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18-P-871                                             Appeals Court
18-P-872

           IN THE MATTER OF THE ESTATE OF DAVID E. STACY.

DEBORAH A. STACY, personal representative,1 & others2       vs.   IANA
                           A. STACY.3


                        Nos. 18-P-871 & 18-P-872.

         Barnstable.       March 1, 2019. - November 8, 2019.

             Present:   Green, C.J., Neyman, & Henry, JJ.


Devise and Legacy, Intestacy, Personal property. Husband and
     Wife, Antenuptial agreement. Contract, Construction of
     contract, Antenuptial agreement. Trust, Distribution.


     Petition for probate of a will filed in the Barnstable
Division of the Probate and Family Court Department on February
26, 2014.

     A petition to render an inventory and account, filed on
April 7, 2016, was heard by Robert A. Scandurra, J., on a
statement of agreed facts.

     Complaint in equity filed in the Barnstable Division of the
Probate and Family Court Department on July 23, 2015.

     1   Of the estate of David E. Stacy.

     2   Elaine Kelley and David Kelley.

     3 Although the two cases were argued separately, because
they have overlapping facts and legal issues, we have
consolidated them for purposes of decision.
                                                                    2



     The case was heard by Robert A. Scandurra, J.

     R. Alan Fryer for the plaintiffs.
     Heidi A. Grinsell for the defendant.


     HENRY, J.    At the heart of these cases is the proper

distribution of the assets of the decedent, David E. Stacy, in

light of a premarital agreement executed by him and his wife,

Iana Stacy (Iana or wife),4 and the fact that his will did not

provide for his wife and expressly excluded his son from a prior

marriage.    These issues have arisen in the context of two

separate cases:    (1) a petition brought by the wife against the

personal representative of the estate to render an inventory and

account (in 18-P-871, which we shall call the inventory action),

and (2) an equity action commenced by the personal

representative to recover items belonging to the estate that are

in the wife's possession (in 18-P-872, which we shall call the

estate asset recovery action).    Because our de novo review of

the premarital agreement differs from that of the Probate and

Family Court judge, which in turn impacts the outcome of the

decedent's estate plan, we vacate and modify portions of the

judgment and decree and remand for further proceedings as

necessary.




     4   We use the first names of those who have a common surname.
                                                                      3


    Factual background.      The decedent died on February 12,

2014.    He was survived by his wife of approximately six years,

Iana, and his minor son from a prior marriage.     He was also

survived by his biological mother, Elaine Kelley (Elaine); his

sister, Deborah Stacy (Deborah); and his adoptive mother, Joan

Bentinck-Smith, who adopted the decedent in 1995 when he was

thirty-four years old.

    1.    The decedent's last will and the David E. Stacy

Revocable Trust of 2001.     The decedent executed his last will on

August 19, 2003 (decedent's will), and nominated Deborah as the

executor of his will.     Subsequently, she was appointed personal

representative of his estate.    The decedent's will bequeathed

all of his property to the trustee of the David E. Stacy

Revocable Trust of 2001 (2001 Trust).    The decedent expressly

omitted from his will his son, a former wife, and his adoptive

mother, Bentinck-Smith.

    As amended in 2003, the 2001 Trust named as sole

beneficiary the decedent's biological mother, Elaine.     The

decedent also excluded from the 2001 Trust his son, former wife,

and adoptive mother as beneficiaries.    The 2001 Trust, as

amended, appointed Deborah as trustee.

    The wife is not named as a beneficiary in either the

decedent's will or the 2001 Trust, which were both executed

prior to their 2008 marriage.
                                                                    4


