-: SJC 13397 in the matter of Teresa A. Jablonsky.
-: Chief Justice Budd and Associate Justices,
may it please the court.
My name is David Levy and I represent the appellants.
In 2003, Theresa Jablonsky, who was in 77,
made a will that left her entire estate
to a pet trust for her Cocker Spaniel, Licorice.
The will also provided that if the pet trust was funded
and there was money left over after the last dog died,
then the trustees of the pet trust could give the money
to a charity of their choice.
As it turned out however.
-: It's also article four though, right?
You wanna address article four on particularly
the express language in that
about lapsed devices? -: Yes.
The problem with article four,
article four does not create a freestanding bequest
if article five fails
because article four was worded in a particularly
restrictive way.
It said that if the other bequests lapsed
or failed for any reason,
then the residue of the estate should go to the trustees
of the Licorice Testamentary Trust.
-: But doesn't that cover even, I mean, okay,
so it's clear that the primary concern is her dog Licorice,
but she creates this trust and she also creates
this provision that says if everything lapses
it goes into this trust, so don't we combine those
and find that sufficient to indicate
that this trust is created?
-: No, because the problem is that in that circumstance,
the money.
-: Why not? -: All dressed up
with nowhere to go.
-: Well, I get that this is not her ideal setup,
but, you know, we've gotta try to make sense of this will
and we try to avoid intestacy, right?
And you know, article four seems to be enough to save that,
'cause it refers to when things lapse.
-: The problem is, it's remedy for the lapse
is to throw the money back right at the trust
that has lapsed, that doesn't exist.
I won't emphasize the parties have stipulated
that if Teresa died without a dog, without a pet,
then the article five trust could not come into existence
and could not be funded.
-: Well, I don't know if they've stipulated to that.
I mean we'll hear from her,
but I suspect that's not the case.
-: Oh, I'll give your honors.
-: Well, but, then we wouldn't be here, right?
-: I'm not sure why we are here, but it was stipulated,
there was statement of uncontested facts
in the motion for summary judgment.
It's volume three, page 73 of the joint appendix.
And I'm going to quote it because it's a critical thing
that we seem to have forgotten.
Article five of the will did not authorize any bequest
to the pet trust or the transfer of any funds
to its punitive trustees
if Teresa was predeceased by all of her pets.
That stipulation is binding.
-: But then does article four though kick in then?
'Cause okay article five lapsed and then article four says
anything that lapses goes into the trust.
So I'm not sure that it's inconsistent.
-: The problem is that it goes into a trust
that by parties have stipulated doesn't exist,
it can't be funded and has no purpose.
Article four standing alone doesn't.
-: Its purpose is to deal with,
I mean, there's no other provision for what happens if,
that's the only provision that kicks in if things lapse.
There's no alternative beneficiary.
There's nothing else for us to turn to, right?
-: That's not correct.
Under the precedence of this court,
if the bequest lapsed and the residuary clause has lapsed,
then the state has to pass through intestacy.
-: Well, you say that, but on the other end,
there's the acceleration provisions.
So assume for the sake, I think that everybody agrees
that the trust didn't exist
and so now where do we go from here?
You say it goes to the folks that you represent.
There's also the alternative,
which is what the trial judge found,
was that we can go to the
acceleration of remainders provisions that says
now this all goes to charity,
it's not gonna go to your folks anyway.
And all of the stuff about the fact that
we may not have a trustee named,
we might not have specific charities named,
the court can appoint folks to effectuate Teresa's wishes.
-: No, the accelerate, your honor,
the acceleration of remainders doctrine cannot apply here.
And there were two requirements for it
that haven't been met here.
There have been a few cases in a few states
where a pet trust had failed
because the pet predeceased the testator,
triggered acceleration of remainders doctrine
to have money give to a charity.
But there were two things about it.
