
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1631                              PAUL F. MARKHAM, TRUSTEE,                                      Plaintiff,                                          v.              CLAIRE M. FAY, AS TRUSTEE OF HIGHLAND AVENUE NURSING HOME                       TRUST, PARKER HILL NURSING HOME TRUST,                         AND GREEN PASTURES NURSING HOME TRUST,                                Defendant, Appellant,                                         and                                    UNITED STATES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Richard H. Gens for appellant.               _______________               Annette M.  Wietecha, Attorney,  with whom Donald  K. Stern,               ____________________                       ________________          United States Attorney, Of Counsel, Loretta C. Argrett, Assistant                                              __________________          Attorney General, Gary R. Allen, Attorney, and Jonathan S. Cohen,                            _____________                _________________          Attorney, Tax Division, United States Department of Justice, were          on brief for appellee.                                 ____________________                                   February 7, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.  Appellant  Claire M.                      BOWNES, Senior Circuit Judge.                              ____________________            Fay  ("Fay"), in  her capacity  as  trustee of  three trusts,            appeals the magistrate judge's ruling that a federal tax lien            upon her individual property extends to the entire assets  of            the trusts.   Fay  contends that  the magistrate  judge erred            because the  property of the  trusts would not  be considered            her own  under Massachusetts  law.   Fay also raises  federal            statutory and constitutional issues, contending that Appellee            Internal Revenue Service ("IRS")  does not have a valid  lien            upon  the  trust property  because it  failed to  comply with            statutory notice  and  limitations  requirements  as  to  the            trusts,   and  also   that  the   trust   beneficiaries  were            indispensable parties  who were not joined  and were deprived            of property without  due process of law.  We  hold that there            was  no  statutory  or  constitutional  error  and  that  the            magistrate judge correctly held that the lien attached to the            entire property of the Green Pastures and Parker Hill Nursing            Home Trusts.  We also hold that the magistrate judge erred in            holding  that the lien attached to the entire property of the            Highland Avenue Nursing Home Trust.  Thus, we affirm in part,            reverse in part, and remand for a new judgment.            I.  BACKGROUND AND PROCEDURAL HISTORY                _________________________________                      In  a published opinion,  the magistrate judge made            extensive  findings of fact, Markham v. Fay, 884 F. Supp. 594                                         ______________            (D. Mass. 1995), none of which are in dispute in this appeal.                                         -2-                                          2            We recount those necessary  to provide context to  the issues            before us.                        During the 1960s and  1970s, Fay and others created            a  number of legal entities  for the purpose,  inter alia, of                                                           _____ ____            owning and  operating nursing homes in  Massachusetts.  Three            of  those entities -- the Green  Pastures Nursing Home Trust,            the Parker Hill  Nursing Home Trust  and the Highland  Avenue            Nursing  Home  Trust --  are involved  in  this appeal.   Fay            created the trusts in  1974, conveying to herself as  trustee            of each trust the nursing home for which the trust was named.            A  fourth   entity,   Regina   Nursing   Home,   Inc.   ("the            corporation"),  was incorporated  in  1961.   Fay became  its            president and sole stockholder in 1967, then assigned all  of            her  stock to  her  sister Theresa  Dzialo (Dzialo)  sometime            during the  1970s.  The  corporation owned the  Chester Manor            Nursing Home.  At no time were the trusts and the corporation            organized or operated as one entity, and each owned different            property.                          In  June of 1976, Fay, as trustee of the trusts and            president  of the  corporation, sold  the Parker  Hill, Green            Pastures, Highland Avenue and  Chester Manor Nursing Homes to            trusts owned  by Louis  Almeida ("Almeida"), in  exchange for            mortgages  and  other  consideration.    Almeida   filed  for            bankruptcy in  1978.  By then,  the only assets  owned by the            trusts and  the corporation  were the mortgages,  and Almeida                                         -3-                                          3            had  defaulted on them.   On October 2,  1990, the bankruptcy            court  awarded the  trusts  and the  corporation, as  secured            creditors, the proceeds from the bankruptcy trustee's sale of            the nursing homes, amounting to $67,809.89.                          On  October 10,  1990, the  IRS filed  a derivative            claim with the bankruptcy court "for the purpose of obtaining            any dividend which may become payable to Claire M. Fay."  The            IRS's claim  was premised on Fay's  individual tax liability.            In  1979, in  view  of  Almeida's  bankruptcy,  the  IRS  had            assessed Fay individually as  a "responsible person" under 26            U.S.C.    6671 and 6672 for income and F.I.C.A. taxes Almeida            failed to pay for the nursing homes' employees during the tax            years 1976 through 1978.1   On October 31, 1979, IRS  filed a            notice  of  federal  tax  lien for  $200,213.45  against  Fay            individually, and refiled it  on January 27, 1986.   In 1984,            the  IRS sued  Fay individually,  and on  December  30, 1990,            judgment   was  entered   against  her   in  the   amount  of            $699,142.21, including penalties and interest.                      On  October  31, 1990,  the  IRS  delivered to  the            bankruptcy trustee (but  not to the corporation) a  notice of            levy on the corporation  as alter ego and/or nominee  of Fay.            The IRS did not  file any liens, lawsuits or  notices thereof                                            ____________________            1.  Fay apparently  continued to be involved  in managing the            nursing homes after selling them to Almeida.  The efficacy of            the assessment against her is not before us in this appeal.                                         -4-                                          4            against  the trusts,  Fay as  trustee of  the trusts,  or the            beneficiaries of the trusts.                        On February 12, 1991, Paul F. Markham  ("Markham"),            the bankruptcy trustee who  held the proceeds of the  sale of            the   nursing  homes,   filed  an   interpleader   action  in            Massachusetts Superior  Court seeking a determination  of the            rights  of  the  various  claimants to  the  interpled  fund.            Markham named  as defendants Fay individually  and as trustee            of the  trusts, the corporation,  the United States,  and two            attorneys seeking  payment for  litigating the claims  of the            trusts and the  corporation before the bankruptcy court.   On            March 14, 1991, the IRS removed the case to the United States            District  Court for the District of Massachusetts.  On May 5,            1993,  the court  denied  summary judgment  to  the IRS,  the            corporation and the trusts, granted summary judgment in favor            of the  attorneys (awarding them $16,970),  and then referred            the case to the magistrate  judge for all purposes  including            trial and entry of judgment.                      After a bench trial, the magistrate judge issued an            opinion,  holding that  the IRS  was  entitled to  the entire            proceeds of the sale  of the Parker Hill, Green  Pastures and            Highland  Avenue Nursing  Homes because  Fay had  reserved to            herself  such significant  powers  in the  trusts that  their            assets would  be considered her own  under Massachusetts law.            884 F.  Supp. at 607,  609.   The magistrate judge  also held                                         -5-                                          5            that  the government had failed  to prove that  the trusts or            the corporation were Fay's alter egos, and found that the IRS            had not established that Fay used the trusts for a fraudulent            purpose  or  for her  own individual  benefit.   Id.  at 604.                                                             __            Judgment  was entered for the IRS in the amount of $27,732.85            plus 55% of the accumulated interest, and for the corporation            in  the  amount of  $23,107.04  plus 45%  of  the accumulated            interest.2   Fay,  in her  capacity as  trustee of  the three            trusts, then filed this appeal.                        Before we  proceed to the legal  issues, we clarify            the present status of the trusts and the proceeds of the sale            of  the nursing homes.  Since  1978, the trusts have not held            any property  other than the mortgages on  the nursing homes,            and have  not engaged  in any  transaction or  business other            than pursuing their claims against  Almeida's bankrupt estate            and  defending  the  bankruptcy  court's  award.     Although            dormant, the trusts continue  to exist.  They were in  no way            terminated by  the bankruptcy  trustee's sale of  the nursing            homes.    Rather,  the  bankruptcy  court  awarded  the  sale            proceeds  to the trusts in satisfaction of the mortgages.  We            refer to  the sale proceeds  as trust property,  although not                                            ____________________            2.  After  the attorneys  were paid  at the  summary judgment            stage, $50,839.89 plus  accumulated interest  remained.   The            parties stipulated at trial that the fund was attributable as            follows:  $23,107.04  to   the  corporation;  $16,046.63   to            Highland  Avenue Nursing  Home Trust;   $11,246.12  to Parker            Hill  Nursing  Home  Trust;  and $440.10  to  Green  Pastures            Nursing Home Trust.                                         -6-                                          6            yet  paid  to the  trusts, because  the proceeds  will become            trust property unless paid to the IRS.                                         -7-                                          7            II.  STATUTORY AND CONSTITUTIONAL ISSUES                 ___________________________________                      Fay first  contends that  the IRS does  not have  a            valid  lien against  the trust  property because  it did  not            comply with  statutory  notice  and  statute  of  limitations            requirements  as to  the  trusts.    It  gave  no  notice  of            assessment as to the trust property in 1979, did not join the            trusts,  Fay  as  trustee,  or  the  trust  beneficiaries  as            defendants in its 1984 suit against Fay individually, and did            not  proceed  against  them  by  separate  suit,  assessment,            demand,  lien or levy.  Second, Fay contends that because the            IRS sought  in the  interpleader action to  collect from  the            trust property  as such, the beneficiaries were indispensable            parties  who were required to  be joined in  their own right.            Finally, Fay argues that because the beneficiaries were given            no  opportunity to  appear  and defend  their  rights in  the            interpleader action, the  magistrate judge's ruling  deprived            them of property without due process of law.                       