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Roth v. Newpol

Appeals Court of Massachusetts, Suffolk

May 31, 2017

ROBERT ROTH [1]
v.
JOSEPH NEWPOL, executor, [2] & another. [3]

          Heard: March 15, 2017

         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. Mclntyre for the defendants.

          Michael C. Fee (Scott M. Zanolli also present) for the plaintiff.

          Present: Grainger, Massing, & Desmond, JJ.

          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, 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. 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 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 ...


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