                                       UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                        No. 19-1009


MARY ANNE KIRGAN, as successor trustee of the Clarence Manger and Audrey
Cordero Plitt Trust; ROBERT S. KIRGAN, as successor trustee of the Clarence
Manger and Audrey Cordero Plitt Trust,

            Plaintiffs - Appellants,

v.

MANUFACTURERS AND TRADERS TRUST COMPANY, d/b/a M&T Bank,

            Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-00327-CMH-TCB)


Submitted: March 19, 2020                                     Decided: April 17, 2020


Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.


Affirmed by unpublished opinion. Judge Wilkinson wrote the opinion, in which Judge
Rushing joined. Judge Quattlebaum wrote an opinion concurring in part and dissenting in
part.


Michael S. Nadel, MCDERMOTT WILL & EMERY LLP, Washington, D.C., for
Appellants. John C. Hayes, Jr., Brian J. Whittaker, NIXON PEABODY LLP, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
WILKINSON, Circuit Judge:

       In this appeal, we determine whether the individual trustees of a charitable trust may

remove the corporate trustee without cause. The individual trustees argue that, while they

could remove the original corporate trustee only for cause, a merger has made this

restriction inapplicable. In contrast, the corporate trustee argues that, by virtue of a merger,

it has inherited both the rights and obligations of the original corporate trustee—including

the right to be free from removal without cause.

       We agree with the corporate trustee, as did the court below. The individual trustees

here lack the power to remove the current corporate trustee without cause. Several related

issues appealed by the individual trustees are also without merit. For this reason, we affirm

the district court’s holdings in full.

                                               I.

                                              A.

       Clarence Plitt, a Maryland resident, executed a will in 1976 and passed away later

that year. In his will, Plitt created the Clarence Manger and Audrey Cordero Plitt Trust (the

“Plitt Trust”), a charitable trust which provides educational institutions with grants to be

used for need-based loans to students. The will named Plitt’s longtime domestic partner

Mary E. McC. Kirgan (“Mary Kirgan”) as individual trustee and the First National Bank

of Maryland (“First National”) as corporate trustee. It further directed that, once Mary

Kirgan stepped down, two individual trustees would serve along with the corporate trustee.

       The will spoke briefly to the individual trustees’ ability to remove the corporate

trustee:

                                               3
       The individual Trustees serving at any time hereunder may by their joint
       action, change any corporate Trustee serving hereunder and appoint a new
       successor corporate Trustee to serve in its place and stead. Such action shall
       be effective upon their delivery of a written instrument to the current
       corporate Trustee evidencing their decision to terminate its position and
       status as corporate Trustee and designating and appointing a new successor
       corporate Trustee.

J.A. 94 (emphasis added). No other references to a “successor corporate Trustee” are found

in the will. See J.A. 90-94.

       Around a decade later, Mary Kirgan and First National jointly petitioned the Circuit

Court for Baltimore City to, among other things, have the will “clarified to provide that the

Corporate Trustee may only be removed ‘for cause.’” J.A. 95-96. The court agreed to this

request, issuing an order—using exact wording suggested by the petitioning parties—

declaring “that the individual Trustees acting jointly pursuant to [the will] do not have the

power to remove the originally named corporate Trustee, except for cause,” (the “1985

order”). J.A. 104; see also J.A. 100.

       A detailed review of First National’s corporate history is not needed to understand

this case. Suffice it to say, for almost two decades after issuance of the 1985 order, Mary

Kirgan and a member of the First National corporate family served without issue as trustees

for the Plitt Trust. Two pieces of information are relevant for our purposes. First, in the late

1990s, First National changed its name to Allfirst Bank. Second, in 2003, Allfirst merged

with the Manufacturers and Traders Trust Company (“M&T Bank”), setting the stage for

the current dispute.

       At the time of the merger, Mary Kirgan remained individual trustee for the Plitt

Trust. She was sent a notice regarding the Allfirst-M&T merger, which informed her that

                                               4
M&T had assumed the position of “successor fiduciary” for the trust and outlined her

ability to object to its appointment. J.A. 107-108. Over a month later, Kirgan’s attorney

sent M&T a letter requesting that the bank “acknowledge and agree that [Kirgan] . . . and

thereafter the successor trustees . . . have the right to replace the corporate trustee including

M&T Bank as co-trustee with or without cause.” J.A. 109-10 (emphasis added). The letter

included specified language to this effect, and requested that M&T include that exact

language in its response. It also indicated that Kirgan would not object to M&T’s

appointment if she received a satisfactory response from the bank.

       Soon after, M&T sent a letter to Mary Kirgan addressing the individual trustees’

removal power. This letter stated that, “[a]t such time as more than one individual co-

trustee is serving, the individual co-trustees, acting jointly, have the power to remove and

replace M&T (or any other successor corporate co-trustee that may be serving from time

to time).” J.A. 114. Notably, M&T’s response did not include Kirgan’s requested language

allowing M&T’s removal “without cause.” Despite this omission, Kirgan did not object to

M&T’s appointment.