The IRS  responds first that  it is only  Fay's own            property  from which it seeks  to collect and  all notice and            limitations requirements were  met with respect to her.   The            IRS concedes that if  it had sought to hold  the trustee, the            trusts  or  the  beneficiaries  personally  liable  as  Fay's            transferees,  it would  have  had to  institute a  collection            action  directly  against  them  within six  years  from  the            assessment of the tax.  See United States v. Updike, 281 U.S.                                    ___ _______________________                                         -8-                                          8            489, 493 (1930); 26 U.S.C.   6901.  The IRS, however, asserts            that  it sought  to collect  the taxes  out of  property that            would  be  considered  Fay's  own  under  Massachusetts  law.            Notice and  limitations  requirements  with  respect  to  the            trusts therefore  were not implicated.   As to  Fay's joinder            and  due  process  arguments,  the    IRS  responds that  the            bankruptcy trustee  named Fay as trustee  in the interpleader            action,   she   has   represented   the  interests   of   the            beneficiaries throughout this litigation, and at no time have            the beneficiaries as such  sought to intervene.  Furthermore,            the IRS argues, the beneficiaries' exclusive remedy is a suit            for wrongful  levy brought pursuant  to 26 U.S.C.    7426(a),            which  is now  time-barred because no  such suit  was brought            within nine months  from the date of levy, as  required by 26            U.S.C.   6532(c).                      Although  the  magistrate judge  did  not precisely            resolve  these  issues,3  we  will  review  them de  novo  as                                                             __  ____            matters of federal law.  Horton Dairy, Inc. v. United States,                                     ___________________________________            986  F.2d 286, 290 (8th Cir. 1993).   First, we must untangle                                            ____________________            3.  The  magistrate  judge stated  at  the  beginning of  his            analysis that the separate structures  of the trusts could be            disregarded for notice and statute of limitations purposes if            they  were Fay's  alter egos, but  went on to  hold that they            were not  Fay's alter egos,  and never addressed  whether the            trusts  were  required to  be  treated  separately under  the            distinct  theory that  prevailed --  that the  trust property            would  be considered Fay's own under  Massachusetts law.  The            magistrate judge did not mention Fay's joinder or due process            arguments.                                         -9-                                          9            the web of  statutory and procedural requirements  implicated            in  this phase  of  Fay's  appeal.   Once  the IRS  makes  an            assessment of  a taxpayer's liability,  it has sixty  days in            which  to "give notice to  each person liable  for the unpaid            tax, stating the  amount and demanding payment  thereof."  26            U.S.C.   6303(a).   Once notice and demand are given  and the            tax  goes  unpaid,  a lien  in  favor  of  the United  States            automatically  arises  "upon  all  property   and  rights  to            property,  whether  real  or  personal,  belonging   to  such            person."  26  U.S.C.   6321.   Whether and  to what extent  a            particular  piece  of property  constitutes  property of  the            taxpayer to which a federal tax lien can attach is a question            of state law.  Aquilino  v. United States, 363 U.S.  509, 512                           __________________________            (1960).  The  lien arises at the time the  assessment is made            and  continues until  the liability  is satisfied  or becomes            unenforceable  by lapse of time.  26  U.S.C.   6322.  The IRS            may collect the  tax by levy or  by bringing a proceeding  in            court, which according to the pre-1990 version of 26 U.S.C.              6502  applicable in this case, must be done "within six years            after  the  assessment of  the tax."4    26 U.S.C.    6502(a)            (1988).  A lien  becomes unenforceable by lapse of  time upon            expiration  of  the  six-year  statute   of  limitations  for            collection,  but if  the  government brings  suit within  six                                            ____________________            4.  The statute was amended in 1990 to extend the limitations            period to ten years.  26 U.S.C.   6502(a) (1994).                                         -10-                                          10            years from assessment and  receives a judgment in  its favor,            the life of the lien is extended indefinitely.  See Rodriguez                                                            ___ _________            v. Escambron Dev. Corp., 740 F.2d 92, 94 n.3 (1st Cir. 1984).            _______________________                      There  is no  dispute that the  IRS assessed  a tax            against Fay  individually in  1979, that  it gave  notice and            demand to her within sixty days, that  a lien dating from the            assessment arose against  all of Fay's property and rights to            property,  that the IRS  timely filed a  civil action against            Fay individually in 1984,  that it refiled the notice  of tax            lien  in 1986, and that it obtained a judgment in December of            1990 that extended  the life  of the lien  on Fay's  property            indefinitely.       That  brings us  to the  IRS's collection            efforts beginning with the derivative claim in the bankruptcy            court in   October of  1990 and leading  to the  interpleader            action below.   As stated above, the  IRS may collect by levy            or  by a  proceeding in  court.   26 U.S.C.    6502(a).   The            briefs  are unhelpful  (at best)  as to  which route  the IRS            took.   The  IRS  indicates  that  it  levied  on  the  trust            property,  but  the  IRS  may  collect  by  levy  only  after            notifying  the taxpayer in  writing of its  intention to make            such levy.  26 U.S.C.    6331(a), (b), (d)(1).  The notice of            levy  upon  the  corporation  as  Fay's  alter  ego  did  not            constitute  notice of  levy  on the  trust property  because,            inter  alia,  the  trusts   and  the  corporation  each  held            _____  ____            different  property.  Because it has never notified Fay of an                                         -11-                                          11            intention  to levy on the  trust property, there  has been no            levy.                        Other  than  by levy,  the  IRS  can collect  by  a            proceeding in court, either by bringing an action pursuant to            26 U.S.C.    7403, or by simply suing for the amount owed and            then exercising "the usual rights of a judgment  creditor" to            enforce any judgment obtained.  United States v. Rodgers, 461                                            ________________________            U.S. 677,  682 (1983).  This is not a section 7403 action and            neither party contends  that it  is.5  The  IRS is  therefore            exercising  the  usual rights  of  a judgment  creditor.   It            asserts (inconsistently with its indication that it levied on            the  trust  property)  that   the  Federal  Debt   Collection            Procedure Act of  1990 (FDCPA),  28 U.S.C.    3001, et  seq.,                                                                __  ___            governs  the  interpleader  proceedings,  and  Fay  does  not            contend otherwise.   Fay's tax  indebtedness is  a "debt"  as            defined in the  FDCPA because it is  "an amount owing  to the            United  States  on account  of [an]  . .  . assessment."   28            U.S.C.    3002(3)(B).    Except to  the  extent that  another            federal law specifies procedures for recovering on a judgment            for a debt arising under such law, the FDCPA is the exclusive            civil procedure for the government to recover a judgment on a                                            ____________________            5.  The government has the right in a section 7403 proceeding            to  seek a  forced sale  of the  entire property  in  which a            delinquent  taxpayer has  an  interest  even  where  innocent            others also have an  interest in the property.   This special            privilege  arises from  the  express terms  of section  7403,            Rodgers,  461  U.S.  at 697,  and  is  not  available to  the            _______            government here.                                            -12-                                          12            debt.   28 U.S.C.   3001(a),  (b).  The tax  code (from which            the debt arose)  does specify procedures for recovering  on a            judgment by levy,  26 U.S.C.   6331, and by  filing an action            in a federal  district court to  enforce a lien, 26  U.S.C.              7403, but does not  contain specific procedures for otherwise            recovering on a judgment, for example by filing  a derivative            claim in bankruptcy court and litigating against the taxpayer            in a  resulting  interpleader action,  as the  IRS did  here.            Thus, the procedures of the FDCPA appropriately control.  I f            the magistrate judge was correct that  the entire property of            each trust would be  considered Fay's own under Massachusetts            law, then the  IRS had a valid lien on  that property that it            could  seek  to  enforce  in  the  interpleader  action.   By            notifying  Fay  in 1979,  the  IRS  complied with  the  plain            language of  section 6303(a)  requiring notice and  demand on            the only "person  liable."   The IRS also  complied with  the            statute  of limitations by suing Fay in 1984 within six years            of the tax assessment in 1979 as required by section 6502(a).            The  judgment obtained in 1990 extended the life of the lien,            so  that  the IRS's  effort to  enforce  the judgment  in the            interpleader  action was  timely.   Fay argues  that the  IRS            failed to establish  a nexus  between the taxes  owed by  her            individually  and the  proceeds of  the sale  of the  nursing            homes,  but the IRS does  not contend that  the tax liability            was  incurred by the trusts  such that the  judgment could be                                         -13-                                          13            satisfied directly from the entire  trust property regardless            of whether it belonged to  Fay.  Rather, the IRS has  a valid            lien upon  Fay's individual  property and rights  to property            that  it may  enforce out  of any  trust property  that under            Massachusetts law belongs to Fay, even though the claim arose            independently of the trusts.                        As  to whether the beneficiaries were indispensable            parties  who were deprived of  an opportunity to  be heard in            their  own right,  we begin  by rejecting the  IRS's argument            that the beneficiaries'  only remedy is  a suit for  wrongful            levy under 26 U.S.C.   7426(a).  Third parties are limited to            that  remedy  only  when  the government  proceeds  by  levy,            Rodgers  461 U.S. at 682-83,  695-96, which it  has not done.            _______            Rather, whether the beneficiaries  were required to be joined            is governed  by Fed. R. Civ.  P. 19. See 28  U.S.C.   3003(f)                                                 ___            (Federal Rules  of Civil  Procedure apply in  FDCPA actions).            