Jalkut v. Quincy

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

23-P-391 Appeals Court

THOMAS P. JALKUT, trustee,1 vs. CITY OF QUINCY & others.2

No. 23-P-391.

Norfolk. January 8, 2024. – April 30, 2024.

Present: Milkey, Massing, & Neyman, JJ.

Collateral Estoppel. Judgment, Preclusive effect. Trust,
Charitable trust, Assets of trust. Deed, Construction.
Real Property, Deed, Ownership. Municipal Corporations,
Property. Practice, Civil, Judgment on the pleadings.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 4, 2019.

Motions to intervene and to amend the complaint were heard
by Kimberly S. Budd, C.J.

Following transfer to the Superior Court Department, the
case was heard by Paul D. Wilson, J., on a motion for judgment
on the pleadings.

1 Of the Adams Temple and School Fund. Thomas P. Jalkut was
substituted as successor trustee in the place of the original
plaintiff, James R. DeGiacomo. To avoid confusion, we refer to
DeGiacomo as the successor trustee and to Jalkut as the current
trustee.

2 The Woodward School for Girls, Inc.; Quincy Historical
Society; and the Attorney General.
2

James S. Timmins, City Solicitor, for city of Quincy.
Nelson G. Apjohn for the plaintiff.
John C. Blessington for The Woodward School for Girls, Inc.

MILKEY, J. This is the latest chapter of a long-running

saga regarding the administration of certain gifts that

President John Adams made in 1822. See DeGiacomo v. Quincy, 476

Mass. 38 (2016); The Woodward Sch. for Girls, Inc. v. Quincy,

469 Mass. 151 (2014) (Woodward School). The current dispute

involves the ownership of an acre and a half parcel located at 8

Adams Street in the city of Quincy (city). The competing

claimants to title are the Adams Temple and School Fund (Adams

Fund) and the city, which formerly served as trustee of the

Adams Fund. In 2019, the person who succeeded the city as

trustee of the Adams Fund (successor trustee) sought judicial

approval to sell the land. The city moved to intervene,

claiming that the parcel in question was never part of the Adams

Fund. While that dispute was playing out, the city recorded an

order of taking that seized the property by eminent domain.

Although the city's taking resolved who owns the property going

forward, it did not fully moot the dispute, because resolution

of the city's claim that it already owned the property prior to

the taking obviously is critical to how much just compensation,

if any, the Adams Fund is owed. Following an assented-to

substitution of trustees, a Superior Court judge allowed the
3

current trustee's motion for judgment on the pleadings based on

the preclusive effect of earlier litigation that had treated the

property as part of the Adams Fund. Because we agree with the

judge that the ownership of the property already had been

adjudicated, we affirm.

Background. 1. The deeds. By an initial deed dated June

29, 1822, President Adams transferred to the city two

"[p]astures" that he had acquired.3 It is undisputed that such

land was given to the city in trust to fund the building of a

Congregational "Temple to be built of stone, to be taken from

the premises," as well as of a "School for the teaching of the

Greek and Latin languages, [and] arts and sciences." In a

related transaction that occurred a month later, President Adams

deeded various additional parcels to the city, including one to

be used as the actual site of the school referenced in the

earlier deed. The second deed specified that the "School

House," like the church, was to be constructed of stone, and

that the building "shall be erected over the cellar which was

under [a particular] house," the historic nature of which the

deed chronicled in flowery detail, including the house's

3 For simplicity, we refer to Quincy as a city even though
for much of the relevant time period, it remained a town.
4

significance as the birthplace of John Hancock.4 The deed also

spelled out in detail President Adams's personal thoughts about

the curriculum to be taught at the school, including a prolonged

discussion of the merits of learning Latin, Greek, and Hebrew.

The property in dispute traces to this second deed.