       Mary Kirgan passed away the following year. Her children, Mary Anne Kirgan and

Robert Kirgan (“the Kirgans”), became successor individual trustees of the Plitt Trust.

Over a decade later, in 2015 and 2016, M&T raised some concerns about the Kirgans’

management of the trust and compensation level. Soon after, in late 2016, the Kirgans sent

M&T a letter stating that they had elected to remove it as corporate trustee and to replace

it with a local bank. M&T responded that it was “unable to comply” with this request



                                               5
because, under the 1985 order, “the individual Trustees may only remove the Corporate

Trustee for cause.” J.A. 55.

                                              B.

       The Kirgans filed suit in the United States District Court for the Eastern District of

Virginia. They brought five counts: (I) a request for a declaratory judgment that they had

the power to remove M&T as corporate trustee without cause, and had already done so;

(II) alternatively, a request for the court to remove M&T as corporate trustee for cause;

(III) a breach of contract claim, alleging that M&T had violated an agreement it made with

Mary Kirgan in correspondence following the Allfirst merger; (IV) a breach of fiduciary

duty claim; and (V) a fraud claim based on the same conduct underlying the breach of

contract claim. 1 The Kirgans’ complaint concluded with a demand for a jury trial “on all

issues so triable.” J.A. 46.

       The district court resolved Count I in M&T’s favor, holding from the bench that

M&T could not be removed as corporate trustee without cause. The court noted that the

original corporate trustee, First National, could be removed only for cause. It held that

M&T, as a “successor trustee” under Maryland law, had “all of the rights, powers, duties,

and obligations of the original trustee. And so therefore, the removal for cause applies to

the substitute trustee just as it did the original trustee, so the substitute trustee has to be

removed for cause.” J.A. 370-71.



       1
         M&T brought several counterclaims against the Kirgans, which were resolved by
the district court below and are not relevant to this appeal.

                                              6
       Counts III and V, for breach of contract and fraud, were settled in M&T’s favor on

summary judgment. The district court disagreed with the Kirgans’ assertion that the

communications between Mary Kirgan and M&T following the Allfirst merger created a

contract allowing for the bank’s removal without cause. The court found instead that there

was no contract, because “there was never any kind of meeting of the minds or any offer

or acceptance that comes through” in the two relevant letters. J.A. 371. Likewise, the court

disagreed that M&T’s post-merger communications contained false representations,

instead finding “no evidence of any kind of fraud.” J.A. 371.

       The district court held a bench trial on Counts II and IV, the request that it remove

M&T as trustee for cause and the breach of fiduciary duty claim. The court once again

found in M&T’s favor. On Count II, the court held “that M&T’s actions, taken in whole,

do not warrant cause for removal.” J.A. 1049. Similarly, on Count IV, the court found that

M&T did not breach its fiduciary duty.

       The Kirgans now appeal three issues. First, they allege that the district court erred

in holding that they can remove M&T only for cause. Second, they argue that the court

erred by granting summary judgment on the breach of contract and fraud claims. Third,

they claim the court erred by failing to submit the breach of fiduciary duty claim to a jury.

                                             II.

       The Kirgans argue that, under the terms of the will and the 1985 order, they may

remove M&T as corporate trustee without cause. This is a pure question of law, subject to

de novo review. United States v. Hall, 972 F.2d 67, 69 (4th Cir. 1992).



                                             7
       To make their case, the Kirgans first point to the will, which states that the individual

trustees may “change any corporate Trustee serving hereunder and appoint a new successor

corporate Trustee to serve in its place and stead,” seemingly without requiring cause. J.A.

94. They next direct our attention to the 1985 order, which states that the individual trustees

“do not have the power to remove the originally named corporate Trustee, except for

cause.” J.A. 104. The Kirgans argue that the combined effect of these documents is clear—

they can remove any corporate trustee, except First National, without cause.

       The Kirgans’ argument fails for one reason: it ignores that the will and the 1985

order must be interpreted against the backdrop of laws ensuring the continuity of fiduciary

obligations following a merger. These laws show that, by buying out “the Maryland bank

who was the original trustee,” M&T now “stand[s] in the position of the original trustee.”

See J.A. 323. As such, M&T has the same “rights, powers, duties, and obligations” as First

National, including the right to be free from removal without cause. See Md. Code Ann.,

Est. & Trusts § 15-1A-02(b) (West).

       Stepping back for a moment, we note that banks cannot merge their way out of

fiduciary obligations. See, e.g., Md. Code Ann., Fin. Inst. § 3-712(c) (West); Md. Code

Ann., Corps. & Ass’ns, § 3-114(e)-(f) (West); 12 U.S.C. § 215a(e)-(f). The mischief that

could occur if merging banks inherited assets, but not obligations or duties, is self-evident.

