Clark v. Greenhalge

• Decision Date: 16 December 1991
• Citation: 582 N.E.2d 949,411 Mass. 410
• Parties: Virginia Marston CLARK v. Frederic T. GREENHALGE, Second, executor. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 949

582 N.E.2d 949

411 Mass. 410

Virginia Marston CLARK v. Frederic T. GREENHALGE, Second, executor. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 4, 1991.

Decided Dec. 16, 1991.

James A.G. Hamilton, Boston, for defendant.

Thomas D. Burns, John J. McGivney & Joseph A. Hearst, Boston, with him, for plaintiff.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

We consider in this case whether a probate judge correctly concluded that specific, written bequests of personal property contained in a notebook maintained by a testatrix were incorporated by reference into the terms of the testatrix's will.

We set forth the relevant facts as found by the probate judge. The testatrix, Helen Nesmith, duly executed a will in 1977, which named her cousin, Frederic T. Greenhalge, II, as executor of her estate. The will further identified Greenhalge as the principal beneficiary of the estate, entitling him to receive all of Helen Nesmith's tangible personal property upon her death except those items which she "designate[d] by a memorandum left by [her] and known to [Greenhalge], or in accordance with [her] known wishes," to be given to others living at the time of her death. ² Among Helen Nesmith's possessions was a large oil painting of a farm scene signed by T.H. Muckley and dated 1833. The value of the painting, as assessed for estate tax purposes, was $1,800.00.

In 1972, Greenhalge assisted Helen Nesmith in drafting a document entitled "MEMORANDUM" and identified as "a list of items of personal property prepared with Miss Helen Nesmith upon September 5, 1972, for the guidance of myself in the distribution of personal tangible property." This list consisted of forty-nine specific bequests of Ms. Nesmith's tangible personal property. In 1976, Helen Nesmith modified the 1972 list by interlineations, additions and deletions. Neither edition of the list involved a bequest of the farm scene painting.

Ms. Nesmith kept a plastic-covered notebook in the drawer of a desk in her study. She periodically made entries in this notebook, which bore the title "List to be given Helen Nesmith 1979." One such entry read: "Ginny Clark farm picture hanging over fireplace. Ma's room." Imogene Conway and Joan Dragoumanos, Ms. Nesmith's private home care nurses, knew of the existence of the notebook and had observed Helen Nesmith write in it. On several occasions, Helen Nesmith orally expressed to these nurses her intentions regarding the disposition of particular pieces of her property upon her death, including the farm scene painting. Helen Nesmith told Conway and Dragoumanos that the farm scene painting was to be given to Virginia Clark, upon Helen Nesmith's death.

Virginia Clark and Helen Nesmith first became acquainted in or about 1940. The women lived next door to each other for approximately ten years (1945 through 1955), during which time they enjoyed a close friendship. The Nesmith-Clark friendship remained constant through the years. In more recent years, Ms. Clark frequently spent time at Ms. Nesmith's home, often visiting Helen Nesmith while she rested in the room which originally was her mother's bedroom. The farm scene painting hung in this room above the fireplace. Virginia Clark openly admired the picture.

According to Ms. Clark, sometime during either January or February of 1980, Helen Nesmith told Ms. Clark that the farm scene painting would belong to Ms. Clark after Helen Nesmith's death. Helen Nesmith then mentioned to Virginia Clark that she would record this gift in a book she kept for the purpose of memorializing her wishes with respect to the disposition of certain of her belongings. ³ After that conversation, Helen Nesmith often alluded to the fact that Ms. Clark someday would own the farm scene painting.

Ms. Nesmith executed two codicils to her 1977 will: one on May 30, 1980, and a second on October 23, 1980. The codicils amended certain bequests and deleted others, while ratifying the will in all other respects.

Greenhalge received Helen Nesmith's notebook on or shortly after January 28, 1986, the date of Ms. Nesmith's death. Thereafter, Greenhalge, as executor, distributed Ms. Nesmith's property in accordance with the will as amended, the 1972 memorandum as amended in 1976, and certain of the provisions contained in the notebook. ⁴ Greenhalge refused, however, to deliver the farm scene painting to Virginia Clark because the painting interested him and he wanted to keep it. Mr. Greenhalge claimed that he was not bound to give effect to the expressions of Helen Nesmith's wishes and intentions stated in the notebook, particularly as to the disposition of the farm scene painting. Notwithstanding this opinion, Greenhalge distributed to himself all of the property bequeathed to him in the notebook. Ms. Clark thereafter commenced an action against Mr. Greenhalge seeking to compel him to deliver the farm scene painting to her.

The probate judge found that Helen Nesmith wanted Ms. Clark to have the farm scene painting. The judge concluded that Helen Nesmith's notebook qualified as a "memorandum" of her known wishes with respect to the distribution of her tangible personal property, within the meaning of Article Fifth of Helen Nesmith's will. ⁵ The judge further found that the notebook was in existence at the time of the execution of the 1980 codicils, which ratified the language of Article Fifth in its entirety. Based on these findings, the judge ruled that the notebook was incorporated by reference into the terms of the will. Newton v. Seaman's Friend Soc'y, 130 Mass. 91, 93 (1881). The judge awarded the painting to Ms. Clark.

The Appeals Court affirmed the probate judge's decision in an unpublished memorandum and order, 30 Mass.App.Ct. 1109, 570 N.E.2d 184 (1991). ⁶ We allowed the appellee's petition for further appellate review and now hold that the probate judge correctly awarded the painting to Ms. Clark.

A properly executed will may incorporate by reference into its provisions any "document or paper not so executed and witnessed, whether the paper referred to be in the form of ... a mere list or memorandum, ... if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein." Newton v. Seaman's Friend Soc'y, supra at 93. The parties agree that the document entitled "memorandum," dated 1972 and amended in 1976, was in existence as of the date of the execution of Helen Nesmith's will. The parties further agree that this document is a memorandum regarding the distribution of certain items of Helen Nesmith's tangible personal property upon her death, as identified in Article Fifth of her will. There is no dispute, therefore, that the 1972 memorandum was incorporated by reference into the terms of the will. Newton, supra.

The parties do not agree, however, as to whether the documentation contained in the notebook, dated 1979, similarly was incorporated into the will through the language of Article Fifth. Greenhalge advances several arguments to support his contention that the purported bequest of the farm scene painting written in the notebook was not incorporated into the will and thus fails as a testamentary devise. The points raised by Greenhalge in this regard are not persuasive. First, Greenhalge contends that the judge wrongly concluded that the notebook could be considered a "memorandum" within the meaning of Article Fifth, because it is not specifically identified as a "memorandum." Such a literal interpretation of the language and meaning of Article Fifth is not appropriate.

"The 'cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided it is consistent with the rules of law.' " Boston Safe Deposit & Trust Co. v. Park, 307 Mass. 255, 259, 29 N.E.2d 977 (1940), quoting McCurdy v. McCallum, 186 Mass. 464, 469, 72 N.E. 75 (1904). The intent of the testator is ascertained through consideration of "the language which [the testatrix] has used to express [her] testamentary designs," Taft v. Stearns, 234 Mass. 273, 277, 125 N.E. 570 (1920), as well as the circumstances existing at the time of the execution of the will. Boston Safe Deposit & Trust Co., supra 307 Mass. at 259, 29 N.E.2d 977, and cases cited. The circumstances existing at the time of the execution of a codicil to a will are equally relevant, because the codicil serves to ratify the language in the will which has not been altered or affected by the terms of the codicil. See Taft, supra 234 Mass. at 275-277, 125 N.E. 570.

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