,	 846	 A.2d	 336, Court’s	Opinion	¶	19,	that	case	does	not	support	the	Court’s	view	that	the	legal responsibility	 of	 a	 trustee	 is	 limited	 to	 the	 trustee’s initial	 distributional decision

— in	fact,	it	does	not	involve	fiduciary	responsibilities	at	all.		Rather,	in Maloney ,	 a	 health	 care	 plan	 paid	 medical	 expenses	 incurred	 by	 a	 covered person	 who	 had	 sustained	 injuries	 arising	 from	 another	 person’s	 tortious
fiduciary	could	have	cured	the	breach	or	violation.” 29	U.S.C.S.	§	1113	( LEXIS	through	Pub.	L.	No. 115

- 45 )

.24

co nduct	and	who	later	settled	the	resulting	tort	claim. Maloney ,	2004	ME	51, ¶	2,	846	A.2d	336.		Seven	years	after	the	settlement,	the	plan	brought	a	claim against	 the	 covered	 individual	 alleging	 unjust	 enrichment

— not	 breach	 of fiduciary	 duty

— and	 seeking	 re imbursement	 of	 the	 medical	 expenses	 it	 had paid. Id. ¶¶	 3

- 4.	 	 We	 rejected	 the	 plan’s	 argument	 that	 its	 claim	 was	 not
time

- barred	because	it	“accrue[d]	anew	with	each	monthly	annuity	payment,” concluding	 that	 the	 injury	 had	 in	 fact	 occurred	 when	 the	 partic ipant	 first settled	his	claim	against	the	tortfeasor. Id. ¶¶	9

- 10.		The	litigants	in Maloney , however,	were	merely	parties	 to	a	health	insurance	contract, see	id. ¶	6,	and there	is no suggestion	that	the	covered	individual	owed any fiduciary	duty	to the	p lan,	let	alone	a	continuing	duty.		Rather,	the	alleged	wrongdoer,	namely, the	insured,	was	 a	 health	 care	 plan	 participant

— not	 a	 trustee

— who	merely received	periodic	payments	from	a	third	party. See	id. ¶	2. [¶41]		Conversely,	here,	 the	Trustees are fiduciaries	and are bound	by continuing	 obligations	 that	 run	 to	 Gourevitch	 as	 a	 beneficiary	 of	 the	 Trust. Accordingly,	the	Trustees’	repeated	decisions	to	pay	Trust	income	to	Maxwell, allegedly	 in	 violation	 of	 their	 continuing	 fiduciary	 obligations	 in	 th e administration	 of	 the	 Trust,	 represent	 discrete	 “judicially	 cognizable injur[ies ],” Estate	 of	 Miller ,	 2008	 ME	 176,	 ¶	 25,	 960 A.2d	 1140	 (quotation25 marks	omitted),	e ach	giving	rise	to	a	new	cause	of	action. Maloney is	therefore inapplicable. [¶42]		For these	reasons,	I	conclude	that	a	new	cause	of	action	accrued each	 time	 the	 Trustees	 made	 a	 distribution	 of	 Trust	 income	 to	 Maxwell, because	he	allegedly	was	not	entitled	to	those	payments	pursuant	to	the	terms of	 the	 Trust.	 	 With	 each	 such	 payment,	 the	 tru e	 beneficiaries	 allegedly sustained	 a	 new	 injury,	 resetting	 the	 clock	 for	 purposes	 of	 the	 statute	 of limitations.		This	conclusion	is	the	product	of	Maine	law	and	the	law	of	trusts that	 establish	 the	 continuing	 nature	 of	 a	 trustee’s	 duty	 to	 comply	 with	 the provisions	of	a	trust,	including	its	distributional	requirements. 11 Accordingly, because	the	undisputed	facts	establish	that	Gourevitch	commenced	this	action for	a	declaratory	judgment	challenging	Maxwell’s	beneficiary	status	within	six years	of	at	least one	of	the	Trustees’	monthly	payments	to	Maxwell,	the	claim is	 timely. 12 See McLaughlin	 v.	 Superintending	 Sch.	 Comm.	 of	 Lincolnville ,

11 I	agree	with	the	Court	that,	as	the	Probate	Court	concluded,	Gourevitch	i s	not entitled	to	the benefit of	 the	common	law	discovery	rule, which	 toll s the	statute	of	limitations	“until	 the	plaintiff discovers	 or	 reasonably	 should	 have	 discovered	 the	 cau se	 of	 action.” Nevin	 v.	 Union	 Tr. Co. , 1999 ME	47,	¶	25,	726	A.2d	694 ;	Court’s	Opinion	¶¶	23

- 26.		My	conclusion	that	Gourevitch’s	claim is	timely	does	not	rely	on	the	application	of	the	common	law	tolling	rule.