     2.   The premarital agreement.   The decedent and the wife

entered into a premarital agreement on July 18, 2008.    The

parties dispute the interpretation of this agreement.    However,

it is undisputed that the premarital agreement enumerated the

parties' separate property owned by each of them at the time of

the marriage.5   The decedent included in his list of assets

something called "Pigeon Trust."   Bentinck-Smith created the

Pigeon Trust, an irrevocable life insurance trust, naming as

"the beneficiaries" only one beneficiary:    David E. Stacy, the

decedent.   Article VI of the Pigeon Trust, identifying the

decedent as the beneficiary, did not expressly identify the

decedent's estate as a beneficiary should he predecease the

donor, although other provisions did identify the decedent's

estate.   The decedent's list of assets in the premarital

agreement described the Pigeon Trust, (a) identifying himself as

the beneficiary, (b) identifying the successor beneficiary as

"___," (c) stating the principal value of this asset as of July

14, 2008, and (d) noting there would be no distribution of trust




     5 "Separate property of a party" is defined in the
premarital agreement in part as "all property owned by that
party prior to the marriage in his or her name individually, in
trust or otherwise, including but not limited to property owned
or to become owned as a beneficiary of any trust, or in any form
of ownership whatsoever with any other person (other than the
other party)."
                                                                       5


principal until the death of the donor, who was his adoptive

mother, Bentinck-Smith.6

     As already stated, Bentinck-Smith survived the decedent.

The surrender value of the life insurance policy held by the

Pigeon Trust as of December 5, 2016, was $1,648,879.45.

     We reserve recitation of additional terms of the premarital

agreement and the Pigeon Trust for discussion below.

     Procedural background.    The largest asset in dispute is the

Pigeon Trust.    Thus, before turning to the two lawsuits on

appeal, we first address an earlier action that the personal

representative filed concerning disposition of the Pigeon Trust.

     1.   Litigation regarding the Pigeon Trust.   In May 2015,

Deborah, as personal representative of the decedent's estate,

filed a petition to terminate the Pigeon Trust early.    Later,

the trustees of the Pigeon Trust (Pigeon trustees) filed a

petition for instructions as to whether the rightful beneficiary

of the trust was the decedent's estate or the decedent's

descendant.7    The court consolidated these two petitions.    After


     6 The decedent's list of assets in the premarital agreement
also included several real properties, the "2003 D.E.S. Support
Trust (Irrevocable)," a $990,990 judgment, jewelry worth
$186,000, a coin collection, other collections, tools and
equipment, several specific bank accounts and investments, three
automobiles, a boat, arts and antiques, loose gemstones, and a
business, Stacy Imports, Inc.

     7 While the terms of the Pigeon Trust limited amendments to
correction of scrivener's errors and prohibited amendment to the
                                                                   6


mediation, Deborah, individually and in her dual capacities as

personal representative of the decedent's estate and as trustee

of the 2001 Trust; the Pigeon trustees; a guardian ad litem for

Bentinck-Smith; and a guardian ad litem for the decedent's son

eventually came to a "Non-Judicial Settlement Agreement"

(settlement agreement).   This settlement agreement essentially

called for dividing the trust res in half, minus fees, and

distributing one half to a trust for the son's benefit, and the

other half to Deborah, as trustee of the 2001 Trust, the

remainder beneficiary of the decedent's will.

    The wife objected to only so much of the settlement

agreement as called for distribution of Pigeon Trust principal

to Deborah as trustee of the 2001 Trust, rather than to Deborah

as personal representative of the decedent's estate.   The judge

approved the settlement agreement, reserving, with Deborah and

the wife's agreement, the question whether the Pigeon Trust

distribution to Deborah should be in her capacity as personal

representative of the decedent's estate or in her capacity as

trustee of the 2001 Trust.   This question was to be resolved in

the inventory action.




article designating a beneficiary, several amendments were
executed over the next two decades changing the terms of the
mandatory distribution article, including who would benefit from
mandatory distribution.
                                                                   7


     2.   Estate asset recovery action.    On July 23, 2015,

Deborah, in her capacity as personal representative, filed an

equity complaint alleging that the wife had taken from the

marital home personal property belonging either to the estate or

to Elaine and her husband, David Kelley (David).    The amended

complaint asserted claims against the wife for constructive

trust, conversion, unjust enrichment, and violation of G. L.

c. 190B, § 3-709.8   The complaint also sought a declaratory

judgment interpreting the premarital agreement as it related to

the wife's interest in the estate's assets and the wife's

obligations to return property, as well as the wife's liability

for the value of any property taken and all damages caused to

the estate.   The amended complaint included the decedent's

mother, Elaine, and her husband, David, as plaintiffs seeking to

recover their property from the wife.     The wife also filed a

counterclaim asserting that the personal representative

committed a breach of her fiduciary duty toward the wife.

