SAI DARAVANH v. REBECCA AMARAL, Conservator.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-582

SAI DARAVANH

vs.

REBECCA AMARAL, conservator.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed a complaint in equity in the Probate

and Family Court against the defendant for (1) money had and

received and (2) gift causa mortis. The plaintiff appeals from

the dismissal of her claim for money had and received2 and the

denial of her motion for summary judgment. We affirm the

dismissal and thus do not reach the issue of summary judgment.

Background. We recite the undisputed facts, drawn from the

complaint and elsewhere in the record. The plaintiff lived with

her partner, Donald J. Swanbon, from 2012 until his death in

1 Of Donald J. Swanbon.

2The plaintiff does not raise the issue of the dismissal of
her second claim, gift causa mortis, so we do not address it.
2023. In 2014, Swanbon listed the plaintiff as his sole

beneficiary on his Individual Retirement Account (IRA), which

was managed by Edward Jones Investments (Edward Jones). In

February 2022, the defendant was appointed Swanbon's

conservator. Beginning in or around October of that year, the

defendant began the process of withdrawing $75,000 in funds from

Swanbon's IRA to cover home hospice care and medical expenses.

On December 30, 2022, Edward Jones initiated the transfer of

funds to the defendant's conservator account with Rollstone Bank

& Trust (Rollstone account).

On January 1, 2023, before the funds were credited into the

defendant's account, much less expended for Swanbon's care,

Swanbon passed away at his home. Two days later, on January 3,

2023, the funds were credited into the Rollstone account. A

judge of the Probate and Family Court appointed a temporary

special personal representative for Swanbon's estate, and the

defendant completed a first and final accounting of all assets

to be transferred to the estate. The remaining balance of

Swanbon's IRA was paid directly to the plaintiff as the

account's beneficiary.

The plaintiff, claiming that the unspent $75,000 held in

the Rollstone account belonged to her as the beneficiary of the

IRA, demanded that the defendant turn over the funds directly to

her. When this did not occur, the plaintiff filed suit against

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the defendant in equity for (1) money had and received and

(2) gift causa mortis. The plaintiff moved for summary judgment

pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), seeking

title to the $75,000 that had been withdrawn from the IRA to

cover Swanbon's hospice care, but, due to his death, was never

expended. The defendant subsequently filed a motion to dismiss

the complaint for failure to state a claim upon which relief can

be granted pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass.

754 (1974), and for failure to include Swanbon's estate as a

necessary party pursuant to Mass. R. Civ. P. 12 (b) (7), 365

Mass. 754 (1974).

After a hearing, the judge denied the plaintiff's motion

for summary judgment and allowed the defendant's motion to

dismiss the complaint without prejudice. In a written decision,

the judge reasoned that the defendant's fiduciary duty and

powers as conservator had terminated on Swanbon's death and, as

a result, the defendant had no authority over the funds.

Moreover, the judge found that, although the disbursed funds

were never spent for hospice care, they were still withdrawn

from the Edward Jones account while Swanbon was alive, and thus

not subject to disbursement to the plaintiff. Finally, the

judge reasoned that while the plaintiff may be able to establish

herself as a creditor against the estate, the amended complaint

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sought judgment against the past conservator (the defendant) and

not the personal representative of Swanbon's estate.

Discussion. We first review the judge's dismissal of the

plaintiff's complaint pursuant to Mass. R. Civ. P. 12 (b) (7)

for failure to include Swanbon's estate as a necessary party.3 A

party is considered necessary when, in their absence, "complete

relief cannot be accorded among those already parties."

Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974). "Generally, a

court will not proceed to a final determination without an

indispensable party." Guardianship of Wilson, 496 Mass. 60, 64

(2025). "Parties are indispensable when their interests in the

subject matter of the suit, and in the relief sought, are so

bound up with that of the other parties, that their legal

presence as parties to the proceeding is an absolute necessity,

without which the court cannot proceed" (quotation and citation

omitted). Id.

Here, the relief the plaintiff seeks would affect the

rights of nonparties significantly, such that their presence in

the proceeding is an absolute necessity. The factual allegation

3 The plaintiff also argues that the judge erred in
dismissing her complaint under Mass. R. Civ. P. 12 (b) (7)
because the special personal representative cannot be a
necessary party to the action when his powers over the estate
were limited and he never entered an appearance on the
complaint. This argument is not persuasive because the person
identified in the judge's order represented Swanbon's estate,
not the temporarily appointed special personal representative.