That  rule provides in relevant part that a person subject to            service  of process  and whose  joinder will not  deprive the            court of subject  matter jurisdiction "shall  be joined as  a            party  in the action if  . . . the person  claims an interest            relating to the subject of the action and is so situated that            the disposition of the action in the person's absence may (i)            as a practical  matter impair or impede  the person's ability                                         -14-                                          14            to protect  that interest .  . .  ."6   Courts applying  this            rule generally have held that beneficiaries are indispensable            parties in actions  like this to collect a tax  or other debt            from  the trust  corpus, see  Tick v.  Cohen, 787  F.2d 1490,                                     ___  ______________            1495-96  (11th Cir.  1986); United  States v.  Fried, 183  F.                                        ________________________            Supp. 371, 373 (E.D.N.Y. 1960), and actions analogous to this            seeking  to terminate a trust.   See Hansen  v. Peoples Bank,                                             ___ _______________________            594 F.2d 1149 (7th Cir. 1979).  "The general rule is, that in            suits respecting trust-property, brought either by or against            the trustees, the cestuis  que trust as well as  the trustees                              _______  ___ _____            are necessary parties."   Carey  v. Brown, 92  U.S. 171,  172                                      _______________            (1875);  see also Stevens v.  Loomis, 334 F.2d  775, 777 (1st                     ___ ____ __________________            Cir.  1964).   An  exception  to the  general  rule, however,            exists   when  the  trustee   represents  the  beneficiaries'            interests fully  and without conflict.   3A  James W.  Moore,            Moore's Federal Practice   19.08 at 175-76 (2d ed. 1985).                        The bankruptcy trustee joined Fay both individually            and as trustee in the interpleader action.  Fay had the  duty            as trustee under the three declarations of trust to represent            the beneficiaries' interests in any lawsuit.  While, at least                                            ____________________            6.  In  contrast, in an action  to enforce a  lien or subject            property  to payment of tax  brought pursuant to  26 U.S.C.              7403,  "[a]ll  persons .  . .  claiming  any interest  in the            property  involved" are  required  to be  made  parties.   26            U.S.C.    7403(b);  United States v. Big  Value Supermarkets,                                _________________________________________            Inc., 898 F.2d 493,  496 (6th Cir. 1990) (section  7403(b) is            ____            mandatory);  United States  v. Overman,  424 F.2d  1142, 1146                         _________________________            (9th Cir. 1970) (same).                                         -15-                                          15            on  the surface,  the  fact that  the  trustee in  this  case            incurred the debt that the trust property might be reached to            pay indicates a potential conflict  between Fay and the other            beneficiaries,  all  signs  are  that  Fay  represented  them            zealously and  without conflict.   Fay  has not  asserted any            claim  to the  fund  in her  individual right  throughout the            course  of  this litigation,  but  has appeared  only  in her            capacity as trustee.   Moreover,  as settlor and  one of  the            beneficiaries of the trust,  Fay's interest in protecting the            trust property would seem to be at least as strong as that of            the other beneficiaries.   The beneficiaries as such  did not            seek to intervene at any point when the district court or the            magistrate judge  could have joined them as  parties in their            own  right.  This  is not to  say that the  issue was waived,            Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 559 (5th            ____________________________________            Cir. 1985) (failure  to raise  below the issue  of whether  a            party should have been joined does not result in waiver), but            it does  indicate that the beneficiaries did not perceive any            failure on Fay's  part to  represent their  interests at  the            time.   And  on appeal,  Fay fails  to describe  any conflict            between her  interests and those of  the other beneficiaries,            any way in which their interests were not represented, or any            way in  which the litigation  might have gone  differently if            they  had been  joined.  As  will be seen,  resolution of the            core issue in the case -- whether the property of  any of the                                         -16-                                          16            trusts would be considered  Fay's own under Massachusetts law            -- depended  factually  only on  the  language of  the  trust            instruments, documents that were before the magistrate  judge            and are before  us.  Although  in an abundance of  caution it            may  have been  better  for the  beneficiaries  to have  been            joined, as  it turned  out, Fay faithfully  represented their            interests.  We therefore hold that the beneficiaries were not            indispensable parties.   The same considerations defeat Fay's            argument that  the  beneficiaries were  deprived of  property            without  due   process  of  law.     Moreover,  assuming  the            magistrate  judge  was  right,  the  beneficiaries  were  not            deprived of their own property.            III.  WAS  THE TRUST PROPERTY  FAY'S OWN UNDER  MASSACHUSETTS                  _______________________________________________________            LAW?      When  the  IRS assessed  taxes  owed  by Fay  as  a            ____            "responsible person" in 1979, a federal tax lien  arose "upon            all  property  and  rights   to  property,  whether  real  or            personal, belonging to" Fay.   26 U.S.C.    6321, 6322.   The            tax  code "creates  no  property rights  but merely  attaches            consequences,  federally defined,  to  rights  created  under            state law."  United States  v. Bess, 357 U.S. 51, 55  (1958).                         ______________________            Whether and to what extent Fay's powers, interests and rights            in the trusts  constitute property to  which the federal  tax            lien could attach is a question of state law.   Aquilino, 363                                                            ________            U.S. at 512.                                             -17-                                          17                      We review de  novo the issue  of whether the  trust                                __  ____            instruments  gave Fay  such extensive  powers over  the trust            property that  it was in  effect her own  under Massachusetts            law.   Salve  Regina College  v. Russell,  499 U.S.  225, 231                   _________________________________            (1991); Losacco v. F.D.  Rich Constr. Co., 992 F.2d  382, 384                    _________________________________            (1st  Cir. 1993).   In  doing so,  we will  take care  not to            extend state law beyond its well-marked boundaries in an area            such  as trust law  that is quintessentially  the province of            state courts.                      Initially, we clarify that  it was not improper for            Fay,  the settlor of the trusts, to designate herself as both            sole trustee and one of the trusts' beneficiaries.  Under the            common  law of  trusts, "trustees may  be included  among the            beneficiaries  of a trust."   Mahoney  v.  Board of Trustees,                                          ______________________________            973  F.2d  968,  971  (1st  Cir.  1992),  citing  Restatement            (Second)  of Trusts    99, 115 (1959); William F. Fratcher, 2            Scott  on Trusts,     99.2, 115 (4th  ed. 1987).   And a sole            trustee who  is also the  settlor may be  one of two  or more            beneficiaries. Sullivan v. Burkin, 460 N.E.2d 572, 575 (Mass.                           __________________            1984); Ascher v. Cohen, 131 N.E.2d 198, 199-200 (Mass. 1956);                   _______________            Restatement (Second) of Trusts   100.                        When a trustee is also a beneficiary, she holds the            legal title to the entire trust property in trust  for all of            the  beneficiaries (including  herself), has  a duty  to deal            with  it for the benefit  of the beneficiaries,  and does not                                         -18-                                          18            hold  legal title to any of  the trust property free of trust            to  use as she  pleases.  There  is no partial  merger of the            legal  and  equitable  interests.    Restatement  (Second) of            Trusts   99  cmt. b; 2  Scott on Trusts    99.3.   It follows            that     a    creditor     generally    cannot     reach    a            trustee/beneficiary's  interest in  a trust,  such as  these,            with a spendthrift provision.  Restatement (Second) of Trusts              99 cmt. b.                        When  a beneficiary is  also the  settlor, however,            she cannot keep property beyond the reach of her creditors by            placing it in  a spendthrift trust for her own  benefit.  See                                                                      ___            Merchants Nat'l Bank v. Morrissey, 109 N.E.2d 821, 823 (Mass.            _________________________________            1953);  Forbes v.  Snow, 140 N.E.  418, 419 (Mass.  1923).  A                    _______________            settlor/beneficiary's  creditors  therefore  can  reach  "the            maximum amount which the trustee under the terms of the trust            could  pay to  him or  apply for  his benefit."   Restatement            (Second)   156(2), quoted  in Ware v. Gulda, 117  N.E.2d 137,                               ______  __ _____________            138 (Mass. 1954).   This, of course,  does not mean that  the            interest  of  any other  beneficiary  may be  reached  by the            settlor/beneficiary's creditors.   2  Scott on Trusts    114.            As  a matter  of  federal law,  a  tax lien  extends  only to            property or  rights to  property belonging to  the delinquent            taxpayer,  and not  to property  belonging to  innocent third            parties.  Rodgers, 461 U.S. at  690.  Whether the tax lien in                      _______            this  case  attaches to  the  entire property  of  each trust                                         -19-                                          19            depends on whether the  trust instruments give Fay  the power            to eliminate the other beneficiaries' interests.                      A.   The Parker Hill and Green Pastures Nursing                           __________________________________________                           Home Trusts                           ___________                      On January 21, 1974, Fay created the Green Pastures            and  Parker Hill  Nursing Home  Trusts under  declarations of            trust  whose terms were identical except for the names of the            trusts and the identity  of their assets.  Fay  named herself            sole  trustee   and  conveyed  to  herself   as  trustee  the            respective nursing homes.  Fay named herself and her two sons            as  the beneficiaries  of  each trust,  all in  equal shares,            until  the trusts terminate.7  She named her sister Dzialo as            the remainder beneficiary of  each trust -- upon termination,            the  trust   property  and  undistributed   income  were   to            immediately vest in her free of trust.                        The  magistrate   judge  ruled  that  the  IRS  was            entitled  to  reach that  part  of  the interpled  fund  that            represents the  assets of the Green Pastures  and Parker Hill            Nursing  Home Trusts,  based  on Fay's  "copious" rights  and            powers as settlor, sole trustee and one of  the beneficiaries            of  the trusts, and her  reserved right as  settlor to alter,                                            ____________________            7.  