residuary clause in Massachusetts

1985See Frye v. Loring, 330 Mass. at 396 .

1985See Welch v. Morse, 323 Mass. 233 (1948); Massachusetts Inst. of Technology v. Loring, 327 Mass. 553 (1951); Frye v. Loring, 330 Mass. 389 (1953); Loring v. Morse, 332 Mass. 57 (1954). [4] The parties have stipulated that at the relevant time the Harvard Medical School admitted women to instruction on an equal footing with men. [5] We are concerned here only with "property possessed" by the testatrix at her death and not property over which she had "a power of disposition under the will of [her] father." That property was given outright to his widow under the residuary clause of the will of Ca

1975In Stone v. Forbes, 189 Mass. 163, 169 (1905), we said: “If it were necessary to determine the question we should hesitate to follow the . . . [distinction drawn in the English cases between the exercise of general and special powers by a residuary clause].

1975In Stone v. Forbes, 189 Mass. 163, 169 (1905), we said: "If it were necessary to determine the question we should hesitate to follow the ... [distinction drawn in the *328 English cases between the exercise of general and special powers by a residuary clause].

2023"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).

1950See Nickerson v. Bowly, 8 Met. 424 , 431; Bailey v. Bailey, 236 Mass. 244, 247 ; Fitts v. Powell, 307 Mass. 449, 454 .

2018"Although technically a limitation on liability, the charitable cap set forth in § 85K has been treated as an affirmative defense that must be pleaded under Mass.R.Civ.P. 8 (c), 365 Mass. 749 (1974) (listing specific affirmative defenses, and concluding with the residuary clause 'any other matter constituting an avoidance or affirmative defense')." Ibid ., citing Harlow v. Chin , 405 Mass. 697 , 715, 545 N.E.2d 602 (1989).

2018"Although technically a limitation on liability, the charitable cap set forth in § 85K has been treated as an affirmative defense that must be pleaded under Mass.R.Civ.P. 8 (c), 365 Mass. 749 (1974) (listing specific affirmative defenses, and concluding with the residuary clause 'any other matter constituting an avoidance or affirmative defense')." Ibid ., citing Harlow v. Chin , 405 Mass. 697 , 715, 545 N.E.2d 602 (1989).

2011Worcester Trust Co. v. Turner, 210 Mass. 115, 121 (1911).

1929Worcester Trust Co. v. Turner, 210 Mass. 115 , and cases cited.

1976The court also distinguished a situation in which a donor required a specific reference and the donee simply referred to any power of appointment he might have. 9 Also instructive is Pitman v. Pitman, 314 Mass. 465 (1943), where a special power of appointment was held exercised by a residuary clause in the donee’s will devising and bequeathing his own property and that over which he might have a power of appointment at the time of his death.

1962See Pitman v. Pitman, 314 Mass. 465,474, 475 (where the testator’s will “contained a residuary clause devising and bequeathing his own property and that over which he had a power of appointment”); Restatement: Property, § 341.

2023"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).

2017A typical residuary clause uses language such as, "I give, devise and bequeath all the rest, residue and remainder of my estate," Matteson v. Walsh, 79 Mass. App. Ct. 402 , 408 n.7 (2011), or "[a]ll the rest and residue of my estate real, personal or mixed, wherever it may be found," Meyerowitz v. Jacobovitz, 263 Mass. 47, 49 (1928).6 To support their claim that Evelyn intended "monies" to 5 "I urge that the property that I share with my brother, Philip, on Sheep Pond in Brewster, be bequeathed to Henry and Yayoi Rosenkrantz, with the proviso that they will not assume ownership during his life

2017For its primary definition of "money," the same source states, "In usual and ordinary acceptation it means gold, silver, or paper money used as circulating medium of exchange, and does not embrace notes, bonds, evidences of debt, or other personal or real estate." Ibid.

2017See Christ's Home, supra ("It has been said repeatedly, the [c]ourt's main concern is not so much what the testator meant to say as it is to determine what [she] meant by what [she] did say").9 8 The clause "appears in an odd position," Fishman v. Fishman, 2 Mass. App. Ct. 348, 349 (1974), only if it is meant to operate as a general residuary clause.

2017See Christ's Home, supra ("It has been said repeatedly, the [c]ourt's main concern is not so much what the testator meant to say as it is to determine what [she] meant by what [she] did say").9 8 The clause "appears in an odd position," Fishman v. Fishman, 2 Mass. App. Ct. 348, 349 (1974), only if it is meant to operate as a general residuary clause.

