McMillen v. McMillen

• Court: Appeals Court of Massachusetts
• Writing for the Court: Cohen
• Citation: McMillen v. McMillen, 784 N.E.2d 1130, 57 Mass. App. Ct. 568 (Mass. App. 2003)
• Decision Date: 13 March 2003
• Docket Number: No. 00-P-1442.,00-P-1442.
• Parties: Michael A. McMILLEN, executor,<SMALL><SUP>1</SUP></SMALL> v. Carole Goldsborough McMILLEN & another.<SMALL><SUP>2</SUP></SMALL>

784 N.E.2d 1130

57 Mass. App. Ct. 568

Michael A. McMILLEN, executor,¹ v. Carole Goldsborough McMILLEN & another.²

No. 00-P-1442.

Appeals Court of Massachusetts, Essex.

Argued September 19, 2002.

Decided March 13, 2003.

Kevin M. Dalton, Beverly, for the plaintiff.

Raymond A. O'Brien for Julie C. McMillen.

John S. Legasey for Carole Goldsborough McMillen.

Present: JACOBS, DOERFER, & COHEN, JJ.

COHEN, J.

When Louis A. McMillen (Louis) died on May 4, 1998, he left a surviving spouse, Carole Goldsborough McMillen (Carole); children and stepchildren from two prior marriages, including a son, Michael A. McMillen (Michael); and a granddaughter, Melissa McMillen (Melissa), the daughter of Louis's deceased son and Julie C. McMillen (Julie). A dispute over the testamentary disposition of Louis's tangible personal property gives rise to this appeal.

1. Background. Article First of Louis's last will and testament provided, in relevant part:

"If CAROLE GOLDSBOROUGH is my surviving spouse, I give and bequeath to her such paintings, furniture and furnishings as she may select from among whatever paintings, furniture and furnishings I may own at the time of my death. I give and bequeath all paintings, furniture and furnishings not selected by her in equal shares to such of my children, my stepchildren, and my granddaughter, MELISSA McMILLEN, as survive me, it being my wish that they shall all have at least one painting by which to remember me."

This article also contained a few specific bequests of personal property, as well as a residuary clause:

"I give and bequeath all my remaining tangible personal property to my issue surviving me, by right of representation, to be divided among them as they may agree or, failing agreement, as my executors in their absolute discretion determine."

The will was allowed on June 22, 1998, and Michael was appointed as executor of the estate. A difference of opinion then developed between Carole and some of the residuary legatees as to the scope of the phrase "paintings, furniture and furnishings." At issue was whether and to what extent this bequest included Louis's extensive accumulation of artwork and decorative objects, most of which were on display in the marital home. A particular bone of contention was whether Carole was authorized to select from Louis's collection of approximately sixty Greek, Russian, Serbian, and Syrian "icons," which are religious images, painted on wood.

In February, 1999, upon the advice of counsel, Michael filed a complaint for instructions, pursuant to G.L. c. 215, § 6, seeking the guidance of the Probate Court with respect to this dispute. Julie (as Melissa's guardian) and Carole appeared as defendants and filed various claims of their own. Germane to this appeal is Julie's claim, contested by Carole, that the icon collection and certain other items of tangible personal property did not fall within the categories "paintings, furniture and furnishings."

After a one-day trial, a judge of the Probate and Family Court issued written findings of fact and conclusions of law. After considering a fair amount of evidence extrinsic to the will, the judge ultimately concluded that the language in question was clear and unambiguous, and that the testator's intent to bequeath to Carole virtually all the contents of the marital home could be gleaned from the four corners of the instrument, as illuminated by cases from other jurisdictions and stipulated dictionary definitions taken from the American Heritage Dictionary. Relying upon the dictionary definition of "painting" — "[a] picture or design in paint," American Heritage Dictionary 893 (2d College ed.1992) — as well as customs duty cases construing the word "painting" to include artwork in which paint was applied to surfaces other than canvas or paper,³ the trial judge concluded that the bequest of "paintings" included Louis's icons, even though these works were painted on wood. The judge further concluded that the words "furniture" and "furnishings," again viewed with the aid of the dictionary⁴ and some relevant out-of-State cases,⁵ collectively encompassed all personal chattels that contributed to the use or convenience of the household or to the ornament of the house.⁶

In keeping with these conclusions, the court entered a judgment that provided, in substance, that Carole was allowed to select from all items of personal property that were utilitarian to the household or that served as decoration in the marital home. Works of art (including icons) that were on display at the time of Louis's death were within the bequest to Carole as "furnishings" whether or not they also were "paintings." However, because "paintings" were designated as a separate category of property, the judge construed the will as authorizing Carole to select from among any of the paintings owned by Louis at the time of his death even if they were not being used for ornamental purposes in the marital home.