The  trusts  are  to  terminate at  the  earliest  of the            following:   twenty  years  from  the  date the  trusts  were            declared;  Fay's  election   to  terminate;  her  death;   or            appointment  of a  guardian of  her or  a conservator  of her            property.  Although  twenty years have  now passed since  Fay            created the trusts in 1974, we assume the  trusts' continuing            existence because  our point  of reference is  the date  this            litigation began.                                         -20-                                          20            amend or revoke  the trusts, although  Fay has not  exercised            those powers or  otherwise used the trusts for  her exclusive            benefit.  884 F. Supp. at 607.                        Traditionally, Massachusetts has given  full effect            to  inter  vivos  trusts,  regarding their  assets  as  trust            property  rather than that of  the settlor in  spite of broad            powers  reserved to him or  her, at least  while those powers            remain  unexercised.  See  National Shawmut  Bank v.  Joy, 53                                  ___  ______________________________            N.E.2d 113,  122-25 (Mass. 1944); Guthrie v. Canty, 53 N.E.2d                                              ________________            1009,  1010 (Mass. 1944).  But another line of cases has more            recently emerged from the Massachusetts Court of Appeals.  In            State Street Bank  and Trust  Co. v. Reiser,  389 N.E.2d  768            ___________________________________________            (Mass.  App.  Ct.  1979),  the court  broke  with  tradition,            holding  that a  settlor/beneficiary's creditors  could reach            trust assets upon his  death where he had reserved  powers to            amend or revoke  and to direct  the disposition of  principal            and  income  during  his  lifetime, even  though  the  powers            remained  unexercised at  the  time of  his  death, and  even            though  the remainder  beneficiaries'  rights  in  the  trust            vested  upon   his  death   because  there  was   no  further            possibility that he could  exercise his powers.  Id.  at 770-                                                             __            71.   The court emphasized that the settlor's powers gave him            the right  until his  death to  destroy all  other beneficial            interests in the trust.  Id. at 771.                                        __                                         -21-                                          21                      Similarly,  in  ITT  Commercial  Finance  Corp.  v.                                      ___________________________________            Stockdale,  521 N.E.2d 417  (Mass. App. Ct.  1988), the court            _________            relied  on  Reiser  to  hold  (in  the  alternative)  that  a                        ______            settlor's creditor  could reach  trust assets upon  his death            where the  settlor was  sole trustee,  his children  were the            life and remainder beneficiaries, and he had a  general power            to amend  and  revoke  and a  specific  power  to  substitute            beneficiaries until his death.  Id. at 417-18.  As in Reiser,                                            __                    ______            his creditors could reach the trust assets even though he had            not  exercised  his  powers  and  the  other   beneficiaries'            interests  had vested.  See  also Wolfe v.  Wolfe, 486 N.E.2d                                    ___  ____ _______________            747, 749 (Mass. App.  Ct. 1985) (5/6 of trust  property could            be  reached to  satisfy  alimony judgment  where settlor  had            power  to  alter, amend  and  revoke  and absolute  right  to            withdraw  5/6 of  principal; remainder  beneficiaries' rights            were not vested).                       The touchstone  of the analysis,  then, is  whether            the  trust instrument  as  a whole  gives  Fay the  power  to            eliminate  the  interests of  all others  in  the trust.   As            settlor, Fay reserved  to herself the right "to  alter, amend            and  revoke this Trust, in whole or in part, and to terminate            the  same."    These  unrestricted and  unconditional  powers            include  the   right  to  substitute  or   strike  out  other            beneficiaries, Leahy v. Old Colony Trust Co., 93  N.E.2d 238,                           _____________________________            239 (Mass. 1950), to vary the income or principal paid to the                                         -22-                                          22            beneficiaries while the trust continues,  including the power            not to pay them at all, State Street Trust Co. v. Crocker, 28                                    _________________________________            N.E.2d 5  (Mass. 1940), and  to completely revoke  the trust.            Sevinor v. Stahler, 84  N.E.2d 447, 448-49 (Mass. 1949).   If            __________________            Fay revoked the trust, or amended it to make herself the sole            beneficiary,  the legal  title and  equitable interest  would            merge and thereby terminate the trust.  See Atkins v. Atkins,                                                    ___ ________________            180  N.E.2d 613, 614 (Mass. 1932); Langley v. Conlan, 98 N.E.                                               _________________            1064,  1066 (Mass.  1912).   As  Fay  points out,  the  trust            property would not vest free of trust in her if she caused it            to  terminate, but in her sister Dzialo.  Fay, however, could            amend the trust to delete that provision.                      As  trustee, Fay  has  broad powers  to manage  and            control  the trust  property.   The IRS  makes much  of these            powers,  but  we attribute  them no  significance whatsoever.            Broad  powers  are typically  conferred  on a  trustee  as an            effective  way to manage  trust property.   Trustees  who are            also  beneficiaries, "like trustees generally, have the power            to  do acts that are  'necessary or appropriate  to carry out            the purposes of the trust and are not  forbidden by the terms            of the trust.'"  Mahoney, 973 F.2d at 971, citing Restatement                             _______            (Second) of Trusts   186.  As we have held in the  estate tax            context,  a  settlor/trustee's administrative  and management            powers  cannot be  equated  with ownership.   See  Old Colony                                                          ___  __________                                         -23-                                          23            Trust  Co. v. United States,  423 F.2d 601,  602-03 (1st Cir.            ___________________________            1970).                       As trustee,  Fay is to  hold the nursing  homes "in            trust"  for the "general purposes" of the trusts, and to hold            and  accumulate the principal and net income "for the use and            benefit  of said  beneficiaries."   The sentence  immediately            following that direction provides:  "However, anything to the            contrary herein notwithstanding, the Trustee  shall have full            power  and discretion  to pay  over to said  beneficiaries so            much  or all  or  any part  of  the trust  property,  whether            principal or net income, as she shall deem proper."  We think            that this sentence, in the context of the trust instrument as            a  whole, gives  Fay the  power to  pay income  and/or invade            principal for her benefit alone.                         We  recognize,  as  we  have   before,  that  under            Massachusetts law, a trustee is restricted in the exercise of            even  broad discretionary powers  by the  terms of  the trust            viewed as a whole, and by the trustee's fiduciary duty to use            his or her best  judgment in good faith.   State Street  Bank                                                       __________________            and  Trust v. United  States, 634 F.2d  5, 9  (1st Cir. 1980)            ____________________________            (citations omitted); see also Fine v. Cohen, 623 N.E.2d 1134,                                 ___ ____ _____________            1139  (Mass. App. Ct. 1993);  Dana v. Gring,  371 N.E.2d 755,                                          _____________            760-61 (Mass. 1977); Woodberry v. Bunker, 268 N.E.2d 841, 843                                 ___________________            (Mass. 1971);  Old Colony Trust  Co. v.  Sillman, 223  N.E.2d                           _________________________________            504,  506 (Mass.  1967).   In particular,  a trustee  may not                                         -24-                                          24            exercise  a  broad discretionary  power  to  shift beneficial            interests in  a trust.  Fine, 623 N.E.2d at 1139; Boston Safe                                    ____                      ___________            Deposit  and Trust Co. v.  Stone, 203 N.E.2d  547, 552 (Mass.            ________________________________            1965).   A Massachusetts  court necessarily would  evaluate a            trustee's conduct, if challenged, in  light of the powers and            duties  set forth in the trust instrument.  Stone, 203 N.E.2d                                                        _____            at  552; Fine,  623 N.E.2d  at  1139.   In Copp  v. Worcester                     ____                              __________________            County  Nat'l Bank, 199  N.E.2d 200  (Mass. 1964),  the court            __________________            found that the trust  instrument's direction that the trustee            invade principal for the life beneficiary was enforceable and            not unrestricted because it was to  be in a stated amount and            only as necessary for her reasonable support and maintenance.            Id. at  202-03.   In  cases interpreting  trustee powers  for            __            federal estate tax purposes, ascertainable standards limiting            trustee discretion have been found where the trust instrument            directed  principal and/or  income  to be  distributed for  a            specific  purpose   (such  as  education   and  support),  or            expressed an  intent  to  preserve  principal  for  remainder            beneficiaries, or both.   See State Street Bank and  Trust v.                                      ___ _______________________________            United States, 634 F.2d at 9; Old Colony  Trust Co. v. United            _____________                 _______________________________            States,  317 F.  Supp.  618, 622  (D.  Mass. 1970);Dana,  371            ______                                             ____            N.E.2d at 761; Woodberry, 268 N.E.2d at 843; Worcester County                           _________                     ________________            National  Bank v.  King, 268  N.E.2d 838,  840 (Mass.  1971);            _______________________            Sillman, 223 N.E.2d at 507-08.            _______                                         -25-                                          25                      If Fay exercised her  discretion so as to  take the            trust  property for herself,  thereby depleting or destroying            the others' interests, we doubt  that a court could determine            that  she had violated her fiduciary duty in carrying out the            terms  of the trusts because the trust instruments as a whole            do   not   limit  her   discretion   or   define  the   other            beneficiaries' interests  in income  and principal.   They do            not give Fay's sons the right to any particular proportion of            the trust income or principal, the right to receive it at any            particular  time  or interval,  the right  to receive  it for            their  support or any other definite purpose, or the right to            receive  it free of trust  when the trust  terminates.  