Marilyn A. Cantiloro, as of the Estate of Madeleine Pope Hall v. Robert G. Pope

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0807, Marilyn A. Cantiloro, as Executrix
of the Estate of Madeleine Pope Hall v. Robert G. Pope, the
court on January 12, 2016, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The petitioner, Marilyn A. Cantiloro, Executrix of the Estate of Madeleine
Pope Hall, appeals an order of the Circuit Court (Weaver, J.) denying her
petition to quiet title to property transferred by Gladys Pope (Gladys) to the
Ossipee-Pope Realty Trust (trust). The petitioner argues that the trial court
erred in finding that: (1) the trust was validly formed; and (2) Madeleine Pope
Hall (Madeleine) assigned her beneficial interest in the trust to her brother,
Gordon Pope (Gordon). The respondent, Robert G. Pope (Robert), cross-
appeals, asserting alternative grounds for affirming the trial court’s order.

The petitioner first argues that the trial court erred in finding that the
trust was validly formed because, she asserts, there is no evidence that a
schedule of beneficiaries was ever prepared. Our standard of review is
determined by statute: “The findings of fact of the judge of probate are final
unless they are so plainly erroneous that such findings could not be reasonably
made.” RSA 567-A:4 (2007); see also RSA 490-F:3 (Supp. 2015) (granting
circuit court jurisdiction of the former probate court). Accordingly, we will not
disturb the trial court’s decree unless it is unsupported by the evidence or
plainly erroneous as a matter of law. In re Estate of Couture, 166 N.H. 101,
105 (2014).

The record shows that the trust was prepared in 1972 by Paul Beatty, a
partner in the law firm of Sullivan & Worcester, and executed by Madeleine and
Gordon on June 14, 1972. On the same date, Gladys conveyed the property at
issue to Gordon and Madeleine as trustees of the trust. On June 27, 1972, the
deed and trust were recorded in the Carroll County Registry of Deeds.

In the first paragraph of the trust, Madeleine and Gordon state that they
will hold the trust property “for the sole benefit of the Beneficiaries named in a
Schedule this day executed by us as Trustees hereunder and by said
Beneficiaries, in the proportions therein set forth.” The paragraph further
provides: “Said Schedule is on file at the office of the Trust which is at present
located at 225 Franklin Street, Boston, Massachusetts 02110, c/o Paul F.
Beatty, Esq.” Beatty testified at his deposition that his law firm subsequently
relocated, and that his files pertaining to this matter have been lost or
destroyed. At trial, neither party was able to produce a copy of the schedule of
beneficiaries. Beatty testified that although he did not have a specific
recollection of having prepared a schedule of beneficiaries, he believes, based
upon the language in the trust, that he prepared such a schedule.

Madeleine, who was not competent to testify at trial, died in 2015, while
this appeal was pending. Gordon died in 1992. Madeleine and Gordon were
Gladys’ only children. In 1975, three years after they signed the trust, they
entered into an agreement, signed by them and witnessed by Gladys, in which
they stated that they were each 50 percent beneficiaries of the trust. In the
agreement, Madeleine agreed to sell her beneficial interest in the trust to
Gordon at a date to be determined.

In its order, the trial court noted that the trust was designed to be
recorded without the schedule of beneficiaries, which would explain why the
parties did not have in their records a copy of the schedule attached to their
copy of the trust. After reviewing all the evidence, the trial court found that the
respondent proved, by clear and convincing evidence, that a schedule of
beneficiaries had been prepared, and that Madeleine and Gordon each held
50 percent of the beneficial interest in the trust. Considering each of the
petitioner’s challenges to the evidence, we conclude that the trial court’s
findings were not so plainly erroneous that they could not have been
reasonably made. See RSA 567-A:4; Estate of Couture, 166 N.H. at 105.
Accordingly, we find no error in the court’s determination that that the trust
was validly formed, and that Gladys properly conveyed title to the trust.

The petitioner next argues that the trial court erred in finding that
Madeleine assigned her beneficial interest in the trust to Gordon. The record
included a copy of an assignment of interest of beneficiary dated June 19,
1981, bearing Madeleine’s notarized signature, in which she assigned her
beneficial interest in the trust to Gordon. The petitioner argues that there was
no proof that Madeleine delivered the assignment to Gordon with the intent to
transfer her beneficial interest in the property to him, and no evidence to
explain how Gordon obtained a copy of the assignment or the circumstances in
which the assignment was prepared. She also argues that there was no
evidence that Gordon gave Madeleine any consideration for the assignment or
that the parties sought to amend the schedule of beneficiaries. Robert
obtained the copy of the assignment from Gordon’s records.

The respondent counters that Gordon’s possession of a copy of the
assignment was sufficient evidence of delivery, that any failure to amend the
schedule of beneficiaries would not have invalidated the assignment, and that
in the assignment, Madeleine states that she assigned her interest in the trust
to Gordon “for value received.” In 1992, Madeleine resigned as a trustee.

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 To the extent that the petitioner argues that the court erred on
evidentiary grounds in admitting a copy of the assignment without evidence as
to the location or destruction of the original, we review the court’s decision for
an unsustainable exercise of discretion. Barking Dog v. Citizens Ins. Co. of
America, 164 N.H. 80, 86 (2012). Rule of Evidence 1003 provides that “[a]
duplicate is admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.”
See N.H. R. Ev. 1003. At trial, the petitioner conceded: “I don’t think there’s
any doubt as to the authenticity that it is a duplicate original of the . . .
assignment.” The record shows that the trial court considered the petitioner’s
challenges to the validity and effectiveness of the assignment but concluded
that they related to the weight of the evidence rather than its admissibility.
Based upon this record, we cannot conclude that the trial court unsustainably
exercised its discretion in admitting the duplicate assignment. See Barking
Dog, 164 N.H. at 86.

Considering each of the petitioner’s challenges to the evidence, we
conclude that the trial court’s finding that Madeline assigned her beneficial
interest in the trust to Gordon was not so plainly erroneous that it could not
have been reasonably made. See RSA 567-A:4; Estate of Couture, 166 N.H. at
105.

In light of our decision, we need not address the arguments in the
respondent’s cross-appeal.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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