2. The Adams Academy. President Adams died on July 4,

1826, and decades went by before his wish for a school on his

former land became a reality.5 In 1870, a granite schoolhouse

was constructed at 8 Adams Street, and a private school known as

4 According to the deed, the house whose cellar would be
used to build the new school was:

"anciently built by the Rev. Mr. John Hancock, the father
of John Hancock, that great generous[,] disinterested,
bountiful benefactor of his country, once President of
Congress, and afterwards Governor of this State, to whose
great exertions and unlimited sacrifices this nation is so
deeply indebted for her independence and present
prosperity, who was born in this house; and which house was
afterwards purchased and inhabited by the reverend,
learned, ingenious, and eloquent Lemuel Bryant, Pastor of
this congregation; which house was afterwards purchased
[and] inhabit[ed] by an honorable friend of my younger
years, Col. Josiah Quincy, and also inhabited by his son,
Josiah Quincy Junior[,] a friend of my riper years, a
brother barrister at law, with whom I have been engaged in
many arduous contests at the Bar, who was as ardent a
patriot as any of his age, and, next to James Otis, the
greatest orator."

5 Under the deeds, the "temple" was to be constructed first,
with the school to be constructed only once sufficient
additional funds had been generated from trust assets. The
church, which became First Parish Church, was completed in 1828.
According to the city, sufficient income to build the school did
not accumulate until much later.
5

the Adams Academy opened there two years later. Hence, the

parcel has become known as the Adams Academy property. Sadly,

the school closed in 1907. The granite school building still

stands, and it has been designated a national historic landmark.

3. The cy pres actions. The demise of the Adams Academy

left the Adams Fund without a designated beneficiary. In 1918,

a single justice of the Supreme Judicial Court issued a decree

that, by application of the cy pres doctrine, allowed the city

to use income from the Adams Fund for its public high school and

public library. In 1953, however, the city brought another cy

pres action to designate The Woodward School for Girls (Woodward

School) as the income beneficiary of the Adams Fund.6

4. The Quincy Historical Society lease. The Woodward

School has its own campus and therefore does not itself occupy

the Adams Academy property. In 1972, with the express prior

approval of a single justice of the Supreme Judicial Court, the

city leased the Adams Academy building and property to the

Quincy Historical Society for a term of fifty years.7 The

monthly rent was a nominal $100.

6 The Woodward School was founded by Dr. Ebenezer Woodward,
a cousin of John Adams. Following President Adams's example,
Dr. Woodward in 1894 left property in trust to the city to
generate income and eventually establish a school for girls.

7 The Quincy Historical Society was founded by Charles
Francis Adams, Jr., the great-grandson of President Adams and
6

5. The Woodward School litigation. Over time, the

Woodward School became concerned that it might not be receiving

the beneficence to which it legally was entitled. In part, this

related to the fact that the repurposing of the Adams Academy

building to a different public end had the effect of limiting

the income that the property would generate for the designated

beneficiary. In 2007, the school brought an accounting action

against the city, in its capacity as trustee of the Adams Fund,

regarding its administration of the Adams Fund (Woodward School

litigation or Woodward case).8 The school later amended its

action to add a claim that the city had breached the fiduciary

duties it owed to the school.

Following extensive fact-finding by a special master and a

thirteen-day trial, a Probate and Family Court judge ruled in

favor of the Woodward School. Finding that the city had

breached its fiduciary duties to the school in its

administration of the trust assets, the final judgment removed

the city as trustee of the Adams Fund, and appointed the

successor trustee in its place.

the grandson of President John Quincy Adams. See National Park
Service, Charles Francis Adams (1807-1886),
https://www.nps.gov/adam/learn/historyculture/charles-francis-
adams-1807-1886.htm [https://perma.cc/4QQ5-G5E5].

8 The litigation also involved the city's administration of
a separate fund that had been created by a bequest from Charles
Francis Adams, Sr., for the support of the Adams Academy.
7

