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Estate of Nancy B. Alden v. Dee, No. 427-12-06 Bncv (Wesley, J., Mar. 3, 2010) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the 

original. The accuracy of the text and the accompanying data included in the Vermont trial court 

opinion database is not guaranteed.]

STATE OF VERMONT BENNINGTON SUPERIOR COURT 

BENNINGTON COUNTY DOCKET NO. 427-12-06 Bncv 

ESTATE OF NANCY B. ALDEN, by its executor ) 

SETH ALDEN ) 

Plaintiff/Counterclaim Defendant ) 

 ) 

 v. ) 

) 

JULIA DODGE ALDEN DEE and ) 

TODD HOWARD ALDEN ) 

 Defendants/Counterclaim Plaintiffs ) 

 ) 

v. ) 

) 

SETH ALGER ALDEN and ) 

CORNELIA DODGE ALDEN ) 

 Counterclaim Defendants ) 

OPINION & ORDER

GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DENYING 

DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT 

This case stems from a dispute over the 1973 William C. Alden Trust (the Trust) 

benefitting grantor’s second wife Nancy Alden, his two children by Nancy Alden, and his three 

children from his first marriage. Todd Alden and Julia Alden Dee, two of grantor’s children by 

his first marriage, allege that Nancy Alden, who was also a trustee of the Trust, acted 

fraudulently and in violation of her fiduciary duties in her administration of the Trust. They seek 

to hold Nancy and her two children liable for damages resulting from these alleged 

improprieties. Pending before the Court are cross motions for summary judgment. 

Plaintiff/Counterclaim Defendant Estate of Nancy B. Alden, by its executor Seth Alden, and 

Counterclaim Defendants Seth Alden and Cornelia Alden (Plaintiffs) are represented by Gary F. 

Karnedy, Esq., and Primmer Piper Eggleston & Cramer, PC. James B. Anderson, Esq. 

represents Defendants/Counterclaim Plaintiffs Julia Dee and Todd Alden (Defendants). 
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 I. Procedural Background 

 In December 2006, Nancy Alden, as co-trustee and beneficiary of the Trust, filed a 

complaint for declaratory judgment seeking to release and replace the Trust’s two other cotrustees, thereby commencing this protracted litigation. Julia Dee and Todd Alden withheld their 

consent to the substitution. On February 27, 2007, Nancy1 filed a revised complaint, naming 

Julia and Todd as Defendants. 

On April 26, 2007, this Court issued an order confirming the parties’ stipulated 

agreement to replace the co-trustees. This order also reserved all of Defendants’ claims related 

to the operation of the Trust, and against Nancy in particular. The 1973 William C. Alden Trust 

v. Dee, No. 427-12-06 Bncv (Vt. Super. Ct. Apr. 26, 2007) (Wesley, J.). Defendants thereafter 

filed, on May 24, 2007, an answer and counterclaim, alleging that Nancy Alden breached her 

fiduciary duties in the administration of the trust. The Court denied Nancy Alden’s subsequent 

motion to dismiss Defendants’ answer and counterclaims. The 1973 William C. Alden Trust v. 

Dee, No. 427-12-06 Bncv (Vt. Super. Ct. Aug. 23, 2007) (Wesley, J.). 

 On September 19, 2007, Nancy’s children, Seth and Cornelia Alden, filed a complaint in 

this Court for declaratory judgment terminating the Trust and distributing one-third of the Trust 

assets to Nancy and the remaining two-thirds in equal shares to William’s five children. In a 

Final Order filed November 12, 2008, the Court terminated the Trust and mandated distribution 

of Trust assets, one-third to Nancy and the remaining two-thirds divided equally among the five 

children. Alden v. Dee, No. 352-09-07 Bncv (Vt. Super. Ct. Nov. 12, 2008) (Howard, J.).2

 

Meanwhile, action continued on Defendants’ counterclaims. On February 19, 2009, the 

Court granted Defendants’ motion to amend the counterclaim to add their half-siblings, Seth and 

Cornelia Alden, as counterclaim defendants, and to add a new Count 7. Count 7 alleges that 

Nancy fraudulently concealed and misrepresented material facts in the appointment of successor 

trustee George Smith in order to obtain Trust distributions which damaged Defendants’ interest 

and that Nancy fraudulently transferred those distributions to trusts for her benefit and the benefit 

of Seth and Cornelia Alden. 

 

1

 In the interest of clarity and brevity, the Court will, as the parties have done, refer to the individuals involved in 

this action by their first names. 

2

 Todd and Julia filed an appeal in that matter, challenging the Court’s refusal to amend the Final Order to clarify 

that termination of the Trust did not preclude their breach of fiduciary duty claims in this action. The Vermont 

Supreme Court affirmed this Court’s decision not to amend the judgment, but indicated that termination of the Trust 

did not preclude the present action. Alden v. Alden, 2010 VT 3 (mem.).
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On October 5, 2009, Defendants filed a motion to substitute several parties in place of 

Nancy Alden as a result of Nancy’s death on September 21, 2009. The Court granted 

Defendants’ motion in part, allowing the counterclaims originally brought against Nancy Alden 

to continue against the Estate of Nancy Alden, by its Executor Seth Alden. The counterclaims 

against the Estate, Seth, and Cornelia are the only issues still pending in this suit, and are the 

subject of both motions for summary judgment. 

II. Factual Background

 The following facts are derived from the statements filed by the parties pursuant to 

V.R.C.P. 56(c)(2). The majority of factual allegations made by each party is consistent with the 

other party’s allegations and is not disputed. The facts that were properly disputed by the 

parties’ statements are noted below.3 The factual background in this case is lengthy; the facts 

provided here give background information necessary to understand the context of the dispute. 

Facts pertinent to each specific claim are presented in the analysis of that claim below.4 

1. The Alden Family 

William C. Alden was divorced from Suzanne Leari in 1967. William and Suzanne had 

three children together: James, Julia (Julie), and Todd. In 1972, William Alden and Nancy 

Bierce were married. Together they had two children: Cornelia and Seth. James, Julie, and 

Todd lived primarily with their mother in Connecticut but spent occasional weekends and 

holidays with William, Nancy, Cornelia, and Seth. Throughout Nancy’s marriage to William, 

she had very good relationships with Todd and Julie. Gradually, these relationships grew distant 

and eventually became antagonistic over issues relating to the Trust. 

 

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 Defendants ask the Court to accept their statement of facts as undisputed, asserting that Plaintiffs’ response to 

Defendants’ statement of facts makes only argumentative or bald denials and does not properly controvert the facts 

with citations to the record as required by V.R.C.P. 56(c)(2). The Court declines to reject Plaintiffs’ response 

wholesale. This is not a case where the opposing party failed entirely to file a separate statement of disputed facts. 

Contra, Webb v. Leclair, 2007 VT 65, ¶ 5, 182 Vt. 559 (accepting facts as undisputed where other side “failed to 

submit any separate statement of facts at all”). Plaintiffs do properly challenge some of Defendants’ statements with 

citations to the record. In other cases, Plaintiffs’ responses do not cite to the record, but are offered to dispute a fact 

which Defendants themselves offer no record support for (see e.g., Def.s’ Facts ¶¶ 29, 45) or to explain more fully 

what is contained in the document that Defendants’ fact cites (see e.g., Defendants Facts ¶¶ 69, 77). The Court has 

carefully reviewed the statements of fact and disputed issues of fact in each party’s statement and response. The 

facts presented and relied on in this decision reflect only those facts which the Court finds to be supported by 

“specific citations to the record.” V.R.C.P. 56(c)(2). 

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 In the interest of clarity and comprehension, except where deemed essential, this opinion does not include 

references to the summary judgment record supporting particular facts. However, an annotated version will be 

provided to the parties, made part of the file, and is incorporated herein by reference. 
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William was domiciled in Vermont when he signed his will and trust in 1973 and the 

codicils and amendments in 1974. These documents were drafted for William by Massachusetts 

attorney Michael Brockelman. William moved to Williamstown, Massachusetts on or about 

March 23, 1979, when he and Nancy purchased their residence at [address redacted]. Nancy 

remained domiciled in Williamstown until late 2005 when she sold the residence and moved to 

Pownal, Vermont. Nancy was domiciled in Pownal when she initiated this action. 

2. William Alden’s Estate 

William Alden died August 22, 1980. At that time, Nancy was thirty-six years old, 

James was twenty one, Julie was seventeen, Todd was sixteen, Cornelia was six, and Seth was a 

few days shy of three years old. At the time of his death, William was domiciled in 

Massachusetts and his will was probated in Berkshire County, Massachusetts. Nancy was named 

executor of William’s estate, and was represented in this capacity by Attorney Brockelman. 

Todd and Julie were both parties to the probate proceedings in that notice of probate matters was 

provided to them through a guardian ad litem or their mother. However, Defendants assert that 

they did not learn of their father’s estate plan, particularly the existence of the Trust, until late 

1992, in response to inquiries by Todd. 

Plaintiffs insist that Defendants were aware of the Trust in 1982 when they, as eighteen 

and twenty year old adults, signed the 1973 William C. Alden Trust Agreement as to 

Compensation. Defendants admit to signing the agreement but dispute that they understood what 

they were signing or that this Trust was distinct from other trusts created for their benefit by their

grandparents, or that the terms of the Trust were disclosed to them at that time. Todd and Julie 

did receive copies of the Trust from Attorney Brockelman in early 1993. Then, in November 

1993, after two family meetings earlier that year attempting to resolve the issues the alleged 

concealment of the Trust had created between Nancy, Todd, and Julia, Defendants received a 

letter of introduction and their first accounting from the corporate trustee, State Street Bank. 

3. The 1973 William C. Alden Trust

A. The General Terms of the Trust and the Trust Beneficiaries 

 The 1973 William C. Alden Trust was established, in relevant part, to manage William’s 

assets for the benefit of Nancy, James, Todd, Julie, Cornelia, and Seth. Pursuant to its express 

terms, the Trust was divided into two parts upon William’s death. First, a Marital Trust was 
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funded solely for the benefit of Nancy to provide for her “comfort, support and happiness.”5 

Second, a Residuary Trust was funded to provide for the “comfort, support, education and 

happiness” of Nancy and the five children during Nancy’s lifetime, with the trust to be split into 

equal shares for each of William’s children after Nancy’s death, and each child’s share to be 

fully distributed by the time that child reached age thirty-five. Plaintiffs maintain that the assets

in the Residuary Trust were to benefit Nancy primarily and all of William’s children secondarily. 

Defendants dispute this characterization, but acknowledge that the trust was so interpreted by cotrustees George Smith and State Street Bank. The successor corporate trustee, Factory Point 

National Bank, has not followed this interpretation, instead advising that “the trust language does 

not give preference to any beneficiary.” 

 With respect to distributions from the Residuary Trust, the Trust instrument directs, in 

pertinent part, as follows: 

B. . . . [T]he Trustee shall pay such part or all of the income and principal as the 

Trustee deems proper in his absolute discretion to or for the benefit of the 

Grantor’s wife, Nancy B. Alden, during her lifetime if she survives the Grantor 

and to or for the benefit of the Grantor’s children or more remote issue, both 

during the lifetime of the Grantor’s said wife and thereafter for their comfort, 

support, education and happiness. The Trustee may pay such income or principal 

to or for the benefit of any one or more of such beneficiaries to the exclusion of 

another or others as the Trustee shall determine, and notwithstanding the fact that 

one or more ancestors of such a beneficiary may be living at the time of such 

payment. The Trustee may accumulate any part of the income and may add any 

part or all of such accumulated income to the principal. No equalization of 

payments among the beneficiaries is required by the Trustee at any time, and the 

Trustee shall not be obligated to inquire into or consider other sources of income 

which the beneficiaries may have in exercising their discretion as to the payments 

to be made to the beneficiaries hereunder. 