     After a trial, the judge deemed the premarital agreement

null and void upon the decedent's death and concluded that it

"shall have no applicability relative to the estate of David E.




     8 General Laws c. 190B, § 3-709 (b), provides that "[w]ho
ever injuriously intermeddles with any personal property of a
deceased person, without being thereto authorized by law, shall
be liable as a personal representative in his own wrong to the
person aggrieved."
                                                                      8


Stacy."   Additionally, the judge found that the wife possessed

certain enumerated pieces of the decedent's personal property

worth $76,875 and additional property of unknown value, and

credited the wife's denial that she possessed other items.      Per

the personal representative's request, the judge ordered that

the wife return all of the decedent's property to the personal

representative.   However, sua sponte, the judge also ordered

that if the wife did not return the property, the personal

representative could deduct the value of assets in the wife's

possession from the wife's share of the estate.

    The judge further found that the personal representative's

claims of conversion, unjust enrichment, and violation of G. L.

c. 190B, § 3-709, and request for imposition of a constructive

trust were based on the assertion that the premarital agreement

applied in the event of death and took precedence over the

otherwise applicable provisions of G. L. c. 190B, §§ 2-102, 2-

301, 2-403 (a), and 2-404 (a).    Given his conclusion that the

premarital agreement was null and void, the judge concluded that

those claims failed.   Finally, the judge dismissed the wife's

counterclaim, finding that the personal representative had not

breached her duty toward the wife.   In this matter, all parties

appealed.

    3.    Inventory action.   On April 7, 2016, the wife brought a

petition to order the personal representative of the estate to
                                                                    9


render an inventory and account.    As noted above, consolidated

with this petition was the issue of the capacity in which

Deborah would receive the distribution of the Pigeon Trust

settlement agreement proceeds:     as personal representative of

the decedent's estate or as trustee of the 2001 Trust.

     Based on the parties' legal briefs and an agreed statement

of facts, to which the Pigeon Trust and its multiple amendments

were attached, the judge determined that the Pigeon Trust

settlement agreement proceeds should be distributed to the

decedent's estate.    The judge also allowed the personal

representative's account, with the judge's amendments, and

concluded that the wife "as surviving spouse is entitled to the

first $100,000 plus one-half of the balance of the decedent's

probate estate."9    The judge further concluded that after the

wife received her share, the remainder of the estate assets

would pour over into the 2001 Trust.     In this matter, the wife

and personal representative both appealed.

     Discussion.    In 2008, the Legislature overhauled the law

governing the probate process by adopting nearly the entire

Uniform Probate Code (code).    See St. 2008, c. 521, §§ 9 and 44,

as amended by St. 2011, c. 224, and made effective March 31,


     9 See G. L. c. 190B, § 2-102 (4) ("the first $100,000 plus
1/2 of any balance of the intestate estate, if 1 or more of the
decedent's surviving descendants are not descendants of the
surviving spouse").
                                                                     10


2012; G. L. c. 190B.     As relevant here, G. L. c. 190B, § 2-301

(a), of the code provides that where a surviving spouse married

the testator after the testator executed a will, as occurred

here, "the surviving spouse is entitled to receive, as an

intestate share, no less than the value of the share of the

estate the spouse would have received if the testator had died

intestate as to that portion of the testator's estate, if any,

that neither is devised to a child of the testator who is born

before the testator married the surviving spouse and who is not

a child of the surviving spouse [nor a descendent of such child]

. . . ."     This right is subject to the terms of the premarital

agreement.    See generally Austin v. Austin, 445 Mass. 601, 603-

604 (2005).    We begin our discussion there.

    1.     The premarital agreement.   The wife argues that, as in

other contexts involving waivers of statutory rights, any waiver

of her statutory right of intestate succession must be clear and

unmistakable.    See, e.g., Crocker v. Townsend Oil Co., 464 Mass.

1, 14 (2012) ("[an agreement] purporting to release all possible

existing claims . . . will be enforceable as to the statutorily

provided rights and remedies conferred by the Wage Act only if

such an agreement is stated in clear and unmistakable terms");

Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass.

390, 398 (2009) (same for G. L. c. 151B rights and remedies).
                                                                    11


     We agree with the wife that no provision of the premarital

agreement clearly and unmistakably waives one spouse's rights of

intestacy.    That, however, does not end our inquiry.

