Roth v. Newpol

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16-P-715 Appeals Court

ROBERT ROTH1 vs. JOSEPH NEWPOL, executor,2 & another.3

No. 16-P-715.

Suffolk. March 15, 2017. - May 31, 2017.

Present: Grainger, Massing, & Desmond, JJ.

Devise and Legacy, Residuary interests, Intestacy, Construction
against intestacy. Real Property, Tenancy in common.
Words, "Monies."

Complaint filed in the Suffolk Division of the Probate and
Family Court Department on January 23, 2014.

The case was heard by Virginia M. Ward, J., on motions for
summary judgment.

Rebecca P. McIntyre for the defendants.
Michael C. Fee (Scott M. Zanolli also present) for the
plaintiff.

1
As personal representative of the estate of Philip E.
Shakir.
2
Of the estate of Evelyn Shakir.
3
George Ellenbogen.
 2

MASSING, J. The only issue in this appeal is whether a

residuary clause in the last will and testament of Evelyn

Shakir, disposing of "any monies remaining in [her] estate,"

encompassed her one-half interest in the house in the West

Roxbury section of Boston (property) where her brother, Philip

Shakir, lived before his death. The plaintiff, representing

Philip's estate, contends that Evelyn's will did not devise her

interest in the property and, therefore, that it passed by

intestate succession to Philip, her only heir.4 The defendants -

- Joseph Newpol, who is Evelyn's executor, and her life partner,

George Ellenbogen -- contend that Evelyn's one-half share in the

property passed to Ellenbogen through the will's residuary

clause. On cross motions for summary judgment on the

plaintiff's complaint to quiet title, a judge of the Probate and

Family Court held that Evelyn died intestate as to her interest

in the property, that Philip acquired Evelyn's interest by

intestate succession, and that Philip's estate now possesses

sole legal title to the property. We affirm.

Background. The property consists of the family home where

Evelyn and Philip grew up. When their mother died in 1990, they

each inherited a one-half interest in the property as tenants in

common. Philip, who lived with his mother until her death,

4
Because they share a surname, we refer hereafter to Evelyn
Shakir and Philip Shakir by their first names to avoid
confusion.
 3

continued to reside at the property for the remainder of his

life.

Evelyn and Ellenbogen were English professors and writers.

In 1988, they bought a house in West Roxbury, where they lived

together until Evelyn's death in 2010. Ellenbogen drafted

Evelyn's will using a model that a colleague had provided to

him. Evelyn executed the will about six weeks before she died.

Philip died approximately two years later, in 2012.

The will. The will does not mention the property, and we

do not speculate as to the reason for this omission. See Boston

Safe Deposit & Trust Co. v. Buffum, 186 Mass. 242, 243 (1904)

(duty of court is "to construe the will which the testator has

made, not to speculate on [her] intentions and make a will for

[her]"). The defendants contend that the will nonetheless

accounts for the property in the clause captioned "Residuary

estate" in Article 2 of the will. The "cardinal rule for the

construction of wills" is "that the intention of the testator is

to be ascertained from the whole instrument, attributing due

weight to all its language, considered in the light of the

circumstances known to [her] at the time of its execution and,

when so ascertained, that it be given effect unless some

positive rule of law forbids." Sutherland v. Flaherty, 1 Mass.

App. Ct. 388, 390 (1973). See Boston Safe Deposit & Trust Co.
 4

v. Wilbur, 431 Mass. 429, 433 (2000). Accordingly, we turn to

the language and organization of Evelyn's will.

After a brief discussion of funeral arrangements in

Articles 1A and 1B, Article 2, entitled "Disposition of

property," begins with "specific bequests" that Evelyn directs

"be made from my estate (which consists of investments at

Fidelity, . . . TIAA-CREF . . . and Bank of America)." She

starts with an "outright gift" of $20,000 to the Virginia Center

for the Creative Arts (VCCA). Of "the remaining cash assets,"

which total approximately $500,000, Evelyn directs that $150,000

be kept in trust to provide annual income of up to $8,000 for

Philip, with "the remaining corpus of funds" to be paid to VCCA

upon Philip's death. Another $150,000 is to go to Ellenbogen,

with "that amount" to be paid to VCCA upon his death. Next

comes a of list of specific dollar amounts "of the gross estate"

to be paid to specified individuals and charities: one gift in

the amount of $500, four in the amount of $5,000, and eleven in

the amount of $10,000. Her automobile and personal property are

left to Ellenbogen.