C. At such time after the death of the Grantor’s wife, Nancy B. Alden, when 

there are no living children of the Grantor under the age of twenty-five (25), the 

Trustee shall divide the trust property (including the principal, any accumulated 

income and accrued income) into as many equal shares as there are children of the 

Grantor then living and deceased children of the Grantor with issue then living. 

One share shall be allocated to each child then living and one share be allocated to 

the then living issue of each child then deceased. The Trustee shall hold and 

distribute such shares as follows . . . . 

E. The Trustee may be most liberal in exercising his discretion as to the 

distribution of income and principal, even to the extent of terminating any trust 

 

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 The Marital Trust was terminated when Nancy took possession of the assets of that Trust on or about April 15, 

1987. The present dispute involves the Residuary Trust only. 
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hereunder by distribution of principal to or for the benefit of the beneficiaries. 

Both while the Grantor’s wife is living and after her death there may be good 

reason to exercise such discretion on behalf of the Grantor’s children and their 

issue for such purposes (without limitation) as assisting in their education, helping 

them in starting their careers, providing them the means of travelling, and aiding 

them in purchasing homes. If any trust hereunder becomes so small that it seems 

uneconomical to continue the trust, such discretion to distribute principal could be 

the means of terminating such trust. 

 The Trust also directs that “[c]ommencing at such time when the Trust has assets valued 

at $100 or more . . . the Trustee shall render annually to the beneficiary or beneficiaries to whom 

payments shall then be made an accounting of the administration of the trusts hereunder.” 

Defendants received their first accounting from the trust in November 1993, thirteen years after 

Mr. Alden’s death. Under the terms of the Trust, any objection to an item on the account must 

be made within 60 days from the issuance of the accounting, and “[i]n the absence of such 

objection all beneficiaries, whether or not in being or ascertained, shall be barred from objecting 

thereto.” 

B. The Trustees of the Trust 

After William’s death, the Trust was to be administered by three trustees, consisting of 

two individual trustees and one corporate trustee. Any action taken by the trustees, including 

distributions, required the approval of the majority of the trustees. The corporate trustee, State 

Street Bank, interpreted that language to mean that Nancy, as both a trustee and a beneficiary, 

could not participate in the distribution of Trust assets to herself, thus distributions to Nancy 

required the approval of the other two trustees. 

In the time period relevant to this dispute, Nancy Alden served as one of the two 

individual trustees and two different people filled the remaining individual trustee position. 

Edward Greaves, Nancy’s brother-in-law and Defendants’ uncle, occupied that post from 1982 

through October 3, 1999, when he resigned for health reasons. From the date of Greave’s 

resignation through September 12, 2001, Nancy Alden and State Street Bank (which was 

subsequently acquired by U.S. Trust Company) were the only Trustees. 

 Throughout her tenure as trustee, Nancy regularly sought advice on trust issues from 

Vermont attorney John Newman and Massachusetts attorney Brian Quinn. Attorney Quinn 

investigated candidates to fill the vacant individual trustee position and in 2001, Attorney 

Newman wrote to Defendants proposing George Smith, a CPA licensed in Vermont and 

Massachusetts, who has served as trustee of many trusts, as replacement individual trustee. 
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Attorney Quinn sent a follow up letter to Defendants assuring them that none of the Plaintiffs 

had had any dealings with Mr. Smith but disclosing that Attorney Quinn had known Smith 

professionally for twenty-five years and that he was a person of good judgment, intelligence, and 

integrity. All beneficiaries were asked to consent to Smith’s appointment. Nancy, Seth, 

Cornelia, James and Julie each provided their consent— Todd did not. On September 12, 2001, 

the Massachusetts Probate Court, Berkshire Division, appointed George T. Smith as Greaves’ 

successor co-trustee. Smith served as co-trustee until this Court approved his resignation on 

April 26, 2007. 

Between 1990 and 2000, the corporate trustee was State Street Bank and Trust Company 

(State Street Bank). In 2000, State Street Bank was acquired by U.S. Trust Company, who under 

the terms of the Trust, stepped into State Street Bank’s position and served as corporate trustee 

until April 25, 2007. Donna Brown was the trust officer for State Street Bank, and subsequently 

U.S. Trust Company, assigned to the Trust. The corpus of the Trust was located in Boston, 

Massachusetts, and the corporate trustee handled the day-to-day administration of the Trust. By 

an Order filed April 26, 2007, this Court released U.S. Trust Company as trustee and appointed 

Factory Point National Bank as successor corporate trustee. 

Leading to the Court’s order of April 26, 2007, Defendants agreed to release both George 

Smith and U.S. Trust Company as trustees. As part of the stipulated release, Defendants agreed 

to “ratify, approve, and confirm in all respects the administration of the Trust and all acts of the 

Trustee in connection with the administration of the trust.” Defendants assert that this 

ratification is ineffective because material facts relating to the acts they were ratifying were 

concealed from them when the releases were signed. 

C. Scrivener’s Error 

 On December 7, 1973, the Trust was amended by William Alden to provide, inter alia, 

that “[t]he laws of the State of Vermont shall govern the interpretation of this instrument.” 

Because the terms of the Trust did not expressly restrict Nancy’s authority to distribute Trust 

assets to herself, this amendment created a general power of appointment in Nancy under 

Vermont law. This general power of appointment would cause the Trust assets to be included in 

her federal taxable estate if she died holding the power (the Estate Tax Problem).6

 The Estate 

Tax Problem was contrary to the intent of William, evidenced in the Trust itself, which was to 

 

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 The Court does not make any findings as to the legal effect of the 1973 amendment, but accepts the parties’ 

undisputed conclusions about the estate tax consequences as true for present purposes. 
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minimize Nancy’s estate tax. In an attempt to avoid the estate tax consequences of the 

scrivener’s error, the Trust eventually brought a reformation action in Massachusetts. The 

Supreme Judicial Court of Massachusetts ultimately declined to reform the Trust. 

Nancy also purchased a life insurance policy, which she placed in an irrevocable life 

insurance trust (ILIT), the proceeds of which would be used to pay any estate tax at Nancy’s 

death resulting from the scrivener’s error. In May 2000, Nancy requested an increase in her 

monthly distributions from the trust in order to pay the premiums on that insurance policy. 

These distributions were approved by State Street Bank and George Smith. 

D. The Northwest Hill Road Property

In 1979, William Alden, together with two other individuals, purchased a sixty-five acre 

parcel of land (the Property) adjoining William and Nancy’s residence at [address redacted] in 

Williamstown, Massachusetts. Each owned an undivided one-third interest in the property. Mr. 

Alden’s one-third interest was included in the inventory of his probate estate and, pursuant to his 

Will, was distributed to the Trust. In 1982, Nancy Alden purchased the remaining two-thirds 

interest in the Property for $56,000. The deed conveying the Property to Nancy was dated 

February 6, and recorded February 18, 1982. She was both Executor of William’s Estate and a 

trustee of the Trust at the time, but she purchased and took title to the property in her individual 

capacity. In March 2000, Nancy requested that the Trust distribute its one-third interest in the 

property to her. This request was eventually approved by State Street Bank and George Smith in 

November or December 2001. Nancy did not disclose her request for the one-third interest to the 

other beneficiaries. 

III. Summary Judgment Motions 

Plaintiffs seek summary judgment on Counts One, Two, Three, Four and Seven of the 

counterclaim,7

 arguing that there are no genuine issues of material fact, Defendants’ claims are 

time barred, and, to the extent any claim is still viable, Defendants have failed to produce 

evidence to establish essential elements on which they have the burden of proof at trial. 

Defendants filed a cross motion for summary judgment on Counts One through Five, and Seven, 

 

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 Plaintiffs describe these counts as the “remaining substantive charges of the counterclaim.” Count Five is a 

request for attorney’s fees, which would be moot if summary judgment were granted for Plaintiffs on Counts One 

through Four and Seven. Count Six of the original counterclaim was a request for accounting which Plaintiff agreed 

to provide in her original answer, thus there is no issue to be decided. 
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agreeing that there are no genuine issues of material fact but asserting that they have presented 

uncontested evidence that establishes the essential elements of their claims. 

In response to these motions, the Court issued an entry order setting a hearing on the 

motions and clarifying several issues raised therein. Estate of Nancy B. Alden v. Dee, 427-12-06 

Bncv, Entry Order, Dec. 1, 2009 (J. Wesley). In response to choice of law questions raised by 

the Plaintiffs, the Court ruled that, pursuant to the terms of the Trust, Vermont law would govern 

the substance of this case, as well as procedural and statute of limitations issues. Further, the 

Court indicated that the newly enacted Vermont Trust Code would apply to many of the 

substantive issues raised. In supplemental briefs responding to this order, neither party disputed 

that the Vermont Trust Code applied, though Defendants did make some argument against 

retroactive application of Trust Code’s limitation on actions for breach of trust. 

Through oral argument presented at the hearing on December 30, 2009, it became clear 

that despite the voluminous filings associated with this matter, and substantial overlap between 

causes of action arising from a common factual nexus, each party’s motion turns on the 

resolution of four specific issues: (1) whether Nancy breached her fiduciary duties by purchasing 

the two-thirds interest in the Williamstown property; (2) whether Nancy breached her fiduciary 

duties by requesting and accepting certain distributions from the Trust; (3) whether Nancy 

breached her fiduciary duties by pursuing a reformation action in Massachusetts; (4) whether 

Nancy committed fraud in relation to the appointment of trustee George Smith. While 

acknowledging that each party’s motion must be judged individually, because the motions are 

based on the same four claims, the Court will consider the arguments of each party issue-byissue. 

IV. Summary Judgment Standard

 Summary judgment is appropriate only if the moving party demonstrates that no genuine 

issue of material fact exists and that she is entitled to judgment as a matter of law. V.R.C.P. 

56(c)(3); Endres v. Endres, 2008 VT 124, ¶ 10, 185 Vt. 63. “[T]he nonmoving party has the 

burden of submitting credible documentary evidence or affidavits sufficient to rebut the evidence 

of the moving party.” Endres, 2008 VT 124, ¶ 10. Where there has been an adequate time for 

discovery, summary judgment is mandated if the non-moving party “‘fails to make a showing 

sufficient to establish the existence of an element’ essential to his case and on which he has the 
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burden of proof at trial.” Poplaski v. Lamphere, 152 Vt. 251, 254-55 (1989) (quoting Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

Where both parties move for summary judgment, the Court must rule on each party’s 

motion “on an individual and separate basis, determining, for each side, whether a judgment may 

be entered in accordance with the Rule 56 standard.” 10A Wright, Miller & Kane, Federal 

Practice and Procedure: Civil 3d § 2720. Each party is entitled to the benefit of all reasonable 

doubts and inferences when the opposing party’s motion is being judged. Bixler v. Bullard, 172 

Vt. 53, 57 (2001) (citing Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)). “Both 

motions must be denied if the court finds that there is a genuine issue of material fact.” 10A 

Wright at Civil 3d § 2720. 