First of all, in each of those cases,
the bequest to the charity was either vested actually
or vested virtually and by vested virtually,
I mean that it was a state in which the probate court judges
have the authority to construe
a discretionary power of appointment as a mandatory one
and in effect forced the vesting of the gift to the charity.
That wasn't the case here.
-: You're not referring to the Mills estate,
you're not referring to New York and California when?
-: I actually am and to a handful of other cases.
They involved either a vested gift to a charity
or they were a state where the state courts
were willing to re-construe.
-: You interpret Mills and the California case,
I think maybe estate of McNeil as not standing
for the simple proposition that the pet will is invalid,
that your article four since it was never funded,
doesn't apply.
-: I'm sorry, I was focusing on the acceleration
of remainders issue.
-: And the accelerate, so is it dependent though?
That was my next point.
You are saying that those cases are only analyzing
acceleration of remainders
and don't have a broader application
that when the pet provision is invalid, nonetheless,
you can look to the charitable provision and enforce it.
-: My recollection and all the cases are cited
by the parties, is that the cases were dealing with
acceleration of remainders.
And to finish answering Justice Georges' question,
there were two elements that were present in those cases
that aren't here.
One is the bequest of the charity was vested,
which it wasn't here.
This was a power of discretionary power of appointment.
And second of all, the remainder bequests to the charity
wasn't conditioned on the same none occurrence
that caused the primary bequest to fail or lapse.
And neither I nor Judge Moriardi nor my sister counsel
have found any case in which acceleration of remainders
doctrine was applied when those two elements were missing.
-: Well, there's not much here.
Pardon, there isn't much here.
I mean, we all can agree that there is a dearth
of appellate case law here to guide you both
or Judge Moriardi.
But I think if we zoom out of this,
and this is my real concern,
there is a clear, whether or not you agree with this,
there is a clear indication that
it is not to go to your clients.
It is to go to the pet trust which fails.
And then in absence of that,
any remainder is to go to charity.
And that was clear from Teresa that
that's where it should go.
It should go to the pets and then it should go to charity.
-: With all respect, no, it is not clear.
Both of those bequests or provisions were conditioned
on the survival of Teresa by one or more pets.
-: Sure, sure. -: So she
put that condition on it. -: I hear that,
but I'm saying assume for the sake of argument
that Licorice survived her or any other pet,
you wouldn't be arguing that it's not clear
that somebody needs to take care of the pets
and then once the pets die, it goes to charity?
-: That's absolutely correct. -: Okay.
So assume for the sake of argument now,
we take away that first layer in that everybody agrees
that the trust fails, why doesn't part two still stand,
that it's to go to charity?
-: Because the bequest was conditioned
on the survival of the pet.
This puts this case in the same shoes as Bray v. Bray
and the other cases we cited
where a bequest was conditioned on an event
that didn't happen and one of parties
who wanted the bequest to be given anyway,
even though the condition wasn't met said, well, gosh,
you gotta look at the underlying intention of the testator.
In Bray v. Bray, which I think is on point,
the husband left all of his estate to his wife
if she survived him
and specifically disinherited his sister.
And that's a stronger case than this one
where the testator refused to put in
a specific Disinheritance Clause.
Well, it turned out the wife predeceased the husband
and the court held that the estate
had to pass through intestacy.
(indistinct) argued, well, even though the bequest failed,
the fact that there was language in there,
disinheriting a sister,
that shows an underlying intent to disinherit the sister,
so she should be excluded from the intestate share.
And this court rejected that argument saying
that you've gotta apply the plain meaning of the will
and you cannot speculate about the testator's intentions
about it, what she would've done
in a scenario that didn't happen.
I wanna remind you, Your Honor,
that this will could have been written in a way
that we wouldn't be here today.
If she had written a will, if Attorney Tupper who was.
-: I thought it was written that way in that you said
that there was a stipulation
and we shouldn't be here anyway.
-: No, it was written the opposite way.
-: So the stipulation brought you outta that way?