Fay's            sister's remainder  interest could  amount to nothing  if Fay            decided  to pay all of  the income and  principal to herself.            Under  these  circumstances, we  think  that  Fay's sons  and            sister would have had little or  no recourse if she took  the            trust  property for her own  benefit.  We  recognize that Fay            has not done so,  but what is dispositive for  these purposes            is  whether  the  trust  instrument  contained  ascertainable            limits on her power to pay income or invade principal for her            benefit alone that  the other beneficiaries could  rely on to            enforce any rights of their own. Moreover,  we  do not  think            that  the other  beneficiaries'  interests in  the trust  are            vested.   Although  that  apparently makes  no difference  in            light of Reiser and Stockdale, it does mean that their rights                     ______     _________                                         -26-                                          26            are inchoate at the  present time.  Under  Massachusetts law,            whether a right in a trust has vested depends on "whether, in            substance,  the  interest   is  sufficiently  established  to            constitute an  interest or  right  which has  accrued to  its            holder."  New  England Merchants Nat'l Bank  v. Groswold, 444                      ______________________________________________            N.E.2d 359, 363 (Mass.  1983).  That an interest  is "subject            only to total  or partial defeat  by biological events"  does            not make it inchoate.   Id.  Thus,  a beneficiary's right  to                                    __            receive part of the  trust property that depends only  on his            or  her survival until the death of other persons is a vested            property right.  See Id.; Billings v. Fowler, 279 N.E.2d 906,                             ___ __   __________________            908  (Mass. 1972);  Whiteside v.  Merchants' Nat'l  Bank, 187                                ____________________________________            N.E.  706, 709 (Mass. 1933); Alexander v. McPeck, 75 N.E. 88,                                         ___________________            92 (Mass. 1905).  But where the right depends on the exercise            or non-exercise of powers  held by another, the beneficiary's            right does not vest  until the person holding the  powers can            no  longer  exercise them.   See  Reiser,  389 N.E.2d  at 770                                         ___  ______            (remainder  interests  of  beneficiaries became  vested  upon            death  of settlor because his  powers to amend  or revoke the            trust  and direct payments from it died with him); Old Colony                                                               __________            Trust  Co. v. Clemons, 126 N.E.2d 193 (Mass. 1955) (rights of            _____________________            remainder beneficiaries did  not vest  until settlor's  death            where  he had  the  right  to  revoke  the  trust  or  change            beneficiaries).  Any right in Fay's sons or sister to receive            part  of the  trust  property is  not  contingent on  a  mere                                         -27-                                          27            biological event, but  on whether  or not  Fay exercises  her            power to  amend or revoke the  trusts, and on to  whom and in            what amounts  she distributes income and  principal while the            trust continues.  Their interests therefore are not vested.                      Due to  the broad  nature of  Fay's powers  and the            limited and unenforceable nature of the beneficial interests,            Fay has the power to eliminate the interests of her sons  and            her  sister.  We  therefore think that  a Massachusetts court            would treat the entire  trust property of the Green  Pastures            and  Parker Hill Nursing Home Trusts as Fay's own in favor of            her  creditors.  Like  the settlors in  Reiser, Stockdale and                                                    ______  _________            Wolfe,  Fay has the right to  amend and revoke the trusts and            _____            to  direct disposition  of  principal and  income.   Although            there is nothing invalid in the roles of settlor, trustee and            beneficiary  co-existing in the same person,  in this case it            meant  that Fay had the power as trustee to distribute income            and principal  in whatever proportion she  deemed proper, the            right  as a  beneficiary to  receive income and  principal in            whatever  amount  she  as  trustee  deemed  proper,  and  the            unrestricted  power as settlor to alter, amend, or revoke the            trusts.  The trusts at issue here are even more vulnerable to            Fay's creditors  than those at issue in  Reiser and Stockdale                                                     ______     _________            because the other beneficiaries'  interests in the trust have            not  vested and Fay remains  able to exercise  her powers and            thus deplete or destroy them.                                           -28-                                          28                      We do not  hold that  the trusts are  invalid --  a            trust  in which the settlor has reserved to herself the power            to alter, amend  or revoke, and is also the  sole trustee and            one of  the trusts'  beneficiaries  with a  right to  receive            income and principal in her own discretion as trustee, is not            invalid.   See  Roberts  v. Roberts,  646  N.E.2d 1061,  1064                       ___  ___________________            (Mass. 1995); Sullivan, 460 N.E.2d at 575; Ascher, 131 N.E.2d                          ________                     ______            at  199-200.   And  although  it  may  be  only  a  technical            distinction,  we do not hold that Fay must exercise her power            to amend  or revoke  to  satisfy the  tax debt.    See In  re                                                               ___ ______            Cowles, 143 B.R. 5, 10 (Bankr. D. Mass. 1992) ("The Court can            ______            allow  the creditors to reach the assets of the trust without            requiring revocation  of the trust.").  Rather,  we hold that            the federal tax lien on Fay's individual property reaches the            entire  assets of the Green Pastures  and Parker Hill Nursing            Home  Trusts because Fay has the power to eliminate the other            beneficiaries' interests and treat  the trust property as her            own based on the  following combination of provisions in  the            trust instruments: (1) Fay as settlor has the power to alter,            amend or  revoke, which,  if exercised, could  result in  the            entire  trust property vesting in her; (2) Fay as trustee has            absolute  discretion  to  pay  income and  principal  to  the            beneficiaries, including herself, in whatever  proportion she            deems appropriate, even if such payments entirely deplete the            other beneficial  interests; and (3) Fay  is settlor, trustee                                         -29-                                          29            and  a beneficiary.  Fay  invokes George v.  Kitchens by Rice                                              ___________________________            Bros.,  Inc., where  we stated  that  "a power  of revocation            ____________            under  Massachusetts law is not considered property . . . and            cannot be reached  by creditors."   665 F.2d 7,  8 (1st  Cir.            1981).     George   remains  a   correct   interpretation  of                       ______            Massachusetts  law where,  as  in that  case, the  only power            reserved by the  settlor, who was also the  trustee but not a            beneficiary, was the power to revoke.                        Because  the tax lien  consequently attaches to the            mortgages  now held by the  trusts, the lien  attaches to the            proceeds  of  the  sale  of  the  nursing  homes  that  would            otherwise  replace  the mortgages  as  trust  property.   Cf.                                                                      __            Phelps  v.  United States,  421  U.S. 330,  334  (1975) (when            _________________________            property  subject  to  tax  lien  is  transferred,  the  lien            attaches to the proceeds of the transfer).                        B.   The Highland Avenue Nursing Home Trust                           ______________________________________                      On August 14, 1974, Fay created the Highland Avenue            Nursing Home  Trust, naming herself  as sole trustee  for her            life,  and the beneficiaries as herself, her two sons and her            sister  Dzialo,  "in equal  shares."    Paragraph  11 of  the            declaration of trust provides as follows:  "The Trustee, may,            subject to the  limitations herein  expressed, acquire,  own,            and  dispose  of any  interest in  this  trust [to]  the same            extent as if she were  not a Trustee."  The  magistrate judge            found  that paragraph  11 gives  Fay the  power to  treat the                                         -30-                                          30            principal  and income of the trust  as her own, and held that            the IRS was therefore entitled to the proceeds of the sale of            the  Highland Avenue Nursing Home.   884 F.  Supp. at 609-10.            In reaching  that  conclusion,  the  magistrate  judge  first            observed  that the meaning of the trust instrument as a whole            was  difficult to discern, raising the  suspicion that it was            drafted "so as to give the trustee free reign but  also so as            to contain other language purporting to constrain the trustee            merely to have something at which to point  if the trust were            attacked."    Id.  at  607.     Against  this  backdrop,  the                          __            magistrate judge found specific ambiguity in paragraph 11, in            that  the  term  "any   interest"  could  mean  either  Fay's            "beneficial interest"  or the  "income and principal"  of the            trust.  Id.  at 609.  Resolving the ambiguity  against Fay as                    __            drafter, the magistrate  judge concluded that "any  interest"            must mean the  "income and principal" of the trust.  This was            so  because  the  only  other  instance  in  which  the  word            "interest"  is  used  without  being  modified  by  the  word            "beneficial" is  in paragraph 23, referring  to the "interest            of  any  beneficiary  hereunder,   either  as  to  income  or            principal."8     The  magistrate  judge  then   read  out  of                                            ____________________            8.  Paragraph 23 is the spendthrift provision, providing that            "[t]he interest  of any  beneficiary hereunder, either  as to            income or to principal,  shall not be anticipated, alienated,            or in any manner  assigned by such beneficiary and  shall not            be subject  to any legal process,  bankruptcy proceedings, or            the interference or  control of creditors or others,  nor the            subject  matter of any contract or trust made or entered into                                         -31-                                          31            paragraph 11  the phrase  "subject to the  limitations herein            expressed,"   based  on  his   interpretation  of  the  trust            instrument  as  imposing no  limitation  on  Fay's powers  as            trustee.  Id. at 609.  Paragraph 11 therefore meant  that Fay                      __            could  treat  the principal  and income  as  her own  free of            trust.  Id. at 609-10.   We  hold  that the  magistrate judge                    __            erred  as a  matter of  law in  interpreting paragraph  11 as            giving Fay the power to treat the principal and income of the            trust  as her  own.   