# Phipps v. Barbera

> Massachusetts Appeals Court · October 10, 1986 · 23 Mass. App. Ct. 1

URL: https://www.frixlaw.com/law-library/cases/9737236

## Case

- **Full name:** Janice E. Phipps, Executrix, vs. Kathy Barbera & Others
- **Court:** Massachusetts Appeals Court
- **Decided:** October 10, 1986
- **Citations:** 23 Mass. App. Ct. 1; 498 N.E.2d 411; 1986 Mass. App. LEXIS 1849
- **Precedential status:** Published
- **Opinion:** Concurrence by Warner
- **Judges:** Brown, Smith, Warner
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737236

## Opinion text

Warner, J.
(concurring). I write in concurrence only to point to the paradox were we to hold that the burden of persuasion for the MFA was “beyond a reasonable doubt.” A complaint for instructions may properly be brought only where a fiduciary harbors reasonable doubt as to the interpretation of an instrument or his duties under it. See Hill v. Moors, 224 Mass. 163, 165 (1916) (“In cases of doubt as to what the law is and what their conduct ought to be under it, [trustees] are entitled to instruction and direction from the court. . . . Unless a petitioner for instructions has real and serious doubts as to his duty, and the advice of the court is required for his protection and the discharge of his trust, the court is without jurisdiction to entertain such a petition.”); Restatement (Second) of Trusts § 259, comment b (1959) (“The trustee is not entitled to instructions as to his powers or duties, unless there is a reasonable doubt as to the extent of his powers or duties.”); 3 Scott, Trusts § 259 (3d ed. 1967) (“There are situations ... in which the court will refuse to give instructions to the trustee. No instructions will be given where there is no reasonable doubt as to his duties and powers.”); Bogert, Trusts and Trustees § 559 (rev. 2d ed. 1980) (“The court will not advise the trustee as to his powers where they are clearly fixed by the trust instrument or by common or statute law, but only in cases of real difficulty where there is an honest doubt after a careful reading of the instrument and the procurement of legal advice from counsel.”); Loring, Trustee’s Handbook § 48 (Farr rev. 1962) (“In practice, tile courts are sympathetic to the problem of the trustee and will seek to help him in any case where a bona fide doubt or controversy exists. The trustee cannot simply lay the burden of his office upon the court; the court will not instruct him just because he is ignorant and does not know his duty or what the *9 law is. In such case, the court may tell him to take legal advice. There must be a reasonable doubt as to duties or powers.”). The imposition of a burden of persuasion beyond a reasonable doubt would, of course, render all such questions unresolvable.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737236. Public record. Not legal advice.