Heard: March 15, 2017
filed in the Suffolk Division of the Probate and Family Court
Department on January 23, 2014.
case was heard by Virginia M. Ward, J., on motions for
Rebecca P. Mclntyre for the defendants.
Michael C. Fee (Scott M. Zanolli also present) for the
Present: Grainger, Massing, & Desmond, JJ.
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. 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.
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, continued
to reside at the property for the remainder of his life.
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.
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. v.
Wilbur, 431 Mass. 429, 433 (2000) . Accordingly, we
turn to the language and organization of Evelyn's will.
brief discussion of funeral arrangements in Articles 1A and
IB, 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 ...