First,  we  fail to  see  in the  trust                                  _____            instrument  a  purpose to  mislead  or an  unusual  or unfair            allocation of powers, rights and interests among the settlor,            the trustee and the beneficiaries.  Fay reserved no powers to            herself as  settlor, but the magistrate judge  seemed to find            it significant that  on the  one hand, Fay  as trustee  holds            legal title to and has extensive powers to manage and dispose            of the trust  property, while on the other, the beneficiaries            do not have any  title in the trust property, but  "shares of            beneficial  interests" that cannot be transferred or assigned            without offering  them first to the  other beneficiaries, and            that are "personal  property, giving only the rights  in this            instrument specifically set forth."  Id. at 607-09.                                                   __                      The  trust instrument's  definition of  the various            powers, rights and  interests was a correct  statement of the            Massachusetts law of trusts.  The creation of a trust results                                            ____________________            by any beneficiary."                                         -32-                                          32            in  the  separation  of  the  legal  interest  in  the  trust            property,  which  is  in  the trustee,  from  the  beneficial            interest  in the  trust, which  is in  the beneficiaries.   2            Scott on Trusts,   99.  The trustee holds the  legal title to            the trust property in trust  for the beneficiaries, while the            beneficiaries hold beneficial  interests, which are equitable            in nature.   See Russell  v. Russell, 468  N.E.2d 1104,  1106                         ___ ___________________            (Mass. App. Ct. 1984) (defining a trust as the "manifestation            of  an  intention to  create  a  fiduciary relationship  with            respect to  property, [which]  subject[s] the person  by whom            the title to the property is held to equitable duties to deal            with  the  property  for  the  benefit  of  another  person")            (internal  quotation marks  and citations  omitted); National                                                                 ________            Shawmut  Bank v.  Cumming, 91  N.E.2d 337,  338 (Mass.  1950)            _________________________            (referring to the trustee's  "title" to and the beneficiary's            "beneficial  interests" in  the  trust  property);  Worcester                                                                _________            Trust Co. v. Turner,  96 N.E. 132, 134 (Mass.  1911) (trustee            ___________________            holds title  to the  principal; beneficiary  has  a right  to            receive  so  much  of  it  as   necessary  in  the  trustee's            discretion, but no  absolute right  to the fund  itself).   A            trustee  does not hold trust  property as her  own due to the            fact that she holds legal title to it.  See Cook v. Howe, 182                                                    ___ ____________            N.E. 581, 582-83 (Mass. 1932)  (trustee who holds legal title            to real  estate in trust for  a beneficiary may  not keep the            proceeds  as his  own); cf.  Cantor v.  Wilbrahim  and Monson                                    __   ________________________________                                         -33-                                          33            Academy,  609 F.2d  32, 35  (1st Cir.  1979) (trustee  is the            _______            legal  owner, but the trust itself is the debtor for purposes            of  the Bankruptcy Act).  Rather, a trustee holds legal title            in order  to manage  the  trust property,  and typically  has            broad powers to  do so as a  practical way of  conducting the            trust's business.  Like any trustee's powers, Fay's powers to            hold,  manage and dispose of  the trust property were subject            to the  "specific limitations herein contained,"  that is, to            conduct the trust business "for the benefit of the holders of            the shares hereunder."                      That  the  beneficiaries' interests  were "personal            property" was also a correct statement of the law.  Where, as            here, a trust contains both real and personal property,9  and            the  trust  instrument  directs  that  the  trust  assets  be            liquidated upon termination of the  trust, the beneficiaries'            interests  are personal property  from the trust's inception.            See Priestley v.  Burrill, 120 N.E. 100, 104-05 (Mass. 1918);            ___ _____________________            Dana v.  Treasurer and Receiver General, 116 N.E. 941, 943-44            _______________________________________            (Mass. 1917).                                              ____________________            9.  Fay as trustee was to "hold [the  Highland Avenue Nursing            Home] and cash so to be acquired by her, as well as all other            property which  she may acquire as such Trustee together with            the  proceeds thereof,"  and  was "authorized  to manage  and            maintain  the  trust property  and  invest  and reinvest  the            property and proceeds of the trust in real estate, mortgages,            securities of any lawful business and to engage in any lawful            business."                                         -34-                                          34                      The  language  providing   that  "ownership  of   a            beneficial interest .  . . shall not entitle  the beneficiary            to any title in or to the trust property whatsoever, or right            to call  for a partition or  division of the same,  or for an            accounting," is not unfamiliar in Massachusetts trusts.  See,                                                                     ___            e.g., Gardiner v. United  States, 49 F.2d 992, 994  (1st Cir.            ____  __________________________            1931); Lauricella  v. Lauricella, 565 N.E.2d  436, 437 (Mass.                   _________________________            1991);  State Street Trust Co. v. Hall,  41 N.E.2d 30, 32, 35                    ______________________________            (Mass. 1942); Dana, 116 N.E.  at 942.10  As set forth  above,                          ____            it  is  a  correct  statement  of  the  law  of  trusts  that            beneficiaries  do  not  hold  title to  the  trust  property;                                            ____________________            10.  Trusts that  contain similar provisions and  that have a            similar purpose  in that at least part  of the purpose of the            trust is to carry on a business, are common in Massachusetts.            Whether  such a trust is, for various purposes, a pure trust,            a business trust or  a partnership has often  been litigated,            and depends  on  the  relative  powers of  the  trustees  and            beneficiaries, whether  the primary activity of  the trust is            commercial,  and whether it issues transferrable certificates            of shares.   See Hecht v.  Malley, 265 U.S.  144 (1924); Pope                         ___ ________________                        ____            and Cottle Co. v.  Fairbanks Realty Trust, 124 F.2d  132 (1st            _________________________________________            Cir. 1941); Bomeisler v.  M. Jacobson & Sons Trust,  118 F.2d                        ______________________________________            261 (1st Cir.  1941); Gardiner,  49 F.2d 992;  In re  Village                                  ________                 ______________            Green Realty Trust, 113  B.R. 105 (Bankr. D. Mass.  1990); In            __________________                                         __            re  Medallion  Realty Trust,  120 B.R.  245 (Bankr.  D. Mass.            ___________________________            1990); In re L & V Realty Trust, 61 B.R. 423 (Bankr. D. Mass.                   ________________________            1986); First  Eastern Bank  v. Jones, 602  N.E.2d 211  (Mass.                   _____________________________            1992);  Hall, 41  N.E.2d 30;  Baker v.  Comm'r of  Corps. and                    ____                  _______________________________            Taxation,  148 N.E.  593 (Mass.  1925); Dana,  116 N.E.  941;            ________                                ____            Frost  v. Thompson, 106  N.E. 1009 (Mass.  1914); Williams v.            __________________                                ___________            Inhabitants of Milton, 102  N.E. 355 (Mass. 1913).   See also            _____________________                                ___ ____            Takemi Ueno, Defining a "Business Trust":  Proposed Amendment                         ________________________________________________            of Section  101 (9) of  the Bankruptcy  Code, 30 Harv.  J. on            ____________________________________________            Legis.  499  (1993).   That question  is  not before  us, but            trusts with characteristics like those of the Highland Avenue            Nursing  Home  Trust  are  a "lawful  method  of  transacting            business in [the] Commonwealth."  Hall 41 N.E.2d at 34.                                              ____                                         -35-                                          35            rather, they own an equitable interest in the trust property.            Although  we  are  somewhat  concerned  about   the  language            purporting to deny the  beneficiaries a right to call  for an            accounting, that language would  have been disregarded if the            beneficiaries  had petitioned  a  court  for  an  accounting.            Briggs v. Crowley,  224 N.E.2d  417, 421 (Mass.  1967).   And            _________________            spendthrift  provisions  like  the  one  here  are  valid  in            Massachusetts.  Pemberton, 411 N.E.2d at 1312.                            _________                      Second, we  think  that the  interpretation of  the                      ______            term "any interest" in paragraph 11 as "income and principal"            is extraordinarily strained,  but more to the point,  it does            not   follow   even   from  that   interpretation   that  the            beneficiaries  other   than  Fay  do  not   have  enforceable            equitable interests in the trust or that Fay has the power to            eliminate  those interests  in  her own  favor.   Although we            agree that paragraph  11 is ambiguous viewed in isolation, it            is  not  susceptible  of  the meaning  the  magistrate  judge            attributed  to it  when viewed  in the  context of  the trust            instrument as a  whole.   The magistrate judge  did not  take            account of  the  distribution of  powers  in the  trust  that            should have led to  the conclusion that Fay did  not have the            power to eliminate the other beneficiaries' interests.                        Fay  did  not  reserve  to  herself  the  right  to            unilaterally alter, amend or revoke the trust, but granted it            to  those holding a majority of beneficial shares.  The trust                                         -36-                                          36            is to terminate  twenty years  after Fay's death,  or may  be            terminated  earlier  "by  a   majority  vote  of  all  shares            outstanding,   at  a   meeting   of  the   trustee  and   the            beneficiaries,  called for that expressly stated purpose," at            which  the  trustee  may  not   vote.    Whenever  the  trust            terminates,  the then trustee(s) must wind  up the affairs of            the trust,  liquidate the assets and  distribute the proceeds            among the beneficiaries in proportion to the  shares owned by            them.   The  trust "may  be amended  or altered  in any  part            whatever . . .  with the consent of a  majority percentage of            vote as hereinbefore provided."                         