MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 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	

the	 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	we	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]		The 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

without	having	amended	or	revoked the	Trust.		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	Trust	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	Parsons	and	a	beneficiary of	

the	 Trust	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,	with	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	Sylvie	Maxwell.
3

Thomas	 Maxwell	 as	 her	 surviving	 issue even	 though	 he	 was	 a	 nonmarital	

child,2 or to	Sylvie	as her	surviving	sister.

[¶4]	 	 At	 the	 recommendation	 of	 the	 Trustees,	 in	 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. In	

1990,	the	Trustees	began	distributing	income	to	Maxwell.

[¶5]		In	1994,	addressing	a	separate	matter,	the	Trustees	petitioned	the	

Cumberland	 County	 Probate	 Court for	 instructions	 on whether	 adopted	

children	were	included	 as	 beneficiaries	 of	 the	Trust.	 Although	Maxwell	had	

been adopted	 by	 Sylvie and	 received	 notice	 of	 the	 petition,	 the	 Trustees	

agreed	 that	 the	 court’s	 decision	 would	 not	 “affect”	 him,	 and	 he	 did	 not	

participate	 in	 the	 proceeding.	 In	 the resulting	 1995	 judgment,	 the	 court	

(D. Childs,	 J.)	 determined	 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	

construction	in	effect	in	1907,	the	court	concluded	that	Parsons	did	not	intend	

to	 include	 adopted	 children	 as	 beneficiaries,	 and	 it	 instructed	 the	 Trustees	

 2 In	this	opinion,	we	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	 issued	 that judgment,	 one	 of	 the	

Trustees	 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,	the	Trustees	passed	a	

resolution recognizing	Maxwell’s	 status	 as	 Philippa’s	 biological	 son and	 as	 a	

beneficiary	 of	 the	 Trust.

3	 	 Maxwell will	 continue	 to receive monthly	 and	

annual	 distributions of	 Trust	 income while	 the	 Trust	 continues,	 and	 will	

receive	ten	 percent	of	 the	 corpus	 of	 the	 Trust when	 the	 Trust terminates	in	

2023	if	he	is	then	living.

[¶7]	 	 In	 April	 2014,	 Gourevitch filed	 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	Trustee	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	and	make	distributions”	to	Maxwell	as	a	

beneficiary.	 He	argues on	appeal that	this	is	the	date	when	distributions	became	wrongful.	 By	that	

date,	 however,	 Maxwell	 had	 already	 been	 receiving	 benefits	 since	 1996 based	 on	 the	 Trustees’	

determination	of	his	status	as	Philippa’s	biological	son—the	status	that	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,	see	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.

[¶10]		In	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	the	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	an	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	 children	 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	 Trustees	 formally	 recognized Maxwell	 as	 Philippa’s	 son and	 as	 a	

beneficiary	 of	 the	 Trust.	 	 In	 reaching	 that	 conclusion,	 the	 court	 rejected	

Gourevitch’s	 argument that each	monthly	 payment	 to	Maxwell constituted 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.

[¶11] On	 May	 19,	 2015,	 Gourevitch	 filed	 a	 timely	 motion	 to	 alter	 or	

amend	 the	 judgment, see	 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	

fiduciary	 duty owed	 to	 a	 beneficiary “to	 monitor	 investments and	 remove	

imprudent	 ones.” See	 Tibble	 v.	 Edison	 Int’l,	 575	 U.S.	 ---,	 135 S.	 Ct.	 1823,	

1828-29 (2015).		Gourevitch contended	that	his	complaint	was	timely	because	

the	Trustees	had	a	continuing	duty	to	distribute	income	only	to	beneficiaries,

and therefore	each	payment	to	Maxwell	constituted	a	new	injury.

[¶12]	 	 While	 the	 motion	 to	 alter	 or	 amend was	 pending,	 Gourevitch	

appealed	 based	 on	 the	 statute	 of	 limitations	 issue,	 and	 Maxwell	

cross-appealed	the	court’s	separate	determination	that,	as	a	nonmarital	child,

he	was not	a	beneficiary.		See 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 final	 judgment	

integrates	its	earlier	determination	 that, as	a	matter	of	law, Maxwell	is	not	a	

beneficiary of	 the	 Trust,	 and	 its	 later	 conclusion,	 based	 on	 Tibble,	 that	

Gourevitch’s claim was	timely.

[¶13]	 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

[¶14]		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,	 2016	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).