     The premarital agreement identified each party's separate

property and expressly provided that after the marriage, that

property was to remain the individual's property, was to be

treated as if no marriage had occurred, and would not be subject

to any claims arising from the marriage.     It is well settled

that through a premarital agreement, future spouses may

relinquish claims to assets identified by each at the time of

the marriage.     See Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588

(2009) (death).     See also DeMatteo v. DeMatteo, 436 Mass. 18

(2002) (divorce).

     Notwithstanding the express waiver of any interest in the

decedent's separate property, the wife contends that the

agreement applies only in the event of divorce, and not in the

event of death.     The wife points to numerous provisions in the

premarital agreement that address divorce in support of her

argument.10   "[W]e construe a contract as a whole, so as 'to give

reasonable effect to each of its provisions.'"     James B. Nutter




     10The premarital agreement is titled "G. L. c. 208, § 34
AGREEMENT," which pertains to divorce, but the parties agree
that it was mistitled.
                                                                  12


& Co. v. Estate of Murphy, 478 Mass. 664, 669 (2018), quoting

J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986).

     The premarital agreement contained provisions related to

divorce,11 but the entire agreement was not expressly limited to

divorce.    Numbered par. 4 contains broad language, providing

that after the marriage, the parties shall retain all right and

title to their separate properties as if the marriage had never

taken place.12   As previously stated, the Pigeon Trust and other

assets were identified as the decedent's separate property.

     There is no ambiguity as to how the parties chose to define

and treat their separate property upon the marriage.13    As in


     11   For example, numbered par. 1 provided in pertinent part:

     "The parties intend at this time and by this instrument to
     make a final and complete settlement of all matters
     relating to the interest and obligations of each with
     respect to all future property matters, including but not
     limited to alimony, support, maintenance, property
     assignment, and the rights of the parties under G. L.
     c. 208, § 34, as amended, in the event of a divorce."

     12   Specifically, numbered par. 4 provides:

     "After the marriage takes place, each of the parties shall
     separately retain all rights in his or her property owned
     at the time of the marriage, including appreciation
     attributable to such property that may occur during the
     marriage, with the same effect as if no marriage had been
     consummated between them. Each party shall have the
     absolute and unrestricted right to dispose of his or her
     separate property, free from any claim of the other based
     upon their marriage."

     13The wife points to extrinsic evidence from the attorneys
involved in drafting the agreement to support her claim that
                                                                     13


Pisano v. Pisano, 87 Mass. App. Ct. 403, 412-413 (2015), "[w]e

start with the observation, made clear from paragraph[] [4] of

the premarital agreement, that each party sought to protect from

the other his or her separate property, . . . and any

appreciation in value of . . . that property.     That the parties

were to control all aspects of their separate property . . . is

. . . manifest in paragraph [4], which allows the parties to

control, use, and dispose of their separate property in the same

manner as if the marriage had not taken place."    In Pisano, we

concluded that although the agreement at issue did not contain

express language waiving alimony, the foregoing provision

ensured that the wife's separate property was not available to

the husband for any alimony claim.   Id. at 414.    Similarly,

here, although the premarital agreement did not contain an

express waiver of the wife's intestate share of the decedent's

estate, she did agree that certain identified assets would

remain the decedent's separate property "free from any claim

. . . based on their marriage."14



application of the premarital agreement at death was not
discussed. However, the wife does not expressly argue that the
agreement is ambiguous; thus, her reliance on extrinsic evidence
is misplaced. See Redstone v. O'Connor, 70 Mass. App. Ct. 493,
498 n.14 (2007). We do not consider the extrinsic evidence.

     14Numbered par. 4 is not the only provision of the
premarital agreement that applies in a context other than
divorce. Numbered par. 15 on page six of the agreement (there
are two paragraphs labeled 15, one on page five and one on page
                                                                   14


     Even if the possibility of divorce was the guiding force

behind the premarital agreement, the parties, with the advice of

counsel, chose to permanently waive any interest in one

another's identified property throughout the marriage and

afterwards without condition "as if no marriage had been

consummated between them."15   Moreover, the wife waived any

future claim to the decedent's separate property "based upon

their marriage."   Nothing in the agreement suggests that the

wife's waiver terminated upon the death of her spouse.    To now

claim an intestate share in those assets through the decedent's

estate is in contravention of the premarital agreement.    Indeed,

the wife asks us to insert language into the premarital

agreement that provides that she and the decedent agreed to




six) sets forth waivers of one another's qualified joint and
survivor annuities, qualified preretirement survivor annuities,
and all retirement plans. The wife correctly concedes in her
brief that par. 15 would apply even in the absence of divorce.

