Hershman-Tcherepnin v. Tcherepnin

• Decision Date: 24 September 2007
• Docket Number: No. 06-P-1677.,06-P-1677.
• Citation: 70 Mass. App. Ct. 218,873 N.E.2d 771
• Court: Appeals Court of Massachusetts
• Parties: Sue-Ellen HERSHMAN-TCHEREPNIN v. Nicholas TCHEREPNIN & others.<SMALL><SUP>1</SUP></SMALL>

873 N.E.2d 771

70 Mass. App. Ct. 218

Sue-Ellen HERSHMAN-TCHEREPNIN v. Nicholas TCHEREPNIN & others.¹

No. 06-P-1677.

Appeals Court of Massachusetts, Middlesex.

Argued June 8, 2007.

Decided September 24, 2007.

Diane C. Tillotson, Boston, for the defendants.

John C. LaLiberte for the plaintiff.

Present: GELINAS, DOERFER, & KAFKER, JJ.²

KAFKER, J.

Composer Ivan Tcherepnin³ drafted his last will and testament less than one month prior to his death. In it, he bequeathed one-fifth of the family home and "the right to remain there for as long as she desires" to his friend and recent bride, the petitioner, Sue-Ellen Hershman-Tcherepnin. He also bequeathed one-fifth of the family home to each of his four children by an earlier marriage to Anne Tcherepnin.

The children contend that he bequeathed a present possessory interest in the property to all five devisees. The petitioner contends that he bequeathed to her a life estate in the property, with the right to exclusive possession, and a one-fifth remainder interest to each of the four children. Taking into account the instrument as a whole and all the circumstances known to the testator at the time he executed the will, we conclude that the testator devised a one-fifth present possessory interest in the property to the petitioner and each of his four children, making them tenants in common.

Facts. The property in dispute, 96 Russell Avenue, Watertown, was previously owned by the stepfather and mother of Anne Tcherepnin. They transferred title to the property to Anne and the testator in 1983. Anne and the testator resided at 96 Russell Avenue with their four children—Nicholas, Stefan, Sergei, and Sarina, the respondents in this case. Pursuant to the terms of their marital separation agreement, Anne transferred title to the property to the testator in September, 1994. After the divorce, Nicholas, Stefan, and Sergei continued to maintain bedrooms in their father's house, Stefan living in the residence from 1994 until "some time in 2000," and Sergei visiting "nearly every weekend."⁴

In January, 1995, the petitioner, a friend of the testator for a number of years, moved into 96 Russell Avenue. The testator became ill that same year, the illness becoming worse in late 1997 and early 1998. In late December, 1997, the petitioner and the testator were married. They continued to reside at 96 Russell Avenue. Using a computer software program, the testator drafted the will at issue on March 13, 1998. At the time the testator's will was signed, he lived at 96 Russell Avenue along with the petitioner, Stefan, and Stefan's girlfriend. Less than one month later, on April 11, 1998, the testator died.

The relevant portions of the will are as follows:

"SIXTH: I give one fifth (1/5) ownership of the property at 96 Russell Avenue, Watertown, Ma., the right to remain there for as long as she desires, and her choice of furnishings and bric-a-brac[ ] in my house and office, my Macintosh IIci, monitor and TI laserprinter, fifty thousand (50,000) dollars in cash or stocks, my 1987 SAAB automobile and the print `Boy and Bug' by Margo Hoff to Sue Ellen Hershman-Tcherepnin....

"...

"TENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, and all photos and documents pertaining to my mother[,] to Sarina Tcherepnin....

"ELEVENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, the Macintosh 5300 powerbook and accessories and the Sharp videocamcorder and tripod to Nicholas Tcherepnin....

"TWELFTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, Macintosh 660AV and accessories, psalteries and santur, electronic music instruments, including Serge Modular stuff, and the Steinway grand piano[,] to Stefan Tcherepnin....

"THIRTEENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown, one fifth (1/5) of all furnishings, all photographic equipment and the Sony Hi-8 videocam and accessories to Serge Tcherepnin, my son."

Probate of the will was allowed in the Probate and Family Court in Middlesex County.

After the testator's death, the petitioner and Stefan continued to reside at 96 Russell Avenue; Stefan moved out some time in 2000.⁵ From 1998 to 2000, the testator's estate, managed by his brother, Peter Tcherepnin, the executor of his will, paid the taxes and mortgage on the property. Since "early 2000" the petitioner has paid all taxes assessed upon the residence, the mortgage, and all maintenance, repairs, upkeep, and homeowner's insurance. In 2000, Sarina and her husband negotiated with the petitioner regarding a purchase of the property but did not reach an agreement. In 2002, the petitioner changed the locks on the residence, alleging that the testator's children had removed from the residence various items, including a laptop computer, the testator's diaries, and works of art.