12 C ontrary	to	the	Court’s statement,	Court’ s	Opinion	¶	21 , a	holding	that	Gourevitch’s	claim	is timely would	not	detract	from	the	essential	purpose	of	statutes	of	limitations	“to	provide	eventual repose	 for	 potential	 defendants	 and	 to	 avoid	 the	 necessity	 of	 defending	 stale	 claims,” Angell	 v. Hallee ,	2012	ME	10,	¶	8,	36	A.3d	922 (quotation	marks	omitted) .		Rather,	a	trustee	would	enjoy	that repose	 when	 any	 other	 alleged	 wrongdoer	 would,	 namely,	 six	 years	 after	 the	 last	 injury	 she26 2003 ME	114,	¶¶	11

- 12,	19,	832	A.2d	782	(explaining	that	summary	judgment on	a	statute	of	limitations	defense	is	proper	wh en	there	is	no	genuine	issue	of material	fact	as	to	whether	the	cause	of	action	accrued	within	the	limitations period).
B. Status	of	Nonmarital	Children [¶43]		I	next	address	the	merits	of	the	parties’	arguments	because	if

— as I	 conclude

— Gourevtich’s	 claim is	 not	 time

- barred	 but	 the	 undisputed	 facts nevertheless	 were	 to	 establish	 that	 Maxwell	 is	 a	 proper	 beneficiary	 of	 the Trust,	 then	 this	matter	 would	 have	 to	 be	 remanded	 for	 entry	 of	 a	 summary judgment	for	Maxwell	in	any	event.		For	the	following	reasons,	I disagree	with that	result.		Rather,	I	conclude	that	neither	party	is	entitled	to	a	judgment	as	a matter	of	law	on	 the	issue	of	whether	Maxwell	is	a	proper	beneficiary,	and	 I would	 therefore	 remand	 this	 matter	 to	 the	 Probate	 Court	 for	 further proceedings. [¶44]		The	specific	issue	is	whether	the	court	erred	by	concluding,	as	a matter	of	law,	that	the	terms	used	to	identify	Trust	beneficiaries

— “issue”	and “descendants”

— must	be	construed	to	omit	nonmarital	children.

participated	 in	 creating ,	 which	 here	 consisted	 of	 allegedly making	 a	 wr ongful	 payment	 of	 trust assets.27 [¶45]		“The	cardinal	rule	is	to	give	eff ect	to	the	intention	of	the	testator gathered	from	the	language	of	the	will	[creating	the	trust]	.	.	.	.” Me.	Nat’l	Bank v.	 Petrlik ,	 283	 A.2d	 660,	 664	 (1985).	 	 The	 court	 must	 determine	 a	 settlor’s intent	 at	 the	 time	 the	 trust	 was	 created,	 without	 regard	 t o	 sensibilities	 that may	have	evolved	later. 13 See	id. ; New	England	Tr.	Co.	v.	Sanger ,	151	Me.	295, 301,	 118	 A.2d	 760	 (1955).	 	 “The	 intent	 of	 the	 settlor,	 as	 determined	 by unambiguous	language	in	 the	 [trust],	is	a	 question	 of	law	 that	we	 review	 de novo.” Fiduciary	Tr.	Co.	v.	Wheeler ,	2016	ME	26,	¶	9,	132 A.3d	1178	(quotation marks	 omitted).	 	 Conversely,	 if	 the	 trust	 contains	 an	 ambiguity,	 a	 court’s determination	of	 the	settlor’s	intent	is	a	question	of	 fact	 to	be	adjudicated	in the	trial	court. See	Newick v.	Mason ,	581 A.2d	1269,	1273

- 74	(Me.	1990).		If	“a showing	of all the	relevant	extraneous	circumstances	provides	no	basis	 for	a fair	conclusion	as	to	the	meaning”	of	a	particular	term,	a	court	may	apply	the “presumptive”	 meaning

— namely,	 a	 meaning	 based	 o n	 common	 law principles, Ziehl	v.	Me.	Nat’l	Bank ,	383	A.2d	1364,	1372	(Me.	1978), superseded by	 statute	 on	 other	 grounds , P.L.	 1979,	 ch.	 540,	 §	 1	 (effective	 Jan.	 1,	 1981)