This truism, however, operates as a two-way street. Just as banks obtain obligations and

duties through merger, they also obtain corresponding rights and powers. Inherited rights

ultimately dictate the result in this case.



                                               8
       Because Maryland law controls here, we look to it to determine M&T’s fiduciary

status and rights post-merger. Under the Maryland Code Estates and Trusts, M&T is a

“successor fiduciary” of First National. This code defines a “successor fiduciary” to include

“a corporate fiduciary that is substituted for another corporate fiduciary under the

provisions of § 15-1A-02 of this subtitle, by reason of . . . [a] merger.” Md. Code Ann.,

Est. & Trusts § 15-1A-01(h) (West). Here, M&T merged with corporate fiduciary Allfirst,

which was itself successor fiduciary to First National.

       Section 15-1A-02, for its part, outlines the process for such a substitution: “a

successor fiduciary shall be substituted as a fiduciary for its predecessor corporate

fiduciary, immediately upon the adoption of a corporate resolution” to this effect. Md.

Code Ann., Est. & Trusts § 15-1A-02(a). While seeming to concede that M&T is a

successor fiduciary, the Kirgans argue that there is no evidence of a corporate resolution

sufficient to show M&T’s substitution for Allfirst under § 15-1A-02(a).

       This gets it wrong. Section 15-1A-01(h) indicates that substitution can occur “by

reason of . . . [a] merger.” In other words, the merger, and corresponding papers enacting

it, may serve as a corporate resolution of substitution. Any other interpretation—in addition

to violating the basic principle that fiduciary status transfers with mergers—would create

inconsistencies within Maryland law. See, e.g., Md. Code Ann., Fin. Inst. § 3-712(c)

(stating that after a bank merger, “[t]he [combined entity] has the same powers that each

constituent bank had as to any property held in any fiduciary capacity, without any deed,

transfer, or other action”) (emphasis added). Here, documentation of the M&T-Allfirst



                                             9
merger found in the record is sufficient to satisfy the requirements of § 15-1A-02(a). See

J.A. 202-14. 2

       As successor fiduciary, M&T has clearly delineated rights under Maryland law.

Two provisions of the Maryland Code Estates and Trusts are relevant here. The first

provision specifies that, as successor fiduciary, M&T “shall have all the rights, powers,

duties, and obligations of the predecessor corporate fiduciary.” Md. Code Ann., Est. &

Trusts § 15-1A-02(b). This provision makes clear that, under the 1985 order, M&T has the

same right to be free from without-cause removal as predecessor fiduciaries Allfirst and

First National.

       The second provision goes even further. It states that, as successor fiduciary, M&T

“shall be deemed named as fiduciary in any writing, including a will, trust, court order, or

similar document or instrument that names the predecessor corporate fiduciary as fiduciary,

whether executed before or after the successor fiduciary is substituted, unless the writing

expressly provides otherwise.” Md. Code Ann., Est. & Trusts § 15-1A-02(c). Thus, after

the merger, the will must be read to refer to M&T anywhere that First National is named.

In effect, the will now states that, “[t]he original Trustees of this trust shall be THE

MANUFACTURERS AND TRADERS TRUST COMPANY and MARY E. McC.


       2
         Even if more were needed, M&T provided notice of the merger to Mary Kirgan.
Its notice, which referenced Section 15-1A of the Maryland Code Estates and Trusts,
stated: “This is to advise you that effective June 13, 2003, Allfirst Trust Company, National
Association was merged with Manufacturers and Traders Trust Company. By virtue of that
merger, Manufacturers and Traders Trust Company has assumed the fiduciary duties of
Allfirst Trust Company, National Association.” J.A. 107-108. This notice itself appears
sufficient to show a corporate resolution of fiduciary substitution.

                                             10
KIRGAN.” See J.A. 93. The 1985 order clarifies “that the individual Trustees acting jointly

pursuant to [the will] do not have the power to remove the originally named corporate

Trustee, except for cause.” J.A. 104. In sum, § 15-1A-02(c) ensures that M&T, like First

National, cannot be removed without cause.

       Nothing in the will or the 1985 order “expressly provides” that § 15-1A-02(c)’s

naming provision is inapplicable to a successor by merger. When debating this point, the

parties occasionally appear hung up on the semantics of whether M&T is the original

corporate trustee versus whether it should be treated as the original corporate trustee. This

is a distinction without a difference. Maryland law provides that M&T stands in the shoes

of original corporate trustee First National. Nothing in the will or the 1985 order provides

otherwise.

       The Kirgans assert that the will does provide otherwise, by allowing them to remove

a successor corporate trustee without cause. This argument, based on a faulty premise, fails.

