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SJC-13397
IN THE MATTER OF THE ESTATE OF THERESA A. JABLONSKI.
Middlesex. May 1, 2023. – August 24, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Devise and Legacy, Residuary interests, Remainder interests, Extrinsic evidence affecting construction, Intestacy. Dog. Trust, Construction, Remainder interests, Termination. Will, Construction, Extrinsic evidence. Charity.
Petition filed in the Middlesex Division of the Probate and Family Court Department on June 19, 2019.
A motion for partial summary judgment was heard by Elaine M. Moriarty, J.; a motion for reconsideration was heard by her; and the remaining issues were also heard by her.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
David M. Levy for the objectors. Penelope A. Kathiwala for the proponent.
CYPHER, J. The decedent, Theresa A. Jablonski, executed a
will that left her entire estate to a testamentary trust,
pursuant to G. L. c. 203E, § 408, for the benefit of her fifteen 2
year old cocker spaniel, Licorice, and any other pet she might
have at the time of her death. According to the terms of the
trust, after the death of all beneficiaries, the trustees were
obligated to designate a charity to receive the remainder of any
and all funds in the trustees' control. At the time of the
decedent's death, however, neither Licorice nor any other pet
survived the decedent. This case presents the issue whether the
remainder of the decedent's estate to charity is valid despite
Licorice having predeceased the decedent or, alternatively,
whether Licorice's failure to survive the decedent renders the
pet trust void, such that the decedent's property is to pass
through intestacy to the decedent's heirs. Where we conclude
that the provisions for Licorice in the testamentary trust
lapsed, and where there exists a genuine issue of material fact
whether there was a clear intention that the charitable
remainder not be conditioned on Licorice's survival of the
decedent, the judge erred in awarding partial summary judgment.
Accordingly, we vacate the decree and order, and we remand the
matter for further proceedings.
Background. We recite the facts in the light most
favorable to the nonmoving party. See Huang v. Ma, 491 Mass.
235, 239 (2023) (evidence viewed in light most favorable to
nonmoving party on review of decision on motion for summary
judgment). On August 13, 2013, the decedent, Theresa A. 3
Jablonski, executed a will that left her entire estate in trust
to her cocker spaniel, Licorice. At the time the will was
executed, the decedent's niece, Ann M. Jablonski,1 retained a
durable power of attorney, and she managed the decedent's
affairs. The will had been prepared by Ann's attorney at Ann's
request. According to the attorney, the decedent's "main
concern" in executing the will was to ensure care for Licorice.
Article V of the will created the "Licorice Testamentary
Trust" (trust), pursuant to the requirements of G. L. c. 203E,
§ 408. The trust's beneficiaries were limited to the decedent's
dog, Licorice, as well as any other pets the decedent may have
in her possession at the time of her death. According to the
terms of the trust, it was to be funded on the decedent's death.
The trustees, not designated by the trust instrument, were to
use the funds of the trust to provide for the "health, care,
maintenance, and appearance" of the trust beneficiaries. After
the death of all beneficiaries, i.e., Licorice and any other pet
who survived the decedent, the trustees then retained the "power
and authority to designate a charity to receive the remainder of
any and all such funds that shall be in [the trustees']
possession, custody or control."
1 Because some parties share a surname, we will refer to them by their first names. 4
Article V of the will, which contained the provisions that
established the instant trust, was the only bequest in the will.
Article IV of the will, however, contained the will's residuary
clause. According to Article IV, all remaining property,
including "all lapsed legacies and devises or other gifts made
by this [w]ill which fail for any reason" would be given in
trust to the trustees of the trust that was established in
Article V of the will.
Approximately six years after the execution of the will, on
May 24, 2019, the decedent died at the age of eighty-three. She
died without a surviving spouse, child, parent, or sibling. Her
next of kin were her four nieces and nephews: Joseph J.
Jablonski, Jr., Paul A. Jablonski, Sally E. Jablonski, and Ann
M. Jablonski. Licorice, the decedent's only named beneficiary,
had been euthanized approximately two years earlier, on March
15, 2017, and thus predeceased her. No other pets survived her.
On June 19, 2019, Ann filed a petition in the Probate and
Family Court to probate the decedent's will and to be appointed
as personal representative, in accordance with the will. The
decedent's other three surviving heirs (objectors), Joseph,
Paul, and Sally, objected to the purported will and to Ann's
appointment as personal representative of the estate. The
objectors argued that the only bequest in the will, i.e., the
trust set up for the care of Licorice, lapsed because no pet had 5
survived the decedent.2 Ann moved to strike the objections,
arguing that the decedent intended to leave her entire estate to
the trust for the benefit of Licorice and then to charity on
Licorice's death, even if Licorice predeceased her. The motion
was denied. After the case was reassigned to the court's
fiduciary litigation session, the parties agreed to resolve on
summary judgment the issue whether the bequest to the trust had
lapsed.