On June 4, 2004, the petitioner filed a petition for partition of the real property at 96 Russell Avenue. The petition states that she, as well as Nicholas, Stefan, Sergei, and Sarina, each possess twenty percent remainders in said property. Further, the petition represents that the petitioner possesses a "right to occupy for life."

The respondents (Nicholas, Stefan, Sergei, and Sarina) filed a response to the petition and a counterclaim for declaratory judgment in which they contended that the will created five equal present interests in the property and granted the petitioner "a mere right of occupancy and a defense to ouster and partition." Cross motions for summary judgment were subsequently filed.

On September 23, 2005, a probate judge found that "[t]he four corners of Testator's Will indicate unambiguously that he intended to grant [petitioner] a life estate in the Russell Avenue Property with the exclusive right to reside on the premises." The judge also determined that the will provided the petitioner and each of the four children with a one-fifth remainder interest in the property. In so deciding, the judge declined to consider extrinsic evidence regarding the testator's intent. Finally, the judge allowed the petitioner as a life tenant to seek partition of the property.

The respondents filed a notice of appeal on June 23, 2006. Thereafter, on May 21, 2007, the probate judge found the fair market value of the property to be $790,500. The judge valued the petitioner's life estate at $613,169.86 and the remainder interest, divided among the petitioner and the four children, at $177,330.14.

Discussion. "The fundamental object in the construction of a will is to ascertain the testator's intention from the whole instrument, attributing due weight to all its language, considered in light of the circumstances known to the testator at the time of its execution, and to give effect to that intent unless some positive rule of law forbids." Flannery v. McNamara, 432 Mass 665, 667-668, 738 N.E.2d 739 (2000), quoting from Putnam v. Putnam, 366 Mass. 261, 266, 316 N.E.2d 729 (1974). See Tucci v. DiGregorio, 358 Mass. 493, 495, 265 N.E.2d 570 (1970), quoting from Ware v. Minot, 202 Mass. 512, 516, 88 N.E. 1091 (1909) ("[t]he accepted rule for the interpretation of a will is to ascertain the intent of the maker as gathered from the testamentary language read in the light of the knowledge possessed by him and of the material circumstances attendant upon him at the time, attributing due weight to all the words used, not stressing provisions of doubtful meaning but searching for a general plan from a survey of the whole instrument ...").

The bequests here are not easily classified. The testator was not learned in the law, and, not surprisingly, he used layman's language rather than legal terms of art. See Barrett v. Marsh, 126 Mass. 213, 215 (1879) ("[i]t is easy to see that the will ... was not the work of an accomplished conveyancer"); Dow v. Abbott, 197 Mass. 283, 287, 84 N.E. 96 (1908). The testator gave one-fifth of the property to the petitioner and each of the four children. These bequests were not described as remainder interests. They appear to make a present transfer of the property to the five devisees. This would ordinarily make them tenants in common, with the right to use and occupy the property subject to the equal rights of the other tenants. See G.L. c. 184, § 7 ("A conveyance or devise of land to two or more persons ... shall create an estate in common"). See also Tucci v. DiGregorio, 358 Mass. at 497, 265 N.E.2d 570; Brady v. City Council of Gloucester, 59 Mass.App.Ct. 691, 695, 797 N.E.2d 479 (2003). The question is how these provisions are affected by the additional language allowing the petitioner to remain in the home so long as she desires. The petitioner contends that this additional clause provides her with a life estate and thereby renders the other bequests only remainder interests.

The testator did not use the classic formulations of a life estate. See, e.g., Restatement of Property § 18, at 46 (1936) ("to A for his own life" creates a life estate). Nor did he use essentially equivalent language. See, e.g., Thayer v. Shorey, 287 Mass. 76, 78-79, 191 N.E. 435 (1934) ("grantor's reservation of `right to occupy, rent, or improve ... premises during her life' . . . operate[d] to seise the grantor of a life estate and ... to vest the remainder in the grantee"); Langlois v. Langlois, 326 Mass. 85 86, 93 N.E.2d 264 (1950) ("to have and to hold and use ... as she see[s] fit during her lifetime"); Breare v. Assessors of Peabody, 350 Mass. 391, 392-393, 215 N.E.2d 102 (1966), and authorities cited (grantor's reservation of "right to occupy the premises with the grantee during the term of his natural life" created a life estate); Bernat v. Kivior, 22 Mass.App.Ct. 957, 958, 494 N.E.2d 425 (1986) ("right[ ] ... to occupy the granted premises for the rest of her life" conferred life estate). Compare Rolland v. Hamilton, 314 Mass. 56, 57-58, 49 N.E.2d...