431 Mass. 429 | Mass. | 2000
The plaintiff, Boston Safe Deposit and Trust Company (Boston Safe), as trustee of a trust established by the will and codicils of George B. Wilbur (testator), brought a complaint for declaratory judgment to determine the proper interpretation and distribution of the trust. Boston Safe sought to determine whether the testator, by use of the term “representatives” in the trust, intended to include Carla M. Wilbur (Carla), the adopted daughter of the testator’s grandson, George n, as an individual entitled to proceeds from the trust.
1. Factual background. We summarize the undisputed facts appearing in the summary judgment record. The testator died in 1914 leaving a 1904 will, amended by two codicils in 1906 and 1913, all of which were drafted by the law firm of Adams & Blinn. The testator had four children by his first wife, Hannah,
When the testator executed the second codicil to his will in 1913, two of his daughters, Clara and Mabel, were childless and apparently beyond childbearing years. The testator had five grandchildren, Alice (Mary’s daughter), George II, Mabel, Bessie, and Charles, Jr. (Charles, Sr.’s children).
Article Sixth of the second codicil, which revoked Article Fourth and Seventeenth of the original will, is the critical provision in this dispute because it established the trust under consideration in this case.
Article Sixth (B)(c) established the trust in dispute, which was intended for the benefit of Charles, Sr., the testator’s son. The trust provided that on the death of Charles, Sr. and his wife, the trustee was to pay all the income to the children of Charles, Sr. “and the representatives of any deceased child, share and share alike, the latter taking by right of representation.” The principal of the trust was to be distributed twenty-
George II was the last surviving child of Charles, Sr. He died on April 4, 1976, and was survived by his wife Barbara and his adopted daughter Carla. In his will, George II made specific bequests to Carla and Barbara and left the residue of his estate to Barbara. Barbara died on June 14, 1977, leaving a will and testamentary trust under which Carla was the sole beneficiary.
The question before us is whether in the trust established in Article Sixth (B)(c) for the benefit of Charles, Sr. and his children, when the testator directed that income and principal be paid to “the representatives of any deceased child, share and share alike, the latter taking by right of representation,” he intended that Carla share in the income or principal of the trust. Carla argues that the testator used the word “representatives” in the will to mean statutory distributees i.e., one to whom a fiduciary distributes personalty under our laws of descent and distribution. See Harrison v. Stevens, 305 Mass. 532, 536 (1940). Carla claims that as the adopted daughter of George II she is one of his statutory distributees and is therefore entitled to both income and principal under the trust. Boston Safe contends that the testator used the term “representatives” to mean “issue” (i.e., lineal descendants) and that therefore Carla, as an adopted daughter of the testator’s grandson, is not entitled to either income or principal under this construction. In order to resolve this dispute, we must first determine the meaning of “representatives” intended by the testator and then whether that
2. Meaning of the term “representatives.” In determining the meaning of the term “representatives,” the “fundamental rule for the construction of wills is to ascertain the intention of the testator from the whole instrument, attributing due weight to all its language, considered in the light of the circumstances known to him at the time of its execution and to give effect to that intent unless some positive rule of law forbids.” Lockwood v. Adamson, 409 Mass. 325, 328 (1991), quoting Fitts v. Powell, 307 Mass. 449, 454 (1940). Based on our review of the indicia of the testator’s intent, we conclude that the term “representatives” means statutory distributees.
A comparison of the language of the original will with that of the second codicil illuminates the testator’s intent. The second codicil revoked Articles Fourth and Seventeenth of the original will and replaced them with Article Sixth. Article Seventeenth provided that each of the testator’s children would receive a share of the residue of his estate and that, if any of the children predeceased the testator, that child’s “issue” would receive that child’s share. Article Fourth (d) of the original will established a trust for the benefit of Charles, Sr. and used the term “representatives” to describe those who would take trust income and principal after Charles, Sr.’s death. Article Sixth (B)(c) of the second codicil essentially replicated the terms of Article Fourth (d), which used the term “representatives” to describe who should receive trust income and principal after Charles, Sr.’s death. After the second codicil, the term “issue” no longer appeared in the testator’s will.
Given the testator’s knowledge and use of the specific term “issue” in Article Seventeenth, in contrast to his use of the term “representatives” in Article Fourth, it appears that the testator knew the precise language necessary to identify lineal descendants (i.e., issue) as beneficiaries. See Boston Safe Deposit & Trust Co. v. Schmitt, 349 Mass. 669, 673 (1965) (testator using explicit language in one part of will and omitting language in other part of will indicates different intent of testator in other part of will). His understanding of the difference between the terms “issue” and “representatives” is highlighted by the fact that the testator detailed who should take under the
Our definition of the term “representatives” is also guided by the interpretation used in like situations in past cases. We confronted a similar will provision in Sweeney v. Kennard, 331 Mass. 542 (1954). There, the will provided gifts to the testator’s “sons ‘or their heirs by right of representation.’ ” Id. at 544. The testator’s lineal descendants argued that the term “heirs” was used to mean issue. Id. at 545. We disagreed because, inter alia, the testator had used the term “issue” in other parts of the will. Id. We concluded that, because the testator expressly mentioned “issue” in other parts of the will, he would have done so again had that been his intended reference. Id. By using “heirs” the testator must have intended a different meaning, which we determined to be “beneficiaries” as defined in the intestacy statute. Similarly, in this case, the testator used “representatives” while using “issue” in other parts of the will, indicating his intention to use the term to mean something other than “issue.”
