-: SJC-13436 Thomas Gibney v John A Hossack.
(justices chattering)
-: Okay, Attorney Davison, whenever you're ready.
-: Good morning, may it please the Court,
Juliet Davison on behalf of appellant John Hossack,
who is the brother and sole-surviving
immediate family member of the decedent, Heather Hossack.
This case presents the issue
whether words of survivorship alone in a bequest,
"if she survives me," are always sufficient to defeat
the application of the Massachusetts anti-lapse statute,
Chapter 190B, section 2-603.
More specifically here, do the words, "if she survives me,"
following Heather's bequest of her U.S. Trust account
to her brother, an account worth,
with a date-of-death value of $2.3 million,
to her mother Ethel Wyman,
unambiguously state her intention to defeat
the anti-lapse statute such that the gift
would pass under the residuary clause
to her next door neighbor, plaintiff Thomas Gibney.
-: Prior to our adoption of the UPC.
-: B3. -: Prior to our adoption
of the UPC, what was the effect of, "if she survives me"?
If you know.
If you don't, I can look it up.
-: I'm thinking about how to answer your question.
because prior to the adoption of the
MUPC, the statute, Chapter 191, Section 22,
I believe the language is similar in the statute.
-: So, pre-UPC, I, in Massachusetts, have a will,
and it says the U.S. Trust account
goes to mom if she survives me.
What happens?
And mom dies.
-: What I'm saying is the statute,
the language of the statute is not different.
The argument that I'm making to the court is
that language does not say anything about what happens
to the bequest if she doesn't survive.
-: But you didn't know, I guess you don't know.
You don't know what would happen
if she survives me prior to the UPC.
Is that what you're saying?
-: I'm saying I- -: You're saying it depends?
-: The statutory language is different, but...
I can read you the statutory language.
-: No, I can do that.
Thank you. -: Okay.
(Justice Wendlandt and Attorney Davison laughing)
-: I'm trying to figure out what would happen
to a pre-UPC will "if she survives me" language.
Would that be enough to show a testator's intent
that the devisee has to survive the testator?
-: My brother would say that the MUPC did not change
preexisting law on the anti-lapse statute.
-: And that's why I asked the question,
what was the preexisting law?
-: (laughing) I don't have a reported case
to present to the court.
What I am saying is that
there is nothing in the pre-existing statute,
and there is nothing in the MUPC that defines, that says,
if you use the language, "if she survives me,"
that defeats the application of the anti-lapse statute.
-: What does that language mean?
-: Well, a lay person reading the language
would say the plain meaning "if she survives me"
is she needs to survive to take the gift.
It does not tell you what happens
to the gift if she doesn't survive you.
And so what we've cited to the court,
and there's a quite a bit of writing on this
in various jurisdictions,
and there's a conflict in different states,
is there are plenty of ways to clarify
what happens to the gift if A does not survive the testator.
The will could say, "and if she doesn't survive me,
"I intend that the-"
-: We wouldn't be here if it said
it goes to the residual clause. (laughing)
-: It could have said that. -: We wouldn't be here
if that- -: Exactly, right.
Well, so that's the point, is the language,
one is the language unambiguous or ambiguous.
And I contend that certainly a lay person would
say that it's ambiguous.
There are probably some estate planners who would say
that they believe it to be unambiguous,
but there is, on the face of it, it does not tell you
what is supposed to happen to the gift
if A predeceases the testator.
I'd like to, we cited this in our brief,
but I would like to highlight for the court some aspects
of the anti-lapse statute,
the purpose of anti-lapse statutes.
-: Before you do that- -: Yep.
-: Could you talk a little bit about the Mass UPC
not adopting the B3 annotation?
-: Yes, the B3 annotation says
that words of survivorship never are sufficient alone
to state an intention to defeat the anti-lapse statute.
Our contention to the court and their,
many courts have agreed with this
and commentators have agreed with this,
and some do not, that the converse of that,
that does not mean that the converse of that is true,
that words of survivorship always
reflect an intention to defeat the anti-lapse statute.
And there, I know we're not in Connecticut,
but I would point you to Connecticut,
where there is a case that has very closely followed...
Connecticut did not adopt 2- Section 603
of the B of the UPC,
but the Supreme Court followed that reasoning
and said that words of survivorship
are never sufficient alone to defeat the application
of the anti-lapse statute.
So this court's,
in interpreting the statute,
"The court is to look at all the words
"construed by the ordinary
"and approved usage of the language
"considered in connection with the cause of its enactment,
"the mischief or imperfection to be remedied,
"and the main object to be accomplished to the end
"that the purpose of its framers may be effectuated."
