Opinion
10-P-2057
10-27-2011
FRAN RACHLIN, executrix, v. HILLARD FORMAN, executor.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Fran Rachlin, as executrix of the estate of Jannette Rachlin Forman, appeals the decision of a Probate and Family Court judge construing the will of Irving S. Forman, Jannette's late husband. The judge determined that Jannette received a life estate/term estate in the marital home that would terminate either upon her death or the sale of the property, and that she was not entitled to any proceeds from the sale. Although we agree with the judge that the will created a term estate/life estate that would terminate either upon sale of the property or Jannette's death, we disagree that her interest had no value at the time of sale. Accordingly, we remand for the sole purpose of determining the value of Jannette's interest at the time of sale.
We refer to the parties and their decedents by their first names for sake of clarity.
1. Background. Irving and Jannette married in 1984, and it was the second marriage for both. On October 13, 1984, they entered into an antenuptial agreement that provided, in pertinent part:
'It is agreed that the real estate owned by Irving S. Forman shall be divided as follows upon the death of the said Irving S. Forman:
'One-third to Alan H. Forman;
'One-third to Mitchel H. Forman; and the remaining one-third to them equally upon the death of Jannette Rachlin Forman but
'One-third to Jannette Rachlin during her lifetime. If during her lifetime the said parties mutually agree to sell said real estate, that they shall be allowed to do so. During the lifetime of Jannette Rachlin the expenses regarding the upkeep and maintenance of the said real estate shall be borne equally by the three parties. If any of the parties are unwilling or unable to make payment of their respective expenses, at any time during the lifetime of the said Jannette Rachlin, then such share as may be borne by the other parties, shall be deducted from the net profit available at the time of the sale of said real estate.'
Shortly thereafter, on October 26, 1984, Irving executed a will directing that the real estate he owned at his death pass as follows:
'One-third to my son ALAN H. FORMAN; One-third to my son MITCHEL H. FORMAN; and the remaining one-third to them equally upon the death of Jannette Rachlin Forman but One-third to my wife JANNETTE RACHLIN FORMAN during her lifetime. If during her lifetime the said parties mutually agree to sell said real estate they shall be allowed to do so. During the lifetime of Jannette Rachlin Forman, the expenses regarding the upkeep and maintenance of the said real estate shall be borne equally between the three parties. If any of the parties are unwilling or unable to make payment of their respective expenses at any time during the lifetime of Jannette Rachlin Forman, then such share as may be borne by the other parties, shall be deducted from the net profit available at the time of the sale of the said real estate. . . .[ ] It is my wish and desire that Jannette Rachlin Forman shall have the right to remain at said real estate for such period after my death as she may desire and that my said sons shall co-operate with her in every reasonable manner in regard to remaining at said real estate.'
The omitted text reads: 'Upon the sale of the said real estate, the net share which shall be due to my said sons shall be held in Trust by my executor or alternate executor pending the sale of said real estate or the death of Jannette Rachlin Forman whichever shall take place first at which time said share may be turned over to my said sons.'
Irving died in 2006, leaving the marital home, where Jannette continued to reside until she moved to a nursing home in 2008. By agreement among Jannette and Irving's two sons, the house was sold for $206,000 in August, 2009. Jannette died the following month.
A portion of the sale proceeds, i.e., $23,172, was used to release a MassHealth lien on the property for Jannette's medical expenses.
In December, 2009, Hillard Forman, as executor of Irving's estate, filed a petition for determination with the Probate and Family Court to interpret Irving's will. The parties stipulated that the matter could be decided on the papers, which included the transcript of Fran's deposition. Hillard argued that the will gave Jannette either a term estate ending when the realty was sold or a life estate in one-third of the property ending with her death. Fran argued that the will gave Jannette either a one-third interest in the net proceeds from the sale of the house with the remaining proceeds held in trust for her benefit, or the value of a life interest in the net proceeds from the sale of the house with the remaining proceeds held in trust for her benefit.
Hillard's original petition sought a determination that the will gave Jannette a life estate and a remainder to Alan and Mitchel. The petition was amended to address the issue of Jannette's interest in the proceeds from the sale.
The probate judge concluded that the will gave Jannette a life estate/term estate in the property that would terminate either upon her death or the sale of the property, and that she was not entitled to any proceeds from the sale of the house. Fran appeals this judgment.
2. Discussion. Although our review of the probate judge's findings 'is limited to a consideration of whether such findings are 'clearly erroneous," Clark v. Greenhalge, 411 Mass. 410, 416 (1991), quoting from First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621 (1985), because all of the evidence was documentary and no facts are disputed, we are 'in essentially the same position as the probate judge to decide this case' and may interpret the will as a matter of law, Old Colony Trust Co. v. New England Merchs. Natl. Bank of Boston, 349 Mass. 303, 307 (1965). '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. If a will is not ambiguous, extrinsic evidence to explain its terms is inadmissible, even where the language involved has a legal consequence either not likely to have been understood by the testator or contrary to his intention expressed orally.' Putnam v. Putnam, 366 Mass. 261, 266 (1974) (citations omitted).
In our view, Irving's will is unambiguous with respect to the identity of the beneficiaries and the interests they are to receive in his real property. Upon Irving's death, his sons each were to receive a one-third undivided interest in fee simple. The language granting '[o]ne-third to my wife Jannette Rachlin Forman during her lifetime' gave Jannette a life estate in the remaining one-third of the property. Upon Jannette's death, the sons each would receive a one-half undivided interest in fee simple in her one-third. Any other interpretation would be contrary to the plain meaning of the terms of the will. See Langlois v. Langlois, 326 Mass. 85, 87 (1950) ('the explicit phrase 'during her lifetime" creates life estate).
We are not persuaded by Fran's argument that the will created a patent ambiguity. See Flannery v. McNamara, 432 Mass. 665, 668 (2000) ('A patent ambiguity is one created by obvious conflicts in the language of the will itself'). To the extent that there was any ambiguity in the will, it related to the language pertaining to whether a trust was created upon Jannette's death or the sale of the house. See note 4, supra. The question whether a trust was created, however, is no longer at issue because Jannette has not appealed from the judge's determination that no trust was created.
The fact that the will does not specify how the proceeds of a sale of the property during Jannette's lifetime were to be distributed does not in itself create an ambiguity. No such language was necessary because, in the absence of language to the contrary or a contrary agreement among the parties, the proceeds are to be apportioned as a matter of law according to the various interests in the property, and each interest holder is entitled to the value of his interest at the time of the sale. Foster v. Hillard, 9 F. Cas. 549, 552- 554 (C.C.D. Mass. 1840) (No. 4,972). See Summers v. Summers, 26 Mass. App. Ct. 592, 593-594 (1988) (calculating value of life estate at time of sale based on actuarial tables in use at time of sale). In this case, Jannette was entitled to the value of her life estate in one-third of the marital property at the time the property was sold.
The record is insufficient to permit us to calculate here in the first instance the value of Jannette's life estate in one-third of house at the time the property was sold. Nor is this aspect of the case submitted on stipulated facts. As a result, so much of the judgment as held that Jannette's estate shall not be entitled to any proceeds from the sale of the property is vacated, and the matter is remanded to the Probate and Family Court for the sole purpose of calculating the value of Jannette's life estate in one-third of the property in August, 2009. The remainder of the judgment is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),