-: The stipulation by the parties and the concession
by my. -: And one thing
I would just like to clear up and make clear is that
this argument on both sides and this trust,
it stands in the same position it would
as if it had been left to a human being, is that correct?
-: Yes, because the effect of the Petras Statute
is to substitute an animal life or pet life.
So you're still applying by analogy,
the same common law precedence that were not overridden
by the uniform trust code.
-: Can I ask you -: I'm sorry,
I've lost track of. -: a different question
about when the trust, in 2003 did the trust come into being
and it was just an unfunded trust?
-: No, because the trust was a testamentary trust,
not an (indistinct) or a living trust.
So it was not contemplated that it would come into effect
until Teresa died.
-: I've got. -: I lost track
of a question that was. -: Yeah, but,
before we lose you, I just wanna understand where you are.
You're not pursuing undue influence,
but you're focusing in on the fact
that you were not given discovery on the gifts to Anne.
So what are you arguing on that point?
-: Okay, that's a separate issue, that's.
-: I know it's a separate issue,
but it's part of the case, so.
-: Okay, I'll be happy to respond to that.
On that, which is Romans three of our opening brief,
we are arguing that, my client believed that Anne,
the appellee, diverted assets of the (indistinct)
during the last 16 years of her life.
-: Right but you're not. -: We have two grievances.
One of them is for the period 2003 to 2011
where the money. -: I get it,
but I'm trying to understand what that,
so the trial judge rules, she limits your discovery
or he limits your discovery.
-: She barred discovery for the period before.
-: Right, but you're not making an undue influence argument.
-: No, it's not. -: So what is it?
What is the relevancy of the discovery you were not given,
if it's not that she diverted monies?
I'm trying to understand what.
-: Oh why are we aggrieved in effect
when we're not arguing undo influence?
Justice Kafker: Yeah.
-: We are aggrieved because the judge on that issue
reached the merits of the diversion issue
by saying we didn't meet our burden of proof
after having denied discovery.
If the judge had simply said,
this was an element of under influence,
you're dropping undo influence
or a rule against undo influence on other grounds,
and therefore I'm not going to reach the issue
of diversion of assets, that's an issue for you
or for the executor of the estate to pursue
once an executor is appointed, we would have no beef
because we wouldn't be aggrieved,
the issue would be preserved.
-: Tell me what your remaining beef is,
because the judge makes findings.
She says the annuities are fine
because she wasn't present with the stock broker.
So the annuities are fine
and the judge limited discovery to five years,
including two years before the will.
All of which seems reasonable to me.
But you're saying something's wrong,
but you're not making an undue influence argument,
so what is it you're asking us to do?
-: It's prejudging with prejudice an issue
that we would otherwise be able to pursue,
if we have standing as errors at law,
we could then go to the executor of the estate
and say we want you to pursue a claim against Anne Jablonsky
for improperly taking the woman's assets.
Justice Kafker: All right, okay, I now I understand.
-: And at that point it could be tried,
but that has been pre-judged
because the judge has reached a ruling
on the merits of that issue without our giving us
a chance to discovery.
If the judge had simply said, this is off the table,
I'm rejecting undue influence on others grounds,
so I'm not gonna reach the merits of that,
we wouldn't be aggrieved.
-: Okay, any other questions?
-: Thank you. -: Thank you very much.
Okay, Attorney Kathawalla.
-: All my papers.
Good morning Chief Justice and Justices.
Penelope Kathawalla for the appellee Anne Jablonsky
who was the appointed, or is yes, currently was appointed
the personal representative of Teresa Jablonsky's estate.
-: Can you address the stipulation before we go any further?
-: Well, I was not present at that hearing
and that stipulation I think was from
Attorney Tupper's point of view
when I did speak with him about that,
in his mind did not relate to the entirety of the case.
