Home RAYMOND H. YOUNG, trustee, vs. DOROTHY CONGER DEMPSEY & another.

5 Mass. App. Ct. 829

May 26, 1977

The probate judge correctly ruled that nothing passed to the testator's widow under Article First of his will. By the express terms of that article, it applied only to so much of his estate "as is necessary . . . to entitle her to the maximum credit available as a marital deduction" for Federal estate tax purposes. See 26 U.S.C. 2056 (1958). Because the value of the testator's gross estate was far less than $60,000 and therefore fully exempt from the estate tax in any

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event (see 26 U.S.C. 2052 [1958] [repealed 1976]), there was nothing from which any of the statutory deductions, marital or otherwise, could have been made. Hence, the "maximum credit available" and the amount "necessary" to permit such a credit were nonexistent. We are not persuaded by the appellant's arguments that the words used by the testator in Article First were intended by him to be given other than what we regard as their plain meaning. See Longy Sch. of Music, Inc. v. Pickman, 344 Mass. 511 , 513 (1962), and cases cited; Cape Cod Bank & Trust Co. v. Cape Cod Hosp. 3 Mass. App. Ct. 279 , 281 (1975). On the contrary, our reading of the will as a whole convinces us that the result arrived at by the judge was exactly what the testator intended. The language of the article itself bespeaks a readily identifiable intention to minimize the estate tax, and should be interpreted in light of that intention. Putnam v. Putnam, 366 Mass. 261 (1974). Subsequent provisions of the will provide strong evidence that such tax minimization was the testator's only purpose in including the marital deduction gift, and Article First must be considered in the context of those provisions. Cape Cod Bank & Trust Co. v. Cape Cod Hosp. 3 Mass. App. Ct. at 282-283, and cases cited. We refer in particular to Article Second, whereby the testator placed the residue of his estate in trust, with the widow as sole trustee and sole beneficiary for her life, during which she was given "as much of the use, income and/or principal, as she in her sole judgment and discretion may see fit, without being accountable [therefor] to any person or court" -- which, in the mind of the testator at least, was virtually equivalent to the outright gift contemplated by him in Article First, and rendered that article superfluous except for its potential tax consequences. Articles Fourth, Sixth and Seventh, moreover, indicate that the testator's primary objective, after making generous provision for his widow during her lifetime, was that his two children (and their respective issue, if any) share equally in his estate -- an objective which would be wholly frustrated if we were to adopt the appellant's contention.

Judgment affirmed.