ANN C. BRINE and WILLIAM H. BRINE, SR., as Trustees of the Mabel Johnson Family Trust v. ANY UNKNOWN HEIRS, DEVISEES, GRANTEES, CREDITORS, AND OTHER PERSONS CLAIMING BY, THROUGH AND UNDER MABEL B. JOHNSON, BRUCE E. WOOD, LOIS E. BOYD, DAWN ELLA ANDESON, NANCY W. KIESMAN, WILLIAM J. WOOD, SR., BRUCE CAMPBELL, THERESE M. ALMOND, ROBERT S. ALMOND, MOUNT HOLYOKE COLLEGE, COLLEGE OF PHYSICIANS & SURGEONS OF COLUMBIA UNIVERSITY, WESTPORT HISTORICAL SOCIETY, INC., WESTPORT ART GROUP, INC., PACIFIC UNION CONGREGATIONAL CHURCH, FIRST WESTPORT UNITED METHODIST CHURCH, HEIRS OF AMANDA GELPKE, HEIRS OF BARRY WOOD, and TRUSTEES u/w ELLA SHERBERG f/b/o ADAM RYAN WOOD and ERIC EVERETT WOOD.

Procedural History

Ann C. Brine and William H. Brine, Sr., as Trustees of the Mabel Johnson Family Trust (Trustees) filed their Complaint to Remove Cloud On Title (G.L. 240, §§ 6-10) on August 23, 2016, and their Amended Complaint to Remove Cloud On Title (G.L. 240, §§ 6-10) on September 30, 2016 (Complaint or Compl.). The Trustees dismissed the claims against defendants Westport Historical Society, Inc. and Descendants of Whaling Masters, Inc. on November 7, 2016. The case management conference was held on November 14, 2016. The Trustees dismissed the claims against defendants Mount Holyoke College and College of Physicians & Surgeons of Columbia University on December 12, 2016. A continued case management conference was held on December 19, 2016. The Trustees dismissed the claims against defendants Bruce E. Wood, Lois E. Boyd, Dawn Ella Anderson, Nancy W. Kiesman, William J. Wood, Sr., and Kevin Wood on January 25, 2017. The Trustees dismissed the claims against defendants Therese M. Almond and Robert S. Almond on March 8, 2017. The Trustees dismissed the claims against defendants Adam Wood and Eric Wood on April 13, 2017. Defendant Allan Bruce Campbell (Campbell) filed his Answer and Affirmative Defenses on August 10, 2017.

Plaintiffs' Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment (Motion for Judgment) and Plaintiffs' Memorandum of Law in Support of their Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment Defendants' Motion to Dismiss (Pl. Mem.) were filed on November 1, 2017. Defendant Allan Bruce Campbell's Cross-Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment (Cross-Motion for Judgment) and Defendant Allan Bruce Campbell's Memorandum of Law in Support of his Cross-Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment were filed on November 30, 2017. Plaintiffs' Combined Reply Memorandum in Support of their Motion for Judgment on the Pleadings and Opposition to Defendant Allan Bruce Campbell's Cross-Motion was filed on December 19, 2017. On January 12, 2018, the court heard the Motion for Judgment and the Cross-Motion for Judgment, and took the motions under advisement. This Memorandum and Order follows.

Standard for Motion for Judgment on the Pleadings

The Trustees and Campbell agree that these cross-motions are properly brought as motions for judgment on the pleadings. A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is actually a motion to dismiss for failure to state a claim upon which relief can be granted, and is analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); see Jarosz, 436 Mass. at 529-530. Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Therefore, the court will accept as true the factual (but not legal) allegations of the Complaint for the purposes of the Motion for Judgment on the Pleadings, and will consider the exhibits attached to the Complaint and the various recorded instruments referenced in the Complaint. [Note 1]

Undisputed Facts

The following facts are undisputed:

1. This action concerns title to a 44-acre vacant parcel of land in West Tisbury, Massachusetts, known as Watcha Division Lot #12 (property), as more fully described in the deed of distribution from Lynda F. MacDonald a/k/a Lynda MacDonald, as Personal Representative of the Estate of Nathaniel Johnson Burt a/k/a Nathaniel J. Burt to Lynda F. MacDonald dated June 25, 2015 and recorded in the Dukes County Registry of Deeds (registry) at Book 1382, Page 577 (MacDonald deed). Compl. ¶¶ 2, 16 & Exh. J.

2. The relevant title history of the property begins with a deed dated March 1, 1864, and recorded in the registry at Book 45, page 387, by which William A. Look conveyed the property to John E. Johnson, Sr. (Johnson Sr.). Compl. ¶ 4 & Exh. A.