Rules of construction with regard to the anti-lapse statute.
This is comment F to the restatement.
"Anti-lapse statutes establish a strong rule of construction
"designed to carry out presumed intention.
"They are based on the constructional preference
"against disinheriting a line of descent.
"Consequently, these statutes should be given
"the widest possible sphere of operation
"and should be defeated only when the trier of fact
"determines that the testator wanted to disinherit
"the line of descent headed by the deceased devisee.
"Hence, the burden is on those who seek to deny
"the statutory protection,
"rather than on those who assert it."
As I alluded to earlier,
but just want to make sure I spell out for the court,
how can a contrary chapter 191B section 2-601,
says that the four corners of the will govern
unless the contrary intention is reflected
on the face of the will.
How can a contrary intention,
how could it be reflected on the face of the will?
-: Are you saying there was inappropriate fact finding?
At all? -: I don't think
this judge made any factual findings.
I think the judge found that
the language was unambiguous
because the legislature did not adopt
section 2-603B of the UPC,
and I don't think that she went much beyond that.
And my argument, my primary argument to this court,
is those words "if she survived me," are not unambiguous.
There may be, there may be a estate planners may say,
"Well, that's a practice that we've used,
but where are the findings in this decision
about the ordinary course of usage of these terms?
And why is it that they're unambiguous?
Did Heather, when she signed this will,
understand that if her mother predeceased her,
which was a good bet, that 2.5 million,
a lot more than that now,
dollars was going to pass to her next door neighbor,
these were family assets,
and not pass through the line of descent to her brother?
Did she understand when she signed that will
with those words prepared by a Connecticut lawyer,
a state in which the law is very clearly
that those words are not sufficient
to defeat the application of the anti-lapse statute,
did she understand that that
was what the result of that will would be?
And that our argument is that there is not,
that this record does not unambiguously reflect
she knew that that was going to happen.
This was a will that was prepared by someone
who did not know her, who spoke to her briefly,
prepared the will on an urgent rushed basis
in a very short amount of time,
not admitted to practice in Massachusetts.
There's no record of any research on Massachusetts law
when he prepared the will.
And so we contend that this will
does not unambiguously reflect
an intention to disinherit her brother,
appended to the annotations to the anti-lapse statute are,
the entire UPC is appended as annotations to the MUPC.
So if you were to look at the MUPC on Westlaw,
all the annotations are the uniform probate court entries.
And so if you look at Chapter 2-,
MUPC 2-603, you will see all of the comments
from the UPC on this section, which go into enormous detail.
And I'm happy to repeat them.
They're cited in our brief.
As to why words of survivorship are not sufficient
to overcome the anti-lapse statute on their own.
So they're appended to the statute,
and the fact that they're appended to the statute
puts the world and practitioners on notice
of the ambiguity of the language,
of the problems with the language.
And again, this is not a complicated issue to solve,
because, as Your Honor pointed out,
all you would need to say is, "And it is my intention
"that the gift should lapse if A does not survive me,"
or "It is my intention that this gift should pass
"to the residuary clause if a does not survive me."
It's not a difficult undertaking,
and it would provide clarity.
A layperson would understand that.
There is one reported case that the lower court
cited in her decision, Lace versus Ecklund.
It's an unpublished disposition in the appeals court.
But what was interesting about that case is that
the appeals court found the language
to be ambiguous on summary judgment,
and the case went to trial.
Ultimately, the case was not appealed on that basis.
And ultimately the court found that there
was sufficient evidence to confirm an intention
to defeat the anti-lapse statute,
but on summary judgment, the court found
that that language was ambiguous.
-: Anything else?
-: Let me see.
Yes, I think you're going to hear from my brother
about the four corners of the will.
And I agree that the four corners of the will are critical.
There are a large number of irregularities
on the face of this will.
I understand the will's been admitted to probate,
but the attestation clause was not completed.
There's no notarization.
The will is full of references to executors.
That is not a concept that we,
terminology that we use in Massachusetts
post adoption of the MUPC.
It's personal representative.
The will refers repeatedly to trustee and trustees.
There's no trust or trustee, that's irrelevant.
It really appears that this was a young Connecticut lawyer,
in a hurry, using a form
without necessarily conforming it to Heather's intention.
There are references in Article X of the will
to the Massachusetts general laws, which are nonsensical.
They refer to general laws Section 2.
They're adopted.
That doesn't make any sense even if you say,
"Well, what he meant was to refer to the MUPC Section 2,
that wouldn't make any sense.