No one is arguing that the Kirgans lack the power to remove a “successor corporate

trustee,” as defined by the will, without cause. The problem for the Kirgans is that M&T is

not a “successor corporate trustee” under the terms of the will. The will indicates that a

“successor corporate trustee” is one appointed by the individual trustees after their removal

of the prior corporate trustee. See J.A. 94. M&T does not satisfy this definition, because it

was not appointed by the Kirgans after removal of a prior corporate trustee. Instead, it

inherited its position as trustee through merger.

       M&T’s status as a “successor fiduciary” under Maryland law does not somehow

convert it to a “successor corporate trustee,” subject to removal without cause, under the

                                             11
will. Maryland law ensures the opposite result: by requiring that M&T be treated as the

original corporate trustee, it provides M&T freedom from removal without cause. 3

                                             III.

       The Kirgans next argue that the district court erred in granting summary judgment

for M&T on the breach of contract and fraud claims. “Summary judgment is appropriate

only when there is no genuine issue as to any material fact and the moving party is entitled

to a judgment as a matter of law.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

958 (4th Cir. 1996) (quotation omitted). In our review, we draw all reasonable inferences

in favor of the Kirgans as non-moving party. Roe v. Doe, 28 F.3d 404, 406-407 (4th Cir.

1994). We find, once again, that the district court did not err.

                                              A.

       The Kirgans argue that, after the Allfirst merger, communications between M&T

and Mary Kirgan created a contract allowing the individual trustees to remove M&T as

corporate trustee without cause. The Kirgans follow that, at the very least, these

communications show substantial evidence of a contract such that the breach of contract

claim should have gone to a jury instead of being resolved on summary judgment.

       When granting summary judgment for M&T, the district court described why no

reasonable jury could have found a contract created by the post-merger letters:




       3
         The Kirgans’ assertion that M&T, due to its post-merger communications, is
estopped from arguing that it cannot be removed without cause under the terms of the will
and the 1985 order is discussed infra Section III.

                                              12
       There just isn’t sufficient evidence to make such a finding.
              I think it’s clear after studying both of these letters that these were
       discussions between the parties about the trustee and maybe some other
       issues as well, but there was never any kind of meeting of the minds or any
       offer or acceptance that comes through . . . .

J.A. 371.

       When Mary Kirgan and her attorney reached out to M&T, they requested that the

bank “acknowledge and agree” that the individual trustee or trustees had the power to

remove it “with or without cause.” J.A. 109. Their letter contained specified language to

this effect, and requested that M&T include that exact language in its response.

       M&T’s response did not contain the requested language. Nor did it address the

trustees’ ability to remove the corporate trustee without cause. It acknowledged, instead,

that “[a]t such time as more than one individual co-trustee is serving, the individual co-

trustees, acting jointly, have the power to remove and replace M&T.” J.A. 114. For all

intents and purposes, M&T’s letter tracked language in the will without elaboration; it

certainly did not address without-cause removal or the impact of the 1985 order on the will.

Because there was no meeting of the minds on the individual trustees’ power to remove

M&T without cause, no contract concerning this power was created. See Pavel Enters.,

Inc. v. A.S. Johnson Co., 674 A.2d 521, 531 (Md. 1996).

       Even if there had been a meeting of the minds, there is a second reason to be wary

of finding an enforceable contract here. As discussed supra Section II, the combined effect

of the will and the 1985 order prevents M&T from being removed as corporate trustee

without cause. As such, Mary Kirgan’s letter to M&T after the Allfirst merger was, in



                                            13
effect, a request to modify the terms of the trust. Maryland law, understandably,

discourages trustees from altering the terms of a trust without court involvement.

       Maryland law provides that “ordinarily, trustees should seek prior approval of the

court before deviating from the precise terms of the [trust] instrument.” Gordon v. City of

Baltimore, 267 A.2d 98, 111 (Md. 1970). Further, a court is not required to accept changes

that trustees agree to amongst themselves. Id. This likely explains why, in 1985, the trustees

jointly petitioned the Circuit Court for Baltimore City to modify the terms of the Plitt Trust

rather than attempting to do so themselves through contract.

       Even courts lack the power to modify the terms of a trust unless “facts and

circumstances exist that could not have been foreseen by the testator and that as a result of

that lack of foresight, the beneficiary will suffer loss.” Probasco v. Clark, 474 A.2d 221,

223 (Md. Ct. Spec. App. 1984); see also Shriners Hosps. for Crippled Children v. Md.

Nat’l Bank, 312 A.2d 546, 551-52, 555-56 (Md. 1973). It can hardly be said that bank

mergers are unforeseeable. Nor does granting the individual trustees enhanced removal

power unambiguously support the trust’s beneficiaries and mission. Because a court would

have lacked the power to modify the terms of the Plitt Trust as requested by Mary Kirgan

after the merger, the trustees acting alone certainly would have lacked the ability to do so

through contract.

                                             B.