13 For	this	reason,	the	rule	of	construction	in	the	Maine	Probate	Code,	which	states	that	“ persons born	out	of	wedlock	are	included	in	clas s	gift	terminology	and	terms	of	relationship	in	wills	and	in trust	instruments,”	 does not	 apply	 to	 these	 proceedings	 because	 that	 statute	 became	 effective	in 1981,	long	after	the	Trust	was	created.		P.L.	1979,	ch.	540,	§	1	(effective	 Jan.	1,	1981)	(codified	as amended	at 18

- A	M.R.S.	§ 2

- 611	(2016) ); see	also Hall	v.	Cressey ,	92	Me.	514,	51 6,	43	A.	118	(1899) (stating	 that	 “[m]odern	 sentiment[s]	 as	 expressed	 in	 modern	 statutes”	 have	 no	 bearing	 on	 the interpretation	of	an	instrument	executed	before	the	statutes	were	adopted).28 (codified	 as	 amended	 at	 18

- A	 M.R.S.	 § 2

- 611	 (2016)),	 so	 long	 as	 the presumption	was	a pplied	during	 the	settlor’s	lifetime	and	“may	be	supposed to	have	been	in	the	mind	of	the	testator	at	the	time”	the	will	creating	the	trust was	made. Petrlik ,	283	A.2d	at	664. [¶46]	 	 Paragraph	 5	 of	 the	 Trust

— which	 is	 the	 source	 of	 Maxwell’s claimed	 inte rest

— provides	 that	 a	 deceased	 descendant’s	 share	 of	 Trust income	is	payable	to	his	or	her	“issue.”		In	the	context	of	a	summary	judgment analysis,	the	question	therefore	is	whether	a	nonmarital	child	such	as	Maxwell indisputably	 must	 be	 considered	 “issue” of	 his	 biological	 mother	 within	 the meaning	of	the	Trust. [¶47]		We	have	previously	stated	that	the	term	“issue”	is	ambiguous	and that	its	meaning	 varies	according	 to	 the	intention	 of	 the	 settlor	who	 uses	it. Gannett	v.	Old	Colony	Tr.	Co. ,	155	Me.	248,	24 9,	153	A.2d	122	(1959); Fiduciary
Tr.	Co.	v.	Brown ,	152	Me.	360,	371

- 72,	131 A.2d	191	(1957); Union	Safe	Deposit &	 Tr.	 Co.	 v.	 Dudley ,	 104	 Me.	 297,	 306,	 72 A. 166	 (1908).	 	 Although,	 here, Parsons	 expressly	 defined	 “issue”	 in	 Paragraph	 8	 of	 the	 Trust	 to	 mean “all descendants,”	 that	 provision	 fails	 to	 provide	 any	 additional	 definitional meaning	 because,	 as	 we	 have	 noted	 in	 the	 past,	 the	 term	 “issue”	 is synonymous	 with	 the	 term	 “descendants.” Fiduciary	 Tr.	 Co. ,	 152	 Me.	 at29 371

- 72,	 131	A.2d	 191; see	 also	Morse	 v .	Hayden ,	 82	Me.	 227,	 230,	 19	A.	 443 (1889)	 (stating	 that	 “issue	 .	 .	 .	 is	 synonymous	 with	 lineal	 descendant”) (quotation	marks	omitted); Union	Safe	Deposit	&	Tr.	Co. ,	104	Me.	at	307,	72	A. 166	(stating	that	“the	word	‘issue’	is	to	be	interpreted	according to	its	primary signification	as	importing	descendants”); Newick ,	581 A.2d	at	1273	(“‘Issue’	is commonly	interpreted	as	meaning	‘[a]ll	persons	who	have	descended	 from	a common	ancestor.’”	 (quoting Black’s	Law	Dictionary 746	 (5th	ed.	1979)).		As the	Probate Court	noted,	the	definition	of	“issue”	included	in	the	Trust	merely indicates	that	the	terms	“issue”	and	“descendants”	had	“like	meanings	for	the purposes	 of	 defining	 the	 beneficiaries.”	 	 Because	 the	 term	 “issue”	 is ambiguous,	 and	 because	 the	 term	 “descend ants”

— which	 Parsons	 used	 to define	 “issue”