     15By agreement, the wife did not, at any time during the
marriage, gain any interest in the property identified in the
premarital agreement as the husband's separate property. That
intention is further demonstrated in the provisions directed at
divorce, which repeated that the spouses' separate property
would remain the property of each spouse to the exclusion of the
other spouse and, depending on the length of the marriage,
provided for progressive monetary payments to the wife. Any
alimony obligation would terminate in any event upon the
decedent's death. In no event contemplated by the agreement
would the wife obtain a title interest to the decedent's
separate property.
                                                                   15


treat their separate property as if there had been no marriage

unless one of them died.   This we cannot to do.

    Based on the plain language of the premarital agreement, we

hold that the wife waived any right to the Pigeon Trust and all

of the other property identified in the premarital agreement as

the decedent's separate property.   In other words, the

decedent's interest in the Pigeon Trust is treated upon the

occasion of his death as though the parties were never married,

to the effect that the wife can claim no entitlement to a share

of that property from his estate through intestacy by virtue of

her status as spouse.   While this separate property is part of

the decedent's estate, it cannot be used for purposes of

calculating or receiving the wife's intestate share of the

decedent's estate.

    2.   The Pigeon Trust settlement agreement proceeds.     We

look to the terms of the Pigeon Trust to determine the proper

distribution of the Pigeon Trust settlement agreement proceeds.

As originally drafted, the Pigeon Trust is not a model of

clarity as to the distribution of trust assets in the event that

the decedent predeceased the donor, Bentinck-Smith.   Two things

are certain, however.   First, the instrument provides that under

no circumstances shall the trust property revert to the donor or

her estate, in essence eliminating Bentinck-Smith as the
                                                                   16


intended contingent beneficiary.16   Second, when the Pigeon Trust

was created, the 2001 Trust did not exist, nor did any

subsequent amendment of the Pigeon Trust purport to add the 2001

Trust as a beneficiary, contingent or otherwise.    Thus, at no

point was the 2001 Trust a contingent beneficiary of the Pigeon

Trust.17

     We agree with the judge that the decedent's estate was the

contingent beneficiary in the event, as occurred, the decedent

predeceased Bentinck-Smith.   Read together, several provisions

in the original trust instrument reflect Bentinck-Smith's intent

to distribute the Pigeon Trust assets to the decedent's estate

in the event that the decedent predeceased her.18   See Redstone

v. O'Connor, 70 Mass. App. Ct. 493, 499 (2007), quoting Harrison


     16No party argues that the gift to the decedent lapsed and
the Pigeon Trust should be distributed to the donor. See
Redstone, 70 Mass. App. Ct. at 494, 500-501. Bentinck-Smith's
guardian, in any event, disclaimed any interest in the Pigeon
Trust in the settlement agreement.

     17The personal representative also contends that the 2001
Trust is the proper beneficiary because the decedent "could have
been expected to place in[to] the 2001 . . . Trust any amounts
distributed to him from the Pigeon Trust so as to minimize the
exposure of his estate to estate tax liability." She cites no
authority, however, for the proposition that we may speculate as
to what the decedent might have done with the Pigeon Trust
proceeds had he survived the donor. The argument is unavailing.

     18Because we rely on the original terms of the Pigeon
Trust, we need not reach the personal representative's argument
that the judge's conclusion is wrong because the parties had not
agreed upon whether the trust amendments "were validly executed
or remained in effect."
                                                                  17


v. Marcus, 396 Mass. 424, 429 (1985) ("A trust should be

construed 'to give effect to the intention of the settlor as

ascertained from the language of the whole instrument considered

in the light of the attendant circumstances'").