       The district court did not err by granting summary judgment for M&T on the fraud

claim. This claim, which was based on the same post-merger communications as the breach

of contract claim, must fail for similar reasons. Just as there was no evidence of a meeting

                                             14
of the minds as needed for a breach of contract claim, there is no evidence of a false

representation as needed for a fraud claim. Hoffman v. Stamper, 867 A.2d 276, 292 (Md.

2005). As the district court noted, the post-merger communications simply do not provide

“evidence of any kind of fraud.” J.A. 371. M&T, in response to Mary Kirgan’s letter,

summarized an undisputed provision of the will without elaboration. This is not a false

representation.

       Similarly, M&T is not estopped from arguing that it cannot be removed as corporate

trustee without cause. Because M&T’s communications with Mary Kirgan never promised,

or even suggested, that it could be removed without cause, neither the promissory nor

equitable estoppel requirements are met. Pavel Enters., 674 A.2d at 532; Knill v. Knill, 510

A.2d 546, 549-50 (Md. 1986).

                                             IV.

       Before the district court, the Kirgans asserted that M&T breached its fiduciary duty

under Maryland law. The Kirgans sought compensatory and punitive damages for the

alleged breach. The district court, after conducting a bench trial, found no breach. The

Kirgans argue on appeal that the court erred when it conducted a bench trial on this claim

instead of sending it to a jury. We review a party’s claim that it was denied its right to a

jury trial de novo. Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 827 (4th Cir. 1994). We

conclude here that the district court did not err by holding a bench trial.

       “It is firmly established that the Seventh Amendment right to trial by jury attaches

to civil actions that are legal, not equitable, in nature.” Fowler v. Land Mgmt. Groupe, Inc.,

978 F.2d 158, 163 (4th Cir. 1992). The Kirgans argue that their breach of fiduciary duty

                                             15
claim is legal, despite conceding that their Count II claim—requesting M&T’s for-cause

removal for, in essence, breaching its fiduciary duty—is equitable. The district court held

that the breach of fiduciary duty claim also “lies in equity.” J.A. 371-72. We agree.

       To determine whether a state-created claim is legal or equitable in a diversity case,

we look to federal law, Simler v. Conner, 372 U.S. 221, 222 (1963) (per curiam), which

supplies a two-part test, Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989). First,

we compare the “action to 18th-century actions brought in the courts of England prior to

the merger of the courts of law and equity.” Granfinanciera, 492 U.S. at 42 (quotation

omitted). This first part weighs against the right to a jury trial here, since, as a general rule,

“breach of fiduciary duty claims were historically within the jurisdiction of the equity

courts.” Pereira v. Farace, 413 F.3d 330, 338 (2d Cir. 2005).

        “Second, we examine the remedy sought and determine whether it is legal or

equitable in nature.” Granfinanciera, 492 U.S. at 42 (quotation omitted). This second part

weighs even more strongly against the right to a jury trial than the first. As noted above,

the Kirgans’ breach of fiduciary duty claim arises under Maryland law. A federal court

“adjudicating a State-created right”—such as this one—“solely because of the diversity of

citizenship of the parties . . . cannot afford recovery if the right to recover is made

unavailable by the State.” Guar. Tr. Co. v. York, 326 U.S. 99, 108-109 (1945); see also

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407-408 (2010)

(plurality). We must therefore look to Maryland law to determine the remedies available

for a breach of fiduciary duty claim.



                                               16
       Although the Kirgans purport to seek legal relief, compensatory and punitive

damages, Maryland law dictates that only equitable relief is available for this claim. When

the Kirgans bring a breach of fiduciary duty claim against co-trustee M&T, they do so on

behalf of the trust’s beneficiaries, or, to be more precise here, on behalf of the trust and its

potential beneficiaries. See Appellants’ Opening Br. at 24; see also Killen v. Houser, 210

A.2d 527, 531 (Md. 1965); Restatement (Second) of Trusts § 200 cmts. a, e (1959). As a

result, the Kirgans are bound by the same limitations as a beneficiary bringing a claim

against a trustee. See Killen, 210 A.2d at 531; Restatement (Second) of Trusts § 200; id. at

§§ 197-99.

       Maryland law dictates that “the remedies of the beneficiary against the trustee are

exclusively equitable,” subject to “exceptions . . . [which] arise where the trustee’s duty is

immediately and unconditionally to pay money or to transfer a chattel to the beneficiary.”

Kann v. Kann, 690 A.2d 509, 516 (Md. 1997) (quotation omitted); see also Restatement

(Second) of Trusts § 198. Since neither exception is applicable here, the Kirgans’ breach

of fiduciary duty claim, brought against a trustee under Maryland law, may seek only

equitable relief.

       Because the Kirgans cannot convert an equitable claim into a legal one by seeking

unavailable relief, their breach of fiduciary duty claim is, by default, equitable in nature.

There was no right to a jury trial on this claim.

                                             ***

       For the reasons set forth above, the Kirgans’ appeals lack merit. We thus affirm the

judgment of the district court.