-: Do with this parade of mistakes?
What is your point?
-: The point is that
we do not have comfort that this will,
that the way this will is being interpreted,
reflects Heather's intention to disinherit her brother.
This is a will that was prepared,
and I understand it was admitted to probate,
but the sort of all of the facts and circumstances
around the language of this will
and the execution of this will raise questions
about can we have confidence that this is
what Heather intended, unambiguously.
And what I am submitting to you is that we cannot.
One last point very quickly,
just to address in Article XI,
because I think my brother
is gonna talk to you about Article XI,
I would like to point out that this is just a form
that Article XI, second sentence says, "No beneficiary..."
"No beneficiary shall be considered
"to have survived the event,
"terminating any trust under my will
"and to be entitled to any trust principle on the occurrence
"of that event unless such beneficiary survives
"for at least 30 days after that event."
It's plainly form language.
There were no trusts that were created under the will
or that are in existence.
Thank you very much. -: Okay, thank you.
Okay, attorney Muzio.
-: Good morning.
-: [Chief Justice Budd] Did I get that right?
-: May it please the court,
the lower court's decision in this case was correct.
The will was allowed.
-: We never hear an appellee say that.
(justices laughing) -: Well, I...
The lower court examined this will as tasked under the MUPC
and determined that there was a sufficient contrary intent
in the four corners of the document.
Now, the decision focuses
on the condition of the gift, survival.
Without satisfying the condition, the gift fails
and falls to the residue under 2604 of the MUPC.
Now, my sister talks about disinheriting her brother.
She didn't disinherit her brother.
She left her brother in excess of a million dollars.
She left her neighbor the residue.
His friend, healthcare proxy, trusted soul.
So, when she did this, if you look at the will,
you can see you have to look,
you don't even have to look that hard.
'Cause in addition to the survival language,
she qualified these gifts.
She considered who was going to predecease her.
She was obviously faced with her mother predeceasing her,
because her mother was 85 at the time
that she signed the will.
So that's a natural inclination.
But all you have to do is look at the several dispositions,
which are at
Article V, tangible personal property.
To her friend, Donald Etchison, per stirpes.
In other words, he could predecease her,
and whatever he was to get would go to his heirs.
Similarly, with regard to the real estate,
she left her home in Marblehead,
and she left her three pieces of property in Maine
to Donald Etchison, her friend, per stirpes.
Again, she contemplated
whether or not this person would survive.
Now, same with Tom Gibney, per stirpes.
As to the residue.
If you look at the specific bequest in Article VIII,
to her mother and her brother.
She has a specific qualification.
"If she," or in the case of the brother, "he survives me."
She clearly contemplated that these gifts
were not to go beyond the lives of the people
that she named in her will.
Obviously with respect to Mr. Gibney and Mr. Etchison,
she thought about it.
So, there's a clear contrary intent
that the anti-lapse statute should apply,
and whatever failed bequest,
in this particular case to her mother,
should go to the brother
rather than the residue, Tom Gibney.
In the record, yes,
the attorney was admitted in Connecticut.
There's no requirement that a will be drafted
for a Massachusetts resident
by an attorney in Massachusetts.
-: Why isn't there an ambiguity "if she survives me,"
where there's no additional language
that if she does not, it goes to, it lapses?
-: Well, I mean that's pervasive practice in Massachusetts-
-: Which is?
-: To use the language, the magic words,
"if he or she survives me."
It's a conditional gift.
-: And what's your authority for that?
-: We cited a half a dozen scholars and treatises
advising Massachusetts practitioners, estate planners,
on how to address application of the anti-lapse statute.
Now, and I'd like to talk about Leis,
because that really is the only Massachusetts case
that addressed this issue.
And actually Leis was raised by Judge Ulwick
in the decision. -: Can I ask you,
sorry to interrupt your flow.
"If she survives me" in Massachusetts practice, you say,
has always been enough, is enough under the MUPC.
Attorney Muzio: Correct.
-: Do you know why Connecticut went a different route?
-: Well, Connecticut adopted the UPC.
Do I know why Connecticut- -: Well what is your...
What will be the distinction between us and them?
-: Well, Massachusetts made a conscious decision
not to adopt 206B,
2603B3.
-: And I thought Connecticut did as well.
-: Connecticut did.
Well, the fact,
I have no idea why Connecticut didn't adopt it.
And their courts, the decision says what it says.
But in terms of Massachusetts,
and Judge Ulwick, who was on the committee
who drafted the MUPC-
-: Okay, so "if she survives me"
in Massachusetts practice works.