    For example, under art. VIII § D of the Pigeon Trust,

distribution of trust principal was mandatory after the death of

the donor and

    "[i]f the Trustee shall not have distributed all of the
    Trust Principal during the lifetime of the said
    Beneficiaries, then at the death of the first Beneficiary
    (living at the time of the execution of this Trust and at
    the time of my death) to die, the Trustee shall distribute
    all of the Trust Principal to the Beneficiaries or their
    estates, in equal shares, free of all Trust, and this Trust
    shall terminate."19

Additionally, had the trust principal fallen below $50,000 after

Bentinck-Smith's death and before mandatory distribution

pursuant to § D, art. VIII § F permitted the trustees to

terminate the trust and "distribute the Trust Principal to the

Beneficiaries (or their estates, if any such Beneficiary has

predeceased me), in equal shares."   The trust instrument also

contemplated that both the donor and David might die before the

Pigeon Trust assets were fully distributed, and named David's

estate as the contingent beneficiary in that eventuality.


    19 We recognize that § D is problematic in that there was
only one named beneficiary and yet this provision came into play
only if there was a beneficiary living at the time of the
donor's death. That incongruity does not detract from the
donor's intent to benefit the beneficiary's estate.
                                                                   18


Significantly, the trust instrument disavowed a reversionary

interest to the donor or her estate.20

     Accordingly, we conclude that there were sufficient indicia

of the donor's intent to determine that the decedent's estate

was the intended contingent beneficiary of the Pigeon Trust

should the decedent predecease Bentinck-Smith.    Therefore, the

Pigeon Trust settlement agreement proceeds should be distributed

to Deborah, as the estate's personal representative.21,22

     3.   Wife's intestate share.   As a result of the adoption of

the code, a will executed prior to marriage is no longer void in




     20We recognize that in Redstone, 70 Mass. App. Ct. at 499-
500, we noted that our courts have rejected arguments that a
donor's intention to make a gift to an identified individual
based upon one contingency was an adequate basis upon which to
conclude that the donor would have made the same gift to the
same individual where a different, unanticipated contingency
came to pass. Here, however, the donor explicitly prohibited
any gift from reverting to the donor.

     21The personal representative also argues that pursuant to
Bongaards v. Millen, 440 Mass. 10, 17 (2003), because the Pigeon
Trust was created by a third person, the trust assets should not
be considered part of the decedent's probate estate. Although
Bongaards is distinguishable in several respects, for our
purposes it suffices to say that Bongaards addresses a trust
with a schedule of contingent beneficiaries that did not
designate the decedent's estate as the contingent beneficiary.
Id. at 12. Accordingly, we discern no merit in the personal
representative's argument.

     22Given our conclusion, we need not address the personal
representative's argument that the judge made an erroneous
finding as to whether the 2001 Trust was funded prior to the
decedent's death.
                                                                    19


this Commonwealth.23   Because the wife is not a beneficiary of

the will, the next question is the size of the wife's intestate

share.    Here, where the decedent was survived by his wife, his

son (who is not a descendant of the surviving spouse), and his

adoptive mother, we agree with the judge that the wife's

intestate share is "the first $100,000 plus 1/2 of any balance

of the intestate estate."    G. L. c. 190B, § 2-102 (4).   See

G. L. c. 190B, § 2-301 (a).

     The wife contends that because (1) the son and adoptive

mother joined in the settlement agreement, (2) the son in

essence received a distribution pursuant to that agreement, and

(3) the decedent expressly omitted his son from his will, all

the remaining estate should pass to the wife, notwithstanding

the decedent's will.    We disagree.   There simply is nothing in

the statute that suggests that the way the decedent treated his

descendants in his will alters the statutory calculation of a

spouse's intestate share, and nothing in the settlement

agreement suggests that the parties agreed that the wife is




     23Pursuant to the former G. L. c. 191, § 9, see St. 1892,
c. 118, repealed by St. 2008, c. 521, § 10, marriage acted as a
revocation of a will made prior to the marriage, "unless it
appears from the will that it was made in contemplation
thereof." The code applies to the decedent's will. See St.
2008, c. 521, § 43 (1) (providing, "[T]his act shall apply to
pre-existing governing instruments, except that it shall not
apply to governing instruments which became irrevocable prior to
the effective date of this act").
                                                                      20


entitled to all the remaining assets of the estate.24      Moreover,

the spousal share is derived from only that portion of the

testator's estate, if any, that is not devised to the testator's

child.    See G. L. c. 190B, § 2-301 (a).   Thus, the statutory

provisions already take into account any distribution to a child

in creating the formula for the wife's intestate share.        Once

the wife's intestate share is established, the remainder of the

estate passes according to the will.