3. Johnson Sr. died testate on October 15, 1911. In his will, he left the remainder of his estate, including the property, to his wife Susan M. Johnson (Susan). Compl. ¶5 & Exh. B.

4. Susan died intestate on September 9, 1927. She left two children: John E. Johnson, Jr. (Johnson Jr.) and Sarah Burt. One half of Susan's estate, including the property, went to Johnson Jr. and one half went to Sarah Burt. Compl. ¶ 6 & Exh. C.

5. On July 8, 1938, Johnson Jr. died intestate in Rhode Island. Johnson Jr. was survived by his wife Mabel Johnson and his sister Sarah Burt. Johnson Jr. had no children. Compl. ¶ 7 & Exh. D.

6. Johnson Jr.'s estate was probated in the Probate Court for the City of Newport, Rhode Island. Nathaniel Burt, Johnson Jr.'s nephew and the son of Sarah Burt, was appointed as administrator of Johnson Jr.'s estate. Compl. ¶ 7 & Exh. D.

7. The inventory of Johnson Jr.'s personalty, received by the court on January 5, 1942, showed cash, a boat, and bank accounts in Rhode Island and New York. The personalty was valued at $2,670.65 with interest. Compl. ¶ 7 & Exh. D.

8. Sarah Burt died intestate on December 15, 1946. Her only heir was her son, Nathaniel Burt. Compl. ¶ 11 & Exh. E.

9. On or about June 11, 1947, Nathaniel Burt and Mabel Johnson filed a petition with the Dukes County Probate Court seeking the appointment of Nathaniel Burt as administrator. An inventory was filed in that proceeding on July 15, 1947. The only asset listed was Johnson Jr.'s interest in the property, described as "[i]nterest in land in West Tisbury, Massachusetts, formerly of Susan M. Johnson" and valued at $1,000.00. Compl. Exh. D.

10. In 1947, Nathaniel Burt conveyed three parcels in West Tisbury. These conveyances did not include the property. Compl. ¶ 12 & Exh. F.

11. Mabel Johnson died testate on April 9, 1970. In her will, she left one half of the residue of her estate, including her interest in the property, if any, to the children of Augusta Macy (with the share for Augusta's son Robert Macy to be divided among Robert's children) and the other half to the children of Gladys Almond or their heirs. Compl. ¶ 13 & Exh. G.

12. Nathaniel Burt died on April 7, 1989. Upon his death, his interest in the property, if any, passed to the Nathaniel Johnson Burt Trust u/d/t dated January 23, 1986, as amended. The beneficiaries at Nathaniel Burt's death were the Estate of Robert MacDonald and Lynda F. MacDonald (MacDonald), in equal shares. Compl. ¶ 14 & Exh. H.

13. MacDonald was appointed sole trustee of the Nathaniel Johnson Burt Trust on January 7, 2015. Compl. ¶ 15 & Exh. I.

14. As discussed, by the MacDonald deed, MacDonald, as trustee, conveyed the Nathaniel Johnson Burt Trust's interest in the property to MacDonald, individually. Compl. ¶ 16 & Exh. J.

15. By a deed dated December 17, 2015, MacDonald conveyed all her right, title, and interest in the property, as conveyed by the MacDonald deed, to the Trustees. Compl. ¶ 17 & Exh. K.

16. The Trustees have acquired, for nominal consideration, the right, title, and interest in the property, if any, of most of the heirs of Mabel Johnson and Gladys Almond. The parties agree that the sole remaining interest in the property, if any, not held by the Trustees is an interest of either approximately .83% or approximately .415% held by defendant Allan Bruce Campbell (Campbell). Compl. ¶ 18 & Exh. M; Pl. Mem. Exh. 2; Hearing.