In ruling in favor of the Woodward School, the probate

judge issued 220 paragraphs of findings. One does not have to

delve deeply into those findings to see that the judge

unquestionably viewed the Adams Academy property as an asset of

the Adams Fund that President Adams had placed in trust by

operation of the second 1822 deed; this is established by the

opening paragraphs.9 In fact, the judge went on to treat the

Adams Academy parcel not only as a trust asset, but as "the most

valuable asset in the Adams Temple and School Fund." The judge

found that the city had breached its fiduciary duties to the

Woodward School in several respects, including by "its

effectuating a 50 year lease [for the Adams Academy parcel] to

the Quincy Historical Society." The judgment enjoined the city

from renegotiating the terms of that lease prior to the

successor trustee's assuming that role, and it expressly

9 In paragraphs two and three of the findings, the judge
expressly found that by means of the first 1822 deed, "President
Adams conveyed a portion of his real estate holdings into a
trust," and that by means of the second 1822 deed, "President
Adams made a further conveyance into the trust." Then, in
paragraph four, the judge found that "by said two deeds, as of
July 27, 1822, President John Adams had conveyed into a trust,
which trust was thereafter referred to as the 'Adams Fund,' and
later the 'Adams Temple and School Fund,' one hundred and sixty-
one and a half acres of land, plus two additional parcels of
land of unknown acreage, in Quincy and Braintree."
8

recognized that the new trustee could sell the Adams Academy

property thereafter.10

The city appealed, arguing in part that the judge's finding

that it had breached its fiduciary duties was erroneous in some

respects. See Woodward School, 469 Mass. at 153. The city did

not argue that the judge erred in treating the Adams Academy

property as part of the Adams Fund, and, in any event, the city

lost its appeal as to liability. Id. The city prevailed with

respect to damages, and the damages award was modified on remand

(with no further appeal taken).

6. The DeGiacomo litigation. The fifty-year lease under

which the Quincy Historical Society was occupying the Adams

Academy property was not due to expire until 2022. In 2014, the

successor trustee filed an action seeking to rescind that lease

and seeking restitution (DeGiacomo litigation). See DeGiacomo,

476 Mass. at 40. In that action, the successor trustee sought

to rely on the fact that the probate judge in the Woodward

School litigation already had determined that the city had

10While making it clear that he was "not, in any manner,
directing the successor Trustee to sell the Adams Academy
property," the judge noted that "[t]he present rate of return on
the property is approximately 0.00064 percent." The judgment
also stated that "[t]he successor Trustee should, over the
coming years, take such action as is prudent with regard to the
property in keeping with the interests of the income beneficiary
while preserving, to the greatest extent possible, the historic
and unique nature of the Adams Academy."
9

breached its fiduciary duties by entering into that lease. Id.

Together with the Quincy Historical Society, the city defended

the action by pointing to the fact that its entering into the

lease specifically had been authorized by the 1972 judgment

issued by a single justice of the Supreme Judicial Court. Id.

Thus, the parties raised dueling claims of issue preclusion.

After grappling with the fact that the Attorney General, but not

the Woodward School, had been a party to the 1972 litigation,

the Supreme Judicial Court ruled in favor of the city. Id. at

42-49. The court reasoned that the city was entitled to rely on

the preclusive effect of the 1972 judgment, because the very

purpose of that litigation "was to protect the trustee from any

subsequent claim that it had committed a breach of its fiduciary

duty by executing the lease." Id. at 49.

7. The current action. In 2019, the successor trustee

filed a new equity action seeking judicial approval to sell the

Adams Academy property subject to the lease. The city sought to

intervene in that action claiming -- for the first time -- that

it, not the successor trustee, actually owned title to the

property. In support of that claim, the city pointed to

differences in the wording of the two 1822 deeds: the first

deed included express trust language, while the second one

deeded the property "to the inhabitants of the town of

Quincy . . . in their corporate capacit[ies]." As a result, the
10

city argued, the land itself was given to the city in ordinary

fee simple free of the trust, and only the Adams Academy

building (which had been built with trust income) was a trust

asset. The city maintained that the judgment entered in the

Woodward School case therefore did not transfer title to the

Adams Academy property to the successor trustee and that title

instead remained with the city.