He was suggesting that, at which I believe
Judge Moriardi found
that Licorice, the dog was not alive at the time of
Ms. Jablonsky's death,
I think that was a stipulation he was trying to convey
and that yes, that provision, at least since there was
no dog alive and she died after the dog,
that that provision at least would somewhat lapse.
-: What is that provision?
Article five?
-: Yes,
article five is the trust. -: Yeah.
-: Article four is the.
-: So article five lapse is stipulated by your client.
-: The article five that a portion of that lapses,
meaning that there was no dog surviving either Licorice
or any other dog at the time of her death.
So.
-: And what does that mean then?
So if it lapses, what's alive?
-: I'm suggesting to the court that what is alive
as a result of number four is the intent of the testatrix
to leave all her.
-: When you say number four,
are you saying because of article four it stays,
even though five lapses, four saves it,
article four saves it?
Or what are you saying?
Because this is kind of a mess though.
-: It is a mess.
And I'm certain I could suggest that this could have been
a little bit more artfully drawn.
-: Well, I'd say a lot more artfully drawn, yes.
-: Especially you generally would've seen article four,
probably article six in my mind, just for (indistinct).
-: But just help us out here,
'cause I am confused by the same question
Justice Wendtland asked, which is if article five,
I thought article four kept everything alive,
but is that consistent with the stipulation or not?
-: I believe article four is a residuary clause
relating back to that charity should receive these monies.
And I guess I would suggest to the court,
I wouldn't guess, I'm asking the court to,
number one first rule of construction,
what is a rule of law?
What is the intent?
-: Well I'm trying to figure out what the intent is
'cause the clear intent here is, okay,
the most important creature in her life is Licorice
and I get that.
And she wants to make sure that Licorice is taken care of
and that the people who take care of Licorice
are the people she's gonna trust the most.
-: Yes. -: But once Licorice dies,
those people don't exist.
And also she doesn't care about any particular charity.
This isn't like if Licorice dies,
I want this to go to an animal shelter,
there's none of that.
We've got this kind of amorphous gift to,
well to charity in general,
but she doesn't have any interest in it when this is done
and we've got concessions from the lawyer who drafted
that it was about Licorice, that's it, right?
So I'm trying to figure out are we rewriting the will
or are we following the will here?
-: Not to that whole equation that
I think the attorney said that she
didn't want to put anything in the will to disinherit.
-: That's correct.
So I'm sure you have long ago read the three day trial
and you would've learned from Attorney Tupper
and I believe Mr. Blansky as well,
that Teresa, she was a daily communican at church,
lived near the church.
She was somebody I would suggest,
who didn't have a lot of friends, but.
-: But she doesn't give the money to the church.
-: She wanted it to go to a charity
and she did not. -: No, she doesn't really,
she wants it to go to a charity designated by the people
who are gonna take care of Licorice, right?
That it's a little different, right?
-: Right. -: Yeah, yeah.
-: And you're suggesting perhaps
it could be a power of appointment.
I don't think it was found that was a power of appointment
that then failed.
-: Don't we have a level of ambiguity?
As you just admitted, it's a mess.
So given the three day trial,
the fact that she didn't wanna expressly disinherit
her human family,
don't we need to take all that into account,
which is not what the judge did below?
-: Well, I think that a reading of the transcript
and a reading of some of the other documents
that are in the appendix would clearly indicate number one,
she did not wanna disinherit anyway.
Well, by leaving to charity she was disinheriting,
but she did not want to say that.
And I think Attorney Tupper testified about that
in the portion of the trial,
which was on undue influence. -: So before you go into
the factual dispute, are you admitting then
that the will itself is not capable of dividing her intent?
That we need to go into the extrinsic evidence
to figure out what it is that she intended?
-: I'm not admitting to that.
I believe that she had every intent to,
and again, recall she had been in rehab, broke her leg.
-: No but that's again, you're going into the factual record.
I'm trying to figure out if your position is,
as the judge found below that the will itself is enough,
the four corners of this will is what we look at.
