529 N.E.2d 890 (Mass. App. Ct. 1988)
Kathleen Juliet McDonough executed a will in 1975 which she had prepared herself.1 In pertinent part, the will gave all of her property first to her sister Helen McDonough Cooper of West Tisbury, Massachusetts.2 Should her sister predecease her, the will gave all of the property to her nephews Marshall John McDonough, Junior, of Tisbury, Massachusetts and David Condon McDonough, of Manchester, Massachusetts, and to her niece Martha McDonough Sullivan, of said Tisbury, Massachusetts, in equal shares, that is one-third to each.3
Marshall John McDonough, Jr., David Condon McDonough, and Martha McDonough Sullivan were the children of the testatrix's brother Marshall.4 All three lived near the testatrix, visited with her often, and spent family occasions with her.5 The will contained no residuary clause other than the second paragraph and made no provision for the testatrix's two other nieces, Helen M. Jones and Corrine M. Austin, children of the testatrix's brother Percival.6
Percival and his daughters resided some distance away from the testatrix, and they saw the testatrix infrequently, if at all, due to a long-standing family feud.7 The testatrix was predeceased in 1979 by her nephew Marshall, Jr., and in 1981 by her sister Helen.8 Neither Marshall, Jr., nor Helen left any issue.9 The testatrix made no will or codicil subsequent to the deaths of either her nephew or her sister and died in 1984.10
Martha and David, the surviving legatees under the second clause of the will, brought an action in the Probate Court against Martha, in her capacity as executrix, seeking a declaration that the devise to them was as a class.11 Helen and Corrine, nieces of the testatrix who claimed an interest in the estate as heirs at law, were permitted to intervene as defendants.12 The probate judge permitted witnesses to take the stand and testify on behalf of Martha and David as to extrinsic matters but put off until a later time a ruling upon the competence of the testimony.13
After trial, the judge made several findings based on the testimony, indicating that he accepted its content as substantially true.14 However, he also denied Martha’s and David’s motion in limine by means of which they had sought permission to introduce the extrinsic evidence.15 The Massachusetts Appeals Court reversed the decision of the Probate Court.16
Whether the will was ambiguous on its face regarding whether the second clause created a class gift or gifts to the named individuals?17
To determine whether a will is clear on its face as to a class gift or gifts to named individuals, a court examines provisions such as the use of specific names and equal shares language suggesting individual gifts against indications that the named persons form a natural class, that the clause serves as a residuary clause, and that the testatrix intended to avoid intestacy.18
Yes. Kathleen Juliet McDonough executed a will in 1975 that she prepared herself. The will gave all her property first to her sister Helen McDonough Cooper. Should the sister predecease her, the property was to go to the three children of her brother Marshall, namely Marshall John McDonough Junior, David Condon McDonough, and Martha McDonough Sullivan, in equal shares of one-third each.
The three legatees lived near the testatrix and visited with her often, spending family occasions together. In contrast, the testatrix's other nieces, Helen M. Jones and Corrine M. Austin, children of her brother Percival, lived some distance away and saw the testatrix infrequently due to a long-standing family feud. The will made no provision for these other nieces.
Marshall Junior died in 1979 and the sister Helen died in 1981, neither leaving issue. The testatrix did not make a new will or codicil after these deaths and died in 1984.
Martha and David brought an action in the Probate Court against Martha as executrix seeking a declaration that the devise was as a class. Helen and Corrine intervened as defendants claiming as heirs at law. The probate judge ruled the will unambiguous and the gifts to individuals, so the lapsed share passed by intestacy.
The use of the three names in the second clause and the reference there to equal shares, that is one-third to each, is suggestive of an intention to make gifts to individuals.19 On the other hand, the nephews and niece, all of the children of one of the testatrix's brothers, form a natural class.20 Moreover, the second clause is the residuary clause in the will, and there is no indication in the will as a whole of an intent to benefit anyone other than the named individuals.21 Also, it is fair to assume that the testatrix, having drawn a will, desired to avoid intestacy.22 From these conflicting indications, the will is not clear on its face.23
The will was ambiguous on its face regarding whether the second clause created a class gift or gifts to the named individuals.
Whether the probate judge should have considered extrinsic evidence of the circumstances known to the testatrix and her relationships with potential beneficiaries?24
When a will is not clear on its face, the judge is required to consider properly offered evidence of the circumstances known to the testatrix around the time she executed the will and the state of her feelings towards the claimants.25 This evidence helps determine whether subjectively the testator considered the persons named as a class.26
Yes. Because the will was ambiguous on its face as shown by the conflicting indications in the second clause, the probate judge was required to consider extrinsic evidence of the circumstances known to the testatrix and her relationships with the potential beneficiaries.27 The judge permitted witnesses to testify on behalf of Martha and David as to extrinsic matters.28 He made findings accepting the content as substantially true.29
Yet he denied the motion in limine and ruled extrinsic evidence inadmissible for an unambiguous will.30 The evidence was material to whether the testatrix subjectively viewed the named persons as a class given their close relationship and the estrangement from the other nieces.31
The probate judge should have considered extrinsic evidence of the circumstances known to the testatrix and her relationships with potential beneficiaries.32
Whether the uncontroverted evidence of the testatrix's relationships required a finding on the intended nature of the gift?33
To determine whether a gift is to a class or to individuals, the inquiry is whether subjectively the testator considered the persons named as a class.34 Extrinsic evidence of the circumstances and state of knowledge of the testator and his feelings for the claimants is considered significant in resolving the issue.35
Yes. The uncontroverted evidence depicted a close, generous and loving relationship between the testatrix and the named niece and nephews.36 It also showed the absence of any relationship between the testatrix and Corrine and Helen due to both distance and estrangement.37 There was also evidence that the nephew Marshall, Jr., who predeceased the testatrix, was forty-six years old and in good health at the time the will was drawn in 1975.38
The testatrix therefore had little reason to expect him to predecease her.39 The evidence required a finding that the testator intended to make a gift to the nephews and niece named in the will's second paragraph as a class.40 The names were likely used to limit the beneficiaries rather than the broader term nieces and nephews.41 The equal shares language clarified the shares among the class members.42
The uncontroverted evidence of the testatrix's relationships required a finding that the gift was intended as a class gift to the named nephews and niece.43