So you don't need the per stirpes in Article V
or the per stirpes in the residual clause.
Really, it- -: Well, actually no,
I disagree with that, because if...
And this is, to me, this is why
the anti-lapse statute developed,
because you'd have a bequest to my mother,
and then there would be nothing.
Okay?
So obviously you need some law.
You need some legislation that dictates
where this failed bequest goes,
because it doesn't say if she survives me.
It's not conditioned on if she survives me
or if she survives me for 30 days.
And this kinda goes back to your question
earlier to my sister regarding what was the prior law?
Okay, under chapter 191, Section 22,
in this event, the court would have to look,
or yeah, the court would have to look
to an alternate disposition in the will.
Okay?
In other words, some affirmative disposition,
you know, if not to A then to B, okay?
That's not what the UPC says.
The UPC says contrary intent, okay?
You look to the document for contrary intent.
And contrary intent and an alternate disposition
can be two very different things.
They can be the same, I agree,
but they also can be two very different things
in the sense that- -: Do you have to show
that she knew what would happen to that particular-
-: I think it's important that she, do you have to show?
-: Do you have to show that she knew
what was gonna happen if her mother did not survive her?
-: We did show.
-: Would you show me
where that is in the will?
-: The attorney's deposition testimony in the record.
-: But you only get there if we find
that there's an ambiguity.
Because that's extrinsic, right?
-: Well, I think that within the context
of this particular case,
it was before Judge Ulwick on a summary judgment motion.
-: Sure. -: She did not,
she ultimately found it was unambiguous.
But in terms of the information that's developed
during discovery and offered to the court
within the context of a summary judgment motion,
that doesn't necessarily mean it would be
admissible evidence or extrinsic evidence
that would be considered by the court after trial.
First you'd have to find ambiguity or not.
-: So, are we looking at the four corners of this or not?
-: We are looking at the four corners of this.
-: So within this, how you show that she understood
what was gonna happen to the money or the account?
-: Because she used the word per stirpes,
with respect to two non-family members.
And she used "if he and she survive me"
with respect to the two family members.
That to me is,
this case is decided based on that set of facts.
-: You think she knows those are magic words
and we didn't adopt B3?
-: I don't think we have to hold her to that stent.
Oh. -: In response to the-
-: Do I think that she knows?
I don't know.
I don't know what Heather knew.
-: Yes, you don't know if she knew?
I mean that's the whole point.
-: Well, I know from extrinsic,
I know from the discovery that she knew.
-: But I'm talking about-
-: I know from the deposition testimony
that my sister took of the attorney,
who acknowledged that he had a specific discussion
with Heather about the anti-lapse statute
and what would happen if her mother predeceased her
and the fact that if her mother did predecease her-
-: But isn't that really why you
hire an attorney to do your will?
I mean, because the average person on the street
doesn't really go around saying per stirpes.
(justice laughing)
-: Well, no, but- -: And they don't
really know what that means,
but they communicate with their lawyer, who's their agent,
and the agent presumably does what they are tagged to do.
-: I don't disagree with that.
But this is a legal document that was admitted to probate.
It was offered as a formal petition for probate.
It was allowed by the judge,
and it is the operative document,
and Judge Ulwick took the steps to review the will,
found it to be unambiguous,
and her decision should be affirmed.
It's supported by the facts. -: Well, counsel, let me,
again, I make the same apology, Justice Wendlandt,
and I know you were on a roll,
but if we're talking about "if she survives me,"
you know, you say it completely answers the question
about what the intent of the testator was.
But there is force to the other side's argument,
to Attorney Davison's argument that,
well, it might be some indication.
It doesn't answer the entire question.
Because, I suppose that there's equally the world where
she just assumed that it would go to her brother.
That "if she survives me,"
if she didn't, that it would go to her brother.
Okay, it didn't say that.
But the "if she survives me," doesn't necessarily mean
that the residual was to get the benefit of the money.
-: Well, I think in several respects it does,
because A, the gift fails.
Failed gifts under the MUPC goal to the residue.
That's 2604.
Under 2601, if you're looking for a contrary intent,
you have to use the plain meaning, okay?
You have the construction of the will,
you use the plain meaning, and you look to all the terms
and you give them all effect.
"If she survives me,"
when held in contrast with per stirpes,
distinguishing these two, she is cutting off,
she is cutting off the gift to,
the two conditional gifts to her brother and her mother.