And these words are crystal clear
that she wanted just to establish this Licorice trust
and then require whoever the trustee was,
who's again, not named,
to put all of her assets into a yet to be named charity
and that that's crystal clear in your view from the will?
-: I'm suggesting that is, from my reading of it
and from trying to glean, going back,
this is not a person who said,
I don't care what happens, I just want my dog taken care of.
This is the person who hired a lawyer,
wrote a will, wanted her dog specifically taken care of
in that will and then thereafter to leave the proceeds
of her residuary estate to a charity.
I think that was the intent of Ms. Jablonsky
when she took a number of steps, called a lawyer,
went to a lawyer, had a will drafted, came back, signed it.
I mean, if it was all just like,
why don't I just leave a few dollars somewhere
and the dog will be fine and I don't care what happens,
I don't think that was her intent.
-: Let me ask you. -: Yeah, but again,
you're going into the factual record.
-: Right. -: And.
-: Right, exactly.
I mean I don't think that her,
what I would suggest is in her intent
should be thwarted by an inartfully drawn,
let's say pet testamentary trust for a pet,
which as you recall, that was a brand new statute
that had just come out during the time
she was just a little before she wrote that will in 2013.
So I'm also suggesting there could have been some
inartfulness in the drafting
because there wasn't a lot of what I would call
boiler plate language for attorneys to follow at that time.
And I believe there hasn't been any to date,
any case law on these pet trusts here.
-: Yeah but again,
you're pointing to things outside the will.
-: Yes. -: In order for us
to construe it and when you do that,
you can't just do what came before,
the fact that she hired a lawyer.
It also goes to what came after
and all the evidence that she told the attorney
that she didn't want to expressly disinherit her family.
-: Counsel, can I ask you a question
that goes back to something that attorney Levy mentioned?
What in least, I didn't get this from the briefing,
but perhaps you could tell me, what does Massachusetts
tell us about what you have to demonstrate
in order for the acceleration of remainders to obtain?
Counsel said there's two things
that need to be demonstrated here that we have
in the New York case and the California case
that we don't have here.
Do you agree with what those two things are?
And if you are, what are they?
-: Well I believe that number one,
we do have case law in Massachusetts
on acceleration of remainders. -: Sure.
But what does it tell us we need,
that we will need to find whether or not
it's applicable in this case? -: I think you need a trust
to terminate in some way and simply once it's terminated,
you can accelerate the remainder.
And especially so if it's to a charity,
which of course the courts favor.
So that is what I believe is the only requirement.
-: That the acceleration be to a charity?
-: I didn't get that judge.
-: I guess, I'm trying to, and I'm sorry Justice Georges,
but what are the prerequisites in Massachusetts
in order to accelerate a remainder,
that it be a trust and that the remainder go to charity?
It seems like that was your answer,
but I'm pushing back on that
because I can't find any case law to that effect.
-: On acceleration of remainders?
-: Yeah, what is the prerequisite in Massachusetts
for that doctrine to apply?
-: I believe Judge Moriardi's side, I'm not sure,
I think it's in my brief too.
-: It's not in the decision, I can tell you that much.
-: I didn't hear that, Judge, what?
-: It's not in the decision.
It's not in Judge Moriardi's decision.
-: Okay. -: Because if we take
the first one, using the more artful way
that Justice Wendtland put it, the prerequisite,
you said the first is the termination of the trust,
even if, there was no trust here.
-: Right well (indistinct)
I'm just saying any provision in the will
that fails in some way. -: Okay.
-: And there is a remainder, -: Okay.
-: that it's to go to can then be accelerated.
I'm just suggesting there were two cases where
there were exactly these particular kinds of trusts set up.
And that's the New York and the California,
McNeil case and the. -: Mills.
-: Yes. -: Do we even need it?
I mean, I thought do we, I mean, doesn't article four
make the acceleration of remainders unnecessary?