A single justice of the Supreme Judicial Court denied the

city's motion to intervene after concluding -- in light of the

judgment in the Woodward School case -- that the city's claim to

title of the Adams Academy property was barred by issue

preclusion. While the city's interlocutory appeal of the denial

of its motion to intervene was pending, the city recorded its

order of taking. This prompted the successor trustee to move to

amend his complaint. The single justice allowed that motion

and, in doing so, she specified that her earlier ruling on the

city's motion to intervene should not be viewed as a definitive

resolution of whether the city was precluded from raising its

new claim that it held title to the land portion of the Adams

Academy property.11 She transferred the matter to the Superior

11Specifically, the single justice stated as follows:
"Although I denied the city's motion to intervene on the basis
that it is precluded from raising the ownership issue, my order
did not focus on the distinction between ownership of the
11

Court, with the directive that a judge there resolve "whether

ownership of the land was definitively adjudicated in the

earlier litigation and whether the city is thus precluded from

relitigating the matter."

In the Superior Court, the successor trustee filed a new

complaint that named the city as a defendant, and the city filed

a counterclaim that asserted its claim of title to the land

portion of the Adams Academy property. As noted, the current

trustee filed a motion for judgment on the pleadings based on

issue preclusion and related grounds.12 In a thoughtful and

comprehensive opinion, the Superior Court judge ruled in the

current trustee's favor, and a judgment declaring that the Adams

Fund was the legal owner of the property, including the land,

entered accordingly.

Discussion. If viewed as an original matter, the city's

claim that it held title of the Adams Academy property prior to

the taking would not be without some force. The two 1822 deeds

executed less than a month apart do indeed utilize quite

building and ownership of the land, the latter of which is now
the key issue in dispute."

12The current trustee also argued claim preclusion and
judicial estoppel. The judicial estoppel argument was based on
the city's having successfully defended the DeGiacomo litigation
by arguing that the 1972 decree authorized the city to lease the
Adams Academy property in its capacity as trustee. Given how we
rule, we need not reach those alternative grounds.
12

different language, thereby providing some support for an

argument that a different form of ownership was intended. Cf.

Boston Safe Deposit & Trust Co. v. Wilbur, 431 Mass. 429, 433-

434 (2000) (deriving intent of testator from use of certain

language in one part of will and omission of such language in

another). At a minimum, it is not immediately clear why the

grantor here -- among the most storied legal draftsmen in

Massachusetts history -- chose different language in the two

deeds.13 This is not to say that the interpretation of the

second 1822 deed that the city now offers necessarily would have

prevailed had the city timely raised it.14 In the end, we need

not resolve that debate, because we agree with the Superior

Court judge that it is too late for the city to assert that

President Adams did not transfer the Adams Academy property into

the Adams Fund.

13Adams's reputation for legal draftsmanship was
principally forged in areas outside of conveyancing practice.

14We note that the city appears to acknowledge that it was
given some trust-like duties with respect to the Adams Academy
property even if the property was not formally held in trust.
See American Inst. of Architects v. Attorney Gen., 332 Mass.
619, 624 (1955) (property not formally held in trust may still
be subject to "quasi trust"). We additionally note that the
city's position that the legal effect of the second deed was the
neat result that the city would own the land while the Adams
Fund would own the building lacks some degree of doctrinal
coherence.
13

Before turning to the elements of issue preclusion, we

address the fact that the judgment did not, by its express

terms, transfer the deed to the Adams Academy property to the

successor trustee. But nor did that judgment order the city to

transfer any other property held in the Adams Fund to the

successor trustee. Rather, it is plain that the judgment

presupposed that the substitution of trustees by itself was

sufficient to effect a transfer of title to trust assets.15 The

city has not argued that such a transfer could have been

accomplished only by separate transaction.16 Rather, the

gravamen of the city's argument is that the Adams Academy

property was never a trust asset to begin with but instead was

15This is well illustrated by how the judgment handled a
different parcel of trust land. One of the disputes at the
trial of the Woodward School case involved a small parcel known
as the Vigoda property. That property was a net drain on city
resources, and the city in fact disclaimed that it owned it in
trust. The probate judge found that the city did own that
property in trust and that it in fact had violated its fiduciary
duties by retaining it. By way of relief, the judge ordered the
successor trustee to deed the property back to the city (thus
allowing the Adams Fund to shed a property that had a negative
income). This presupposed that the appointment of the successor
trustee would transfer title from the city to the successor
trustee by operation of law.