                                              17
     AFFIRMED




18
QUATTLEBAUM, Circuit Judge, concurring in part and dissenting in part:

       I am pleased to join in much of the majority’s analysis. I agree that the district court

properly granted summary judgment in favor of M&T Bank on the breach of contract and

fraud claims. 1 I also agree that the district court did not err in not submitting the breach of

fiduciary duty claim to a jury.

       However, I write separately on the narrow issue of the district court’s declaratory

judgment ruling that the Kirgan children, as individual trustees of the Plitt trust, may only

remove M&T Bank for cause. Because I do not think Maryland fiduciary law compels the

result reached by the district court and because I think Mr. Plitt’s will unmistakably

empowers the individual trustees to remove the corporate trustee with or without cause, I

would reverse the district court on this issue and hold that the Kirgan children may remove

M&T Bank with or without cause.




       1
         While I would affirm the district court’s grant of summary judgment in favor of
M&T Bank on the breach of contract claim, I would do so for a slightly different reason
than the majority. The record indicates that there is a genuine issue of material fact as to
whether Mary Kirgan and M&T Bank reached a meeting of the minds concerning her
removal power in 2003. M&T Bank’s own internal document described an agreement
between Mary Kirgan and M&T Bank to that effect, noting “[r]ather than get involved in
a lawsuit, we signed an agreement that Mrs. Kirgan could remove us as Trustee without
any cause, whereas the previous court order required cause for removal.” J.A. 115. At a
minimum, this evidence raises a genuine issue of material fact as to a meeting of the minds.
However, like the majority, I conclude that, even if there was a meeting of the minds in
2003, Mary Kirgan and M&T Bank could not modify the terms of the will or trust through
contract. Consequently, the district court was correct to grant summary judgment in favor
of M&T Bank on the breach of contract claim.

                                              19
                                               I.

       Before explaining why I would reverse the district court’s declaratory judgment

ruling, some background is in order. I begin, where we should, with the terms of Clarence

Plitt’s will, which authorized the creation of the Plitt trust. Although much attention has

rightly been given to the arguments of the Kirgan children and M&T Bank as trustees, I

fear we have overlooked the original intent of Mr. Plitt—the trust’s creator.

       Mr. Plitt executed his will in 1976. In it, he authorized the creation of the trust for

the laudable purpose of providing grants to educational institutions to make need-based

student loans. In the will, Mr. Plitt outlined the responsibilities of the trustees on a variety

of matters, ranging from the trustees’ role in providing charitable disbursements to

educational institutions to the removal power of the individual trustees at issue here. From

the language of the will, his intent as testator on the issue before us—the ability of the

individual trustees to remove the corporate trustee—is plain. Mr. Plitt intended that the

individual trustees, acting jointly, should be able to remove the corporate trustee with or

without cause. Item Four L. of the will provides that the individual trustees “may by their

joint action, change any corporate Trustee serving hereunder and appoint a new successor

corporate Trustee to serve in its place and stead.” J.A. 94. This provision places only one

limitation on the individual trustees’ removal power—the requirement that the individual

trustees act jointly to remove the corporate trustee. It imposes no additional limitations. It

certainly cannot be read to impose a for cause limitation on their removal power. Perhaps

recognizing the clear language of the will, M&T Bank does not and cannot argue that its

position is supported by Mr. Plitt’s intent as testator. It instead relies solely on the 1985

                                              20
order. Setting aside the effect of the 1985 order for now, under the plain language of the

will, it is clear Mr. Plitt intended that the individual trustees “may by their joint action”

remove the corporate trustee with or without cause.

       To me, starting the analysis with Mr. Plitt’s intent is critical. Under Maryland law,

the paramount concern of a court in interpreting a will is “to ascertain and effectuate the

testator’s intent.” Pfeufer v. Cyphers, 919 A.2d 641, 645 (Md. 2007) (quoting Emmert v.

Hearn, 522 A.2d 377, 379 (Md. 1987)). Ordinarily, the testator’s expressed intent is

discerned from the four corners of the will itself, giving the words of the will their plain

meaning. Id. So far as possible, I believe our decisions concerning the dispute between the

Kirgans and M&T Bank should be made with Mr. Plitt’s intent in mind.



                                               II.

        I turn next to the effect of the 1985 Maryland court order. Almost a decade after

Mr. Plitt died, the originally named individual trustee—Mary Kirgan—and the originally

named corporate trustee—the First National Bank of Maryland—petitioned the Circuit

Court of Baltimore City for the will to be “clarified to provide the Corporate Trustee may

only be removed ‘for cause.’” J.A. 95–96. The reasons for this petition are not clear from

the record. But what is clear is that, while the petitioners claimed to only seek a clarification

of the terms of the will, the effect of the 1985 petition and order is actually a change or a

modification of the terms of the will itself—a change inconsistent with the plain language

of Mr. Plitt’s will.