A settlor  may either reserve powers  to herself or            grant them  to others, Crocker, 28  N.E.2d at 7,  but a trust                                   _______            "cannot be revoked or  altered except by a reserved  power to            do  so, which must be exercised in strict conformity with its            terms."  Trager  v. Schwartz, 189  N.E.2d 509, 511-12  (Mass.                     ___________________            1963)  (citations omitted).   See also  Markell v.  Sidney B.                                          ___ ____  _____________________            Pfeifer  Found., Inc.,  402  N.E.2d 76,  92  (Mass. App.  Ct.            _____________________            1980); Stahler v. Sevinor,  84 N.E.2d 447, 448  (Mass. 1949);                   __________________            Thorp  v.  Lund, 116  N.E. 946  (Mass.  1917).   The Highland            _______________            Avenue Nursing Home Trust therefore  could only be altered or            revoked by  the beneficiaries  holding a majority  of shares.            Just as Fay could eliminate  other beneficiaries of the Green            Pastures  or Parker Hill Nursing  Home Trusts as  part of her            power  to  alter  or  amend,  those  holding  a  majority  of                                         -37-                                          37            beneficial shares  in the Highland Avenue  Nursing Home Trust            could  eliminate Fay  as  a beneficiary  by exercising  their            power  to amend  "in any  part whatever."   Furthermore,  the            other   beneficiaries  could  have  ousted  Fay  as  trustee.            Although beneficiaries cannot appoint  a new trustee  without            an express grant of power to do so, where, as here, they have            a power to  revoke and to compel the  trustee to transfer the            trust  property  to  them,  they  can  revoke the  trust  and            immediately  create a  new trust,  naming a  new trustee.   2            Scott on Trusts   108.4; Restatement (Second) of Trusts   108            cmt. i.                         Moreover, Fay does not have unbridled discretion as            trustee  to take income or invade principal at the expense of            the other  beneficiaries, who  have enforceable  interests in            the trust.   While Fay  may distribute net  earnings in  such            amount  as she sees fit,  she must make  some distribution at            least  annually "in the proportion to the shares owned by the            beneficiaries."  Furthermore,  the trust instrument evidences            Fay's intent that, upon termination, the trust property go to            beneficiaries in addition  to herself or her successors.   At            that time,  the assets  must be  liquidated and  the proceeds            distributed proportionately among the beneficiaries.                        Although   Fay  is  the   settlor,  trustee  and  a            beneficiary,  the  trust instrument  gives  her  no power  to            unilaterally  alter, amend  or revoke  the trust,  limits her                                         -38-                                          38            discretion as  trustee to  distribute income, and  limits her            right  to receive  income as  a beneficiary  to an  amount in            proportion  to the  shares owned  by her.   Fay's  rights and            powers  therefore  were not  so  centralized as  to  make the            entire trust property her own.                        In light  of the trust  instrument as  a whole,  we            conclude that paragraph  11 does  not mean that  Fay has  the            power  to treat the principal and income  of the trust as her            own free of trust.  The term "any  interest" could mean Fay's            beneficial  interest, so  that paragraph  11 means  that Fay,            like any other  beneficiary and although she is  the trustee,            may acquire, own and dispose of shares in accordance with the            conditions  and procedures  set forth  in the  declaration of            trust;11  receive annual  distributions out  of net  earnings            in  proportion to her share; and  have her equitable interest            in the trust  pass to her successors  upon her death.12   See                                                                      ___                                            ____________________            11.  Paragraph 13  provides  that "the  beneficial  interests            hereby  created  shall  not  be  transferrable  or assignable            without first offering said shares to the other beneficiaries            in  writing."     The  trustee  must   notify  the  remaining            beneficiaries of  a beneficiary's offer to  sell shares; they            or any of them may accept the offer, or, alternatively, three            arbitrators may  be  chosen to  ascertain  the value  of  the            offered shares; the  beneficiary desiring to  sell may do  so            free  of  restriction  thirty  days  from  the  date  of  the            arbitrators' determination if the beneficiary desiring to buy            has not paid the amount  so determined; and if more  than one            beneficiary desires to buy,  they may buy the offered  shares            in proportion to the shares held by them.            12.  The executors, administrators or assigns of any deceased            beneficiary are to  succeed to  his or her  rights under  the            trust.                                         -39-                                          39            Andreson v. Andreson, 562  N.E.2d 91, 92 n.2 (Mass.  App. Ct.            ____________________            1990)  (trust  instrument  stated  that  "[a]ny  trustee  may            without  impropriety  become   a  beneficiary  hereunder  and            exercise  all rights of a beneficiary with the same effect as            though he  were not  a trustee.").   Alternatively,  the term            "any   interest"  could   mean   the   trust  principal   and            undistributed income, so  that paragraph 11 means that Fay as            trustee  had full power to  manage the business  of the trust            free  of the  control of  the other beneficiaries  (who could            remove her as a beneficiary or as trustee).  Cf. Navarro Sav.                                                         __  ____________            Assoc. v. Lee, 446  U.S. 458, 459, 465 n.14  (1980) (trustees            _____________            had exclusive authority over trust property free from control            of shareholders "as if  the Trustees were the sole  owners of            the Trust Estate in their  own right," while shareholders had            power to terminate or amend).  Under any  interpretation, Fay            was "subject  to the limitations herein  expressed," that is,            her duty as trustee to hold the  trust property "in trust, to            manage and dispose of the same for the benefit of the holders            of the shares."                      In sum,  we hold  that the entire  property of  the            Highland Avenue Trust does not constitute Fay's "property" or            "rights to  property" to  which  the federal  tax lien  could            attach  because  the  trust  instrument  defines the  various            powers, rights  and interests in  accordance with the  law of            trusts,  gives the  beneficiaries other than  Fay enforceable                                         -40-                                          40            equitable interests in the trust property,  and does not give            Fay the unilateral power to eliminate their rights.                        The lien  does, however, attach  to whatever aspect            of Fay's  beneficial interest in the  Highland Avenue Nursing            Home Trust  that constitutes  present "property or  rights to            property"  under Massachusetts  law.13   While a  federal tax            lien attaches  to property  and rights  to property that  the            taxpayer acquires at any time  after assessment, it does  not            attach unless and until the taxpayer acquires what is defined            as property by  state law.   United States  v. McDermott,  __                                         ___________________________            U.S. __,  113 S. Ct.  1526, 1530  (1993).  Thus,  courts have            held  that   while  a   federal  tax   lien  attaches   to  a            taxpayer/beneficiary's present right to receive distributions            of  income  or principal,  it does  not  attach to  the trust            corpus when he  or she has  no present right  to receive  it.            United States v.  Cohn, 855  F. Supp. 572,  576-77 (D.  Conn.            ______________________            1994); In re Cavanaugh,  153 B.R.  224, 228 (Bankr. N.D. Ill.                   _______________            1993);  Wilson  v.  United States,  140  B.R.  400,  404, 407                    _________________________            (Bankr.  N.D. Tex. 1992).  See also  In re Lyons, 148 B.R. 88                                       ___ ____  ___________            (Bankr. D.D.C. 1992)  ("a federal  tax lien may  attach to  a                                            ____________________            13.  The  spendthrift  clause  is  ineffective  as  to  Fay's            beneficial   interest  because   she  is  both   settlor  and            beneficiary.  See Morrissey,  109 N.E.2d at 823; Forbes,  140                          ___ _________                      ______            N.E. at 419.   Moreover,  a spendthrift clause  is "merely  a            state-created exemption from the  reach of creditors, and not            an aspect  of the substantive  [property] right"  to which  a            federal  lien attaches.  United States  v. Rye, 550 F.2d 682,                                     _____________________            685 (1st Cir. 1977).                                         -41-                                          41            taxpayer's  vested  right, under  a trust  .  . .  to receive            periodic payments  or distributions  of property then  due or            that will become due in the future.").                      Fay's  right to  receive annual  distributions from            net  earnings in proportion to  her share until  her death or            until  the trust  terminates  earlier is  a presently  vested            property  right.  See  Forbes, 140 N.E.  at 420.   Because "a                              ___  ______            settlor  cannot place property  in trust for  his own benefit            and  keep it  beyond  the  reach  of  his  creditors,"  Fay's            "creditors  can reach  the maximum  amount which  the trustee            under the  terms of the trust could pay to [her] or apply for            [her]  benefit."  Ware v.  Gulda, 117 N.E.2d  137, 138 (Mass.                              ______________            1954),  citing  Restatement  (Second)   of  Trusts     156(2)            (internal quotation marks and additional  citations omitted).                      Fay's  right to  sell her  share is  not  a present            right  to property because she cannot sell it to anyone other            than  her  co-beneficiaries without  at  least their  passive            consent.  See note 11, supra.  In United States  v. Bess, the                      ___          _____      ______________________            Supreme Court held that a lien attached to an insured's right            under  the terms of his life insurance policy to exchange the            policy for its cash surrender value during his lifetime.  357            U.S. at  56.  Fay's  right to  sell her  beneficial share  is            similar  to Bess's  right  to exchange  his policy  for cash,            except that Fay's right  to sell is qualified and  limited by                                         -42-                                          42            the rights of the other beneficiaries to buy her share, while            Bess's right to  cash in  his policy was  unqualified.   This            distinction is critical  because Fay has property  to which a            tax  lien can attach only  insofar as conferred  by the trust            instrument as it would be enforced by state law.  Cf. Chicago                                                              __  _______            Mercantile  Exch. v.  