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that forms the basis for the plaintiff's theory of recovery is

that Swanbon died prior to the disbursal of the funds from the

IRA account. She argues that she is "entitled thereto" to the

funds, and that the defendant should have transferred them to

her pursuant to G. L. c. 190B, § 5-424 (e).4 That subsection

states, "If a protected person dies, the conservator shall . . .

retain the estate for delivery to a duly appointed personal

representative of the decedent or other persons entitled

thereto." G. L. c. 190B, § 5-424 (e).5

Our courts have not had occasion to determine who qualifies

as a "person entitled thereto," under the statute, but we need

not reach this question. In order to determine whether the

defendant was required to deliver the funds in question to the

4 We note that the plaintiff, who was represented by
counsel, entered into a binding agreement with Swanbon's heirs
regarding the division of the estate. The agreement was
detailed and specific, and it included the resolution of such
items as the distribution of the proceeds from the sale of
Swanbon's home, reimbursement for funeral expenses, and title to
personal items and vehicles. In that agreement the plaintiff
agreed that if the current motion for summary judgment was not
allowed, "any monies that remain in question and retrieved will
be considered property of the estate. The estate may become a
party to that action if it so chooses."

5 We note here the paradox inherent in the plaintiff's
argument. Subsection (e) gives the conservator the obligation
to deliver the estate. If the funds became part of the estate,
they were no longer part of the IRA, and the plaintiff had no
claim to them. If the funds remained outside the estate, the
defendant had no authority to deliver them to anyone under § 5-
424 (e).

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plaintiff, the lower court would first need to determine whether

the plaintiff was "entitled" to them.6 This determination would

affect the rights of the estate, which presently stands to

receive the funds. As such, it is a necessary party to any such

action. See Guardianship of Wilson, 496 Mass. at 64.7 Complete

relief cannot be accorded among the current parties because the

plaintiff's dispute is with the estate, while the defendant has

no legal interest in the funds. See G. L. c. 190B, § 429 (d).8

Next, the plaintiff claims that dismissal was not warranted

because the defendant improperly altered the estate plan without

permission from the Probate and Family Court when she withdrew

the funds from the IRA. She argues that G. L. c. 190B, § 5-426,

required the conservator to seek the Probate Court's approval

before transferring the funds from Swanbon's IRA. We are not

persuaded. General Laws c. 190B, § 5-426, merely provides that,

in exercising her authority over a protected person's assets

6 Nothing in the language of the statute suggests a
conservator has the power to determine who is entitled to a
decedent's property where title is disputed.

7 To the extent the plaintiff argues the transaction from
Edward Jones to the defendant's Rollstone account should not
have been completed due to Swanbon's death, her dispute would
alternatively be with Edward Jones, rather than the defendant.
Under that theory, Edward Jones would be a necessary party.

8 Because we affirm the dismissal pursuant to Mass. R.
Civ. P. 12 (b) (7), we need not address the question of whether
the plaintiff stated a claim under Mass. R. Civ. P. 12 (b) (6).

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pursuant to G. L. c. 190B, § 5-424 (a)-(b), "the conservator

. . . shall take into account any estate plan . . . and any

contract." In her complaint, the plaintiff made no allegation

that the defendant's initiation of the withdrawal was improper

while Swanbon remained alive. Indeed, the complaint

specifically acknowledges the transaction was lawful. Any

argument that the defendant impermissibly altered the estate

plan in withdrawing the funds is therefore waived. Century Fire

& Marine Ins. Corp. v. Bank of New England-Bristol County, N.A.,

405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued

below may not be argued for the first time on appeal"). To the

extent the plaintiff argues the defendant altered the estate

plan by failing to return the funds to the IRA after Swanbon's

death, that argument is misplaced. General Laws c. 190B, § 5-

426, governs the exercise of a conservator's powers under G. L.

c. 190B, § 5-424 (a)-(b), whereas G. L. c. 190B, § 5-424 (e),

governs a conservator's duties upon the death of the protected

person.

Even if we were to reach the merits of the plaintiff's

argument, she would not prevail. Under G. L. c. 190B, § 5-

424 (a), a conservator has the statutory authority to " expend or

distribute income or principal of the estate without court

authorization or confirmation for the support, education, care,

or benefit of the protected person." It is undisputed that the

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defendant withdrew the $75,000 from Swanbon's IRA to cover

hospice care and medical expenses and did not remove or alter

the beneficiaries on the account. Although the funds were not

spent for their intended use (hospice care), the withdrawal was

a valid exercise of the defendant's authority under G. L.

c. 190B, § 5-424 (a).

In sum, the plaintiff failed to join necessary parties

pursuant to Mass. R. Civ. P. 12 (b) (7). Because relief cannot

be granted without the joinder of additional parties, dismissal

of the second amended complaint was warranted.9

Judgment affirmed.

By the Court (Meade, Neyman &
Walsh, JJ.10),

Clerk

Entered: November 20, 2025.

9 We decline the defendant's request for fees pursuant to
G. L. c. 190B, § 5-413, and G. L. c. 215, § 45. The question of
whether Swanbon's estate has an obligation to pay the
defendant's fees under G. L. c. 190B, § 5-413, is not relevant
to the matter before us.

10 The panelists are listed in order of seniority.

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