                                               21
       Importantly, under Maryland law, “[i]t is clear beyond question that subject to rare

exception a court of equity has no power to rewrite or amend a decedent’s will.” Shriners

Hosps. for Crippled Children v. Md. Nat’l Bank, 312 A.2d 546, 573 (Md. 1973) (internal

quotation marks omitted). Likewise, a court may modify a trust only if “facts and

circumstances exist that could not have been foreseen by the testator and that as a result of

that lack of foresight, the beneficiary will suffer loss.” Probasco v. Clark, 474 A.2d 221,

223 (Md. Ct. Spec. App. 1984). Courts have traditionally been reluctant to modify a trust

because they attempt to effectuate the wishes of the settlor, recognizing that a settlor “can

dispose of his property as he likes; his wishes in creating the trust being paramount to the

wishes of the beneficiaries.” Id. The majority summarizes this law well. “Even courts lack

the power to modify the terms of a trust unless ‘facts and circumstances exist that could

not have been foreseen by the testator and that as a result of that lack of foresight, the

beneficiary will suffer loss.’” Maj. Op. at 14 (quoting Probasco, 474 A.2d at 223).

       Despite the high standard of giving priority to the intent of the testator or settlor in

modifying the terms of the will or the trust, the Maryland court granted the petition of Mary

Kirgan and the First National Bank of Maryland. It declared that “the individual Trustees

acting jointly pursuant to Item Four L. of the Last Will and Testament of Clarence M. Plitt

do not have the power to remove the originally named corporate Trustee, except for cause.”

J.A. 104.

       Frankly, I have concerns about whether the 1985 order properly falls within the

standards set forth under Maryland law for modifying wills and trusts. But that issue is not

before us and, in the interest of comity, I do not challenge the validity of that state court

                                              22
order. Nevertheless, in resolving the dispute that is before us, the 1985 order should be

construed narrowly in light of Mr. Plitt’s intent and the general presumption against

modifications of wills and trusts under Maryland law. 2 With these considerations in mind,

I turn to district court’s holding that the will, as modified by the 1985 order, provides that

M&T Bank may only be removed for cause.



                                              III.

         The district court’s holding appears to be largely based on provisions of Maryland

estates and trust law. The court first found that M&T Bank was a “successor trustee” under

Maryland law. J.A. 370. It then found that M&T Bank, as a successor trustee, should be

substituted for First National Bank of Maryland in the will and in the modification of the

will set forth in the 1985 order. Accordingly, the district court held the will, as modified,

provides that the Kirgan children do not have the power to remove M&T Bank, except for

cause.

         Although the district court did not explain its reasoning in detail, it seemed to rely

on Section 15-1A-02 of the Maryland Code, Estates and Trusts, which was enacted in 1989,



         2
         An additional reason for narrowly construing the 1985 order can be found in Item
One of Plitt’s will, which provides “I direct that no Court of Law or Equity shall take or
have any jurisdiction pertaining to the administration of my estate or the trust created
hereunder other than as may be required by law; and in the event that the said estate or trust
become subject to the jurisdiction of such court in connection with any particular matter, I
desire that jurisdiction to cease and terminate after the court has decided or resolved that
matter.” J.A. 90.


                                               23
thirteen years after Mr. Plitt executed his will, in reaching this conclusion. 3 Three

provisions of Section 15-1A-02 are potentially relevant to the district court’s analysis. First,

Section 15-1A-02(a) provides, “a successor fiduciary shall be substituted as a fiduciary for

its predecessor corporate fiduciary, immediately upon the adoption of a corporate

resolution by both the successor fiduciary and the predecessor corporate fiduciary

providing for the substitution.” Md. Code Ann., Est. & Trusts § 15-1A-02(a). Second,

Section 15-1A-02(b) provides a successor fiduciary “shall have all the rights, powers,

duties, and obligations of the predecessor corporate fiduciary.” Md. Code Ann., Est. &

Trusts § 15-1A-02(b). And third, Section 15-1A-02(c) provides a successor fiduciary “shall

be deemed named as fiduciary in any writing, including a will, trust, court order, or similar

document or instrument that names the predecessor corporate fiduciary as fiduciary,

whether executed before or after the successor fiduciary is substituted, unless the writing

expressly provides otherwise.” Md. Code Ann., Est. & Trusts § 15-1A-02(c).

       But under Section 15-1A-02, M&T Bank should not be substituted for the

“originally named corporate Trustee” in the 1985 order. First, the statute was enacted

thirteen years after Mr. Plitt’s will was executed and four years after the 1985 order was

issued. Generally, under Maryland law, statutes are presumed to apply prospectively unless

the legislature clearly expresses an intent that the statute apply retroactively. See Pautsch

v. Maryland Real Estate Comm’n, 31 A.3d 489, 509 (Md. 2011). Section 15-1A-02



       3
        The district court appeared to invoke the language of Section 15-1A-02(b) in
reaching this holding.

                                              24
contains no express language applying the statute retroactively. Consequently, I question

its retroactive application to a will and an order that substantially pre-dates its date of

enactment.