United States,  840 F.2d  1352, 1354-56            ___________________________________            (7th  Cir.  1988) (where taxpayer could transfer his exchange            seat only as authorized and  on the conditions prescribed  in            the exchange rules, with no rights in or to the membership or            the  proceeds  of  the  sale  of such  membership  except  as            specifically  granted  in  the  rules,  the  full  extent  of            member's  property interest  in the  seat, which  had already            been involuntarily  sold, was  the remainder of  the proceeds            after  internal claims  were paid.).   Although  we have  not            found any Massachusetts  case discussing whether a  qualified            right to sell a  beneficial interest in a trust  is property,            we have no doubt that a Massachusetts court would enforce the            other  beneficiaries'  right  to   buy  Fay's  share  if  she            attempted to sell it  to an outsider without  consulting them            or  without their consent.   Fay's limited right  to sell her            share  therefore is  not a  present right  to property.   The            lien, of course, will attach to the proceeds from the sale of            Fay's  share if and when she  sells it (assuming the tax debt            is  not paid),  because  she will  then  be holding  her  own            property free of trust.                                         -43-                                          43                      Nor does  Fay have  present property rights  in the            trust corpus.   As  a beneficiary,  she has no  title to  the            trust property or right  to call for a partition  or division            of it  as long  as  the trust  continues, and  has "only  the            rights in this  instrument specifically set forth."   She has            no right to receive  or withdraw any of the  trust principal.            Cf.  In re  Cowles, 143  B.R.  5, 10  (Bankr. D.  Mass. 1992)            __   _____________            (settlor had the power  to withdraw "any part  or all of  the            trust  property," so  his  creditors could  reach the  entire            trust principal); Wolfe, 486  N.E.2d at 749 (settlor  had the                              _____            right  to withdraw 5/6 of  the trust corpus,  so his creditor            was permitted  to reach  that part  of the  trust principal).            According to the declaration of trust, Fay could receive  her            share  of the  liquidated assets  during life  only if  those            owning a majority of beneficial shares vote to  terminate the            trust   during  her   lifetime;  otherwise,   her  executors,            administrators or assigns will succeed to her rights upon her            death.                        As set  forth in  Part III(A), under  Massachusetts            law,  whether  a  right in  a  trust  has  vested depends  on            "whether,   in  substance,   the  interest   is  sufficiently            established  to constitute  an  interest or  right which  has            accrued to its  holder," that  is, whether it  is subject  to            defeat  only by biological events, in which case the right is            vested, Groswold, 444 N.E.2d at 363, or whether it is subject                    ________                                         -44-                                          44            to defeat by  another person's decision  to exercise a  power            that he or she holds,  in which case the right does  not vest            until the person holding the power can no longer exercise it.            Reiser,  389 N.E.2d  at 770;  Clemons, 126  N.E.2d 193.   The            ______                        _______            possibility  that Fay  might  receive a  share  of the  trust            corpus  during  her  lifetime  hinges  on  whether  or not  a            majority  of  the  holders   of  beneficial  shares  vote  to            terminate  the trust, and whether or not they decide to amend            the  trust by removing  her as a beneficiary.   Thus, it does            not amount to a present right to property under Massachusetts            law.  The lien will attach to  her share of the assets if and            when the trust terminates during her lifetime (again assuming            the  tax  debt is  still unpaid),  because  she will  then be            holding her own property free of trust.                      Assuming that a  majority of  the beneficiaries  do            not vote to  terminate the trust  during Fay's lifetime,  her            executors,  administrators or  assigns  will succeed  to  her            rights under the trust upon her death.  In Bess, the  Supreme                                                       ____            Court  stated with regard to the proceeds of a life insurance            policy  that "[i]t would  be anomalous to  view as 'property'            subject to lien proceeds never  within the insured's reach to            enjoy, and which are reducible to possession by another  only            upon  the  insured's  death  when his  right  to  change  the            beneficiary  comes to  an  end."   Id.  at   55-56.   But  in                                               __            Massachusetts,  the right of a  trust beneficiary to have his                                         -45-                                          45            share  of the trust corpus  paid over to  his successors upon            death  has been treated as a present right to property during            the  beneficiary's lifetime.  See, e.g.,  Forbes, 140 N.E. at                                          ___  ____   ______            420; Alexander, 75 N.E. at 92.  In those cases,  however, the                 _________            trust    instrument    unequivocally   provided    that   the            beneficiary's share of the  corpus was to be paid  over, free            of  trust,  to  the   beneficiary's  successors  upon  death.            Whether  there will  be any  interest in  the trust  to which            Fay's  heirs  or assigns  could  succeed  depends, again,  on            whether those holding a majority of beneficial shares vote to            terminate the trust  before Fay's death, or to  eliminate Fay            as a  beneficiary.  We  think that  Fay's right  to have  her            successors  receive  income  or   principal  from  the  trust            therefore is  too ethereal to  constitute a present  right to            property.  The lien will attach, however, upon Fay's death to            whatever beneficial  interest she  holds at that  time, again            assuming  the tax debt remains  unpaid.  Cf.  Welch v. Paine,                                                     __   ______________            120  F.2d  141,  143 n.2  (1st  Cir.  1941)  (creditors of  a            decedent  must be paid before his property passes to the next            of kin).                      We  remand to  the magistrate  judge to  fashion an            order  enforcing the  tax  lien  on  Fay's present  right  to            receive annual distributions from net earnings  in proportion            to her share.  That the  value of this right may be difficult            to discern  does  not  alter the  conclusion  that  the  lien                                         -46-                                          46            presently attaches, Rye,  550 F.2d  at 685;  Raihl v.  United                                ___                      ________________            States, 152 B.R. 615, 619 (Bankr. 9th Cir. 1993), but it does            ______            not  flow  from that  conclusion  that  the property  can  be            executed  upon immediately.   United  States v.  Overman, 424                                          __________________________            F.2d 1142, 1145 (9th  Cir. 1970).  Under the  FDCPA, property            held in  trust is "co-owned  property," cf. United  States v.                                                    __  _________________            Coluccio,  51  F.3d   337,  342  (2d  Cir.  1995)  (funds  in            ________            constructive   trust  are   co-owned  property),   which  the            government can execute on  only "to the extent such  property            is subject to execution  under the law of the  State in which            it  is  located."14    28  U.S.C.     3203(a);  28  U.S.C.               3010(a).                        In Massachusetts,  a trust cannot be  terminated in            order to pay a creditor at any time earlier than the terms of            the  trust provide,  at least  where there  are beneficiaries            other  than the  debtor.    See  Forbes,  140  N.E.  at  421;                                        ___  ______            Alexander,  75 N.E. at 91.  Fay's beneficial right to receive            _________            an  annual share  of net  earnings can, however,  be executed            upon in one of  two ways.  First,  even though it  ordinarily            could not be reached and  applied "until a future time or  is            of  uncertain value," it can  be reached and  applied "if the            value can be ascertained  by sale, appraisal or by  any means                                            ____________________            14.  When  the  IRS seeks  to  collect other  than  through a            section  7403 proceeding or by levy, it has the privileges of            an ordinary judgment creditor, Rodgers, 461 U.S. at 682, 697,                                           _______            or in this case, whatever privileges the FDCPA confers.                                         -47-                                          47            within the ordinary procedure  of the court."  Mass.  Gen. L.            ch. 214   3(6).  See also New England Merchants Nat'l Bank v.                             ___ ____ ___________________________________            Hoss, 249 N.E.2d  635, 638 (Mass. 1969);  Whiteside, 187 N.E.            ____                                      _________            at 710;  Alexander, 75  N.E.  at 92.   Thus,  Fay's right  to                     _________            receive  annual distributions  from net  earnings conceivably            could be sold  and the proceeds paid to the  IRS if its value            could  be ascertained and a  buyer found.  Alternatively, her            share of  net earnings could be  paid to the IRS  as it comes            due  annually according to the  terms of the  trust.  Forbes,                                                                  ______            140  N.E. at 421; see also United States v. Solheim, 953 F.2d                              ___ ____ ________________________            379, 382 (8th  Cir. 1992);  Cohn, 855 F.  Supp. 572,  576-77;                                        ____            United States v.  Taylor, 254  F. Supp. 752,  758 (N.D.  Cal.            ________________________            1966), cited  with approval  in Rye,  550 F.2d at  685.   The                   ________________________ ___            magistrate  judge may  proceed  according  to either  method,            holding hearings or other proceedings as necessary.            IV.  CONCLUSION                 __________                      On  remand,  the  judgment  should  be  modified as            follows:   The United States  is entitled to  $11,686.22 (the            proceeds  of the sale of  the Green Pastures  and Parker Hill            Nursing  Homes)  plus  the   accumulated  interest  on  those            proceeds.  The Highland Avenue Nursing Home Trust is entitled            to  $16,046.63  (the proceeds  of  the sale  of  the Highland            Avenue Nursing Home), plus the accumulated interest, less any            amount  determined to be presently  payable to the  IRS.  The            magistrate  judge shall  fashion an  order enforcing  the tax                                         -48-                                          48            lien on Fay's right  to annual payments from net  earnings of            the Highland Avenue Nursing Home Trust.                        Affirmed in  part, reversed in  part, and  remanded                      Affirmed in  part, reversed in  part, and  remanded                      ___________________________________________________            for a new judgment.  No costs.            for a new judgment.  No costs.            _____________________________                                         -49-                                          49