V. Analysis 

Before reaching the specifics of each claim, some general discussion of which statute of 

limitations applies is needed. In their original summary judgment motions, the parties agreed 

that the general six-year statute of limitations for civil actions applied to both the fiduciary duty 

and fraud claims. The Court agrees that the fraud claim is subject to this limitation period. See

12 V.S.A. § 511 and Lodge at Bolton Valley Condo. Ass’n. v. Hamilton, 2006 VT 41, ¶¶ 3, 10, 

180 Vt. 497. However, given the intervening enactment of the Vermont Trust Code (VTC), the 

limitation on actions for breach of fiduciary duty is less clear. 

 Prior to enactment of the VTC, breach of fiduciary duty claims must have been brought 

within six years of the date the injury and its cause were, or should have been, discovered. 12 

V.S.A. § 511; Univ. of Vermont v. W. R. Grace and Co., 152 Vt. 287, 290 (1989) (“[T]he 

discovery rule should be read into § 511.”); Lodge at Bolton Valley Condo. Ass’n. v. Hamilton, 

2006 VT 41, ¶¶ 3, 10. But, effective June 1, 2009, section 1005 of the VTC created a limitations 

period specific to actions against trustees for breach of trust. 14A V.S.A. § 1005. If the 

beneficiary received a report adequately disclosing the potential claim, she has one year to 

commence suit, otherwise the limitation period is three years from the first of the following 

events to occur: the trustee’s removal or death, termination of the beneficiary’s interest, or 

termination of the trust. Id. § 1005(a), (c). Which limitation period applies is a matter of law 

for the Court to decide. Earle v. State, 170 Vt. 183, 185 (1999). 

Though it became effective after Defendants’ counterclaims were filed, the VTC applies 

retroactively to this litigation, unless such application would “prejudice the rights of the parties.” 
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14A V.S.A. § 1204 (a)(4). Defendants’ argue that their right to a remedy in this case would be 

prejudiced by application of the VTC limitations period, which reduces the time they had to file 

a claim for breach of fiduciary duty from six years to one year. It appears that Plaintiffs could 

also be prejudiced by application of the VTC limitations period, which, though it shortens the 

general six year statute of limitations, actually extends the time for Defendants to object to a trust

distribution.8 The VTC provides that if a right is subject to a limitations period “that has 

commenced to run under any other statute before the effective date of this title, that statute 

continues to apply to the right . . . .” 14A V.S.A. § 1204(b). This statutory pronouncement is 

consistent with the common law rule in civil actions that the limitation period in effect when the 

claim accrues is applied. Lillicrap v. Martin, 156 Vt. 165, 177 (1989); see also Stewart v. 

Darrow, 141 Vt. 248, 252–53 (1982). This rule reflects a general policy against the retroactive 

application of statutes where doing so would affect any proceeding to enforce a right. Stewart, 

141 Vt. at 251 (citing 1 V.S.A. § 214(b)). 

Though the accrual date of each of Defendants’ claims is disputed, presumably all of the 

claims had accrued when the counterclaim was filed on May 24, 2007, well before the VTC 

statute of limitations existed. Therefore, in light of both the express mandate of the VTC and the 

common law rule, the Court will apply the general six-year statute of limitations in effect when 

Defendants’ fiduciary duty claims accrued. However, to the extent any of the claims amount to 

an objection to Trust distributions, the sixty day limitations period created under the terms of the 

Trust shall apply. Against this backdrop, the Court turns to the statute of limitation and 

substantive arguments with respect to the specific claims. 

1. Two-Thirds Interest in the Williamstown Property

In count one of the counterclaim, Defendants allege that Nancy breached her fiduciary 

duties of loyalty and care by acquiring a two-thirds interest in property on Northwest Hill Road 

in Williamstown (the Property) while she was a trustee of the Trust, which owned the other onethird interest. The following facts related to this claim are undisputed. 

In 1979, William Alden, together with two other individuals, purchased the Property, 

which adjoined his and Nancy’s residence at [address redacted]. Each owned an undivided onethird interest in the Property. Upon his death in 1980, Mr. Alden’s one-third interest passed to 

the Trust. On February 6, 1982, Nancy Alden purchased the remaining two-thirds interest in the 

 

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 The Trust requires that beneficiaries make any objections to trust distributions within sixty days of receiving an 

accounting—the VTC increases the time to object to accountings to one year and would override contrary terms of 

the trust. 14A V.S.A. § 105(b)(10) (limitations period of code prevails over terms of trust); 14A V.S.A. § 1005(b). 
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Property for $56,000—the deed was recorded on February 18, 1982. She was both executor of 

William’s Estate and a trustee of the Trust at the time of this purchase, but she purchased and 

took title to the property in her individual capacity. The record contains no information about 

the circumstances of the offer, including whether Nancy discussed it with the other trustees. The 

record does not establish that the Trust was funded at the time of Nancy’s purchase; the only 

evidence justifies the inference that it was not. 

On September 13, 1993, Nancy sent a letter to all five Alden children, explaining that she 

owned a two-thirds interest in the Property and wanted to obtain the remaining one-third interest 

from the Trust. She proposed to transfer to the children property she owned in Brookline, 

Vermont, in exchange for distribution of the one-third interest from the Trust. The letter did not 

disclose that Nancy was a trustee at the time she purchased the two-thirds interest, or that she 

intended to develop the Property. The letter stated that the Property was a liability to the Trust 

due to the expenses it generates and the fact that it could not be readily sold. Nancy’s proposed 

property exchange was rejected by Defendants, who believed that the Property was worth 

significantly more than the Brookline real estate. This offer resulted in a great deal of 

resentment and distrust of Nancy by the Defendants. 

The Trust document discloses that Nancy was a trustee of the Trust from the time of 

William’s death. Todd received a copy of William Alden’s Will and Trust in January 1993. 

Julie acknowledges receiving a copy of the Trust document, likely in 1993, though she cannot 

recall the exact date. Both Todd and Julie received a letter from corporate trust officer Donna 

Brown in November of 1993, which makes reference to Nancy as one of the co-trustees. 

a. Statute of Limitations—Two-thirds Interest 

As the party asserting the statute of limitations defense, Plaintiffs bear the burden of 

demonstrating that these claims are barred. Fucci v. Moseley & Fucci Assocs., Ltd., 170 Vt. 626, 

627 (2000). Defendants filed the counterclaim on May 24, 2007. Therefore, under the 

applicable six year limitations period,9

 if this claim accrued before May 24, 2001, it is timebarred and summary judgment must be granted for the Plaintiffs as to this claim. 

A cause of action accrues when the plaintiff discovers, or should have discovered, both 

the injury and it is cause. Pike v. Chuck’s Willoughby Pub, Inc., 2006 VT 54, ¶ 16, 180 Vt. 25; 

Univ. of Vermont v. W. R. Grace and Co. 152 Vt. 287, 289–90 (1989). Specifically, the claim 

accrues: 

 

9

 See statute of limitations discussion supra Part V. 
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upon the discovery of facts constituting the basis of the cause of action or the 

existence of facts sufficient to put a person of ordinary intelligence and prudence 

on inquiry which, if pursued, would lead to the discovery. Thus, the statute of 

limitation begins to run when the plaintiff has notice of information that would 

put a reasonable person on inquiry, and the plaintiff is ultimately chargeable with 

notice of all the facts that could have been obtained by the exercise of reasonable 

diligence in prosecuting the inquiry. 

Kaplan v. Morgan Stanley & Co., Inc., 2009 VT 78, ¶ 7 (quoting Agency of Natural Res. v. 

Towns, 168 Vt. 449, 452 (1998)). Thus, this claim accrued to Defendants when they knew, or 

obtained facts triggering the duty of inquiry, whether Nancy had acquired the property while she 

was a trustee. 

Defendants maintain that they did not know until 2007, when they received a trustee file 

that prompted them to do a title search, that Nancy had purchased the Property in 1982 while she 

was a trustee. It is undisputed that in 1993 Nancy disclosed to Defendants that she owned the 

two-thirds interest, though at that time she did not indicate when or how she had acquired it. She 

made this disclosure as part of her offer to the other beneficiaries to trade land Nancy owned in 

Brookline for the remaining one-third interest in the Property owned by the Trust. This offer 

offended Defendants and caused them to be mistrustful of Nancy. Plaintiffs argue that 

Defendants’ knowledge that Nancy owned the two-thirds interest and that she had been a trustee 

since the creation of the Trust, when combined with their knowledge that she wanted to acquire 

the one-third interest and their resulting mistrust of Nancy, created a duty in 1993 that they 

inquire as to the circumstances of Nancy’s ownership. The Court agrees. 

Normally, the question of when the injury was or should have been discovered is left to 

the jury; however, it may be determined by the court as a matter of law where no reasonable fact 

finder could differ as to the result. Kauffman v. State Farm Mut. Auto. Ins. Co., 857 F. Supp. 23, 

25 (D.Vt. 1994). See also, Orlyk v. Sessions, Keiner & Dumont, Doc. No. 182-04 Ancv, 2005 

WL 5895209 (Opinion & Order, Dec. 09, 2005)(Katz, J.) ((“In the absence of disputed facts, the 

question whether a plaintiff knew or should have known of the injury and that it was wrongfully 

caused is a question of law, to be determined by the trial judge.” (citing Moll v. Abbott 

Laboratories, 506 N.W.2d 816, 819 (Mich. 1993); Wells v. Travis, 672 N.E.2d 789, 792, (Ill. 

App. 2 Dist.,1996); Griffiths-Rast v. Sulzer Spine Tech, Inc., 2005 WL 2237635 (D.Utah Sept. 

14, 2005)). When making such a determination on a summary judgment motion, the Court must 

view the facts in the light most favorable nonmoving party. Even by this standard, however, no 

reasonable jury could escape the conclusion that the state of Defendants’ knowledge in 1993 
14

makes them chargeable as to the easily discernable matters of record involving Nancy’s purchase 

at the time she was a trustee. 

Defendants claim that, until obtaining more detailed information about the Trust shortly 

before they filed their counterclaim, they were unaware of any possible significance between 

Nancy’s role of trustee and her purchase of the two-thirds interest. The Court rejects this 

assertion of an innocent state of ignorance as lacking any objective credibility. Defendants admit 

they were upset upon learning that Nancy wished to claim the one-third interest in the Property 

held by the Trust, in exchange for a piece of property they considered of inferior value. Thus, at 

the time they rejected this proposition in 1993, having become suspicious of Nancy’s motives 

and having learned at or about the same time that she had been both trustee and beneficiary since 

the Trust’s creation, Defendants had every reason to inquire further as to the circumstances 

involving her acquisition of the other two-thirds interest. 

By a simple review of the land records in 1993, Defendants would have discovered that 

Nancy purchased the property less than two years after William’s death had caused the one-third 

interest to pass into the Trust. Neither Nancy, nor anyone else, acted to conceal from Defendants 

all the operative facts necessary to bring the challenge to her fiduciary duty which they 

eventually lodged fourteen years later. Rather, the facts were “hiding in plain sight,” and if 

during their pique at her attempt to consolidate her title, Defendants did not assume that Nancy 

had become owner of the two-thirds interest while a trustee, they certainly should have 

undertaken the simple inquiry which would have confirmed what they must have surmised. 