Following the objectors' motion for summary judgment, the
judge granted partial summary judgment in favor of Ann on the
validity of the charitable remainder provision. The judge held
that, as a matter of law, the trust provision for Licorice
failed because Licorice predeceased Theresa. See G. L. c. 203E,
§ 408 (a) ("A trust for the care of animals alive during the
settlor's lifetime shall be valid. Unless the trust instrument
provides for an earlier termination, the trust shall terminate
upon the death of the animal or, if the trust was created to
provide for the care of more than [one] animal alive during the
settlor's lifetime, upon the death of [the] last surviving
animal"). Despite the failure of the trust, the judge awarded
partial summary judgment in favor of Ann because the charitable
2 The objectors also alleged that the decedent lacked testamentary capacity and that the will was procured by undue influence from Ann. 6
remainder provision was to be given effect under the doctrine of
acceleration of remainders. See Thompson v. Thornton, 197 Mass.
273, 275 (1908) ("The death of the life tenant before the
testator simply accelerates the time when the devise over
becomes operative").
The objectors sought timely reconsideration of the judge's
award of partial summary judgment in favor of Ann. The motion
for reconsideration was denied. In denying the motion for
reconsideration, the judge determined that the decedent
"intend[ed] for the charitable remainder to take effect
regardless of whether her pet survived her." The judge
determined that the lack of an intent to condition the
charitable remainder on Licorice's survival of the decedent was
"clear" from the fact that the Article V trust was the sole
bequest in the will. The judge also emphasized that the lack of
an alternative gift under the will, in the event Licorice
predeceased the decedent, was an indication that the decedent's
intent was for her estate to pass through the Article V trust
regardless of whether Licorice predeceased her. Moreover, the
judge determined that, although the Article IV residuary clause
of the decedent's will did not "save" the Article V provision by
itself and prevent intestacy, it did indicate some intent to
avoid intestacy. 7
Following summary judgment, the case proceeded to trial to
determine whether the will was the product of undue influence
and whether Ann improperly diverted the decedent's assets before
her death.3 The judge issued a decision that the objectors had
proved neither claim. Following the judge's decision, a final
decree entered admitting the will to probate and appointing Ann
as personal representative. The objectors filed a timely notice
of appeal, and we transferred the case to this court on our own
motion.
Discussion. Pursuant to Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002), summary judgment is appropriate
only where there exists no genuine issue of material fact, such
that the moving party is entitled to judgment as matter of law.
"Our review of a decision on a motion for summary judgment is de
novo." HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326
(2022), quoting Berry v. Commerce Ins. Co., 488 Mass. 633, 636
(2021).
At the summary judgment stage, the objectors argued that,
because Theresa died without any pets in her possession, the
trust necessarily failed and her estate must pass by intestate
succession. They renew this argument on appeal. Ann, however,
claims that the charitable remainder provision in Article V of
3 The objectors withdrew their claim that Theresa lacked testamentary capacity. 8
the will is valid and survives, despite the failure of the trust
provisions for Licorice.
General Laws c. 203E, § 408, the so-called "pet trust
statute," governs the requirements for a valid trust for the
care of an animal. "We review questions of statutory
interpretation de novo." Conservation Comm'n of Norton v. Pesa,
488 Mass. 325, 331 (2021), citing Boss v. Leverett, 484 Mass.
553, 556 (2020). "In interpreting a statute, we follow the
plain language when it is unambiguous and when its application
would not lead to an absurd result, or contravene the
Legislature's clear intent" (quotations omitted). Desrosiers v.
Governor, 486 Mass. 369, 376 (2020), cert. denied, 142 S. Ct. 83
(2021), quoting Commonwealth v. Kelly, 470 Mass. 682, 689
(2015). The actual words of the statute generally are the main
source from which we ascertain legislative purpose. Kelly,
supra at 688.
Pursuant to the statute's plain language, "[a] trust for
the care of animals alive during the settlor's lifetime shall be
valid." G. L. c. 203E, § 408 (a). Under the requirements
created by § 408, "[u]nless the trust instrument provides for an
earlier termination, the trust shall terminate upon the death of
the animal or, if the trust was created to provide for the care
of more than [one] animal alive during the settlor's lifetime,
upon the death of [the] last surviving animal" (emphasis added). 9
Id. Licorice died on March 15, 2017, and thus predeceased the
decedent. The trust was created for the benefit of both
Licorice "and/or any pets that [the decedent] ha[d] in [her]
possession at the time of [her] death." Neither Licorice nor
any other pet survived Theresa. According to the plain language
of the statute, where Licorice was the last surviving animal,
the trust terminated on the date of Licorice's death. See id.
