Putnam v. Putnam, supra. See Gustafson v. Svenson, 373 Mass. 273, 275 (1977) (extrinsic evidence of testatrices' alleged intent inadmissible where will, in particular the phrase "his heirs per stirpes," unambiguous). Thus, extrinsic evidence of the decedent's alleged intent is only admissible if his will is ambiguous.
The requirement to construe the instrument to give effect to the intention of the donor is essentially identical in the case of both trusts and wills. Compare Dana v. Gring, 374 Mass. 109, 117 (1977) (trusts), and cases cited, with Gustafson v. Svenson, 373 Mass. 273, 275 (1977) (wills), and cases cited. See Second Bank-State St. Trust Co. v. Wasserman, 337 Mass. 195, 200 (1958), and cases cited.
The following cases illustrate the difference between clear and ambiguous provisions in a will. Compare Gustafson v. Svenson, 373 Mass. 273, 275 (1977) (no ambiguity in phrase "his heirs per stirpes" where "heirs," by force of statute, included surviving spouse; extrinsic evidence of statements made by testatrices to attorney that they wished residuary estate to pass to brother but not his wife inadmissible); Watson v. Goldthwaite, 345 Mass. 29, 33 (1962) (no ambiguity in word "issue," which has technical legal meaning referring to all lineal descendants; extrinsic evidence of testimony pertaining to testatrix's written instructions inadmissible); McMillen v. McMillen, 57 Mass. App. Ct. 568, 569-576 (2003) (no ambiguity in meaning of "paintings, furniture and furnishings" in will where court looked to dictionary definitions and precedent from other jurisdictions to determine meaning of those terms), with Putnam v. Putnam, 366 Mass. 261, 269-271 (1974) (where conflict in language of will created ambiguity regarding testator's intent with respect to estate tax marital deduction, extrinsic evidence concerning statements of testator's at
The term "heirs" includes a surviving spouse. Gustafson v. Svenson, 373 Mass. 273, 275-276 (1977), and cases cited. In their affidavits, the settlors have sworn that they did not intend to include any surviving spouse, but only each predeceasing child's descendants.
Thus his use of the phrase "by right of representation" defines the manner by which the beneficiaries should take. See Gustafson v. Svenson, 373 Mass. 273 (1977). Boston Safe contends that at the time the will and its codicils were executed the terms "heirs at law" and "statutory distributees" had similar meanings.
While we are in agreement with the viability of the preceding dictum, we fail to find the intent of testator, Claude Brandon, to be either ambiguous or obscure. As our sister court in Massachusetts succinctly stated in Gustafson v. Svenson, 373 Mass. 273, 366 N.E.2d 761, 762 (1977): The phrase "his heirs per stirpes" is not ambiguous. The word "heirs" includes, by force of statute, a surviving spouse.
Fitts v. Powell, 307 Mass. 449, 454 (1940). Gustafson v. Svenson, 373 Mass. 273, 275 (1977). Where "a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed or devised by express or formal words, the court must supply the defect by implication and so mould the language of the testator as to carry into effect as far as possible the intention which it is of opinion that he has sufficiently declared."
However, where the testator has created a gift over, the bequest passes according to the terms of that gift. See Gustafson v. Svenson, 373 Mass. 273 (1977); Leary v. Liberty Trust Co., 272 Mass. 1 (1930).
d.. at 785. Construing the term "contest" narrowly and applying traditional rules of interpretation, see Gustafson v. Svenson, 373 Mass. 273, 275 (1977) (where will unambiguous, language interpreted according to legal meaning, even where testator not likely to have understood legal meaning); Watson v. Goldthwaite, 345 Mass. 29, 33-34 (1962) (construing word "issue" according to its technical legal meaning where no evidence of testatrix's intentions to contrary), "contest" is a judicial proceeding to determine the validity of a will. Accordingly, Sean did not "contest the probate or validity of" his father's will.
" Where a will is unambiguous, extrinsic evidence to aid in interpretation of its provisions is inadmissible even though language involved has a legal meaning which is not likely to have been understood by the testator or which does not correspond to an oral statement of his intention. Gustafson v. Svenson, 373 Mass. 273 (1977). In this case, there was no question as to what property the testatrix was referring to when she devised the property to the plaintiff and the defendant, respectively.