As with Kaufmann and Orlyk, there are no facts in dispute as regards Defendants’ 

objective knowledge in 1993, despite their claim that they lacked both knowledge and any basis 

for further inquiry with respect to the accrual of their cause of action. The facts in the latter case 

are particularly instructive. Similar to Defendants’ claims of ignorance here, Orlyk insisted that 

she had insufficient understanding or reason to challenge the provisions of her divorce decree 

with respect to pension benefits until bringing a malpractice action eighteen years later, claiming 

her divorce attorney failed to provide adequately for her retirement needs. Orlyk v. Sessions, 

Keiner & Dumont, Doc. No. 182-04 Ancv, 2005 WL 5895209. While acknowledging the 

possibility of plaintiff’s subjective lack of information, the trial court could not conclude that she

was entitled on that account to an extension of the statute of limitations under the “discovery 

rule”. 
15

It is undisputed that over the eighteen year period between the signing of the 

decree and the filing of plaintiff's suit, plaintiff make [sic] no inquiry with regard 

to the pension funds. While Plaintiff possessed the necessary facts to make an 

inquiry of the pension funds, she simply did not approach anyone to ask. We 

therefore conclude based on this undisputed fact that Plaintiff cannot rely on the 

discovery rule here. 

Orlyk, 2005 WL 5895209. 

Fundamentally, Defendants’ plea here mirrors that of Orlyk, protesting that until 

consulting with counsel in connection with their 2007 counterclaim they had an insufficient legal 

awareness to appreciate the implications of Nancy’s claimed dereliction of duty. Yet, this 

explanation misperceives the ambit of the discovery rule. “[T]he limitations period begins to 

run ‘when the plaintiff has or should have discovered both the injury and the fact that it may have 

been caused by the defendant's negligence or other breach of duty.’” Rodrigue v. VALCO 

Enters., Inc., 169 Vt. 539, 541 (1999) (mem.) (quoting Lillicrap v. Martin, 156 Vt. 165, 175 

(1989))(rejecting claim that dram shop action could not have been filed until further 

development of evidence that defendants had served alcohol; plaintiff “need not have an airtight 

case before limitations period begins to run”); see also, Galfetti v. Berg, Carmolli & Kent Real 

Estate, Corp., 171 Vt. 523, 525–26 (2000) (mem.) (deciding as a matter of law that the plaintiffs' 

claims were barred by the applicable limitations period when documents available at time 

created inquiry notice as to possible claim for negligent misrepresentation). 

Sometime in 1993, Defendants became distressed at learning that Nancy owned a twothirds interest in the Property, and was seeking the other third from the Trust. At about the same 

time, they became fully aware of the terms of the Trust, including Nancy’s dual participation as 

both beneficiary and trustee. Any claim arising from their suspicions regarding Nancy’s 

relationship to the property, and a possible conflict with her duties as trustee, accrued at that 

time. Thus, any such claim is barred by the statute of limitations having not been brought before 

the end of 1999. 

b. Breach of Fiduciary Duty— Two-Thirds Interest Claim

Although Plaintiffs have met their burden to prove that this claim is barred by the statute 

of limitations, the Court addresses their additional arguments regarding the breach of fiduciary 

duty, since the duty imposed on Nancy as both a trustee and a beneficiary has been fully 

examined by the parties. Plaintiffs argue that they are entitled to summary judgment as well 

because Defendants have not produced any evidence to show (1) that Nancy breached the duty of 
16

loyalty by making this purchase; (2) that Nancy breached her duty of care and skill by 

purchasing the property for herself rather than making a speculative real estate investment on 

behalf of the trust; and (3) that they suffered damages as a result of Nancy’s actions. 

Duty of Loyalty

The first question is whether Nancy breached her duty of loyalty as a trustee by 

purchasing the two-thirds interest in her individual capacity. Generally, the duty of loyalty 

requires a trustee to “administer the trust solely in the interests of the beneficiaries”— in other 

words, not to act in a manner that creates a conflict between the beneficiaries’ interests and the 

trustee’s personal interests. 14A V.S.A. § 802(a). The Vermont Trust Code adopts the “no 

further inquiry rule” so that any conflict of interest transaction by the trustee is automatically 

voidable by the beneficiaries, regardless of whether or not it was entered in good faith or is fair 

to the beneficiaries. 14A V.S.A. § 802(b) and Official Comment. However, this rigid bar 

against any conflict of interest transaction is a default rule that may be altered where the settlor 

approves a conflict of interest in the terms of the trust itself. Id. § 802 Official Comment; 

Restatement (Third) of Trusts § 78, cmt c (2); see also 14A V.S.A. § 105 (Section 802 duty of 

loyalty is not included on the list of code provisions that cannot be altered by the terms of the 

trust). 

A common settlor-approved conflict is the conflict created by designating a trustee who 

is also a beneficiary of the trust. See 14A V.S.A. § 802, Official Comment; Restatement (Third) 

of Trusts § 78, cmt (c)(2). 

It is well established that a trustee may occupy conflicting positions in handling 

the trust where the trust instrument contemplates, creates, or sanctions the conflict 

of interest. The creator of the trust can waive the rule of undivided loyalty by 

expressly conferring upon the trustee the power to act in a dual capacity, or he can 

waive the rule by implication where he knowingly places the trustee in a position 

which might conflict with the interest of the beneficiaries.

Dick v. Peoples Mid-Ill. Corp. 609 N.E.2d 997, 1002 (Ill. App. 1993); accord 14A V.S.A. § 802, 

Official Comment.10 When the settlor creates a conflict between the trustee and the trust, the 

“absolute limitation against self-dealing on the part of the trustee is modified, and the trustee will

 

10 The Vermont Trust Code specifically dictates that it is to be supplemented by common law, including prior case 

law within the state and as well as more general sources including the Restatement. 14A V.S.A. § 106. Thus, in 

interpreting the Code, the Court will look first to Vermont common law. However, in the absence of Vermont case 

law on many of these issues, the Court will, as the parties have done, use the Restatement of Trusts and common law 

of other states in order to guide its interpretation. 
17

not be penalized when he has acted in good faith and in a manner he believes was for the best 

interest of the trust.” Bank of Nevada v. Speirs, 603 P.2d 1074, 1077 (Nev. 1979); see also Dick, 

609 N.E.2d at 1002 (where a conflict is approved, there is no breach of duty unless the trustee 

has acted in bad faith, dishonestly, or has abused his discretion); Restatement (Third) of Trusts § 

78, cmt c(2). The Court finds that this modified trustee-beneficiary duty of loyalty—to act fairly 

and in good faith—applies to Defendants’ allegations of breach of loyalty by Nancy. 

Defendants argue that they are entitled to summary judgment because the traditional duty 

of loyalty applies to this transaction, and breach is proven by Nancy’s becoming co-owner of 

property with the trust without court approval or consent of the beneficiaries. Defendants assert 

that the only conflict approved in the terms of the Trust was that Nancy could accept trust 

distributions approved by two independent trustees. This narrow reading of the settlor-approved 

conflict ignores the language of the Trust itself. The Trust names Nancy as a trustee, and also as 

one of a number of beneficiaries to whom as trustee she has discretion to make distributions. By 

placing the trustee in a position so riddled with potential conflict, the settlor has impliedly 

approved the conflict and therefore, the less rigid duty of loyalty applies. See 14A V.S.A. § 802, 

Official Comment. 

The duty of loyalty applies to all matters involving administration of the trust and trust 

property. Restatement (Third) of Trusts § 78, cmt a. There is also a duty imposed on trustees in 

transactions involving non-trust property, like the two-thirds interest at issue here. 14A V.S.A. § 

802(e). In transactions involving property that is not a part of the trust, the trustee breaches the

duty of loyalty if she takes, in her individual capacity, “an opportunity properly belonging to the 

trust.” Id. To prevail on their breach of loyalty claim as to this transaction, Defendants must 

prove that (1) the chance to purchase the two-thirds interest was a trust opportunity and (2) that 

Nancy acted unfairly or in bad faith by taking the opportunity for herself. See Green Mtn. Inv. 

Corp. v. Flaim, 174 Vt. 495, 497 (2002) (party claiming breach must prove fiduciary 

relationship, breach of duty, and loss caused by breach); Dick v. Peoples Mid-Ill. Corp. 609 

N.E.2d 997, 1002 (Ill. App. 1993) (where document approves conflict, person asserting breach 

has duty to show bad faith, dishonesty or abuse of discretion). 

Even drawing all reasonable inferences in favor of the Defendants, they have failed to 

demonstrate a breach of the duty of loyalty by Nancy’s purchase of the two-thirds interest. First, 

it has not been established that this purchase was a trust opportunity, and Defendants have 

offered no evidence to support such an inference. The trust opportunity doctrine is similar to the 
18

corporate opportunity doctrine, requiring the Court to determine whether this was an investment 

“the trustee was expected to purchase for the trust.” 14A V.S.A. § 802(e), Official Comment. 

Here, the Trust gives the trustees absolute discretion to purchase real property or to sell real 

property already in the Trust. Yet, it does not mandate any specific action as to real property, 

nor does it provide any express direction about the two-thirds interest. Having acquired his onethird interest in 1979, William conceivably might have modified the Trust to provide direction as 

to the remaining two-thirds, but he did not. 

The record is also devoid of evidence about the circumstances of the offer—whether it 

was initiated by Nancy or by the sellers, and whether the sellers understood Nancy’s position as 

trustee with respect to the other one-third interest. In any event, there can be no breach of duty if

the Trust was financially unable to purchase the property. See Riley v. Rockwell, 747 P.2d 903, 

905 (Nev. 1987) (Generally, transactions where a trustee becomes co-owner with the trust should 

be discouraged, because of increased chance of self dealing, “unless the trust clearly lacks the 

funds to make the purchase.” (quoting 9 G. Bogert, Trusts and Trustees § 543(d) (revised 2d ed. 

1978))). 11

 

In addition, the normal concerns about self-dealing when a trustee co-owns property with 

the trust are reduced here given that William Alden had already implicitly approved some 

conflict by making Nancy a trustee and a beneficiary. Cf. Bank of Nevada v. Speirs, 603 P.2d 

1074, 1077 (Nev. 1979) (settlor-approved conflict in terms of trust giving part ownership to 

trustee and part to trust prevents trustee from being penalized so long as acting in good faith). 

Defendants make a general allegation that, throughout her time as trustee, Nancy was working to 

unfairly maximize her own benefit; however, they have not presented evidence that demonstrates 

any bad faith or unfairness underlying her purchase of the two-thirds interest. As long as Nancy 

did not act unfairly and dishonestly, she did not breach her duty of loyalty. In the absence of any 

evidence that she acted in bad faith, Defendants have not met their burden to establish that 

Nancy breached her duty of loyalty in purchasing the two-thirds interest. 

Duty of Care

 

11 The deed transferring the two-thirds interest to Nancy was dated February 6, 1982 and recorded February 18, 

1982. Defendants have not presented evidence that the Trust was funded and would have been able to purchase to 

the property at that time. In fact, the only reasonable inference from evidence in the record is that the Trust was not 

funded until some time after February 18, 1982. (See Def.s’ Ex. 121 (letter dated Feb. 25, 1982, indicating Trust has 

not yet been funded); Def.s’ Ex. 124 (Inventory and first account of Estate of William Alden, dated March 31, 1982, 

which still shows one-third interest as asset of estate). 
19

Plaintiffs also argue that Defendants have not produced evidence to demonstrate that 

Nancy’s purchase of the two-thirds interest was a breach of the duty of care. A trustee is 

required to administer the trust as a reasonable person would, and to invest and manage the trust 

assets as a reasonably prudent investor would, “by considering the purposes, terms, distribution 

requirements, and other circumstances of the trust.” 14A V.S.A. §§ 804, 902. In satisfying these 

duties, the trustee must “exercise reasonable care, skill, and caution.” Id. The trustee’s conduct 

is to be judged based on the circumstances at the time of the action, “not with benefit of 

hindsight or by taking account of developments that occur after the time of the action or 

decision.” Restatement (Third) of Trusts § 77, cmt a; see also 14A V.S.A. § 905 (“Compliance 

with the prudent investor rule is determined in light of the facts and circumstances existing at the 

time of the trustee’s decision.”); Estate of Pew, 655 A.2d 521, 543 (Pa. Super. Ct. 1994). 