And she's not doing that with respect
to the two gifts to her friend, Mr. Etchison,
and the residue to her friend, Tom Gibney.
-: Well, you can look at it the other way around,
too, right? -: Right.
-: You've got two people who are not relatives
that she wanted to make sure that they,
of where the item or whatever the thing would go.
And then for her mother,
she perhaps assumed that it would go to her brother.
-: Exactly. -: And wouldn't have to
make that clear. -: Spell that out.
-: Well, I think that the record reflects
that the judge considered that she did not think
that a failed bequest to her brother was gonna go to the,
she actually thought that it was gonna go to the residue.
She believed what her attorney told her.
Attorney testified under oath. -: I'm confused with that,
because I didn't understand
the appellant's answer to my question when I said,
"So did he do any inappropriate fact finding?"
The probate and family court judge.
And she said, "No."
And then you said, "That no,
"it's the four corners of the document,"
but it keeps coming up that the judge
credited that Heather was told
that the bequest to Wyman would pass under the residuals.
That there was a crediting of Floren's testimony-
-: Right. -: Summary judgment.
-: 'Cause you can't have- -: So I don't understand
either of your answers.
-: Well, are you not understanding because I,
in terms of it being extrinsic evidence?
-: Right. -: Well, all I'm,
in terms of you can look at
the four corners of the document, and-
-: Well, it's not necessarily that we can do that,
because the judge decided this on summary judgment
and said that the document itself was unambiguous.
And I guess the confusion that we keep having is
in the analysis, the judge continues to reference
extrinsic evidence as informing
what should be the four corners of the document.
So if the judge is using the testimony of the attorney,
that, "I told her this was going to fall
"to the residual beneficiary or to the residue,"
in terms of whether or not the contract itself,
the will itself is unambiguous,
you agree that the judge can't do that.
-: I think within the, if you- -: Let me start first,
you agree that the judge can't do that
if the will is unambiguous.
-: In the vacuum of an unambiguous will,
and a judge considering evidence on what that will says,
yes, but outside that vacuum
is a motion for summary judgment,
where my sister is presenting
what she says are genuine issues of material fact.
-: Sure. -: Those genuine issues
of material fact, some of them arise
out of the deposition testimony of the attorney.
-: But the basis for summary judgment was not on that.
It was based on that the will itself was unambiguous.
-: That's, I agree with that. -: Okay.
-: And in terms of what you are defining
as extrinsic evidence
and her consideration of extrinsic evidence,
it's within the context of a summary judgment,
an opposing summary judgment.
She needs to address those in the opinion.
She can't just wipe away what my sister's arguments were
and the facts that she raised and claimed were genuine,
represented genuine issues of material fact.
-: Let me try it this way.
Can we or can we not consider
what Floren said Heather knew?
-: Well, you're hearing this de novo,
because it was a summary judgment motion.
And within that context,
you can look at the four corners of this document
and you can find that there is a sufficient contrary intent
based on the plain language of "if she survives me"
and the differentiation of the gifts.
-: The judge I clerked for used to always say
"We didn't get an answer to the question.
"This isn't 'Meet the Press.'"
So can we consider Floren's testimony or no?
-: Well, the judge found the will unambiguous.
-: But you said we can look at this de novo?
-: Well, you're reviewing,
but you're reviewing- -: Well, I mean, you know,
so summary judgment, right?
We have material,
no material disputed facts, right?
That's the standard, right? -: Right.
-: And, you as a matter of law, get a judgment.
And that would only be possible if we agree
that the will itself is unambiguous, right?
We couldn't consider Floren's testimony,
because it is disputed.
There were memory issues that he encountered, right?
That is a disputed fact.
So if we have to go to Floren to determine the intent
of the testator, you lose,
because we have to view it
in the light most favorable to the non-movement.
-: And as I just said, this court,
based on a de novo review of the undisputed facts,
looking at this will,
within the four corners of the document,
can conclude that there is a sufficient contrary intent
for the application of the-
-: Where does that sufficient come from?
-: It's a sufficient contrary intent that,
well, first of all, the plain language of
"if she survives me." -: But that's not the standard.
It has to be unambiguously
a contrary intent to not allow
the anti-lapse statute to apply.
-: It's a conditioned gift. -: Yeah.
-: Okay?
If she survives- -: Oh, I know the facts.
I just, it's- -: Okay.
-: The sufficiency of the evidence
is not the standard on summary judgment.
-: Judge Ulwick found the will to be unambiguous,
relied on the language.
She didn't even mention the per stirpes language,
which I think is critical,
because there is a distinction
between the two types of gifts.