     4.   Administration of the estate.     a.   Credibility

determinations.   The personal representative argues that the

judge erred in crediting the wife's testimony as to the

decedent's assets allegedly in the wife's possession in light of

evidence that the wife had been dishonest in other matters,

particularly where, at trial, the wife had first denied having

certain assets but then admitted to having them when faced with

photographs or other evidence.    The Supreme Judicial Court

rejected a similar argument in Buster v. George W. Moore, Inc.,

438 Mass. 635, 644 (2003), concluding that "[t]he judge was free

to credit and discredit portions of each party's testimony."

Accordingly, we defer to the judge's credibility determinations.

See G.B. v. C.A., 94 Mass. App. Ct. 389, 395 (2018).




     24The wife's reliance on statutory provisions related to
disclaimed shares of an estate or intestacy, other than the
wife's intestate share, is unavailing.
                                                                    21


       b.   Estate assets in the wife's possession.   The judge

found that the wife possesses some assets that were identified

in the premarital agreement as the decedent's separate property

and that the personal representative requested that the wife

return such assets.     It was error to give the wife the option to

keep assets and take a deduction for their value from her

portion of the estate.    Under the code, it is the option of the

personal representative to require the wife to return those

items or to deduct those items from the wife's intestate share.

See G. L. c. 190B, § 3-709 (a) (upon request "every personal

representative has a right to, and shall take possession or

control of, the decedent's property").

       c.   Conversion, unjust enrichment, and G. L. c. 190B, § 3-

709.    The judge found that the personal representative's claims

of conversion, unjust enrichment, and violation of G. L.

c. 190B, § 3-709, against the wife failed because the premarital

agreement does not apply at death.    Given our holding to the

contrary, those claims must be reinstated.25



       The wife argues that the judge failed to make allowances
       25

for joint assets other than an Avalanche automobile. She
adopted the judge's recitation of the facts, however, and has
not identified joint assets to which she claims she is entitled.
In addition, although she claims that she has the right under
G. L. c. 190B, § 2-403, to select property of the estate up to
$10,000, the wife has not cited anywhere in the record
indicating that she purported to do so. Nor do her requests for
findings and rulings suggest she raised this issue below. As a
result, we do not reach these arguments. To the extent the
                                                                   22


     d.   Estate assets in Elaine's possession.   According to the

agreed statement of facts, the State Police removed the

decedent's guns from his home and brought them to Elaine and

David Kelley's home.   Elaine testified that because she holds an

appropriate license, she took possession of the decedent's gun

collection for the benefit of the estate.   So far as the record

reveals, the personal representative had not asked her to return

the collection.   See G. L. c. 190B, § 3-709 (a) (personal

representative may leave decedent's property with "the person

presumptively entitled thereto unless or until, in the judgment

of the personal representative, possession of the property will

be necessary for purposes of administration").    Although not

requested by the parties, the judge nonetheless ordered Elaine

to return the gun collection or the value of the collection to

the personal representative "forthwith," providing, in the

alternative, that if this were not done, the value of the

collection would be deducted from Elaine's eventual share of the

decedent's estate.26   While we agree that, upon request, Elaine



personal representative pursues the claims that have been
reinstated, however, nothing we have said should preclude the
wife from raising these issues in defense.

     26We note that in the event a personal representative is
also an heir or legatee, G. L. c. 140, § 129C (n), permits a
firearm to be transferred from the decedent to said heir or
legatee even if they do not possess the requisite license, so
long as they obtain said license within 180 days of the
transfer. Here, the record indicates that the personal
                                                                    23


must transfer the gun collection to the personal representative,

so much of the judgment as compels Elaine to return the

collection now is premature.   See G. L. c. 190B, § 3-709 (a).

     e.   The Kelleys' property.   The Kelleys claimed and

testified that the wife took items they owned but were in the

decedent's home when he died.27    The judge found that "[w]ith the

exception of the testimony provided by Mr. and Mrs. Kelley, no

other evidence was presented with respect to these items."     It

is unclear whether the judge declined to credit the Kelleys'

testimony or erroneously concluded that the Kelleys had to

produce corroborating evidence to sustain their claim.    A

witness's testimony alone, without corroboration, may meet a

party's burden of proof.   See generally Cooper v. Keto, 83 Mass.