Prior to the execution of the second codicil, our cases defined the term “representatives” to mean executors or administrators, or statutory distributees.
Boston Safe relies on only one Massachusetts case for the proposition that the term “representatives” means issue. See Wentworth v. Bell, 249 Mass. 120 (1924). That case was decided eleven years after the testator drafted the second codicil in this case, and the interpretation of representatives there to mean issue was necessary to avoid an intestacy in a will “not drafted with technical nicety.” Id. at 122. See New England Merchants Nat’l Bank v. Frost, 357 Mass. 158, 163 (1970), and cases cited (will should be interpreted with presumption that testator did not intend to draft will to cause intestacy). The other cases on which Boston Safe relies to support its contention that the term “representatives” means issue are from other jurisdictions. When our law has defined the meaning of a term, a testator is entitled to rely on that definition when drafting his will. See Johnson v. Johnson, 215 Mass. 276, 285 (1913) (“The testator . . . may be fairly assumed to rely upon the law of this Commonwealth for the rules to be applied in the interpretation of his testamentary words”). See also Hawley v. Northampton, 8 Mass. 3, 39 (1811) (“The importance of adhering to a course of decisions in the construction of wills, is manifest; for their authority has established a rule of property on which many estates depend, and to overturn them would introduce perplexing uncertainty, and might shake many titles resting on the faith of them”). Thus, in 1913, when the second codicil was drafted, the term “representatives” had been interpreted consistently by this court to have statutory distributees as one of its accepted meanings. In light of the existing case law in 1913, it is unlikely that the testator would use the term “representatives” to mean issue, a definition of “representatives” not found in any of this court’s decisions at the time.
Moreover, the testator’s will and its codicils were drafted by the Boston law firm of Adams & Blinn, which served as the legal counsel in Bailey v. Smith, supra.
When a will is drafted by a person familiar with the accurate use of legal terms, it is presumed that the legal terms were used correctly and with the intent that they be interpreted in conformity with the law. See Loring v. Dexter, 256 Mass. 273, 277-278 (1926). Because the court had recently defined the term “representatives” to mean statutory distributees, and had never defined that word to mean issue, the conclusion is inescapable that the drafter meant the term to refer to statutory distributees.
The other defendants argue that the testator’s intent to benefit only his issue is indicated by the provision in Article Sixth (B)(c) that representatives take “by right of representation.” According to the other defendants, the term “representatives” cannot mean statutory distributees because it would be redundant to state that statutory distributees take “by right of representation” and a will should be interpreted to give meaning to all words used by the testator. The other defendants assert that, because the phrase “by right of representation” describes the manner in which beneficiaries take (i.e., the method for determining distribution) and the intestacy statute also prescribes the manner in which beneficiaries takes, the testator, if he intended “representatives” to mean statutory distributees, would not have modified it by the phrase “by right of representation.” We disagree. In these circumstances, the testator intended the intestacy statute to identify who would take (i.e., the beneficiaries) and the phrase “by right of representation” to identify the manner in which these beneficiaries would take.
A similar argument was raised in Sweeney v. Kennard, supra. There, the lineal descendants argued that, by using the phrase “by right of representation” to modify the term “heirs,” the testator evinced his intent that only lineal descendants should
The circumstances in this case are similar to Sweeney. Other evidence, including the use of the term “issue” in other parts of the will, indicates that the testator did not intend the term “representatives” to mean issue. Thus his use of the phrase “by right of representation” defines the manner by which the beneficiaries should take. See Gustafson v. Svenson, 373 Mass. 273 (1977).
Boston Safe contends that at the time the will and its codicils were executed the terms “heirs at law” and “statutory distributees” had similar meanings.
If the testator had used a term that meant “child” to describe who should take on the death of his last surviving grandchild, under the version of § 8 in effect in 1914, Carla, as the adopted daughter of that grandchild, would not receive trust benefits. Thus, if the term “statutory distributees” is the equivalent of “child,” Carla would not be entitled to trust income and principal. Because we conclude that the term “statutory distributees” is not the equivalent of “child,” § 8 does not apply.
The Moore case is virtually identical to the circumstances here. The testator chose to leave the trust proceeds to the statutory distributees of his grandchildren. He did not use the words “child,” “children,” “issue,” or “heirs,” the terms which we had held mandate the application of the pre-1958 rule of construction. As we concluded in Moore, current public policy does not favor extending the application of the pre-1958 construction of G. L. c. 210, § 8, unless the phrase used clearly means child. Compare Moore v. Cannon, supra at 599 (adopted child of testator’s son takes when will provides that trust proceeds be distributed according to laws of intestacy), with Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172, 178-183 (1972) (adopted children of testator’s daughter do not take when will provides that trust proceeds were to be distributed to deceased daughter’s “issue”).