— is	 merely	 a	 synonym	 that	 does	 not	 provide	 additional definitional	content,	neither	term	has	a	fixed	meaning	that	can	be	discerned	as a	matter	of	law. [¶48]	 	 The	 Trust	 further	 states	 in	 Paragraph	 8	 that	 “[d]istribu tion	 of income	among	 the issue of	a	.	.	.	descendant	.	.	. shall	mean that	such	income shall	be	paid	in	equal	shares	to	his	or	her children .”		(Emphases	added.)		For reasons	 similar	 to	 those	 stated	 above,	 this	 provision	 does	 not	 allow	 any determination	of the	meaning	of	 the	 term	“issue”	as	a	matter	of	law	because30 the	term	“children,”	like	the	term	“issue,”	is	ambiguous	and	must	be	construed based	on	Parsons’s	intent	when	the	Trust	was	created. See	Ziehl ,	383	A.2d	at
1369

- 70	 (stating	 that	 the	 word	 “children ”	 is	 ambiguous	 because	 in	 general usage	it	is	“associated	with	more	than	one	category	of	external	objects”); In	re Woodcock ,	103	Me.	214,	216

- 17,	68	A.	821	(1907)	(stating	that	the	meaning	of “children”	 depends	 on	 the	language	 of	 the	 testamentary	instrumen t	 and	 the circumstances	 existing	 when	it	 was	 executed); Bolton	 v.	 Bolton ,	 73	 Me.	 299,
309

- 10	 (1882)	 (same).	 	 Accordingly,	 regardless	 of	 what	 meaning	 may	 be ascribed	to	the	term	“children” today ,	the	plain	language	of	the	Trust	does	not indisputably	 establi sh	 whether,	 in	 1907,	 Parsons	 intended	 to	 include nonmarital children	as	beneficiaries. [¶49]		The	express	rule	of	construction	that	appears	in	Paragraph	28	of the	 Trust	 also	 does	 not	 unambiguously	 resolve	 the	 question	 at	 issue	 here. Paragraph	28	states: The	 laws	 of	 the	 State	 of	 Maine	 shall	 apply	 to	 and	 govern	 the validity,	 construction	 and	 operation	 of	 this	 agreement,	 except	 as the	 construction	 or	 legal	 effect	 of	 this	 instrument	 is	 expressly stated	in	 the	provisions	of	 the	deed	itself,	and	all	matters,	 th ings and	proceedings	now	or	hereafter	arising	or	had	hereunder. By	using	 the	phrase	“laws	of	 the	State	of	Maine,”	Parsons	did	not	distinguish between	 statutes	 and	 common	 law,	 and	 he	 could	 reasonably	 have	 been31 referring	 to	either. 14 Applying	 the	statutes and	common	law	in	effect	during Parsons’s	lifetime,	however,	leads	to	competing	conclusions	as	to	whether	he intended	 to	 include	 nonmarital	 children	 in	 the	 gift	 to	 the	 “issue”	 of	 his deceased	descendants. [¶50]		The	statutes	in	effect	in	1907	included	a provision	 that	allowed an	 “illegitimate	 child”	 to	 inherit	 property	 from	 his	 or	 her	 biological	 mother who	died	intestate.		R.S.	ch.	77,	§	3	(1903). 15 Accordingly,	if	the	phrase	“laws of	 the	 State	 of	 Maine”	 is	 construed	 to	 mean statutory law,	 and	 if	 the	 190 7 statutes	of	descent	can	reasonably	be	analogized	to	trusts,	then	the	language of	the	Trust	reasonably	allows	the	conclusion	that	Parsons	intended	to include nonmarital	 children	 within	 the	 meaning	 of	 the	 terms	 “issue”	 and “descendants.”

14 In	other	places	in	 the	Trust,	Parsons	 referred	 to	statutory	law specifically.		For	example,	in Paragraph	8,	Parsons	expressly	rejected	the	definition	of	“per	stirpes”	provided	“under	the	statutes of	 distribution	 in	 the	 State	 of	 Maine.”	 	 The	 phrase	 “laws	 of	 the	 State	 of	 Maine”	 could	 therefore reasonably	 be	 construed	 to be	 broader	 than	 the	 reference	 to	 the	 “statutes	 of	 distribution”	 in Paragraph	8	of	the	Trust	and	include	the	common	law.