Because the standard of prudence is based on the purposes and circumstances of a particular 

trust, at a particular time, whether the duty has been breached is necessarily a trust-specific 

inquiry. 

Plaintiffs argue that given the purposes of the Trust—to provide primarily for Nancy, and 

then for the children during Nancy’s lifetime—Nancy’s decision against proposing putting 

$56,000 of Trust assets into a real estate investment was not a breach of the duty of prudent 

administration. Defendants dispute that the Trust was primarily for Nancy’s benefit12 and 

counter that there was a breach because she knew the Property was an appreciating asset and had 

a duty to invest in such an asset for the benefit of all beneficiaries. 

By the terms of the Trust, the Trustees have authority to invest trust assets in real estate, 

even though such an investment would generally not be considered appropriate. The Court reads 

this provision as a statement about the broad discretion in investment decisions granted to the 

trustees by William Alden—it does not create a duty to invest trust funds in real estate. Read as 

a whole, the overarching purpose of the Trust was to provide for the “comfort, support, 

education, and happiness” of Nancy, James, Todd, Julia, Seth, and Cornelia. Trust funds may be 

used to assist the children specifically in their education, careers, as a means of travelling, and to

aid them in purchasing homes. There is no requirement that the Trustee preserve and invest the 

principal for maximum growth, nor any evidence that William Alden intended the Trust to 

continue for generations to come. 

 

12 Even assuming the accuracy of Defendants’ interpretation, it does not alter the Court’s analysis.
20

To the contrary, the Trustees were granted absolute discretion to make distributions to 

any beneficiary, including the authority to distribute the entire principal to any beneficiary or 

beneficiaries at any time, even if such distribution terminated the Trust. Moreover, upon 

Nancy’s death and when all children were over 25, the Trust was to be divided into shares for 

each child to be fully distributed to them by the time they turned 35, thereby terminating the 

Trust. 

Given the settlor’s intent that funds be available to provide for the comfort and happiness 

of his wife and children during their lives, there is scant substance to Defendants’ argument that 

Nancy acted imprudently at the time. Even assuming the Trust had $56,000 available to invest in 

the purchase, the decision would have required either a speculative gamble that short-term gain 

might materialize, or the election of a long-term strategy involving a lengthy commitment of 

capital. Once one acknowledges that the latter alternative implicates consideration of carrying 

costs, including any potential development and marketing, the shortcomings of Defendants’ 

retrospective critique become apparent. In any event, at the time this decision was made, as 

discussed previously, there is no evidence that the Trust was funded or had $56,000 to invest in 

real estate. 

Defendants argue that they have demonstrated that Nancy breached the duty of care 

because she knew the Property was an appreciating asset and thought the two-thirds interest was 

an appropriate investment for herself. The evidence Defendants offer regarding Nancy’s 

knowledge that the Property was appreciating is (1) a letter to Todd Alden from Attorney 

Brockelman on May 11, 2007, in which he states “I am not sure, but I believe the thought was 

the 66 acres of land in Williamstown had the greater potential for appreciation in value, and 

therefore, [the one-third interest] was allocated to the residuary trust”; and (2) an appraisal of the

Property which Nancy commissioned in 1990. 

Attorney Brockelman’s uncertain memory that the property was believed to have the 

potential for appreciation is not proof that the land was appreciating, or that Nancy knew that it 

likely would when she acquired it. The question is what Nancy knew about the value of the land 

in 1982 when she purchased it— the fact that she had an appraisal of it done in 1990 is irrelevant 

to her knowledge in 1982. Likewise, the fact that Nancy considered the property a sound 

investment for herself does not mean it was an equally sound investment for the Trust. The 

prudence of a particular investment for the Trust must be judged by the purposes and 
21

circumstances of the Trust (14A V.S.A. §§ 804; 902), which are clearly different from the 

personal circumstances that Nancy would have considered in making an investment for herself. 

The Court finds that, in addition to being barred by the statute of limitations, Defendants 

have failed to present credible evidence on essential elements of their claim that Nancy’s 

purchase of the two-thirds interest breached her fiduciary duties.13 Therefore, SUMMARY 

JUDGMENT IS GRANTED IN FAVOR OF THE PLAINTIFFS, Estate of Nancy Alden, 

Seth Alden and Cornelia Alden, on the breach of fiduciary duty claims in Count One 

relating to the two-thirds interest. 

2. Trust Distributions

Throughout the counterclaim, Defendants allege that distributions to Nancy from the 

Trust were breaches of fiduciary duty by both Nancy and the co-trustees. (See Counts 1, 2, and 

4). Specifically, Defendants are concerned with the distribution of the Trust’s one-third interest 

in the Property to Nancy in 2001 and an increase in monthly distributions to Nancy beginning in 

2002.14 The material facts relevant to these claims are as follows. 

Under the terms of the Trust, the Trustees have absolute discretion, which they are 

instructed to exercise liberally, to make distributions to any beneficiary for his or her comfort, 

support, education, and happiness. The Trustees are not bound to consider the financial 

circumstances of the beneficiaries or to equalize distributions among the beneficiaries—in fact 

they are authorized to make distributions to any beneficiary at the exclusion of others. The only 

apparent restriction on distributions is that they must be approved by a majority of the three 

trustees. Though not expressly mandated in the Trust, distributions to Nancy had to be approved 

by the corporate trustee and the other individual trustee because State Street Bank would not 

allow Nancy to vote on or approve distribution of Trust assets to herself. 

On March 2, 2000, Nancy requested distribution of the one-third interest in the Property, 

as well as $300,000 for its development. She asked that the distribution be made before a 

 

13 Plaintiffs also assert that Defendants cannot succeed on this claim because they cannot demonstrate any damage to 

the assets of the Trust by the alleged breach. Had they established breach, Defendants would also have to prove 

damages to succeed on a breach of fiduciary duty claim. See Green Mtn. Inv. Corp. v. Flaim, 174 Vt. 495, 497 

(2002) (no error in declining to instruct jury on breach of fiduciary duty claims where party claiming breach had not 

presented any evidence of damages). In light of its holding that there was no breach of fiduciary duty in this 

transaction, the Court need not reach the damages issue. 

14 As the parties did at oral argument, the Court will consider these distribution claims together because they involve 

many of the same issues. 
22

reformation action was filed to correct the scrivener’s error, out of concern that Defendants, due 

to their now acrimonious relationship with Nancy, might take the opportunity once the Trust was 

before the court to interfere with Trust arrangements in order to cause Nancy “economic harm.” 

Nancy did not disclose this request to the Defendants. 

Before it would approve the distribution, State Street Bank, requested detailed financial 

information from Nancy, explaining that “as Trustee we have an obligation, a fiduciary 

responsibility to consider all the beneficiaries of this trust.” (Pl.s’ Ex. 25). Nancy provided 

financial documentation and, on April 18, 2000, the corporate trustee voted to approve 

distribution of the Property to Nancy but denied her request for funds to develop the property. 

However, the distribution was not formally approved until November or December of 2001, after 

George Smith was appointed to the vacant third trustee position, because of the need for a 

majority vote of disinterested trustees. The Property was officially transferred to Nancy by 

Fiduciary Deed, signed by all three trustees, on December 3, 2001. State Street Bank and 

George Smith believed that this distribution was appropriate because the property was a nonincome producing asset that was actually an expense to the trust. Defendants dispute the 

independence of these trustees but not their reasoning. 

The transfer of the Property to Nancy was included on the 2001 annual trust accounting, 

which Defendants received but did not object to. The Trust terms require that any objection to 

items on the accounting be made within sixty days of the mailing of the account, and that “[i]n 

the absence of such objection all beneficiaries, whether or not in being or ascertained, shall be 

barred from objecting thereto.” Despite the accounting, Defendants assert that they were not 

aware of the distribution until April 8, 2003. However, they still took no action against Nancy 

until May 2007 when they filed the present claims. Defendants maintain that they had not 

discovered that they had a cause of action in 2001 or 2002 because Nancy had failed to provide 

them with material facts, specifically the lack of independence of George Smith and State Street 

Bank. 

Defendants assert that State Street was not an independent trustee because it had made an 

agreement with Nancy to approve certain distributions to her in exchange for her dropping any 

attempt to force State Street’s resignation. Defendants offer a variety of communications by 

Attorney Newman between April 2000 through July 2001 regarding the removal or threatened 

removal of State Street as the corporate trustee. Particularly, Defendants say that this agreement 

is evident the context of a memorandum from Attorney Ron Morgan to Attorney Newman. 
23

Attorney Morgan’s memorandum, which analyzes the IRS transfer for value rule in the context 

of funding Nancy’s life insurance trust states: “I believe the easiest way to avoid the ‘transfer for

value’ issue would be to have something in writing from State Street indicating their 

unconditional agreement to make additional discretionary distributions to Nancy in exchange for 

her dropping any efforts to have them removed as trustee.” Plaintiffs deny that there was any 

agreement between Nancy and State Street Bank and that Nancy ever communicated to State 

Street Bank her desire to remove them as trustee. 

Defendants also claim that George Smith was not an “independent” co-trustee, again 

citing numerous communications which they say could permit a trier of fact to find that Smith 

colluded with Nancy to approve her distribution requests. In pertinent summary, those facts are 

that George Smith was a long time business colleague of Nancy’s lawyer, Brian Quinn and that 

Smith had agreed prior to his appointment to vote with Nancy. Defendants point to an email 

Attorney Newman sent Nancy on July 11, 2001, in which he stated: 

The only subtext (not to be discussed with State Street or any one else who will 

communicate with them) is that once we have a third trustee, you will vote with 

the new trustee to spend the fees to handle the scrivener’s error and reform the 

trust. In particular, you and the new trustee will order State Street to pay the costs 

of Brian’s court action, my past work, Mr. Hammer’s work, and the retainer for 

the attorney who will handle the reformation suit. If State Street resists, then I 

will send them my letter demanding their resignation. 

(emphasis added). 

And in a fax to Key Bank on September 10, 2001, Newman stated: 

Since 1999, I have been attempting to sensitize State Street Bank to this problem, 

but it has refused to deal with the above issues in any meaningful way. It is very 

possible that, at a trustees meeting September 12th, 2001, two out of three of the 

trustees will vote to revoke State Street Bank as co-trustee and replace it with a 

new corporate fiduciary. . . . As Nancy Alden’s Attorney, I am looking for a

corporate trust department that will be able to take over and administer the trust in 

an appropriate fashion. 

(emphasis added). 

Finally, Defendants note that Smith voted to approve these distributions at his first 

trustees meeting, just days after his appointment. In response, Plaintiffs offer an affidavit of 

George Smith attesting to his independence, that he was not aware of Nancy’s pending requests 

when he agreed to serve as trustee, nor did he agree to approve any of them if prior to his 

appointment. 
24

On September 20, 2001, Nancy requested that the Trustees increase her monthly 

distributions by $2,800. Since 1982, Nancy had received monthly distributions from the Trust, 

the amount of which was determined by the two co-trustees based on Nancy’s needs. Initially, 

the distributions were $4,000 a month; this amount was increased several times to $6,500 a 

month by December 2001. Nancy’s 2001 request for an increased distribution was to cover a 

$33,000 annual increase in her life insurance policy premium, insurance which was intended to 

pay any taxes imposed on her Estate as a result of the scrivener’s error. Nancy did not disclose 

this request for increased distributions to the other beneficiaries. 