Article four tells us what to do.
Why isn't the four corners of the will, basically,
you can read it with article four to say
that when it lapses, it goes to this trust.
Isn't that a simpler way for you to get
to where you want to go?
What's wrong with that?
Tell me.
-: Well, I don't think there's anything wrong with that
other than again.
-: Judge relies on, she brings up article four,
she combines it with the acceleration,
but I don't even know if there's an acceleration
going on here because article four says
if anything lapses the money goes to this trust
and then there's the power of this trust
to distribute to charity,
I just don't know why that doesn't work.
Is the case that simple?
-: May I add to Justice Kafker's point,
because I don't see it that simply.
So if you could address this because
back to Attorney Levy's point, it can't go back to nothing.
-: Right. -: So,
if there's no article four,
if you could tell me if it still is applicable,
if there isn't a trust?
If there's no trust, would article four still be applicable?
-: Well, yes.
Well, I don't want to essentially admit to
or I don't agree with that.
The clear reading of that says, oh,
I think I would rather go back to the intent.
Whatever isn't used for the dog goes into
that residuary remainder section of the pet trust
in this will that says it goes to charity.
And a lot of circular reasoning.
(laughs)
-: Yeah, it's a big dosey doe, right?
-: It is. -: Yeah.
And it's also explicitly dependent
on the charitable portion being funded
because the trust went into effect
because the pet survived the testator.
-: Well, again, there's been, and I believe
again Judge Moriardi addresses that,
there's no case law addressing, in our state,
whether a remainder gift to an unnamed charity is vested.
But then she cites the Lickter case
in Trust Company of New York, and I'm sorry,
that's of New Jersey.
And then Leo's case, which is the New York case.
Again, she cites those and says, well,
even though there's charitable remainders,
they're not vested in a charity, they still can be valid.
And so our state has not said anything about that yet,
but she refers to that Lickter case
that is in her motion to reconsider memoranda
as well as Leo's case, so that's New York and New Jersey.
And then of course she refers to the other cases,
McNeil case, and I keep forgetting,
that's another Irish name, I did cite them.
The California and the.
-: Both of those cases, right, the remainder,
the trust is an animal charity, right?
Or am I misremembering? -: No, you're right.
-: So it makes sense, she's an animal person
and it goes to an animal, but charity.
But here, we just got an open-ended
and also it's not even people we know,
it's the court is gonna decide on its own
whatever charity it likes.
-: Yes. -: Give it away.
Isn't that inconsistent with our case law a little bit
that it's too open-ended?
-: Well, we don't have that case law
of an unvested remainder.
I mean the court has not spoken about that.
And as I said, Judge Moriardi referred to those two cases,
that Leo's case, that's New York
and the Lickter case, which is New Jersey.
Again, a well thought out decision
on her reconsideration memo of the partial summary judgment.
-: Counsel, I have one question
to follow up on Justice Kafka's earlier question
about article four. -: Yes.
-: Which is that the lapsed gifts
go to the (indistinct) trust.
One of the things that the judge below says is that,
that's not enough to save the bequest.
Do you have an explanation for that statement,
why it's not enough,
article four in and of itself is not enough to save it?
-: I think she was referring to, excuse me,
or I'm suggesting she was referring to
the lapsed provision that.
-: Right and she says that's not enough to save.
-: To save the partial lapse,
I'm suggesting to you that she is stating.
-: She says it's not enough to avoid intestacy,
It's okay if you don't know, I just wondered,
this is my opportunity to ask you.
-: Yeah, I'm not sure I saw that.
Because at the end again,
she says she finds that the gift is vested in charity.
And again, that's in her memoranda.
And she refers, again, as I said to other states,
because some of, we don't have case law on that.
Not only on the pet trust in general,
because that was done when it just came out.
And again, the issue of whether a remainder
to an unnamed charity is vested,
we don't have any case law on that.