       Second, even if that statute applies to the will and the order, the district court did

not give proper consideration to subsection (c), which provides that a successor fiduciary

should not be substituted for a predecessor fiduciary if “the writing expressly provides

otherwise.” Md. Code Ann., Est. & Trusts § 15-1A-02(c). The will and the 1985 order

expressly provide otherwise, especially when the two documents are construed together.

       Mr. Plitt’s will distinguishes between categories of trustees. Some portions of the

will broadly reference corporate trustees and individual trustees generally. See J.A. 94.

These broad references can be construed to include not only the identified, original trustees

but also any future trustees. However, other portions of the will reference specific,

identifiable trustees, such as the original corporate trustee—the First National Bank of

Maryland. See J.A. 93. Thus, through its own terms, the will distinguishes between broad

categories of present and future trustees and more specific categories of present,

identifiable trustees.

       These distinctions are important in interpreting the 1985 order, which for the reasons

discussed above, should be construed narrowly. As previously noted, the 1985 order

modified Item Four L. of the will, which provides that “[t]he individual Trustees serving

at any time hereunder may by their joint action, change any corporate Trustee serving

hereunder and appoint a new successor corporate Trustee to serve in its place and stead.”

J.A. 94. This provision references a broad category of corporate trustees, encompassing

                                             25
not only the present corporate trustee but also any future corporate trustees, such as M&T

Bank. The 1985 order modified this provision to provide that “the individual Trustees

acting jointly pursuant to Item Four L. of the Last Will and Testament of Clarence M. Plitt

do not have the power to remove the originally named corporate Trustee, except for cause.”

J.A. 104. In contrast to the will’s broad language, the 1985 order expressly limited its effect

to a single, identifiable trustee—the originally named corporate trustee, the First National

Bank of Maryland. The district court’s decision that M&T Bank should be substituted for

the originally named corporate trustee fails to give proper consideration to the very narrow

modification of the will declared in the 1985 order.

       The significance of this narrow modification is highlighted when compared to Mary

Kirgan and the First National Bank of Maryland’s petition to the Baltimore court. They

petitioned the court to clarify that Item Four L. of the will allowed “the Corporate Trustee”

to be removed only for cause. J.A. 96. In other words, they sought a broad modification

that would apply to any corporate trustee, not just the originally named corporate trustee.

Had the Baltimore court granted that request, the district court might have been correct

here. 4 But the court declined to adopt such a broad modification, limiting the “for cause”

modification to the “originally named corporate Trustee.” J.A. 104. This narrow language

expresses an intent that the requirement of cause for removal—which once again is

contrary to the original language of Mr. Plitt’s will—only apply to the originally named



       4
         Of course, granting that request would be even further at odds with Mr. Plitt’s
intent and might, for that reason, be questionable under Maryland law.

                                              26
corporate trustee. Thus, the 1985 order should be viewed as exclusively applying to the

First National Bank of Maryland and not to any other corporate trustee. Whether or not

M&T Bank is a successor trustee or a successor fiduciary, it certainly was not the originally

named corporate trustee. To substitute M&T Bank for the originally named corporate

trustee would conflict with the express and specific language in the 1985 order.

       Given the will’s careful distinctions between categories of trustees, the 1985 order’s

narrow language and the history of the 1985 petition, I would conclude that the will and

1985 order, taken together, expressly provide that M&T Bank should not be substituted for

the First National Bank of Maryland in the will or 1985 order. To be sure, the 1985 order

could have been more specific. For example, it could have said that that only the First

National Bank of Maryland may be removed for cause and any successor fiduciary to it by

virtue of a merger may be removed with or without cause. But Section 15-1A-02(c), even

if it applies, cannot be expected to require such precision, especially with respect to

documents executed years before the statute’s effective date. Reading the will and 1985

order together, and giving proper deference to the intent expressed by Mr. Plitt, the 1985

order applies only to the First National Bank of Maryland. M&T Bank may be removed

with or without cause under the terms of the will.



                                            IV.

       My view on the powers of the individual trustees to remove the corporate trustee is

not and should not be construed as an endorsement of the conduct of the Kirgan children

or as opposition to the conduct of M&T Bank. Likewise, it should not be construed as a

                                             27
limitation on the obligations of fiduciaries under Maryland law. Indeed, those issues are

not before us. The key issue to me is that we give proper respect to the intent of Mr. Plitt

as expressed in the plain language of his will. Mr. Plitt intended that the individual trustees

be able to remove the corporate trustee with or without cause. And because Maryland law

does not compel a contrary result, I would seek to effectuate Mr. Plitt’s intent and reverse

the district court and hold that the Kirgans may remove M&T Bank with or without cause.




                                              28