App. Ct. 798, 808 (2013) ("the mother's testimony alone properly

supported [the judge's] findings").

     In addition, the judge made no credibility determinations

or findings concerning a cognac diamond pendant that Elaine

testified she loaned to the wife for a photograph for a

newspaper story; the wife admitted that she possessed the




representative does not have an appropriate license but is
silent as to whether she has applied to obtain one. See G. L.
c. 269, § 10 (h) (1) (it is illegal to own, possess, or transfer
a firearm without the requisite license).

     27The items include three pieces of artwork, a rototiller,
a chainsaw, and a generator.
                                                                      24


pendant but claimed that Elaine and the decedent had given it to

her as a gift.   We conclude that the matter must be remanded for

further findings on these issues in the estate asset recovery

action.

    5.    The wife's counterclaim.    Finally, the judge rejected

the wife's claim that the personal representative committed a

breach of her duties toward the wife and should be removed as

unsuitable and hostile to the wife.     The personal

representative's position that the wife was not entitled to

escrowed Pigeon Trust settlement agreement proceeds, albeit for

different reasons, was correct.      We discern no basis, therefore,

for the wife's claims and thus no error in the judge's decision

to dismiss the wife's counterclaim.

    Conclusion.    1.   Docket no. 18-P-872 -- estate asset

recovery action.   So much of par. 1 of the judgment as declares

the premarital agreement null and void is vacated, and the

paragraph shall be modified to declare that the assets

identified in the premarital agreement as the separate property

of the decedent cannot be used for purposes of calculating the

wife's intestate share of the decedent's estate.       The judgment

shall be further modified to declare that said separate property

passes in accordance with the decedent's will.

    Paragraph 2 of the judgment shall be modified by deleting

the second sentence and substituting therefor a declaration
                                                                  25


that, unless the personal representative agrees to allow the

wife to retain the property described therein and credit the

value toward the wife's intestate share of the decedent's

estate, the wife shall return the property to the personal

representative within thirty days of issuance of the rescript of

this decision.   The second sentence of par. 2 of the judgment

shall be further modified by adding a declaration that Elaine

Kelley must return the estate property in her possession

described therein, including, without limitation, the guns and

gun accessories (gun collection) to the personal representative

within thirty days of any written request by the personal

representative that she do so; that, absent such a request,

Elaine may continue to store estate property, including, without

limitation, the gun collection, provided that Elaine still holds

a valid firearms license; that, if the personal representative

takes physical possession of the gun collection, she shall store

the firearms with a licensed holder or first obtain the

appropriate license(s); and that, in her inventory, the personal

representative must also account for the estate's personal

property in any third party's possession.

    The second sentence of par. 3 of the judgment shall be

modified to declare that the wife shall return the property

described therein to the personal representative within thirty

days of issuance of the rescript of this decision.
                                                                     26


    So much of par. 4 of the judgment as dismisses the personal

representative's claims for conversion, unjust enrichment,

violation of G. L. c. 190B, § 3-709, and imposition of a

constructive trust is vacated, and those claims are reinstated.

    As so modified, the judgment is affirmed, and the matter is

remanded for further proceedings consistent with this opinion,

including for further findings on the Kelleys' claims.

    2.    Docket no. 18-P-871 -- inventory action.   Paragraph I

of the decree shall be modified to add a declaration that the

Pigeon Trust settlement agreement proceeds cannot be used for

purposes of calculating the wife's intestate share of the estate

of David E. Stacy.

    The first sentence of par. V of the decree shall be

modified by striking the phrase "which includes the Pigeon Trust

settlement proceeds" and substituting therefor:     "excluding the

Pigeon Trust settlement agreement proceeds and any other

separate property of the decedent identified in the premarital

agreement executed by David E. Stacy and Iana Stacy dated July

18, 2008."

    As so modified, the decree is affirmed.

                                    So ordered.28




    28   All parties' requests for attorney's fees are denied.