The provision immediately after the specific bequests reads

as follows:

"B. Residuary estate

"I direct that any monies remaining in my estate be given
to my partner, George Ellenbogen, and, upon his death, to
the Virginia Center for the Creative Arts, identified as
 5

the Evelyn Shakir and George Ellenbogen (grant,
scholarship, center, or some similar designation)."

The remainder of Article 2 consists of an unlabeled paragraph

with instructions for the "proprietorship over [Eveyln's]

manuscripts, books, and other personal possessions"; paragraph

"C," assigning to Ellenbogen full title to the house that he and

Evelyn shared; and paragraph "D," concerning the disposition of

a Cape Cod property that Evelyn shared with Philip.5

The remainder of the will includes three brief paragraphs

(Articles 3 through 5) regarding the nomination of the executor,

the executor's powers, miscellaneous provisions, and signatures,

none of which illuminates the issue before us.

Does "monies" include real property? A typical residuary

clause uses language such as, "I give, devise and bequeath all

the rest, residue and remainder of my estate," Matteson v.

Walsh, 79 Mass. App. Ct. 402, 408 n.7 (2011), or "[a]ll the rest

and residue of my estate real, personal or mixed, wherever it

may be found," Meyerowitz v. Jacobovitz, 263 Mass. 47, 49

(1928).6 To support their claim that Evelyn intended "monies" to

5
"I urge that the property that I share with my brother,
Philip, on Sheep Pond in Brewster, be bequeathed to Henry and
Yayoi Rosenkrantz, with the proviso that they will not assume
ownership during his lifetime and that my partner, George
Ellenbogen, be permitted to stay at the property when he
chooses."
6
The Web site Findlaw.com recommends the straightforward
"rest of my estate." See http://estate.findlaw.com/wills/
 6

mean all her remaining property of any description, including

her interest in the property, the defendants select a definition

of "money" from Black's Law Dictionary 1157 (4th ed. 1951): "In

its more comprehensive and general sense, it means wealth, --

the representative of commodities of all kinds, of lands, and of

everything that can be transferred in commerce."7

This definition, however, is a secondary definition. For

its primary definition of "money," the same source states, "In

usual and ordinary acceptation it means gold, silver, or paper

money used as circulating medium of exchange, and does not

embrace notes, bonds, evidences of debt, or other personal or

real estate." Ibid. Moreover, in subsequent editions, Black's

Law Dictionary omits the secondary definition and abandons the

broad meaning of the term. See, e.g., Black's Law Dictionary

sample-basic-will-annotated.html [https://perma.cc/22MC-8R2N]
("Usually, the residuary clause begins, 'I give all the rest,
residue, and remainder of my estate . . .' because lawyers are
afraid to change tried-and-true formulas, and for decades, legal
documents never used one word when a half-dozen would do.
However, this plain-English form will also work").
7
See Flower v. Dort, 260 S.W.2d 685, 688 (Tex. Ct. Civ.
App. 1953) ("In its more comprehensive sense 'money' means
wealth, the representative of commodities of all kinds. It is
accordingly often popularly used as equivalent to 'property,'
and when the intention of the testator so to use it is manifest,
it may include all kinds of property, real and personal");
Estate of Breckenridge, 56 Ill. App. 3d 128, 131 (1978) ("In its
broad sense, it means 'wealth,' and is often so used in common
parlance; e.g., 'the moneyed class,' which may possess real
estate, chattels, stocks, bonds, etc., in addition to specie and
paper; to be 'in the money,' meaning 'wealthy,' 'flush,'
loaded,' with all manner of assets").
 7

1005 (6th ed. 1990) ("In usual and ordinary acceptation it means

coins and paper currency used as circulating medium of exchange,

and does not embrace notes, bonds, evidences of debt, or other

personal or real estate"); Black's Law Dictionary 1158 (10th ed.

2014) ("1. The medium of exchange authorized or adopted by a

government as part of its currency . . . . 2. Assets that can

be easily converted to cash . . . . 3. Capital that is invested

or traded as a commodity . . . . 4. Funds; sums of money").

Our case law has also eschewed the broader meaning. See

Parker v. Iasigi, 138 Mass. 416, 423-424 (1885) (noting that

"[n]o case has been found by the research of counsel in which

the word 'moneys' has been held sufficient to include real

estate," and holding that the term "moneys" as used in a

disputed will was not intended to include an interest in real

estate). In Salter v. Salter, 338 Mass. 391, 393 (1959),

construing the term "funds," the court noted, "Although in

certain circumstances the term has been construed to include

real estate, . . . ordinarily it is used to describe an

accumulation of money or collection of securities set apart and

held for a definite purpose." Accordingly, the court held that

a residuary clause disposing of "[a]ny funds remaining after the

settlement of my estate" did not dispose of real estate not

mentioned in the will. Id. at 393-394.
 8

In our view, the rule of thumb in these circumstances is

that "money" should be construed as commonly understood, unless

"a reading of the whole will produces a conviction that the

testator must necessarily have intended" the broader meaning.

