TOWN OF OAK BLUFFS v. GEORGE MARSTON, ELISABETH W. JUDSON, MORGAN WESSON, FREDERIC WESSON, HELEN FULLER, FREDERIC W. FULLER III, DAVID M. FULLER, WINSLOW W. FULLER, MARSTON C. LEONARD, LAWRENCE B. LEONARD, SANDRA G HALL, JOHN S. WHITMAN, HILDA C. WHITMAN, MARY I. STEDMAN, WILLIAM STEDMAN JR., SARAH KUHN, KYLE B. CARSON, and J. GRANT BLACKINTON

In these consolidated cases, J. Grant Blackinton (“Blackinton”) petitions the Land Court to vacate the judgments that entered on December 5 and 10, 2007 (Patterson, Rec.) foreclosing the rights of redemption for two parcels under two tax takings made by the Town of Oak Bluffs (“Town”) recorded at the Dukes County Registry of Deeds (“Registry”), one at Book 680, Page 92 and the other at Book 680, Page 93.

The land at issue in this case consists of two separate parcels in the Town of Oak Bluffs on the island of Martha’s Vineyard. The larger is a 0.18 acre parcel of vacant land located on Oak Avenue. The smaller lot is 0.12 acres, located on Panola Avenue. Both parcels are characterized by the Town as “buildable” and each is currently assessed at over $240,000.00. The last known owners of record of the subject parcels (together, “locus”) were George Marston and Charles W. Clifford, as tenants-in-common, by deeds recorded in the Registry in Book 50, Pages 289 and 292, on July 10, 1872.

Charles W. Clifford, the son of a former Massachusetts governor [Note 1] and a prominent New Bedford attorney in his own right, died testate on September 14, 1923. His wife, Wilhelmina (Crapo) Clifford, predeceased Charles Clifford, dying testate on August 23, 1909. The couple had no children. The will of Charles Clifford (the “Will”) divided the bulk of his estate into two equal parts. The residue of the first share (Article Seventh) was devised to his nephew, John H. Clifford. The second share (Article Eighth) was devised to the nieces of Charles Clifford, in varying shares. The Will did not specifically devise the locus, and was not listed as an asset of Clifford’s estate by his executors. An August 17, 1920 Codicil to the Will directs (among other things not directly relevant) that the bequests set forth in Article Eighth of the Will be made instead to Henry H. Crapo (Clifford’s law partner), in trust for the benefit of the nieces, instead of to the nieces outright.

Blackinton is the son of James G. Blackinton, who was the son of Mary K. (Willett) Blackinton. Mary Blackinton was the daughter of one of the nieces of Charles Clifford named in his Will: Florence “Flora” O. Willett. Blackinton argues that, as an heir of Charles Clifford, he has a sufficient title interest in locus to give him standing to petition this court to vacate the judgments of foreclosure. Blackinton seeks this relief on the grounds that he did not have the notice of the original foreclosure proceeding required by the controlling statutes, and under principles of due process. The Town argues that Blackinton is misreading the Will, and that title to locus did not descend to Flora Willett and the nieces under Article Eighth. Rather, the Town says, title to locus descended to John H. Clifford under Article Seventh.

Blackinton filed his Motion to Vacate Decree of Foreclosure on November 26, 2008, less than one year after judgment entered. On January 21, 2009, the Town filed an objection. Blackinton filed a response to the Town’s objection on January 28, 2009. On February 3, 2010, the court (Piper, J.) held a hearing on the motion to vacate. Following hearing, counsel were given the opportunity to expand the record by filing, among other things not relevant, a copy of the probate of Wilhelmina (Crapo) Clifford, and supplemental memoranda addressing whether the relief sought by Blackinton requires, as a threshhold matter, action in the Probate and Family Court Department. The parties filed supplemental memoranda.

If title to the locus did not descend to Flora O. Willett, there is no need for the court to determine if it will exercise its discretion to vacate the judgments in the tax lien foreclosures. Only if the Land Court can determine that some title interest in each parcel did devolve to Blackinton will the court consider reopening the tax lien foreclosure cases. After considering papers supporting and opposing Blackinton’s request to vacate the judgments, as well as the terms of the Will, and the records of the probate proceedings of Charles and Wilhelmina Clifford, the court rules that it is unable to determine whether Blackinton has any interest in the locus, and that further action by the Probate and Family Court is required.