16At common law, the mere appointment of a successor
trustee was not deemed sufficient to transfer title to property
held in trust. See Glazier v. Everett, 224 Mass. 184, 187
(1916), citing Peabody v. Eastern Methodist Soc'y in Lynn, 5
Allen 540 (1863). That principle since has been eroded by
statute. Glazier, supra at 187-188. We need not address this
issue further because no party has raised it, and it therefore
long since has been waived.
14

held by the city outside of the Adams Fund. We turn to whether

that issue was resolved by prior litigation.

To establish issue preclusion, a litigant must demonstrate

the following: "(1) there was a final judgment on the merits in

the prior adjudication; (2) the party against whom preclusion is

asserted was a party . . . to the prior adjudication; and

(3) the issue in the prior adjudication was identical to the

issue in the current adjudication, was essential to the earlier

judgment, and was actually litigated in the prior action"

(quotation and citation omitted). DeGiacomo, 476 Mass. at 42.

The city argues that the third prong was not met, because title

to the Adams Academy property was not at issue in, or decided

by, the Woodward School litigation. Instead, the city

maintains, the dispute over title arose only later when the

successor trustee sought to sell the property. We are

unpersuaded.

As laid out above, the Woodward School brought the 2007

litigation for an accounting of the Adams Fund assets and for

breach of the city's fiduciary duties with respect to those

assets. Hence, central to both types of claims was the question

of what assets held by the city were subject to the trust. The

judge specifically found that the Adams Academy property was a

trust asset, and the judgment expressly recognized the successor
15

trustee's ability to sell that very parcel. The issue the city

now seeks to contest was decided.

We recognize that the DeGiacomo court declined to recognize

the full preclusive effect of the judgment entered in the

Woodward School litigation, and that it, in effect, allowed the

city to mount a collateral attack on that judgment insofar as it

related to the leasing of the Adams Academy property. See

DeGiacomo, 476 Mass. at 40-41. However, we view the import of

that aspect of the DeGiacomo case as limited to the special

circumstances presented there in which a trial court judge

adjudicated a legal question in a way that the court viewed as

at odds with an earlier judgment issued by a single justice of

the Supreme Judicial Court. Id. at 49. It was under those

unusual circumstances that the DeGiacomo court held that the

preclusive effect of the earlier judgment trumped the preclusive

effect of the subsequent one. Id. In the appeal before us,

unlike in DeGiacomo, the city is unable to point to any similar

reason why the preclusive impact of the judgment in the Woodward

School litigation should be ignored.

We conclude by pausing to reflect on where the matter now

stands. In 2011, the trial judge in the Woodward School case

observed that: "[w]ere he to be with us today, President Adams

would, most assuredly, not be pleased with the events of the

past fifty-seven years." Now, three appeals later, one can only
16

imagine how chagrined President Adams might be that the legal

dispute over his gifts continues unabated. We recognize that

today's ruling resolves only the narrow issue presented to us;

much remains unresolved, including the amount of just

compensation that the city owes the Adams Fund for the Adams

Academy property. We express no view on how the potentially

difficult issues subsumed by that question should be resolved.

As we sit in the court house that bears President Adams's name,

we are left simply to urge the parties to pursue final

resolution of this matter with the public-spiritedness that he
long exemplified.17

Judgment affirmed.

17Arguing that the city's appeal was frivolous, both the
current trustee and the Woodward School have requested that we
require the city to pay reasonable attorney's fees they incurred
in defending it. See Mass. R. A. P. 25, as appearing in 481
Mass. 1654 (2019). We are not unsympathetic to those requests,
and we view the particular legal arguments put forward by the
city as relatively weak. Viewing all relevant considerations,
however, we ultimately decline to order sanctions. For one
thing, although the ultimate issue we need decide is relatively
straightforward, it lies embedded within a dispute of historic
complexity. For another, strictly speaking, it was the
successor trustee who ultimately pressed for resolution of the
city's new argument. Having already convinced the single
justice that issue preclusion precluded the city from
intervening, it was the successor trustee who moved to amend his
complaint to take on the city's claim.