Discussion

The issue is easily stated, if not easily resolved: at Johnson Jr.'s death, was Mabel Johnson's interest in the property determined by the inheritance law of Rhode Island, where Johnson, Jr. died, or Massachusetts, where the property is located? The question matters because under Rhode Island law, Mabel Johnson would have received only a life estate in Johnson Jr.'s 50% interest in the property with a reverter upon her death in 1970 to the estate of Johnson Jr.'s only other heir, his sister Sarah Burt. R.I. Gen. Laws §§ 33-1-5, 33-25-2. On the other hand, Massachusetts law in effect at the time of Johnson Jr.'s death, if applicable, provided two possible dispositions of Johnson Jr.'s 50% interest in the property: Mabel Johnson would have taken either Johnson Jr.'s entire interest in the property, or only one half of that interest. G.L. c. 190, § 1, as amended through St. 1920, c. 468; G.L c. 199, § 1. In other words, if Rhode Island law applied to the disposition of the property, Mabel Johnson's heirs, including Campbell, inherited no interest in the property upon Mabel Johnson's death; rather, Nathaniel Burt, as sole heir of Sarah Burt, succeeded to a 100% interest in the property, and the Trustees were conveyed that 100% interest by MacDonald. On the other hand, if Massachusetts law applied, Mabel Johnson's heirs inherited their respective shares of either her 25% or her 50% interest in the property, and Campbell holds approximately a .415% or .83% interest today.

Johnson Jr. died intestate and without issue in 1938, leaving as his heirs his wife Mabel Johnson and his sister Sarah Burt. At the time of his death, two Massachusetts statutes potentially applied to the disposition of his interest in the property. General Laws c. 199, § 1 (chapter 199), then and now, relates to nonresident intestacy. It provides:

If administration is taken in this commonwealth on the estate of a person who was an inhabitant of any other state or country, his estate found here shall, after payment of his debts, be disposed of according to his last will, if any; otherwise his real property shall descend according to the laws of this commonwealth, and his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant.

Id. General Laws c. 190, § 1, as amended through St. 1920, c. 468 (chapter 190), in relevant part, relates to the disposition of an intestate's estate to a surviving spouse where there are no issue. At the time of Johnson, Jr.'s death, it then provided:

If the deceased leaves no issue and it appears on determination by the probate court, as hereinafter provided, that the whole estate does not exceed five thousand dollars in value, the surviving husband or wife shall take the whole thereof; otherwise the surviving husband or wife shall take five thousand dollars and half of the remaining personal property and one half of the remaining real property. If the personal property is insufficient to pay said five thousand dollars, the deficiency shall, upon the petition of any party in interest, be paid from the sale or mortgage…of any interest of the deceased in real property which he could have conveyed at the time of his death…

Id. These statutes have had little occasion to be construed together. See Hite v. Hite, 301 Mass. 294 (1938); Cheney v. Cheney, 214 Mass. 580 (1913); see also Macomber, petitioner, 63 Mass. App. Ct. 1107 (2005) (unpublished decision). In Hite, the SJC discussed the conflict between these two statutes when seeking to determine the disposition of the property of a childless out-of-state intestate whose entire estate is less than $5,000. Chapter 199 provides that the personal property and the real property of the estate be considered and disposed of separately. The personal property is to be disposed of under the law of the intestate's state; the real property is to be disposed of under the law of the commonwealth. Chapter 190, on the other hand, provides that the intestate's personal property and the real estate be combined and considered together, and be disposed of according to that statute's provisions. Hite, 301 Mass. at 298. This conflict forced the SJC in Cheney and in Hite to reconcile the application of chapter 190 within the meaning of chapter 199. Id. at 301; Cheney, 214 Mass. at 581.

In Cheney, the widow of a childless intestate residing in Maine at the time of his death filed a petition in Massachusetts seeking an order that the executor of her husband's estate be required to sell her late husband's Massachusetts real estate. Id. at 580. The court held that this case was "to be governed therefore by the rules and statutes applicable to the administration of estates belonging to non-residents rather than by those applicable to the estates of persons residing here." Id. at 581. The SJC found that because there was no apparent provision in Maine for the widow of a childless intestate and no evidence of the amount of personalty, "there is no provision in the case of a non-resident for a sale or mortgage of the real estate if the personal estate is insufficient to pay it." Id. The court's holding in Cheney does not, as the Trustees suggest, require the application of the law of the state in which the decedent resided at death to real property of the decedent situated in Massachusetts. Rather, Cheney stands for the rule that an out-of-state widow may not appear in Massachusetts, where her deceased husband possessed only real property and no personalty, to force the sale or mortgage of such real property so as to claim the $5,000 which, under Massachusetts law, is to be paid first from personalty and only where the personalty is insufficient, thereafter from remaining real property. Id. The Cheney court did not conclude that the widow had no interest in her deceased husband's Massachusetts real property. Rather, it held narrowly that where the "petition by [the widow] represent[ed] that the personal estate is insufficient to pay the share of the widow consisting, as alleged, of $5,000 in cash and one-half of the real estate," the widow's interest in her husband's personalty was governed by the laws of his state of residence and therefore, because the court lacked evidence that Maine law provided a personalty interest for a surviving spouse, the widow was not entitled to a $5,000 interest in her husband's personal estate, recoverable in the event of deficiency by sale or mortgage of his real property. Id. at 580-581.