Thus, the trust terminated before Theresa's death.4 See id.
On termination of a trust pursuant to G. L. c. 203E, § 408
(a), the trustee is required to "transfer the unexpended trust
property in the following order: (1) as directed in the trust
instrument; (2) to the settlor, if living; (3) if the trust was
created in a nonresiduary clause in the transferor's will or in
a codicil to the transferor's will, under the residuary clause
in the transferor's will or codicil; or (4) to the settlor's
heirs in accordance with [G. L. c. 190B]" (emphasis added).
G. L. c. 203E, § 408 (d). Ann argues that the trust instrument
explicitly directs that the remainder of the funds, following
the death of all beneficiaries of the trust, be given to a
charity that is to be named by the trustees.
The trust instrument explicitly states that the trustees
"shall have the power and authority to designate a charity to
4 Theresa died approximately two years after Licorice. 10
receive the remainder of any and all such funds that shall be in
their possession, custody or control" (emphasis added).
However, no such funds existed in the possession, custody, or
control of the trustees at the time of the trust's termination.
The trust was a testamentary trust; and, like any testamentary
disposition, the trust only was to be funded and become
effective on Theresa's death,5 an event that had yet to occur at
the time of the trust's termination according to G. L. c. 203E,
§ 408 (a). See Leahy v. Old Colony Trust Co., 326 Mass. 49, 52
(1950) ("A testamentary disposition becomes operative only upon
and by reason of the death of the owner who makes it" [citation
omitted]). See also W.J. Brisk; M.A. Hoag, M. MacLaughlin-
Barck, Massachusetts Elder Law § 4.06[8][a] (2023)
("Testamentary trusts are funded upon the grantor's death").
Therefore, where Licorice predeceased Theresa, the trust
provisions in Article V that created the Licorice Testamentary
Trust for the benefit of Licorice lapsed. See Hahn vs. Estate
of Stange, Tex. Ct. App., No. 04-07-00253-CV (Feb. 13, 2008)
(where beneficiary cat predeceased trust settlor, and no other
living beneficiary cat could be identified or located,
5 The actual language of the Licorice Testamentary Trust also supports the principle that it was to be funded and become effective only on the decedent's death. Specifically, the trust instrument stated: "It is anticipated that this [t]rust will be funded upon the death of the [t]estator." 11
testamentary pet trust failed). Because the trust lapsed, it
falls into the residue, unless the will provides otherwise. See
Flannery v. McNamara, 432 Mass. 665, 669 (2000) ("it [is]
settled law that, when a beneficiary predeceases the testator,
the legacy lapses and falls into residue if there is one;
otherwise it must pass as intestate property"). See also
Sutherland v. Flaherty, 1 Mass. App. Ct. 388, 389-390 (1973)
("It is well settled that if a legatee not a relation of the
testator predeceases a testator, the legacy lapses unless the
will provides otherwise" [emphasis added]); G. L. c. 190B, § 2-
604 ("a devise, other than a residuary devise, that fails for
any reason becomes a part of the residue" [emphasis added]).
Ann argues, and the motion judge agreed, that although the
trust provisions failed, and the gifts for the benefit of
Licorice lapsed, the remainder to the to-be-named charity must
be given effect under the doctrine of acceleration of
remainders. See Thompson, 197 Mass. at 275 ("The death of the
life tenant before the testator simply accelerates the time when
the devise over becomes operative"). See also Estate of
McNeill, 230 Cal. App. 2d 449, 451-452, 454 (1964) (where it
"was the clear intention" of decedent that remainder of her
estate be gifted to both "the Los Angeles branch" and "the San
Francisco branch" of "the Society for the Prevention of Cruelty
to Animals," court accelerated charitable remainder despite pets 12
having predeceased testator); In re Mills' Estate, 111 N.Y.S. 2d
622, 625-626 (Sur. Ct. 1952) (intended remainder to New York
Women's League for Animals may be given effect after invalid pet
trust because of decedent's clear intent that gift was in no way
conditional on caring for pets).
However, unlike Estate of McNeill and In re Mills' Estate,
both of which serve only as nonbinding authority from other
jurisdictions, the decedent's will does not demonstrate a "clear
intent" that the charitable remainder be awarded to the yet-to-
be-named charity in the event Licorice were to predecease the
decedent. In both Estate of McNeill, 230 Cal. App. 2d at 451,
and In re Mills' Estate, 111 N.Y.S.2d at 625, the testator had
named a specific charity, both of which were animal charities.
Here, no such explicit charity was named. While the failure to
name a charity does not by itself invalidate the charitable
remainder, see G. L. c. 203E, § 405 (b), such failure at least
creates ambiguity whether the decedent wanted the remainder to
go to charity or, alternatively, her primary concern was the
well-being of Licorice following her death. See Flannery, 432
Mass. at 668 ("latent ambiguity emerges when the words of a will
appear to be unambiguous on their face, but certain extrinsic
facts render their meaning uncertain" [citation omitted]).