In January 2002, co-trustees George Smith and State Street Bank approved the $2,800 a 

month increase, believing it was necessary to offset the potential estate tax consequences to 

Nancy and to carry out William Alden’s intent to keep the Trust assets out of Nancy’s estate. 

Nancy did not vote on this distribution. The increased monthly payment to Nancy was reported 

on the 2002 accounting, which Defendants received and did not object to. Again, Defendants 

claim they did not object because material facts that would have caused them to contest the 

distribution were concealed from them. 

a. Statute of Limitations—Trust Distributions 

Plaintiffs assert that they are entitled to summary judgment because Defendants’ current 

objections to distributions are barred by the terms of the Trust, which require objections to be 

made within 60 days of when the accounting is mailed. Defendants insist the sixty day period 

for objection cannot be used to bar their breach of fiduciary duty claims, especially where Nancy 

concealed material facts from them so that they did not have sufficient information upon receipt 

of the accountings to trigger an objection 

The Court will apply the sixty day period in the Trust as the statute of limitation for 

objections to distributions from the Trust.15 Essentially, Defendants object to these distributions 

on the ground that they were the result of a breach of fiduciary duty. The Trust specifically 

requires that objections to distributions, regardless of the basis of the objection, be made within 

sixty days of the accounting being mailed or be forever barred. Each of the challenged 

distributions was reported on accountings for the years they were made. Defendants 

acknowledge receipt of both the 2001 and 2002 accountings, but they did not make any objection 

to the distributions at that time. In fact, they did not make any formal objection to these 

 

15See statute of limitations discussion supra Part V. 
25

distributions until May 24, 2007, when they filed the counterclaim—clearly beyond the sixty 

days permitted in the terms of the trust. 

It is undisputed that the 2001 and 2002 accountings listed these distributions to Nancy 

and that they were received by the Defendants. The purpose of an annual account is to keep 

beneficiaries reasonably informed so that they can protect their interests. See 14A V.S.A. § 813, 

Official Comment. Defendants’ claim that they were not aware of the property distribution until 

2003—despite its being plainly listed on the 2001 accounting—is unavailing. Beneficiaries have 

a responsibility to review those accountings in order to protect themselves. Thus, Defendants are 

chargeable with knowledge of the distributions listed on the accounting from the date it was 

received. 

Defendants’ assertion that they did not have material facts necessary to challenge the 

monetary distributions when accountings were received is equally unpersuasive. Defendants’ 

knowledge that the distributions had been made, combined with their distrust of Nancy, gave 

them sufficient reason to object to the distributions upon receipt of the accounting. See Cohen v. 

State Street Bank and Trust Co., 893 N.E.2d 425, 428 (Mass.App.Ct. 2008) (receipt of

accountings provided knowledge of harm at the hands of the fiduciary sufficient to trigger the 

statute of limitations.) When Defendants received the accounting showing distribution of the 

one-third interest, they already knew that Nancy wanted to obtain that property because she had 

approached them about it in 1993. At that time, Defendants felt that Nancy had misrepresented 

the value of the property to them; certainly the same concern would have arisen when they saw 

that Nancy had succeeded in acquiring the Trust’s one-third interest. 

Defendants had enough information upon receipt of the accountings to trigger a duty to 

inquire further into the trustee’s actions approving the distributions.16 Inquiry at the time the 

accountings were received into the circumstances of the distributions would have produced the 

same information Defendants’ obtained when they finally did begin to inquire in 2007. Yet this 

inquiry was not made—in fact, it appears that Defendants did not become concerned about these 

distributions or Nancy’s behavior as trustee until after Nancy had filed this lawsuit naming them 

as defendants. The Trust’s explicit limitation on objections to distributions cannot be set aside 

simply because Defendants failed to take timely steps to investigate the distributions. 

Likewise, the Court is not convinced that Nancy fraudulently concealed any facts which 

would require a tolling of the statue of limitations. See 12 V.S.A. § 555. Defendants bear the 

 

16 See statute of limitations and “discovery rule” discussion, supra Part V.1. 
26

burden of proving concealment and fraudulent intent to prevent discovery of facts that would 

give rise to cause of action. Alexander v. Gerald E. Morrissey, Inc. 137 Vt. 20, 24 (1979). 

Defendants contend that Nancy prevented them from discovering this cause of action by 

fraudulently concealing her request for distributions, the value of the property to be distributed, 

her plans for those distributions, and her so-called “plan to obtain control” of the Trust, all of 

which she had a duty to disclose to the beneficiaries. 

Defendants construe the trustee’s duty to disclose described in 14A V.S.A. § 813 and 

Restatement (Third) Trusts § 82 too broadly. These sections impose a duty to disclose 

information about trust assets to the beneficiaries, to the extent necessary for the beneficiaries to 

protect their interests. 14A V.S.A. § 813(a) (“A trustee shall keep the qualified beneficiaries . . .

reasonably informed about the administration of the trust and of the material facts necessary for 

them to protect their interests.”) It is not a blanket requirement to inform the beneficiaries of 

every aspect of administration of the trust, but only where there is a significant transaction that 

will affect their interests or a request for information from the beneficiaries. See 14A V.S.A. § 

813, Official Comment; Restatement (Third) Trusts § 82, cmt d. 

This duty does not require Nancy or the other trustees to inform the beneficiaries that she 

requested a distribution from the Trust. Distributions made under this Trust are entirely 

discretionary—there is no guarantee of distribution to any beneficiary. In fact, the trustees have 

authority to make distributions to one beneficiary at the exclusion of others. They are not 

expressly required to advise the other beneficiaries of requests for distribution. 

Further, as long as the trustees determined that the distribution was appropriately made 

for the beneficiary’s “comfort, support, education, and happiness,” there is no requirement for 

the purpose of the request to be disclosed to the other beneficiaries. If the settlor had wished to 

require such advance disclosure, and the possible jockeying between beneficiaries that would 

inevitably ensue, he would have done so explicitly. Importantly, Nancy’s failure to make the 

disclosures about which Defendants complain did not deprive Defendants of their opportunity to 

challenge the distributions as soon as they were reported on the accounting. The accounting 

provided Defendants with all the disclosure which the Trust required, and all that was reasonably 

necessary for the protection of their interests. If Defendants had inquired about the distributions, 

the trustees’ duty to inform would have required them to provide that information. 14A V.S.A. § 

813, Official Comment. In the absence of such an inquiry, the trustees did not breach their duty 

to disclose. 
27

Finally, Defendants insist that Nancy concealed her plan to obtain control of the Trust, 

which involved her influencing both State Street Bank and George Smith to approve these 

distributions to her. Nancy’s concealed coercion of the co-trustees is a recurring theme in 

Defendants’ motion, offered as justification for their delay in bringing any claims against Nancy 

until 2007. However, Defendants have failed to create a triable issue of disputed fact as to their 

claim of a lack of independence on the part of either trustee. 

The Court has reviewed all the communications Defendants cite as evidence of an 

agreement between Nancy and State Street regarding these distributions. The memorandum 

from Attorney Morgan is not evidence of an agreement between Nancy and State Street; it is 

merely a suggested strategy for correcting the Estate Tax Problem. Other documents show that 

Attorney Newman felt State Street had previously breached its fiduciary duty to provide 

distributions for Nancy’s comfort and support and that, as a result, he was considering requesting 

their resignation. However, this is only evidence of strategies Attorney Newman was 

considering in his representation of Nancy, not that Nancy ever actually threatened State Street 

with a request for its resignation or that Nancy and State Street actually made an agreement 

regarding these distributions. State Street’s subsequent approval of the land and life insurance 

distributions supports no inference of collusion, since they were plainly within the broad 

discretion allowed by the Trust, and supported by plausible justifications. 

The evidence for Defendants’ challenge to Smith’s independence is just as flimsy. It is 

undisputed that Smith was a longtime colleague of Attorney Quinn but that fact was disclosed to 

Defendants by Attorney Quinn himself. It also appears that Attorney Quinn originally identified 

three qualified individuals as potential trustees before ultimately recommending George Smith. 

Attorney Newman offered to provide the Defendants with information regarding each of the 

proposed trustees, and encouraged them to consult with their own attorneys if they wished. 

Moreover, the communications Defendants cite hardly qualify as smoking guns 

indicating an agreement that Smith would vote with Nancy—none indicates that George Smith 

will be the new trustee that Nancy will vote with. The backdrop of these communications is 

Attorney Newman’s belief that State Street Bank violated its duties as trustee, a conviction 

leading him to advise Nancy that the Bank’s resignation might be required. Taken together, 

these communications indicate some anticipation that a new trustee would vote with Nancy 

either to force State Street to fulfill its duties or to resign, but fall well short of proving that the 

new trustee has preapproved Nancy’s requested distributions. 
28

Smith’s voting to approve these distributions is likewise no evidence of a preappointment agreement. These distributions were not approved until November 2001 at the 

earliest, several months after Smith’s appointment.17 Without sufficient evidence of a contrary 

intent, it is reasonable to infer that he voted in favor of them because he believed they were 

proper under the terms of the Trust. Defendants have not met their burden to establish a lack of 

independence in the actions of either trustee, or to produce credible evidence to rebut Plaintiffs’ 

evidence on this claim. Endres v. Endres, 2008 VT 124, ¶ 10; Poplaski v. Lamphere, 152 Vt. 

251, 254-55 (1989). 

Importantly, the core aspect of the Court’s analysis of Defendants’ objection to the 

distributions does not turn on the sufficiency of the evidence of Nancy’s plan to obtain control. 

Even if the evidence of such a plan had been robust, Defendants have not shown that it prevented 

them from making an objection within the sixty day period mandated by the Trust. Defendants 

had all necessary information upon receipt of the accounting to make an objection at that time. 

Indeed, the short period for objections, considered together with the broad discretion granted to 

the trustees in making distributions between beneficiaries, can only be interpreted as a 

manifestation of the settlor’s intention to avoid exactly the type of protracted, expensive and 

divisive proceeding represented by Defendants’ late-filed counterclaims here. Given their failure 

to object within sixty days, Defendants’ present challenges to the distribution of the one-third 

interest and insurance policy premium distributions are barred. Summary Judgment is 

GRANTED IN FAVOR OF THE PLAINTIFFS, Estate of Nancy Alden, Seth Alden and 

Cornelia Alden, on the breach of fiduciary duty claims in Counts One, Two and Four 

relating to Trust distributions to Nancy. 

3. Reformation Action 

By Count 3 of the counterclaim, Defendants allege Nancy breached her fiduciary duty of 

care by pursing a reformation action in Massachusetts as an attempt to correct scrivener’s error. 

Nancy first learned of the scrivener’s error in February 1994, by a letter from attorney David P. 