[¶15]	 	 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,	 determining	 when a	 cause	 of	 action	 accrued	 and	 whether	 a	
9

claim	is	time-barred	are	legal	questions	subject	to	de	novo	review.		See Estate	

of	 Weatherbee,	 2014	 ME	 73,	 ¶	 14,	 93	 A.3d	 248;	 McLaughlin,	 2003	 ME	 114,	

¶ 12,	832	A.2d	782.

[¶16]		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.		See	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.	Tersavich	 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	limitations	 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)	 the	
10

time	when	the	child	knows,	or	should	know,	that	the	trustee	has	“repudiated,	

disavowed	or	acted	in	hostility	to	the	trust”	(quotation	marks	omitted)).8

[¶17]		 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.

[¶18]		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	begin	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.

[¶19]		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, 846	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	 repeated	 reconsideration	 simply	

because	the	trust	calls	for	the	periodic	distribution	of	trust	income.
12

[¶21]	 	Having	a	 fixed	date	 of	accrual	is	consistent	with	 the	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).	 	 To	 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	determination	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]	 	 Turning	 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	

was	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	adopted	children	could	be	beneficiaries	

pursuant	 to	 the	 terms	of	 the	 trust,	and	 the	court	determined	 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	

Gourevitch	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	

child	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.		We	vacate	the	Probate	

Court’s	 amended	 judgment	 and	 remand	 the	 matter	 for	 the	 court	 to	 deny	

Gourevitch’s	motion	 for	 summary	 judgment and	 grant	Maxwell’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	ongoing	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	 loyalty	 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	action,	 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	does	

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	Parsons	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	 action	 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—allegedly	

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	that	
17

distribution.		In	my	opinion,	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	relationship	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	punctilio	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	respect	
18

to	a	trustee’s	specific	responsibilities,	the	trustee	is	“bound,	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	 will,	 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	duties	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	 payments	 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	 duty	 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	 beneficiaries.”	 (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	 is	 “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	 Taylor	
20

Bogert,	 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	duties	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	 trustee’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	not	only	by	allowing	an	ineligible	person	to	participate,	but	

also	by	diminishing	the	amount	of	the	payments	that	the	true	beneficiaries	are	
21

entitled	to	receive	because	of	the	expanded	pool	of	recipients.		In	other	words,	

each	 time a	 trustee	makes	an	improper	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	 is	

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	the	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) (concluding	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	the	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	 his	
22

[¶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	protected.		

[¶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	 Employee	 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,	Getty,	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	 exactly	 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	 seeking	 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	violate 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	 the	
23

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	 1828	 (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	 involved	 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

conduct	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	 reimbursement	 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	 participant	 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	plan,	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	 the	

administration	 of	 the	 Trust,	 represent	 discrete	 “judicially	 cognizable	

injur[ies],”	 Estate	 of	 Miller,	 2008	 ME	 176,	 ¶	 25,	 960 A.2d	 1140	 (quotation	
25

marks	omitted),	each	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	 true	 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	is	not entitled	to	the	

benefit	of	 the	common	law	discovery	rule,	which	 tolls the	statute	of	limitations	“until	 the	plaintiff	

discovers	 or	 reasonably	 should	 have	 discovered	 the	 cause	 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		Contrary	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	 she	
26

2003 ME	114,	¶¶	11-12,	19,	832	A.2d	782	(explaining	that	summary	judgment	

on	a	statute	of	limitations	defense	is	proper	when	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	 wrongful	 payment	 of	 trust	

assets.
27

[¶45]		“The	cardinal	rule	is	to	give	effect	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	 to	 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	 on	 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	class	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,	516,	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	applied	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	 interest—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,	249,	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.	 at	
29

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	 “descendants”—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]istribution	 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	because	
30

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	instrument	 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	 establish	 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,	 things	

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	 been	
31

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	 1907	

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	 eight	 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	 decided	 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	 “issue”	 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	 legacies	 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	in	 Paragraph	 28	 of	

the	 Trust	 can	 lead	 to	 opposite	 results	 depending	 on	 whether	 it	 is	 read	 to	
33

invoke	 statutes	 or	 common	 law	 presumptions,	 I	 conclude	 that	 the	 record	

supports	 competing	 inferences	 as	 to	 whether	 Parsons	 intended	 to	 include	

nonmarital	 children	 as	 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	presented	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-finding,	 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

FOR	CLERK	REFERENCE	ONLY