Metcalf v. First Parish in Framingham, 128 Mass. 370, 374

(1880). The rule has been aptly set forth as follows:

"The popular and well understood meaning should be given to
the word 'money,' when used in a will, unless from a
consideration of the entire instrument, it appears that it
was intended by the testator to have a broader meaning.
Only where the context of the will and the circumstances
surrounding its execution require it will the word 'money'
be construed in the broad sense of wealth or property
instead of the narrow sense of cash only" (footnote
omitted).

80 Am. Jur. 2d Wills § 1088, at 314 (2013). See Sweet v.

Burnett, 136 N.Y. 204, 208 (1892) ("But certainly no such

violent extension of the word ['money'] beyond its normal and

proper meaning can ever be justified unless the intention to so

use it is clearly manifest on the face of the will and put

beyond all reasonable doubt"); Christ's Home v. Mattson, 140

N.J. Eq. 433, 436 (1947) ("It is well settled by the greater

weight of respectable authority that 'money' means money and

money only unless there is in the context of the will something

to indicate that the testator intended a more extended

meaning").

Nothing in the language or context of Evelyn's will

supports the broader interpretation. The residuary clause
 9

follows Evelyn's description of "my estate," consisting of

approximately $520,000 held in three investment or bank

accounts. After an "outright gift" of $20,000, Evelyn leaves

$300,000 of "the remaining cash assets" to Philip and

Ellenbogen. These gifts are followed by a list of fifteen

specific bequests "of the gross estate," in varying dollar

amounts. Then, after thus disposing of $440,500 out of

approximately $520,000 of the estate, Evelyn directs that "any

monies remaining in the estate" go to Ellenbogen. She then

accounts for the disposition of her books and manuscripts, her

home, and the Cape Cod property she owned with Philip. The

placement8 and language of the residuary clause leave us with the

firm conviction, shared by the motion judge, that when Evelyn

referred to "monies remaining in my estate" she had no intention

to refer to an interest in real property not otherwise accounted

for in the will (emphasis added). See Christ's Home, supra ("It

has been said repeatedly, the [c]ourt's main concern is not so

much what the testator meant to say as it is to determine what

[she] meant by what [she] did say").9

8
The clause "appears in an odd position," Fishman v.
Fishman, 2 Mass. App. Ct. 348, 349 (1974), only if it is meant
to operate as a general residuary clause. It is in a natural
position if it is intended to account for any money remaining in
the estate.
9
The defendants argue that the caption of the residuary
clause, "Residuary estate," supports a broader interpretation
 10

We are cognizant of the presumption against intestacy,

under which "a construction of a will resulting in intestacy is

not to be adopted unless plainly required; and it is to be

presumed that when a will is made the testator intended a

disposition of all [her] property and did not intend to leave an

intestate estate." Lyman v. Sohier, 266 Mass. 4, 8 (1929).

"Notwithstanding the presumption, it is well settled that a

testator's estate passes by intestacy when the plain language of

the will requires such a result." Flannery v. McNamara, 432

Mass. 665, 670 n.5 (2000).

Nothing in the language or the circumstances surrounding

Evelyn's execution of the will, which occurred when Philip was

still alive and living in the property, illuminates Evelyn's

intent with respect to her interest therein. "[I]f a reading of

the whole will produces a conviction that the testator must

necessarily have intended an interest to be given which is not

bequeathed or devised by express or formal words, the court must

supply the defect by implication and so mould the language of

because, "[a]s English professors and writers, Evelyn and George
[Ellenbogen] would have selected a title that described in
concise fashion what Article 2B was about." One might equally
expect English professors and writers to be precise in their
choice of words, and not to have written "monies" if they meant
"anything else." See Strunk & White, The Elements of Style 21
(4th ed. 2000) ("If those who have studied the art of writing
are in accord on any one point, it is on this: the surest way
to arouse and hold the reader's attention is by being specific,
definite, and concrete").
 11

the testator as to carry into effect as far as possible the

intention which it is of opinion that [she] has sufficiently

declared." Fitts v. Powell, 307 Mass. 449, 454 (1940).

However, this rule does not apply when "[t]here is nothing in

the will that makes it certain what the testator desired to do

in the contingency that has arisen." Ibid., quoting from Bailey

v. Bailey, 236 Mass. 244, 247 (1920).

Judgment affirmed.