INTERPRETATION OF THE WILL

Article Sixth of the Will states: “I direct my Executors to divide my property and my estate, excluding the property named in previous articles of this will, but including whatever I may have received by the will of my late wife and of which I am possessed at my decease or which I may otherwise have received, into two equal parts,...” Article Eleventh provides that “All the bequests in this will are made subject to the power which I hereby give my Executors,... to pay and discharge at their discretion all said legacies, or any of them, by the transfer of any of the assets of the estate not specifically bequeathed or devised....”

Article Seventh begins, “From the first of said equal parts” and proceeds to set forth specific bequests of money to Clifford’s employees, his sister, his nieces and nephews, a church, and several others identified by name but not by relation. Article Seventh directs the “rest and residue of said first equal parts, if any, to my said nephew John H. Clifford, if he survives me, but if he does not survive me, then to my sister Ellen Clifford.”

Article Eighth states “Whereas by the will of my late wife her nieces were to share in the residue of her share of our joint estate in the proportion of their respective direct legacies and whereas all other bequests from her said share of our joint property named in her will have been fully paid by me, the second share of said equal parts of my property and estate as determined by my Executors as aforementioned shall be divided as follows[.]” What follows are seven gifts of various enumerated portions of seventy-third shares to named beneficiaries. [Note 2] Article Eighth concludes, “These bequests are made in respect of the property formerly belonging to my said wife at her request.”

The Town argues that the property at issue in this case could only pass through the residue clause in Article Seventh, and could not have been included in the gifts set forth in Article Eighth because “it was [Clifford’s] intent that his wife’s family... inherit from him only property in which his wife had once held an interest.” Thus, the Town argues, title to locus could not have been included in Article Eighth because Wilhelmina never had any title to locus. The Town’s interpretation of the Will is not tenable. The Town’s theory of the intent of Clifford is not supported by the unambiguous language of the Will.

The Town argues that the language in Article Eighth that “Whereas by the will of my late wife her nieces were to share in the residue of her share of our joint estate in the proportion of their respective direct legacies” demonstrates Clifford’s intent that only properly which was formerly held, in whole or in part, by Wilhelmina could be included in that article. This is clearly not the case. That phrase is precatory. Clifford is honoring in a manner he determines appropriate the intent of his earlier deceased wife; he is not literally devising her property. Quite to the contrary, the Will of Clifford treats the assets in his estate (except when subject to a specific bequest or devise) [Note 3] as fully fungible, and vests his executors with broad authority to liquidate assets as necessary to create two “equal” parts. It is not consistent with the overarching directive to create two “equal” parts to have one part which only could be created out of the property formerly held by his late wife. That might well have produced an inequality of the two parts, something abhorrent to the principal scheme of the Will.

Much of the Town’s interpretation is based on this language in Article Sixth: “In making said division,” (and here, the Will is referring to the creation of the two equal parts), “there shall be added to the gross amount of my said estate as aforesaid the sum of Thirty-five thousand ($35,000.) Dollars, Thirty thousand ($30,000.) Dollars of which shall be deducted from the second equal part representing the estate of my said wife being in respect of payments which I have made since her decease, either to those who would have been legatees under her will if she survived me, of which were in accordance with her wishes to be paid from her share of our joint property; and Five thousand ($5,000.) Dollars to be deducted from the first of said equal parts representing my own estate in respect of payments which I have made from my own estate since her decease.” To be sure, this language represents an intent to honor his wife’s wishes with bequests of the same amount as those made by his wife; however, it is not, as the Town argues, a mandate that the bequests be made from the same actual funds. As an initial matter, when a testator directs that a gift be satisfied from a specific fund or account, it is normally considered a demonstrative gift. See Moffatt v. Heon, 242 Mass. 201 , 206 (1922) (demonstrative bequest is “payable out of or charged on a particular fund, with a fixed separate intent to give the money independently of the fund.”). General legacies are preferred by courts over specific, but that preference is a rule of construction, not of law, and will give way when the intent of the testator is clear. Igoe v. Darby, 343 Mass. 145 , 148-49 (1961). In this case, it is demonstrated that the intent was to make the gifts in Article Eighth general.

