Roth v. Newpol
AC 16-P-715
| Mass. App. Ct. | May 31, 2017Background
- Evelyn and her brother Philip each owned a one-half tenancy-in-common interest in the family West Roxbury home inherited from their mother.
- Evelyn executed a will ~6 weeks before her 2010 death; the will did not mention the West Roxbury property.
- The will identified Evelyn's estate largely as cash/investment accounts (≈ $520,000) and made specific cash bequests, set up trusts for cash amounts, and left personal property and another house expressly.
- Article 2B (captioned "Residuary estate") stated: "I direct that any monies remaining in my estate be given to my partner, George Ellenbogen..."
- Philip died in 2012; the plaintiff (personal representative of Philip’s estate) sued to quiet title asserting Evelyn’s one-half interest passed by intestacy to Philip because "monies" did not include real property.
- Probate judge granted summary judgment for the plaintiff; Appeals Court affirmed, holding "monies" did not encompass Evelyn’s real estate interest and thus passed by intestacy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the residuary phrase "any monies remaining in my estate" devised Evelyn's 1/2 interest in the West Roxbury property | "Monies" should be read narrowly as cash/assets in bank/investments; real estate not devised, so interest passed intestate to Philip | "Monies" can be construed broadly to mean "wealth" or "property," so the residuary clause covers the real property interest and passes it to Ellenbogen | Held for plaintiff: "monies" construed in ordinary sense (cash); did not include real property, so Evelyn died intestate as to that interest and it passed to Philip by intestacy |
Key Cases Cited
- Boston Safe Deposit & Trust Co. v. Buffum, 186 Mass. 242 (rule: court construes the will as written)
- Boston Safe Deposit & Trust Co. v. Wilbur, 431 Mass. 429 (testator's intent governs construction of will)
- Matteson v. Walsh, 79 Mass. App. Ct. 402 (example of typical residuary clause language)
- Meyerowitz v. Jacobovitz, 263 Mass. 47 (residuary clause should expressly include real, personal, or mixed property when intended)
- Parker v. Iasigi, 138 Mass. 416 (historical rule: "moneys" not sufficient to include real estate)
- Salter v. Salter, 338 Mass. 391 (term like "funds" ordinarily denotes cash/securities, not real estate)
- Metcalf v. First Parish in Framingham, 128 Mass. 370 (word "money" given its ordinary meaning unless broader intent clearly appears)
- Lyman v. Sohier, 266 Mass. 4 (presumption against intestacy)
- Flannery v. McNamara, 432 Mass. 665 (plain language of will controls even against presumption)
- Fitts v. Powell, 307 Mass. 449 (court may imply a disposition only when the will clearly demonstrates the testator's intent)