2017However, this plain-English form will also work"). 7 See Flower v. Dort, 260 S.W.2d 685, 688 (Tex. Ct. Civ.

2017In Salter v. Salter, 338 Mass. 391, 393 (1959), construing the term "funds," the court noted, "Although in certain circumstances the term has been construed to include real estate, . . . ordinarily it is used to describe an accumulation of money or collection of securities set apart and held for a definite purpose." Accordingly, the court held that a residuary clause disposing of "[a]ny funds remaining after the settlement of my estate" did not dispose of real estate not mentioned in the will.

2017Id. at 393-394 . 8 In our view, the rule of thumb in these circumstances is that "money" should be construed as commonly understood, unless "a reading of the whole will produces a conviction that the testator must necessarily have intended" the broader meaning.

2007Cf. Flannery v. McNamara, 432 Mass. 665, 669 (2000) (“Neither the fact that [the object of bounty] predeceased the decedent [and thus the gift failed], nor the absence of a residuary clause or a contingent beneficiary provision, makes [a] will ambiguous”).

2005See Ferguson v. Massachusetts Audubon Soc., 316 Mass. 436, 445 (1944).

1997We begin by stating what may seem entirely obvious: the Church is a public charity, established by Eddy under a series of charitable trusts. 8 The 1892 instrument executed by Eddy conveyed land in trust for the purpose of building a “suitable and convenient church edifice,” in which to “maintain public worship in accordance with the doctrines of Christian Science in said church.” Her second deed, executed in 1898, granted property in trust to the Publishing Society for “promoting and extending the religion of Christian Science.” In addition to these two trusts, in the residuary clause of her w

1997See Chase v. Dickey, 212 Mass. 555, 557 (1912).

1997We begin by stating what may seem entirely obvious: the Church is a public charity, established by Eddy under a series of charitable trusts. 8 The 1892 instrument executed by Eddy conveyed land in trust for the purpose of building a “suitable and convenient church edifice,” in which to “maintain public worship in accordance with the doctrines of Christian Science in said church.” Her second deed, executed in 1898, granted property in trust to the Publishing Society for “promoting and extending the religion of Christian Science.” In addition to these two trusts, in the residuary clause of her w

1985See Welch v. Morse, 323 Mass. 233 (1948); Massachusetts Inst. of Technology v. Loring, 327 Mass. 553 (1951); Frye v. Loring, 330 Mass. 389 (1953); Loring v. Morse, 332 Mass. 57 (1954). [4] The parties have stipulated that at the relevant time the Harvard Medical School admitted women to instruction on an equal footing with men. [5] We are concerned here only with "property possessed" by the testatrix at her death and not property over which she had "a power of disposition under the will of [her] father." That property was given outright to his widow under the residuary clause of the will of Ca

1983See Selectmen of Nahant v. United States, 293 F. Supp. 1076, 1078 (D.

1976Bank & Trust Co., 367 Mass. 318, 322-324 (1975). 7 In the Fiduciary Trust case a special power was held not exercised by a residuary clause making no mention of powers of appointment. 8 The court in the Shine case distinguished National Shawmut Bank v. Joy, 315 Mass. 457 (1944), in which particularized formal requirements (a seal, acknowledgment, and deposit with trustee) were laid down by the donor for exercise of a general power of appointment, and the donee failed to comply.

1975Alumni Fund, 338 Mass. 520, 524 (1959), which has been a part of the case law of this Commonwealth at least since our decision in Amory v. Meredith, 7 Allen 397 (1863), applies equally to the execution of a special power of appointment, provided, of course, that (a) the residuary clause includes any beneficiary within the scope of the special power of appointment, (b) the instrument creating the special power does not prohibit its exercise by a general residuary clause, and (c) the residuary clause includes no disclaimer of intent to exercise the special power.

1975Alumni Fund, 338 Mass. 520, 524 (1959), which has been a part of the case law of this Commonwealth at least since our decision in Amory v. Meredith, 7 Allen 397 (1863), applies equally to the execution of a special power of appointment, provided, of course, that (a) the residuary clause includes any beneficiary within the scope of the special power of appointment, (b) the instrument creating the special power does not prohibit its exercise by a general residuary clause, and (c) the residuary clause includes no disclaimer of intent to exercise the special power.