The preference of courts in favor of general, rather than specific, legacies is “chiefly to avoid the harshness of ademption.” Igoe, 343 Mass. at 148. Here, Clifford directed that $30,000 be deducted from the second “equal part” of his estate in recognition of gifts earlier made during his life. If the gifts in Article Eighth truly were specific legacies, which is to say, if there existed a requirement that they be paid from a specific source, they would have been considered adeemed by satisfaction, and the $30,000.00 would have been “deducted” as a matter of law during the probate. This operates as a logical matter, too. If the source of the assets in Article Eighth was limited to property in which Clifford’s wife once held some interest, that finite pool would have already been diminished by $30,000.00 in lifetime gifts, rendering the direction that $30,000.00 be deducted not only superfluous, but in error.

The meaning of the Will is clear and unambiguous. There were no restrictions placed upon the executors regarding which of the property constituting the estate might be directed to which “equal part.” On the contrary, the direction was to “divide my property and my estate,... including whatever I may have received by the will of my late wife..., into two equal parts” (emphasis added). The meaning of this directive can only be that the assets were to be treated as fungible, and the manner of division into two equal parts was committed to the discretion of the executors.

FURTHER PROCEEDINGS REQUIRED

It is clear from the language of the Will that Blackinton’s predecessors were not precluded from taking an interest in the locus at issue in this case. Neither of the two Oak Bluffs parcels were specifically devised in the Will, and they were not inventoried as part of Clifford’s estate. The Will specifically devised real property on Irving Street in New Bedford. One further parcel of real estate, on Orchard Street in New Bedford, was not specifically devised in the Will, and was instead sold by the executors by deed dated June 13, 1924 and recorded with the Bristol County (South District) Registry of Deeds at Book 591, Page 309.

It has not been demonstrated that Blackinton’s predecessors must, as a matter of law, take some interest in either one or the other, or both, of the parcels at issue in this case. It certain, as set out in this Order, that the two shares created by Article Sixth of the Will were to be “equal” (subject to the adjustments contained in Article Sixth). However, the mechanics of that division was at all times committed to the discretion of the executors. The Land Court does not have the authority to divide property, or to reopen the estate of Charles Clifford and supervise such division by a modern-day executor or administrator.

There was, by the Will, a large dose of discretion afforded the executors concerning how they could constitute the two equal shares out of the entirety of the estate not otherwise specifically devised or bequeathed. The executors might by sale have converted all the assets to liquid funds to facilitate division, or they might have deeded or otherwise distributed non-liquid assets based on their then determined values. For whatever reason, the record seems to show that the locus, comprising Clifford’s fee interest in the two tax parcels, was not distributed in any fashion by the executors while the estate went through its probate. If, as appears to be the case, that remains so today, and these orphaned assets still need to be administered, executors, or other fiduciaries appointed under the authority of the Probate and Family Court, need to take charge of Clifford’s interest in the locus, and determine how it ought be dealt with, consistently with the Will, well more than eighty years after Clifford’s death.

One appealing way to handle this task would be to assign one of the two lots to the first share, and the other to the second, on the plausible assumption that the estate otherwise was fully disposed of long ago, and that putting one tax lot in each share achieves the equality the Will required. But the job may be more involved than that. The values of the interest of Clifford in each of these two lots may not in fact be equal. Their sizes are close, but not identical. They have addresses on different streets. Their potential for development might be unequal. The interest of Clifford in the locus might best be sold on the open market (either as to both lots together, or separately) to yield a highest possible price, and the cash proceeds divided consistently with the Will. Much of how this ought to proceed is not all that obvious. What is clear, however, is that until fiduciaries are appointed by the Probate and Family Court Department and act with that court’s approval, the title to the locus remains unsettled and undetermined. It follows that, on this state of the title, Blackinton, who may or may not have any real property interest in locus, has not demonstrated he has the standing required to petition the Land Court to vacate the tax lien foreclosure judgments.

It is

ORDERED that the Motions to Vacate Decrees of Foreclosure are DENIED. Denial is without prejudice to renewal should the Probate and Family Court Department adjudicate that some title interest in either subject tax parcel constituting the locus has descended to Blackinton. [Note 4] It is further

ORDERED that the Judgments issued on December 5 and 10, 2007 in Land Court Tax Lien Cases Nos. 98 T.L. 117068 and 98 T.L. 117069 are to stand as issued; Land Court Tax Lien Cases Nos. 98 T.L. 117068 and 98 T.L. 117069 are to remain closed.

So Ordered.

By the Court (Piper, J.).