Boston Safe argues that Moore is inapplicable because in that case the testator stated that property should be distributed intestate as if title had vested in his deceased son. Boston Safe contends that, because the testator did not explicitly state that property should be vested in George II, the reasoning of Moore does not apply. It is not significant that the testator used a slightly different term. By specifying that trust proceeds were to go to the “representatives” of any deceased child, the testator intended the trust proceeds to be distributed to his statutory distributees. It is not possible to distribute assets to individuals as if they were statutory distributees if it is not assumed that title to the assets had vested in the deceased person because the intestacy statute only operates to distribute the assets of deceased people. While not drafted as explicitly, the testator in this case obviously had the same intent as the testator in Moore: to distribute the trust proceeds as if it were the deceased child’s own property.
Boston Safe also contends that, because we have held that
There is nothing in the record to indicate that the testator intended to exclude an adopted family member from receiving benefits from his estate. By leaving trust income and assets to the statutory distributees of his grandchildren, the testator evinced an intention to benefit his family. There is no suggestion that the testator intended to establish limits on the distribution of the trust income and principal beyond his general intent to benefit his family as far into file future as possible. Thus, because the testator referred to “statutory distributees” rather than “children” and there is no other evidence that the testator desired to exclude an adopted family member from sharing under the will, there is no bar to an adopted great grandchild receiving trust proceeds. Under the intestacy statute in effect at the time of George II’s death in 1976, Carla is the testator’s statutory distributee. Taylor v. Albree, 317 Mass. 57, 62 (1944) (“in the absence of indication to the contrary, a gift to the heirs or distributees of a person is construed to mean those who are such at his death”). As such she is entitled to trust income dating from the death of her father in 1976 and to a share of the principal that was to be distributed in 1997.
4. Laches. The Probate Court judge properly interpreted the will and its codicils. Summary judgment, however, was not ap
5. Conclusion. The judgment is vacated and the matter is remanded to the Probate Court solely for a determination of whether Carla’s claim is barred by laches. If her claim is not so barred, judgment is to enter for Carla.
So ordered.
The complaint named as defendants Carla and ten other individuals (other defendants), all of whom might have an interest in the trust income and principal. Under Boston Safe’s interpretation of the trust, the other defendants had been receiving income payments from the trust, but Carla had not. Boston Safe sought a declaratory judgment that Carla was not entitled to any past or present income or any principal from the trust. Carla filed an answer and counterclaim asking the court to order Boston Safe to pay her past and present income and principal from the trust. The other defendants, who had been receiving income from the trust, filed an answer aligning themselves with Boston Safe and seeking a declaratory judgment that Carla was not entitled to any past or present income or any principal from the trust. The other defendants filed a separate brief in this court supporting their position. In its answer to Carla’s counterclaim, Boston Safe raised affirmative defenses, including that Carla’s counterclaim was barred by the doctrine of laches.
The testator’s first wife, Hannah, predeceased him in 1882. The testator’s second wife, Frances, died in 1933.
All the grandchildren were alive at the time of the testator’s death. No additional grandchildren were bom after the testator’s death.
The first codicil to the will revised, inter alia, the provisions of the will concerning the testator’s daughter, Mary, because she predeceased him.
Article Sixth (B)(a) created a trust for the benefit of the testator’s wife for the term of her life.
Boston Safe was the executor of Barbara’s will and trustee of the trust for Carla’s benefit. On Barbara’s death, the court appointed a guardian ad litem on behalf of Carla and the guardian ad litem assented to Boston Safe’s accounts as executor of Barbara’s will.
The testator provided, in Article Seventeenth, that if any of his children left no issue, then that child’s share would be divided between the other children or their issue.
Although at one point in her brief Carla suggests that the term “representatives” might mean executors or administrators, she later concedes that this
G.R. Blinn represented one of the parties in Bailey v. Smith, 214 Mass.
See note 9, supra.
The term “heirs at law” refers to the beneficiaries of realty under the intestacy statutes, while statutory distributees refers to distribution of personalty under the intestacy statutes. See Taylor v. Albree, 317 Mass. 57, 62 (1944). Prior to 1902, the individuals who took as heirs at law were different from the individuals who took as statutory distributees. However, in 1902, that distinction was abolished. R.L. c. 140, § 3 (1902).
As we have concluded that the term “representatives” means statutory distributees, we shall henceforth refer to statutory distributees rather than representatives.
“Issue,” “heirs,” and “children” had been construed to exclude an adopted child under the version of G. L. c. 210, § 8, in effect prior to 1958. Old Colony Trust Co. v. Wood, 321 Mass. 519, 523-524 (1947). Bundy v. United States Trust Co., 257 Mass. 72, 80 (1926). Walcott v. Robinson, 214 Mass. 172, 176 (1913). Wyeth v. Stone, 144 Mass. 441, 443-444 (1887).
Because of our conclusion that Carla has an independent right to trust income and principal we need not consider her alternative argument that she