Not all of Louis's tangible personal property was deemed to be included within the ambit of "paintings, furniture and furnishings." The judge excluded from Carole's right of selection Louis's clothing and jewelry, except insofar as some jewelry-like items — decorative metal pins — were displayed as artwork in the home.⁷ These categories of property were directed to pass to the residuary legatees under the will. Also excluded from Carole's right of selection were the specific bequests of personal property that were itemized in the will.

The judge also addressed the issue of the parties' attorneys' fees. Having found that the complaint for instructions was "groundless" because the meaning of the will was plain and unambiguous, the judge ordered Michael to pay personally, and not from the estate, all of the attorneys' fees and costs incurred by Carole (which amounted to $18,447.00). The judge also denied, in toto, a motion of Julie's counsel for fees and costs, explaining that the amount sought ($116,907.18) was "outrageous."

Julie appeals the merits of the judge's decision as well as the denial of her counsel's motion for fees. Michael appeals from the judgment insofar as it ordered him to pay Carole's fees and costs personally.

2. 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 G.L. c. 191, § 1A(2), as amended through St.1977, c. 637, § 1 ("[t]he intention of a testator as expressed in his will shall control the legal effect of his dispositions"). In pursuing this object, the Probate Court may consider extrinsic evidence of surrounding facts and circumstances, not to challenge or alter the terms of the will, but to place the court in a position as near as possible to that of the testator at the time the will was written. See Gray v. McCausland, 314 Mass. 743, 747, 51 N.E.2d 441 (1943). However, once the court occupies this position, the focus of the court should be on the language of the will. See Goodwin v. New England Trust Co., 321 Mass. 502, 504, 73 N.E.2d 890 (1947). See generally Smith, The Admissibility of Extrinsic Evidence in Will Interpretation Cases, 64 Mass. L.Rev. 123, 124-125 (1979). "While intent is the lodestar of testamentary construction, it cannot be used to displace what a will has said." Schena v. Pagliuca, 9 Mass.App.Ct. 449, 452, 401 N.E.2d 881 (1980).

Massachusetts continues to subscribe to the so-called "plain meaning" rule. Unless the language of the will is ambiguous, it is to be construed without resort to extrinsic evidence of the testator's intent, even if the language in question has a legal consequence not likely to have been understood by the testator or contrary to his intention expressed orally. Flannery v. McNamara, supra at 668, 738 N.E.2d 739.

Although the Supreme Judicial Court recently was asked to liberalize the "plain meaning rule," the court found it unnecessary to decide the issue on the facts presented. In Flannery v. McNamara, supra at 671-672, 738 N.E.2d 739, the appellants urged the court to adopt the principle contained in Restatement (Third) of Property (Donative Transfers) § 11.2(b)(3) (Tent. Draft No. 1 1995), which permits consideration of the donor's "personal usage" — that is, the testator's habitual use of a term in an idiosyncratic manner — to construe the same term in the testator's will. The court concluded that even if the personal usage doctrine were available to the appellants, the facts did not support its application. Id. at 672-673, 738 N.E.2d 739. Accordingly, it has been left that unless a will contains obvious conflicts in language (patent ambiguities) or uncertainties in language that emerge from particular types of surrounding facts and circumstances (latent ambiguities), the court should not consider extrinsic evidence of the testator's intent.

Traditionally, Massachusetts has recognized only two categories of latent ambiguities. "The first type occurs when a will clearly describes a person or thing, and two or more persons or things exactly fit that description. The second type of latent ambiguity exists when no person or thing exactly fits the description, but two or more persons or things partially fit." Flannery v. McNamara, supra at 668-669, 738 N.E.2d 739, quoting from Phipps v. Barbera, 23 Mass.App.Ct. 1, 3 n. 3, 498 N.E.2d 411 (1986). In the present case, a threshold question was whether the words of the bequest were latently ambiguous given that the testator had an unusual collection of different types of artwork, elements of which could be described with greater particularity than by the generic phrase ...