411 Mass. 410, 582 N.E.2d 949
In 1972, Helen Nesmith, with assistance from her cousin Frederic T. Greenhalge II, prepared a document entitled “MEMORANDUM.”1 This document listed forty-nine specific bequests of her tangible personal property.2 In 1976, she modified that list by interlineations, additions, and deletions.3 Neither edition mentioned the large oil painting of a farm scene signed by T.H. Muckley and dated 1833 that hung above the fireplace in her mother’s bedroom.4
Helen Nesmith executed her will in 1977.5 The will named Greenhalge as executor of her estate.6 The will further identified Greenhalge as the principal beneficiary of her tangible personal property except for items she might designate by a memorandum left by her and known to him or in accordance with her known wishes.7 She kept a plastic-covered notebook titled “List to be given Helen Nesmith 1979” in the drawer of a desk in her study.8 She periodically wrote entries in it, including one that read “Ginny Clark farm picture hanging over fireplace. Ma’s room.”9
Her private nurses Imogene Conway and Joan Dragoumanos observed her writing in the notebook.10 They heard her state that the farm scene painting was to go to Virginia Clark.11 Virginia Clark and Helen Nesmith had been close friends since approximately 1940.12 Clark frequently visited the room containing the painting.13
In January or February 1980, Nesmith told Clark that the painting would belong to her after Nesmith’s death.14 She said she would record the gift in the notebook she kept for that purpose.15 Nesmith executed two codicils to her will on May 30, 1980, and October 23, 1980.16 These codicils ratified the will in all other respects.17
Nesmith died on January 28, 1986.18 Greenhalge received the notebook shortly after her death.19 He distributed property in accordance with the will, the 1972 memorandum, and some notebook entries.20 He refused to deliver the farm scene painting to Clark because he wanted to keep it for himself.21 He accepted other bequests to himself that appeared in the notebook.22 Clark then commenced an action in probate court seeking delivery of the painting.23
The probate judge found that Nesmith wanted Clark to have the painting.24 The judge also found that the notebook was in existence when the 1980 codicils were executed.25 The Appeals Court affirmed the probate judge’s decision in an unpublished memorandum and order.26 The Supreme Judicial Court granted further appellate review.27
Whether the notebook maintained by the testatrix was incorporated by reference into her will through the language of Article Fifth?28
A properly executed will may incorporate by reference into its provisions any document or paper not so executed and witnessed, whether the paper referred to be in the form of a mere list or memorandum, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein.29
Yes. The notebook was in existence at the time of the execution of the 1980 codicils, which ratified the language of Article Fifth in its entirety.30 The notebook reflected Helen Nesmith's known wishes with respect to the distribution of her tangible personal property, including the farm scene painting to Virginia Clark.31 The language of Article Fifth permitted memoranda to guide Greenhalge in distributing the property, and the notebook met that description as a written instrument intended to guide the distribution.32
The notebook was incorporated by reference into the will.33