Furthermore, while we agree with the motion judge that the
possibility that Licorice would predecease Theresa was 13
reasonably foreseeable, the omission of whether the to-be-named
charity was to receive the remainder in the event Licorice
predeceased the decedent, whether intentional or unintentional,
ultimately is a question of fact -- one not best suited to be
resolved on summary judgment. See White v. White, 322 Mass. 30,
33-34 (1947) (omission in will, whether intentional or
unintentional, is question of fact). We disagree with the
motion judge's conclusion that the mere creation of a residuary
clause in the will, coupled with the lack of an alternative gift
apart from the Article V trust, demonstrates a clear intent from
the decedent that the charitable remainder was not conditioned
on Licorice's survival of her.
"The fundamental rule for the construction of wills 'is to
ascertain the intention of the testator from the whole
instrument, attributing due weight to all its language,
considered in the light of the circumstances known to him at the
time of its execution and to give effect to that intent unless
some positive rule of law forbids.'" Hershman-Tcherepnin v.
Tcherepnin, 452 Mass. 77, 84 (2008), quoting Fitts v. Powell,
307 Mass. 449, 454 (1940). "Although the interpretation of a
will begins with the four corners of the instrument, " extrinsic
evidence may be necessary to resolve ambiguities that arise in a
will. Hershman-Tcherepnin, supra at 84-85. 14
Here, extrinsic evidence is necessary to resolve the
ambiguity whether, at the time of the making of the will, the
decedent intended that the to-be-named charity was to receive
the remainder notwithstanding Licorice's failure to survive her.
Thus, there exists a genuine issue of fact, such that the award
of summary judgment was improper.6 See Adams v. Schneider Elec.
USA, 492 Mass. 271, 280 (2023) ("Summary judgment is appropriate
where there is no material issue of fact in dispute" [citation
omitted]); Flesner v. Technical Communications Corp., 410 Mass.
805, 809 (1991) (when state of mind questions, such as intent,
are at issue, summary judgment often is inappropriate); Mass. R.
Civ. P. 56 (c). Cf. Hershman-Tcherepnin, 452 Mass. at 86-87
(court properly could resolve ambiguity on summary judgment
record because no party raised genuine dispute of material facts
surrounding will's execution to warrant resolution at trial).
If, following remand, there is no clear intention that the
charitable gift was to be accelerated in the event Licorice
predeceased the decedent, then the lapsed trust will fall into
the will's residue, as we explained supra. See Flannery, 432
Mass. at 669. Article IV of the will contains the residuary
clause. It states, in pertinent part, "I hereby give . . . all
6 "The written instrument is the final and unalterable expression of the purpose of the testator. The power of the court is limited to interpretation and construction. It cannot make a new will." Polsey v. Newton, 199 Mass. 450, 454 (1908). 15
lapsed legacies and devises or other gifts made by this [w]ill
which fail for any reason, tangible or intangible, including any
property over which I have a power of appointment, in trust to
the [t]rustees of the LICORICE TESTAMENTARY TRUST established
herein" (emphasis added). Under the express terms of the
decedent's will, any lapsed gifts fall into the residuary of the
will.
The residuary of the will, however, leaves all lapsed gifts
to a lapsed and invalid trust, as discussed supra. Therefore,
in the event there exists no clear intent that the charitable
remainder was to be accelerated on Licorice's failure to survive
the decedent, the entire trust lapses into the residue, and the
residue also lapses because the residue leaves everything to the
invalid Licorice Testamentary Trust. As a result, the gift then
will pass as intestate property. See Bray v. Bray, 359 Mass.
439, 441 (1971) ("Where a gift lapses which is itself part of
the residue, it must pass as intestate property"); Crocker v.
Crocker, 230 Mass. 478, 482 (1918) ("Where a legacy lapses which
is a part of the residue it cannot fall again into the residue.
It must pass as intestate property"). 16
Accordingly, we vacate the decree and order on the petition
for formal adjudication dated January 13, 2022, and remand the
matter for further proceedings consistent with this opinion.7
So ordered.
7 Where we have determined that the judge erred in granting partial summary judgment and, as a result, are vacating the decree and order on the petition for formal adjudication of the will, we need not address the objectors' argument that the trial judge made a clearly erroneous finding at trial that Ann had not misappropriated the decedent's assets. See Tenczar v. Indian Pond Country Club, Inc., 491 Mass. 89, 107 n.17 (2022) (unnecessary to reach merits of appellant's arguments that $3.4 million jury award was excessive where judgment was vacated, verdict was set aside, and matter was remanded for new trial).