Callahan. Attorney Callahan advised Nancy of the potential estate tax consequences of the 

 

17 Defendants seem to imply, based on an email the Corporate Trustee sent the other Trustees “following up on our 

discussion of 9/19,” that these distributions were approved by Smith just seven days after his appointment. (Def.s’ 

Ex. 81). However, the plain language of the email addresses actions taken by State Street as follow up to that 

meeting, not what was done at the meeting, and Defendants admit elsewhere in the facts that the distributions were 

not approved until later in 2001and early 2002. 
29

scrivener’s error and recommended that she change her estate plan to direct that assets from her 

personal estate would not be responsible for estate taxes resulting from that error, which she did 

by amending her revocable trust and executing a new will on August 16, 1994. 

On June 18, 2001, Attorney Newman sent a letter to Defendants and James Alden 

introducing himself as the attorney Nancy had hired, explaining the scrivener’s error and its tax 

consequences to the trust, and the proposed solution: that the Trust file a reformation action in 

Massachusetts in order to correct the error. On July 13, 2001, Attorney Newman sent a follow 

up letter explaining that he could not represent Defendants or James Alden in the reformation 

action because of a potential conflict between their interests and Nancy’s. 

The trustees retained the law firm of Palmer & Dodge of Boston, Massachusetts, to bring 

the reformation action on behalf of the Trust. Defendants dispute whether the trustees actually 

selected the firm or whether it was retained by Attorney Newman. Proceeding on the advice of 

attorneys, the trustees filed the action in Massachusetts with the three trustees as plaintiffs. Todd

and Julie, together with the other four beneficiaries and the IRS, were named as defendants. The 

Trust expressly permits the trustees to retain lawyers and other professionals, and to delegate 

trustee duties and powers to them for as long as the trustees see fit. 

The trustees also approved the use of trust funds for Defendants to retain independent 

counsel so that they could be confident that the reformation action was appropriate, and 

communicated this offer to Defendants. The record does not indicate whether Defendants took 

advantage of this offer. However, Defendants maintain that the reformation action was 

inappropriate because Attorney Newman and Attorney Quinn knew that a reformation action in 

Massachusetts would likely be unsuccessful since the terms of the trust are governed by Vermont 

law. In support of this contention, Defendants cite communications among multiple attorneys 

between 1999 and 2002 debating the proper jurisdiction in which to bring the action. 

The most recent of these communications is a letter dated December 20, 2002 from 

Palmer & Dodge to the trustees, indicating that the attorneys at Palmer & Dodge, as well as 

Colin Korzec, counsel for State Street Bank, had concluded that Massachusetts was the 

appropriate jurisdiction in which to bring the action. On July 11, 2005, the Massachusetts 

Supreme Judicial Court declined to reform the Trust, concluding that because the terms of the 

Trust were governed by Vermont law, any reformation by a Massachusetts Court would be futile. 

On April 23, 2001, Nancy entered a tolling agreement with the law firm that caused the 

scrivener’s error, preserving malpractice claims against the firm. This agreement protects the 
30

interest of Nancy, Seth, and Cornelia—it does not include Defendants, James Alden, the Trust or 

the co-trustees. The agreement tolls the statute of limitations from the date of the agreement, 

April 23, 2001, but does not protect against any statute of limitations defense that may have 

arisen before that date. 

Plaintiffs argue that this claim regarding the reformation action is time-barred, and, even 

if not, that there was no breach of fiduciary duty because Nancy, together with the co-trustees, 

disclosed the proposed reformation action to the other beneficiaries and relied on the advice of 

their attorneys to bring the action in Massachusetts. On the other hand, Defendants assert that it 

is not time barred and that Nancy did breach her fiduciary duty because she knew the 

Massachusetts action would not succeed and she did not disclose all litigation risks to the 

beneficiaries. 

a. Statute of Limitations—Reformation Action 

To the extent this claim alleges that trust funds were misspent on a reformation action in 

Massachusetts, they must be considered objections to distributions from the Trust, subject to the 

sixty day limitation period. The record contains no evidence that Defendants made any objection 

to the distribution of attorney fees between June 2001, when they were advised of the need for a 

reformation action, and July 2005, when the Massachusetts Supreme Judicial Court entered a 

final order on the case. Acknowledging that the record lacks any accounting that provides clear 

notice of the disbursement of attorney fees for the reformation action,18 the Court concludes 

nevertheless that Defendants must have been on at least inquiry notice of such disbursements as 

a result of the notice that the action would be filed, and the subsequent disclosure of its rejection 

by the Supreme Judicial Court. As named parties to the reformation action, Defendants would 

have received the Court’s final order. Thus, any viable challenge to distributions made in 

support of the reformation action expired, at the latest, sixty days after Defendants received 

notice of the final order. 

Though Defendants’ failure to object within the time allowed by the Trust entitles 

Plaintiffs to summary judgment, as with the breach of fiduciary duty claim discussed above in 

connection with the Property, the Court will address Plaintiffs’ other independent grounds for the 

same relief. Because Defendants have adduced virtually no evidence to show that Nancy 

 

18 There is only one accounting provided in the record, the 2001 accounting. (Pl.s’ Ex. 30). This account does not 

itemize attorneys’ fees specific to the reformation action. 
31

breached a trustee’s fiduciary responsibility, or duty to disclose, their claims are subject to 

summary judgment on those grounds, as well. 

b. Breach of Fiduciary Duty—Reformation Action 

Plaintiffs say they are entitled to summary judgment on the reformation action claim 

because Defendants have not produced evidence sufficient to establish that Nancy’s conduct 

surrounding the reformation action was a breach of the duty of care or duty to disclose. The 

Court agrees that neither Nancy, nor the co-trustees, breached their duty of care by pursing a 

reformation action in Massachusetts. 

The Trustees are required to act prudently in their administration of the Trust; that is, as a 

reasonable person would act in light of the purposes, terms, and circumstances of the Trust. 14A 

V.S.A. § 804. In doing so, the trustees must exercise reasonable care, skill, and caution. Id. 

Prudent administration also requires the trustees to seek the advice of trained professionals where 

a decision requires information beyond the trustees’ expertise. Restatement (Third) of Trusts § 

77, cmt b. Trust administration often gives rise to complex legal questions which a lay person 

would not be qualified to handle. Where such questions arise, a prudent person would seek the 

advice of a legal professional. Seeking and relying on the advice of counsel on complex legal 

matters is evidence of prudence in administration of the Trust. Restatement (Third) of Trusts § 

77, cmt b(2). 

In this case, the Trustees were confronted with an unexpected legal problem (the 

scrivener’s error) that had the potential to significantly damage the Trust assets. In response, 

Nancy first sought advice of her Vermont attorney, Brian Newman who came to the conclusion 

that a reformation action should be brought in Massachusetts. The trust retained its own 

attorneys, Palmer & Dodge, who also concluded that Massachusetts was the proper jurisdiction 

in which to pursue reformation. Counsel for co-trustee State Street Bank concurred that 

Massachusetts was the proper jurisdiction. 

 Defendants raise no serious question as to the prudent approach taken by the trustees in 

seeking reformation of the Trust. The trustees cannot be faulted for assenting to the strategy, 

recommended by three different attorneys, of bringing the case in Massachusetts. Whether a 

trustee’s actions were prudent is to be judged in light of the circumstances at the time of their 

decision, not with the benefit of hindsight. Restatement (Third) of Trusts § 77, cmt a; Estate of 

Pew, 655 A.2d 521, 543 (Pa. Super. Ct. 1994). At the time, the trustees were aware that leaving 

the scrivener’s error uncorrected could have serious financial consequences for the Trust, and 
32

that Nancy resigning as trustee would not avoid those consequences. They had also been advised 

that the law was unclear as to which jurisdiction the suit should be filed in, but three attorneys 

concluded that filing in Massachusetts was the best course of action. Nancy cannot be charged 

with knowledge that such an action would fail, where multiple attorneys agreed this action was 

proper.19 Nancy acted as a prudent person would by seeking the advice of counsel and relying 

on that advice to bring the reformation action in Massachusetts. 

Likewise, the Court does not find a breach of the duty to disclose in any action by Nancy 

relating to the reformation action. The duty to disclose requires the trustees to keep the 

beneficiaries “reasonably informed about the administration of the trust and of the material facts 

necessary for them to protect their interests.” 14A V.S.A. § 813(a); Restatement (Third) of 

Trusts § 82(1). Here, the Trustees satisfied that burden by advising Defendants of the scrivener’s 

error, its potential to damage their interests, and the proposed solution. Perhaps most 

importantly, the trustees took affirmative steps to ensure the beneficiaries had enough 

information to protect their interests by offering to pay for Defendants consultation with their 

own attorneys to satisfy themselves that the reform action was necessary and proper. Any 

failure to advise the beneficiaries of litigation risks of a Massachusetts action does not amount to 

a breach of duty to inform the beneficiaries, especially where the trustees have provided the 

beneficiaries an opportunity to make their own investigation of the proper legal strategy to 

resolve the error. 

Defendants also claim that Nancy breached her fiduciary duties with respect to a tolling 

agreement preserving a malpractice suit against the scriveners of the Trust. Specifically, they say 

that Nancy breached her duty of care by failing to enter the agreement before the statute of 

limitation on that claim had run. They also assert that Nancy breached her duty of loyalty by 

failing to protect the Trust and the Defendants in the tolling agreement, instead preserving claims 

only on behalf of herself, Seth and Cornelia. 

 

19 Defendants attempt to attribute such knowledge to Nancy by claiming that Attorney Newman was aware a

Massachusetts action would fail. In support, Defendants point to a 1999 letter from Attorney Newman to counsel 

for State Street Bank in which he says “I understand . . . that the Massachusetts Supreme Judicial Court is no longer 

inclined to save Trustees in Nancy’s position from defective drafting of estate planning scriveners.” (Def.s’ Ex. 93). 

This one line of the letter Defendants cite hardly supports the conclusion that Nancy or her attorney knew a 

Massachusetts action would fail. It appears quite likely that the common law was more favorable when the trustees 

elected to seek declaratory relief, since Attorney Newman revised his opinion in 2001 to recommend a reformation 

in Massachusetts and noted at that time that the Supreme Judicial Court had recently issued a decision in a similar 

reformation action, with a favorable result. 
33

The duty of care argument is moot because the statute of limitations for a legal 

malpractice claim against the scriveners had not run when the tolling agreement was executed on 

April 23, 2001. A legal malpractice claim must be brought within six years of the date the injury 

is discovered. Fritzeen v. Gravel, 2003 VT 54, ¶ 8, 175 Vt. 537. In this case, even though 

Nancy may have learned of potential injury to the Trust in 1994 when she was first advised of 

the scrivener’s error, there was no actual injury until the Trust paid attorneys fees for work on the 

scrivener’s error. The record is unclear as to when attorneys’ fees were first paid, but, resolving 

doubts in favor of Defendants, the Trust could have paid such fees as early as 1999. (See Def.s’ 

Ex. 93 (letter from Attorney Newman proposing a solution to the scrivener’s error)). This is 

within two years of Nancy securing the tolling agreement, well within the applicable statue of 

limitations. 

 Defendants’ claim that Nancy breached her duty of loyalty by failing to include the Trust 

and the Defendants in the tolling agreement also fails. There is no evidence that Defendants 

have attempted an action against the scrivener that failed because they were not protected by the 

tolling agreement. There is no indication that Nancy, Seth, or Cornelia have sued the scrivener’s 

under the authority of the tolling agreement and recovered damages that should have been 

reimbursed to the Trust. In the absence of any damages from the failure to include Defendants 

on the tolling agreement, they cannot succeed on their claim that this failure was a breach of 

fiduciary duty. 

