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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll County Probate Court
No. 96-735
IN RE ESTATE OF MADELINE M. CASS
IN RE CASS FAMILY TRUST
October 5, 1998
Sanders & McDermott, P.L.L.C., of Hampton (Edwinna C. Vanderzanden and Patricia M. Weathersby on the brief, and Ms. Vanderzanden orally), for the petitioner, Priscilla Cass Hundley.
Law Office of Leslie H. Johnson, of Center Sandwich (Leslie H. Johnson and Caroline B. Chambers on the brief, and Ms. Chambers orally), for the respondent, Gilbert Cass, as trustee of the Cass Family Trust.
Melendy and Lee, P.A., of Conway, for the respondent, Gilbert Cass, as executor of the Estate of Madeline M. Cass, filed no brief.
BROCK, C.J. The respondent, Gilbert Cass, trustee of the Cass Family Trust, appeals a decision of the Carroll County Probate Court (O'Neill, J.). He contends that the court erred in quashing a deposition, failing to invite him to fully participate in the trial as a pro se litigant, and imposing a constructive trust upon property that the testator, Madeline M. Cass, bequeathed to him. We affirm.
The record reveals the following facts. On September 19, 1983, John W. Cass and Madeline M. Cass executed the Cass Family Trust. They named themselves co-trustees of the trust and named the respondent, their son, as the successor trustee. The beneficiaries of the trust included John and Madeline Cass, the original trustees; their adult children, including the respondent and the petitioner, Priscilla Cass Hundley; and their eight minor grandchildren. John and Madeline Cass retained the power to deal with the trust property, which included property on Crystal Lake in the town of Eaton (lake property), as if they were the sole and absolute owners of the trust property. The terms of the trust enabled the original trustees to revoke, terminate, alter, or amend the trust without consent or approval. Any trustee could expend the trust property for the benefit of the original trustees. The trust, however, restricted the sale of real estate within the trust for ten years after the original trustees' deaths, and required the proceeds of any sale to be combined with the other trust property, divided equally, and held in trust for the support and maintenance of the surviving beneficiaries.
In 1989, after John Cass' death, Madeline Cass became the sole trustee. Although the respondent was not appointed as trustee in accordance with the terms of the trust, he acted as a co-trustee. In 1990, Madeline Cass suffered a stroke and entered a nursing facility. In January 1991, Madeline Cass granted the respondent a written power of attorney as to her personal business and her health care.
On March 13, 1991, Attorney William Paine II assisted Madeline Cass in executing a quitclaim deed transferring the lake property from the trust to the respondent. Although he recommended to the respondent that the respondent sign a mortgage to the trust for the property, the respondent never gave the trust a mortgage or any other consideration for the property. At the respondent's request, Attorney Paine never discussed the conveyance with the respondent's siblings. Although the respondent retained the quitclaim deed, it was never recorded. The respondent, however, testified that he believed that Madeline Cass expected him to keep the lake property, maintain it, and allow his siblings to freely use it as if it had remained in the trust. In September 1992, Attorney Paine withdrew from representing Madeline Cass because he believed he could not carry out her wishes while she was subject to the competing influences of her family members.
In October 1993, Attorney Fay Melendy assisted Madeline Cass in executing a warranty deed for the lake property to herself individually, and a codicil to her will leaving the lake property to the respondent. Attorney Melendy testified that Madeline Cass told her that she wanted to leave the property to the respondent because she thought "that [the respondent] was in the best position to care for the property . . . that [the respondent] would keep the property in the family and . . . that he would always make the property available to other family members." Madeline Cass' companion, Myrtle McKay, also testified that Madeline Cass had represented to her that the respondent cared for and paid the expenses associated with the lake property, and that Madeline believed the respondent should have the property. Contrary to Madeline Cass' belief, however, evidence showed that the respondent paid the property expenses out of trust funds.
Upon Madeline Cass' death in June 1993, the respondent became the sole trustee of the Cass Family Trust. Subsequently, the petitioner asked the probate court, inter alia, to set aside the transfer of the lake property from the trust, or to impose a constructive trust on the property, and to remove the respondent as trustee. Additionally, the petitioner filed several pretrial motions. In June 1995, the probate court granted the petitioner's motion to quash a deposition after finding that the respondent failed to provide reasonable notice. See Prob. Ct. R. 10; Super. Ct. R. 38. In August 1996, the probate court ruled that a confidential relationship existed between the respondent and Madeline Cass, that the respondent used this relationship to gain ownership of the lake property, and that he breached his fiduciary duties as a trustee. Although the court concluded that the trust permitted the transfer of the lake property from the trust to Madeline Cass, the court imposed a constructive trust on the lake property and removed the respondent as trustee of the Cass Family Trust. Subsequently, the court denied the respondent's motion for reconsideration, granted the petitioner's motion for clarification, and ordered the respondent to provide an accounting to the petitioner.
On appeal, the respondent first argues that the petitioner failed to prove by clear and convincing evidence the elements necessary for imposing a constructive trust. We disagree. "We review sufficiency of the evidence claims as a matter of law," Salisbury v. Lowe, 140 N.H. 82, 83, 663 A.2d 611, 612 (1995), and "uphold the findings and rulings of the probate court unless unsupported by the evidence or clearly erroneous as a matter of law," In re Estate of Washburn, 141 N.H. 658, 659, 690 A.2d 1024, 1026 (1997). "We accord considerable weight to the trial court's judgments on the credibility of witnesses and the weight to be given testimony." Id.
No rigid requirements exist for imposing a constructive trust. Clooney v. Clooney, 118 N.H. 754, 757, 394 A.2d 313, 316 (1978). A constructive trust may be imposed when clear and convincing evidence shows that a confidential relationship existed between two people, that one of them transferred property to the other, and that the person receiving the property would be unjustly enriched by retaining the property, regardless of whether the person obtained the property honestly. Lamkin v. Hill, 120 N.H. 547, 551, 419 A.2d 1077, 1080 (1980); see Salisbury, 140 N.H. at 83, 663 A.2d at 612; Restatement (Second) of Trusts