Rosenbloom v. Kokofsky

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; QUIRICO
Citation369 N.E.2d 1142,373 Mass. 778
Decision Date02 December 1977
PartiesJoseph D. ROSENBLOOM, administrator v. Frances KOKOFSKY et al. Supreme Judicial Court of Massachusetts, Hampden

Page 1142

369 N.E.2d 1142
373 Mass. 778
Joseph D. ROSENBLOOM, administrator
v.
Frances KOKOFSKY et al.
Supreme Judicial Court of Massachusetts, Hampden.
Argued Oct. 6, 1977.
Decided Dec. 2, 1977.

Edward V. Leja, Springfield, for Jane A. Ely.

James Moriarty, Jr., Springfield, for Frances Kokofsky & another.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

This is an appeal from a Probate Court judgment determining the rights of the beneficiaries under the will of Warren T. Elliot (testator). The appeal challenges the judge's conclusion that by virtue of G.L. c. 191, § 2, a legacy or devise to the spouse of a necessary subscribing witness is void. We granted direct appellate review. G.L. c. 211A, § 10(A).

The testator executed a will in 1972, leaving all his property in equal shares to his three daughters, Jane A. Ely, Noreen Grant, and Frances Kokofsky. 1 Mrs. Ely's husband was one of the three subscribing witnesses to the will. The testator died in February, 1973, leaving his three [373 Mass. 779] daughters as next of kin. A petition for the probate of the 1972 will was allowed, and Mr. Joseph D. Rosenbloom was appointed administrator

Page 1143

with the will annexed (administrator). 2

In response to a petition for instructions filed by the administrator, the judge entered a judgment to the effect that, on the basis of G.L. c. 191, § 2, which voids testamentary gifts to a subscribing witness to a will or to the spouse of such a witness, the legacy and devise to Mrs. Ely were void because her husband was one of the three subscribing witnesses to the will. Mrs. Ely appeals from this judgment and challenges the interpretation of G.L. c. 191, § 2, on which it is based. 3

At common law, a person was incompetent to serve as a subscribing witness to a will under which he benefited as a devisee or legatee. 2 W. Page, Wills § 19.76 (Bowe-Parker rev. 1960). A will witnessed by an interested party was therefore void unless there were a sufficient number of other competent witnesses to satisfy the requirements for execution. Id. Most States have altered this rule, substituting provisions which allow a devisee or legatee to serve as a subscribing witness, but restrict his right to benefit from the will. Id.

These provisions are of several different types. Many States void so much of a bequest or devise to a witness of the will as exceeds the property that the witness would have taken if the deceased's will had not been established. T. Atkinson, Wills § 65 at 315 (2d ed. 1953). 1 W. Page, Wills § 335 (3d ed. 1941). See, e. g., Estate of Herman, 166 Cal.App.2d 55, 332 P.2d 788 (1958) (Cal.Prob. Code § 51 (West)); [373 Mass. 780] N.Y. Decedent Estate Law § 27 (McKinney). Other States extend the application of this rule to bequests or devises to the spouse of a witness, so that such gifts are void so far as they exceed what would have been the spouse's intestate share. E. g., Davis v. Davis, 208 S.C. 182, 37 S.E.2d 530 (1946) (S.C. Code § 19-260), Estate of Reichenberger, 272 Wis. 176, 74 N.W.2d 740 (1956) (Wis.Stat.Ann. § 853.07(2) (West)).

Massachusetts is one of a small number of other States, see, e. g., N.H.Rev.Stat.Ann. § 551:3, which have chosen a third, more exclusive, rule. General Laws c. 191, § 2, provides that "a beneficial devise or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless there are three other subscribing witnesses to the will who are not similarly benefited thereunder." 4 Mrs. Ely urges us to reject the construction of this provision which we adopted in Powers v. Codwise, 172 Mass. 425, 426, 52 N.E. 525 (1899) that a bequest or devise to a subscribing witness or spouse of such a witness is entirely void and interpret the statute so as to bring the Massachusetts rule in line with the more liberal view held in many other jurisdictions. 5 She contends that the provision as applied in the Powers case is inequitable because it is based on an outmoded concept of the legal identity of spouses, and that it operates to defeat the legitimate intentions of the testator.

It is clearly possible that § 2 will, at times, produce harsh results. However, the question whether an alternative formulation would be more equitable is beyond our authority to decide. The scope of the authority of this court to interpret and apply statutes is...

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23 practice notes
  • Pielech v. Massasoit Greyhound, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 20, 1996
    ...a different construction. Milton v. Metropolitan Dist. Comm'n, 342 Mass. 222, 227, 172 N.E.2d 696 (1961)." Rosenbloom v. Kokofsky, 373 Mass. 778, 780-781, 369 N.E.2d 1142 (1977). "As Justice Qua stated in Commonwealth v. Isenstadt, 318 Mass. 543, 548, 62 N.E.2d 840 (1945), this court is und......
  • Globe Newspaper Co. v. Superior Court
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 26, 1980
    ...is unclear, a court may look to outside sources for assistance in determining the correct construction." Rosenbloom v. Kokofsky, 373 Mass. 778, --- c, 369 N.E.2d 1142, 1144 We consider three possible ambiguities in G.L. c. 278, § 16A. First, to what part or parts of a judicial proceeding do......
  • Parr v. Rosenthal, SJC–12014.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 2, 2016
    ...mean that the court should act to change settled law in a manner inconsistent with legislative objectives. See Rosenbloom v. Kokofsky, 373 Mass. 778, 780, 369 N.E.2d 1142 (1977). In this case, the adoption of the continuing treatment doctrine runs contrary to the legislative aims undergirdi......
  • Department of Community Affairs v. Massachusetts State College Bldg. Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 5, 1979
    ...and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body." Rosenbloom v. Kokofsky, 373 Mass. 778, --- F, 369 N.E.2d 1142, 1143 (1977). Reliance on extrinsic aids may be appropriate when the legislative provision is unclear or ambiguous, or when......
  • Request a trial to view additional results
23 cases
  • Pielech v. Massasoit Greyhound, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 20, 1996
    ...a different construction. Milton v. Metropolitan Dist. Comm'n, 342 Mass. 222, 227, 172 N.E.2d 696 (1961)." Rosenbloom v. Kokofsky, 373 Mass. 778, 780-781, 369 N.E.2d 1142 (1977). "As Justice Qua stated in Commonwealth v. Isenstadt, 318 Mass. 543, 548, 62 N.E.2d 840 (1945), this court is und......
  • Globe Newspaper Co. v. Superior Court
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 26, 1980
    ...is unclear, a court may look to outside sources for assistance in determining the correct construction." Rosenbloom v. Kokofsky, 373 Mass. 778, --- c, 369 N.E.2d 1142, 1144 We consider three possible ambiguities in G.L. c. 278, § 16A. First, to what part or parts of a judicial proceeding do......
  • Parr v. Rosenthal, SJC–12014.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 2, 2016
    ...mean that the court should act to change settled law in a manner inconsistent with legislative objectives. See Rosenbloom v. Kokofsky, 373 Mass. 778, 780, 369 N.E.2d 1142 (1977). In this case, the adoption of the continuing treatment doctrine runs contrary to the legislative aims undergirdi......
  • Department of Community Affairs v. Massachusetts State College Bldg. Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 5, 1979
    ...and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body." Rosenbloom v. Kokofsky, 373 Mass. 778, --- F, 369 N.E.2d 1142, 1143 (1977). Reliance on extrinsic aids may be appropriate when the legislative provision is unclear or ambiguous, or when......
  • Request a trial to view additional results

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