15 R.S.	ch.	77,	§	3	(1903)	provided	in	full, An	 illegitimate	 child	 born	 after	 March	 twenty

- four,	 in	 the	 year	 of	 our	 Lord	 one thousand	 e ight	 hundred	 and	 sixty

- four,	is	 the	 heir	 of	 his	 parents	 who	intermarry. And	any	such	child,	born	at	any	time,	is	the	heir	of	his	mother.		And	if	the	father	of	an illegitimate	 child	 adopts him	 or	 her	 into	 his	 family,	 or	 in	 writing	 acknowledges before	some justice	of	the	peace	or	notary	public,	that	he	is	the	father, such	child	is also	 the	 heir	 of	 his	 or	 her	 father.	 	 And	 in	 each	 case	 such	 child	 and	 its	 issue	 shall inherit	 from	 its	 parents	 respectively,	 and	 from	 their	 lineal	 and	 collateral	 kindred, and	these from	such	child	and	its	issue	the	same	as	if	legitimate.32 [¶51]	 	 Cases	 decid ed	 during	 Parsons’s	 lifetime,	 however,	 reveal	 a general	 common	 law	 principle	 that	 although	 nonmarital	 children	 were entitled	to	“take	under	any	disposition	by	deed	or	will	adequately	describing them,”	 they	 were not entitled	 to	 participate	 in	 gifts	 to	 “issu e”	 or	 “children.”
2 Thomas	 Jarman, A	 Treatise	 on	 Wills 205	 (5th	 ed.	 1881); see	 also	 Bolton , 73 Me.	at	311	(explaining	that	nonmarital	children	“are	not	objects	of	a	gift	to children	or	issue	of	any	other	degree,	unless	a	distinct	intention	to	that	effect be	manifest	upon	the	face	of	the	will;	and	if	by	possibility,	legitimate	children alone	would	have	satisfied	the	terms	of	such	gift,	illegitimate	children	cannot take”	 (quotation	 marks	 omitted)); Lyon	 v.	 Lyon ,	 88	 Me.	 395,	 406,	 34	 A.	 180 (1896)	 (“[W]here	 le gacies	 or	 devises	 are	 given	 to	 a	 ‘child,’	 or	 ‘children’	 of some	 person	 named	 .	 .	 .	 these	 words	 mean,	 prima	 facie,	 legitimate	 children

. . . .”); Hall	v.	Cressey ,	92	Me.	514,	516,	43	A.	118	(1899)	(“The	authorities	are to	the	effect	that	the	word	‘child’	in a	will	or	deed	means	a	legitimate	child.”) The	presumptive,	common	law	meaning	of	“issue”	therefore	did	not	comport with	 1907	 statutory	law,	 and	leads	 to	 a	 different	 conclusion	 as	 to	 Parsons’s
intent. [¶52]	 	 Because	 the	 rule	 of	 construction	 prescribed	i n	 Paragraph	 28	 of the	 Trust	 can	 lead	 to	 opposite	 results	 depending	 on	 whether	 it	 is	 read	 to33 invoke	 statutes	 or	 common	 law	 presumptions,	 I	 conclude	 that	 the	 record supports	 competing	 inferences	 as	 to	 whether	 Parsons	 intended	 to	 include nonmarital	 children	 a s	 beneficiaries	 of	 the	 Trust.	 	 The	 summary	 judgment process	therefore	is	not	the	appropriate	means	to	resolve	this	dispute.		This	is true	even	if	 there	is	 no	additional	evidence	 beyond	what	is	 contained	in	 the summary	judgment	record	that	could	be	presente d	at	a	trial	on	remand. See
Rose	v.	Parsons ,	2015	ME	73,	¶	4,	118	A.3d	220	(“Summary	judgment	process is	not	a	substitute	for	trial	.	.	.	.	When	facts	or reasonable	inferences to	be	drawn from	 the	 facts are	 in	 dispute,	 the	 court	 must	 engage	 in	 fact

- findin g,	 and summary	judgment	is	not	available.”)	(emphasis	added).		Accordingly,	I	would vacate	the	summary	judgment	entered	in	favor	of	Gourevitch	and	remand	for a	trial	so	that	the	court	can	determine	the	most	persuasive	among	the	parties’ competing	 views	 of historical	 facts	 and	 conclusions	 to	 be	 drawn	 from	 those factual	disputes.

Deborah	 M.	 Mann,	 Esq. (orally) , and	 Brendan	 P.	 Rielly,	 Esq.,	 Jensen	 Baird Gardner	&	Henry,	Portland,	for	appellant	David	Gourevitch Dennis	J.	O’Donovan,	Esq. (orally) , and	Jennifer	L.	Kruszewski,	Esq .,	Epstein	& O’Donovan,	LLP,	Portland,	for	appellee	Thomas	Maxwell

Cumberland	County	Probate	Court	docket	number	1994

- 1486 F OR C LERK R EFERENCE O NLY