Summary Judgment is GRANTED IN FAVOR OF THE PLAINTIFFS, Estate of 

Nancy Alden, Seth Alden and Cornelia Alden, on the breach of fiduciary duty claims in 

Count Three relating to the Massachusetts reformation action. 

4. Fraud in Appointment of George Smith

The fraud count, Count Seven, was added by amended counterclaim on December 22, 2008. 

Defendants allege that, in the course of nominating George Smith as trustee, Nancy intentionally 

misrepresented his independence and failed to disclose that she had distribution requests pending 

at the time of his appointment, with the intent that Defendants would rely on her statements and 

approve Smith as trustee, that they did in fact rely on these misrepresentations, and were thus 

damaged by the resulting distributions to Nancy. Defendants seek to hold Seth and Cornelia 

liable as transferees of the assets Nancy fraudulently obtained from the Trust. The facts related to 
34

this count are co-extensive with Defendants’ similar challenge to the distributions based on 

Smith’s alleged lack of independence, and compel a similar conclusion. 

In the course of her trusteeship, Nancy retained the services of Massachusetts attorney Brian 

Quinn and Vermont attorney John Newman, to assist her with Trust issues. In March 2000, 

Nancy advised Attorney Newman that she wished to pursue the following actions regarding the 

Trust: 

1. extricating the land portion from the Trust assets so I can commence development of the 

same 

2. reformation of the Trust to be correctly drawn 

3. increasing my annual income to 5% of principal value 

4. seeking damages for 20 years of not paying me 5% income (vs actual 2.4% payout) . . . 

7. considering moving the Trust to John Jones at People’s Bank. 

(Def.s’ Facts ¶ 99). Defendants note that Nancy did not disclose her intentions to accomplish 

these things to Defendants. 

Attorney Newman believed the individual trustee vacancy, left by Ed Greaves resignation 

in 1999, needed to be filled in order for the Trust to bring a reformation action to cure the 

scrivener’s error. Attorney Newman sent a letter to Defendants and James Alden on June 8, 

2001, informing them of the scrivener’s error and the proposed reformation action and 

explaining that it would be necessary to fill the trustee vacancy before the reformation action 

could be brought. The letter proposed that a temporary trustee be appointed until reformation 

could be accomplished, and then that trustee would step down in favor of Julia Alden Dee.20 

Attorney Newman sent another letter on August 17, 2001, proposing George Smith as the 

temporary co-trustee. Attorney Quinn also wrote to Defendants and James Alden assuring them 

that none of the Plaintiffs had had any dealings with Mr. Smith but disclosing that Attorney 

Quinn had known Smith professionally for twenty-five years and that he was a person of good 

judgment, intelligence, and integrity. 

Attorney Quinn’s letter included an assent and stipulation to be signed by each of the 

beneficiaries for filing with the petition to appoint a new trustee. Under the terms of the Trust, 

the Berkshire Probate Court had authority to appoint a successor trustee, without the consent of 

the beneficiaries. Attorney Quinn indicated that the purpose of the assent was to ensure that 

Smith was appointed as temporary trustee only, and to stipulate that, once reformation was 

accomplished, Julie would replace Smith as trustee. Attorney Quinn noted that without the 

 

20 Julie was not immediately nominated as trustee because, until the Trust was reformed, doing so would create the 

same general power of appointment and estate tax problem for Julie as it had for Nancy. 
35

stipulation, the probate court would simply decide whether or not to appoint Smith, with no 

expectation that he would resign in the future. Nancy, Seth, Cornelia, James and Julie signed the 

assent and stipulation—Todd did not. 

On September 12, 2001, the Massachusetts Probate Court, Berkshire Division, did 

appoint George Smith as successor trustee. Defendants did not appeal this decision, though in 

April 2003 Todd did object to Smith serving as Trustee because of an alleged conflict of 

interest—that Smith was recommended by Nancy’s attorney and lived in same small town as 

Nancy. 

Before being appointed as trustee, Smith had not met Nancy, nor did he know any 

members of the Alden family. However, he did meet with Attorney Quinn who told him about 

the Estate Tax Problem. At that time, Nancy had already made a request to the corporate trustee 

for distribution of the one-third interest in the Property and to bring a reformation action. 

Plaintiffs assert that Smith did not agree to approve any of the requests prior to his appointment. 

Defendants dispute this and maintain that George Smith was not an “independent” co-trustee. 21

a. Statute of Limitations-Fraud Claim 

This common law fraud claim is subject to the general six-year statute of limitations for 

civil actions. 12 V.S.A. § 511; Lodge at Bolton Valley Condo. Ass’n v. Hamilton, 2006 VT 41, ¶¶ 

3, 10. Defendants claim that they had no knowledge that Smith was not independent or that 

Nancy had distribution requests pending at the time of his appointment until June 2, 2008, when 

they received Attorney Newman’s file in discovery on this case. The undisputed facts reveal that 

Defendants did have some concern regarding Smith’s independence in 2003, as indicated by 

Todd Alden’s letter to State Street Bank on April 9, 2003. Nevertheless, even if a claim accrued 

to Defendants in April 2003, they were still within the six year statute of limitations when the 

fraud claim was added in December 2008. 

b. Fraudulent Misrepresentation and Concealment 

Plaintiffs assert they are entitled to summary judgment because Defendants have failed to 

establish multiple elements of the fraud claim. Defendants insist that the undisputed facts do 

establish the required elements for fraud. 

The essential elements of a fraud claim are (1) intentional misrepresentation of a material 

fact; (2) made with the intent that another will rely on the misrepresentation; (3) that they do act 

in reliance and (4) are thereby harmed. Lewis v. Cohen, 157 Vt. 564, 568 (1991) (citing Silva v. 

 

21 For specific facts alleged to support lack of independence see supra Part V.2 . 
36

Stevens, 156 Vt. 94, 102 (1991)). Fraudulent misrepresentation can be accomplished 

affirmatively by false statement or by the concealment of facts by one who has a duty to disclose 

those facts. Sutfin v. Southworth, 149 Vt. 67, 69–70 (1987). The duty to disclose arises out of a 

special relationship of confidence or trust—like the fiduciary relationship between trustee and 

beneficiary. Id. at 70. The party alleging fraud has the burden of proving each of the elements 

by clear and convincing evidence. Lewis, 157 Vt. at 571. The absence of any one element 

prevents the party from prevailing on a fraud claim. Id. at 568 (noting that the Court could 

simply affirm without reaching merits of appeal because, at trial, plaintiffs had failed to prove 

two elements of fraud but they only challenged the conclusion as to one of these elements on 

appeal). 

In this case, Defendants’ fraud claim falls short on two elements: fraudulent 

misrepresentation and damages. Defendants claim that Nancy intentionally misrepresented 

Smith’s independence and concealed her pending requests for distribution at the time Smith was 

being appointed. As the Court determined above, Defendants have not produced sufficient 

evidence from which, in the absence of speculation, a jury might conclude that Smith was not 

independent. See discussion supra Part V.2.b. In the absence of any evidence that he was not 

independent, there can be no misrepresentation of that fact. 

Similarly, in order to establish that Nancy fraudulently concealed her pending requests 

for distribution, Defendants must demonstrate that Nancy had a duty to disclose those requests. 

As discussed previously, a trustee’s duty to disclose requires her to inform the beneficiaries of 

information about trust assets necessary to protect the beneficiaries’ interests—it does not require 

the trustee to inform the beneficiaries of every aspect of administration of the trust or every 

request for distribution made to the trustees. See 14A V.S.A. § 813, Official Comment; 

Restatement (Third) Trusts § 82, cmt d. Nancy did not have a duty as trustee to inform the other 

beneficiaries that she had requested distributions. 

Perhaps recognizing this, Defendants argue that Nancy also had a common law duty to 

disclose the pending requests, separate from her duty to disclose as co-trustee, because she had 

superior knowledge of facts surrounding the Smith appointment. While superior knowledge can 

give rise to the duty to disclose (Sutfin v. Southworth, 149 Vt. 67, 70) (1987)), the Court is not 

convinced that disclosure of any pending distribution requests were material to the issue of 

Smith’s appointment. Defendants have not provided any evidence that supports their argument 

that getting the distributions approved was Nancy’s secret motive for appointing a trustee. 
37

The letters and emails Defendants offer as evidence of collusion refer to the new trustee 

voting with Nancy to approve the reformation action, not to authorize distributions to Nancy. In 

fact, there was only one distribution request pending during Smith’s nomination—the request for 

the one-third interest made in March 2000. The request for increased monthly distributions to 

cover the life insurance policy was not made until September 19, 2001, after Smith had been 

appointed. Smith’s eventual acquiescence, together with the institutional trustee, in Nancy’s 

requests is simply not evidence of a pre-arranged collusion that Nancy failed to disclose. Without 

deception, there is no right of action for fraud. Donovan v. Towle, 99 Vt. 464, 470 (1926).22

Because they have failed to establish at least two essential elements,23 Defendants are not 

entitled to summary judgment on their claim of fraud against Nancy. Consequently, without 

establishing fraud, they cannot impose liability on Seth and Cornelia as transferees of the 

property received by fraud. Summary Judgment is GRANTED IN FAVOR OF THE 

PLAINTIFFS as to the allegations of Count 7.24

After careful review of the pleadings, undisputed facts, and supporting exhibits, the Court 

concludes that Defendants have failed to present evidence to satisfy their burden of proof on any 

of the claims in Counts One, Two, Three, Four and Seven of the counterclaim. Without 

establishing any of their substantive claims, Defendants are not entitled to the attorneys’ fees 

they request in Count Five. Therefore SUMMARY JUDGMENT IS GRANTED FOR THE 

PLAINTIFFS and DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS 

DENIED. 

 

22 The failure to prove damages is likewise fatal to a fraud claim. Smith v. Country Village Intern., Inc., 2007 VT 

132, ¶ 10, 183 Vt. 535. Here, Defendants must prove amount of money they actually lost as a result of the alleged 

fraud. Smith v. Country Village Intern., Inc. 2007 VT 132, ¶ 10. In this discretionary Trust, Defendants are not 

guaranteed any particular sum of money. In fact, they may not get any at all since the trustees have authority to 

distribute the entire principal to one beneficiary at the exclusion of others. Thus, Defendants cannot establish that 

these distributions to Nancy directly caused them actual loss. 

23 It is also not clear that Defendants relied on the alleged misrepresentation. Todd’s refusal to assent to Smith’s 

appointment is a strong indicator that he did not accept what he had been told regarding Smith. In addition, because 

of the mistrust Defendants felt toward Nancy, there may have been some duty on Defendants’ part to investigate the 

propriety of appointing Smith, which they apparently did not do. See Lewis v. Cohen, 157 Vt. 564, 569 (1991) (The 

duty to investigate arises where “it is clear from the . . . facts about the relationship of the parties that reliance should 

only follow an independent inquiry.”). 

24 Defendants’ claim in Count 7 that Nancy fraudulently conveyed assets to Seth and Cornelia as defined in 9 V.S.A. 

§ 2288 (1)(a) is also dismissed. Defendants have not established that they are a creditor as defined under that statute 

(i.e. a person with a right to payment from the “debtor.”) 9 V.S.A. §§ 2285 (3)–(5). Nor have they produced 

evidence of actual intent to defraud as defined in 9 V.S.A. § 2288(1)(a). Therefore, summary judgment is granted 

for the Plaintiffs on the entirety of Count 7. 
38

Dated this ____ day of March, 2010 at Bennington, Vermont. 

 ____________________________________ 

 John P. Wesley 

 Presiding Judge