In Hite, the SJC discussed the interplay of chapter 199 and chapter 190 in more detail. In that case, the childless intestate died a resident of Ohio, leaving assets in Ohio and real estate and some personal assets in Massachusetts. His widow brought a petition in the Middlesex Probate Court seeking a determination under chapter 190 that the total value of the estate in Massachusetts was less than $5,000, thus giving her title to the real estate. Hite, 301 Mass. at 295. While that was true, it was also true that the value of the personal assets in Ohio, combined with the Massachusetts real and personal assets, put the value of the entire estate over $5,000. Id. The SJC noted that the provision of chapter 199 that the Massachusetts real estate "shall descend according to the law of this Commonwealth merely furnishes a general guide for the devolution of the real estate, leaving the persons who are to participate therein, to the extent of their shares, and the mode of asserting and establishing their rights to be determined" by chapter 190. Id. at 301. The court could not adopt a literal interpretation of chapter 199, dividing the estate between out-of-state personalty and Massachusetts real estate, because that would be in conflict with chapter 190's requirement that the personalty and the real estate be combined when an estate is less than $5,000. Id. In this situation, however, this provision of chapter 190 could not apply either, because the late husband's personalty was not exclusively in Massachusetts. Chapter 190, the SJC found, provided a surviving spouse with the entirety of the decedent's real property "only when the primary and complete administration of his estate is within the exclusive jurisdiction of our courts and where 'the whole estate does not exceed five thousand dollars in value.'" Id. at 299, quoting chapter 190. The SJC went on to find that "the only applicable provision of [chapter 190]" is the one that defines the widow's "inheritable estate as one half of the realty." Id. at 301. The holding in Hite interpreted chapter 190 together with chapter 199 to mean that the widow of a nonresident, childless intestate decedent was only entitled to the entirety of the estate's real property where both the primary and complete administration of the estate is in Massachusetts and the whole estate is less than $5,000. In Hite, the estate was also administered in Ohio and the parties conceded that that the whole estate was greater than $5,000. Id. at 299-300. Because the estate did not meet both requirements, the court could not apply that provision of Chapter 190. It was therefore left to apply the provision of Chapter 190 giving the widow only one half of the real property. Id. at 301-302.

Grappling with the interplay of chapter 190 and chapter 199, the SJC in Cheney and Hite concluded that the surviving spouse of a nonresident, childless intestate decedent is only entitled to one half of the Massachusetts real property contained in the estate. The Cheney court did not have occasion to declare what interest the widow had in the Massachusetts real property of her deceased husband. Cheney, 214 Mass. at 580-581. Reaching that issue in Hite, the SJC held that chapter 190 allowed a surviving spouse to take all of the real property of an estate only where the value of the estate was less than $5,000 and the entire administration of the estate was in Massachusetts. Hite, 301 Mass. at 299-300. The SJC supported this conclusion with reference to the statutory history of chapter 190, which reflects an intent to support a surviving spouse. The SJC found that where the surviving spouse has the benefit of inheritance in the domiciliary state of a nonresident intestate decedent, a spouse so situated "is not within the class of persons intended to be benefited by our statutes." Id. at 300. The holdings of Cheney and Hite, reduced down to a rule applicable to the present case, provide that chapter 199 requires Massachusetts law to be applied to the nonresident intestate's real property located within the Commonwealth, and that the only applicable Massachusetts law is chapter 190's provision that the surviving spouse of an intestate decedent takes one half of the estate's Massachusetts real property.

Johnson Jr., a resident of Rhode Island, left no personal assets in Massachusetts, and his entire estate, consisting of out-of-state personalty and Massachusetts real estate, was less than $5,000. Like the widow in Hite, Mabel Johnson, the surviving spouse of a nonresident, childless intestate decedent, was entitled to inherit one half of her husband's real property located in Massachusetts. By operation of chapter 199 and chapter 190, Mabel Johnson inherited one half of Johnson Jr.'s 50% interest in the property, or 25%, with the remaining 25% interest going to Johnson Jr.'s sister, Sarah Burt. At the time of her death, Mabel Johnson held a 25% interest in the property, a fraction of which has descended to Campbell today.

Conclusion

For the foregoing reasons, the Motion for Judgment is DENIED and the Cross-Motion for Judgment is ALLOWED. Judgment shall enter declaring that Mabel Johnson held a 25 % interest in the property at the time of her death.

SO ORDERED