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ID: 336079 • Letter: P
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DREBEN, J.
On the date of her death, September 24, 1981, Maria Carmela DiFilippo owned an interest in a two-family house located at 905 Main Street, Winchester (the property). Two of her nine children were appointed executors of her estate. After a dispute arose between the executors and their brother Carl F. DiFilippo (Carl) as to whether they could sell the property to a person other than Carl, they filed a 534 (Links to an external site.)Links to an external site.*534 (Links to an external site.)Links to an external site.complaint for instructions in the Probate Court. A judge of that court made findings of fact, and a judgment entered authorizing the executors to evict Carl if he did not voluntarily vacate the property within sixty days and to enter into a purchase and sale agreement at current fair market value with a prospective purchaser, subject to obtaining a license from the Probate Court. Other parts of the judgment will be set forth in the course of this opinion. Carl is appealing from the judgment claiming, among other things, that he is entitled to purchase the property at its fair market value on the date of Maria's death and, because he is a tenant in common of the property, the executors have no right to evict him.
The record contains a statement of the evidence approved in accordance with Mass.R.A.P. 8(c), 378 Mass. 933 (1979). In their briefs, relying on the portions of the statement that suited their respective positions, the parties have stated the facts as each would have them. Our discussion will adhere to the judge's findings except as to one for which there is no record support. See note 5, infra, and accompanying text.
1. Carl's rights under Maria's will. Originally, the property was purchased by Maria's husband, Alfonso DiFilippo, and his brother, Pasquale, as tenants in common. Pasquale died in 1961, leaving a life estate to his widow Annie, and as we determine in part 2 of this opinion, the remainder to Alfonso. Alfonso died in 1969, leaving the residue of his estate to Maria. Annie, Pasquale's widow, lived until November, 1985. Thus, at her death in 1981, Maria owned the property subject to Annie's life estate in one half of the property.
Article Fourth of Maria's will provided:
"I direct my executors to offer to my son, Carl F. DiFilippo, the right to purchase the property which I own at 905 Main Street, Winchester, Massachusetts, at its fair market value at the time of my death, which right of purchase must be exercised by him within six months of my death. If my said son shall not have survived me or shall not so accept said offer and purchase said property, then I direct my executors to sell the 535 (Links to an external site.)Links to an external site.*535 (Links to an external site.)Links to an external site. same and the proceeds therefrom shall become a part of the rest, residue, and remainder of my estate."
The residue of Maria's estate was left in equal shares to her nine children.
Maria's will was filed in court on March 9, 1982, and her executors were appointed on October 22, 1982.[3] (Links to an external site.)Links to an external site. They filed their inventory on March 26, 1984, listing the value of Maria's interest in the property at the time of her death at $62,378. Since the property was appraised in January, 1983, at $68,000, the inventory value appears to reflect a deduction for Annie's life estate in one half of the property.
Carl has lived in one half of the house since 1956, has made repairs to the property, and has a tool collection in the cellar. He has paid the executors $150 per month in rent for the first-floor apartment, an amount below the market rent.
The executors have not offered Carl the right to purchase the property, and "Carl has never made a formal offer to purchase the real estate."[4] (Links to an external site.)Links to an external site.
In May, 1986, when he returned from work, Carl found a "for sale" sign on the property. Only then did the executors send Carl a copy of the 1983 appraisal. They received an offer on May 9, 1986, to purchase the property for $260,000.
The judge also found that Carl "has never demonstrated a capacity to purchase the real estate." This finding has no support in the record.[5] (Links to an external site.)Links to an external site.
Although the judge did not make separate conclusions of law, the judgment, which entered the same day as his findings, contains the judge's reasoning. After reiterating the 536 (Links to an external site.)Links to an external site.*536 (Links to an external site.)Links to an external site. finding that the executors "never offered Carl DiFilippo the right to purchase the [property] at the fair market value at the time of the death of Maria," and after stating that Maria did not own a fee simple, and that her interest was subject to Annie's life estate in an undivided half of the property, the judgment contained the following two paragraphs:
"C. The Executors of the will of Maria C. DiFilippo did not have the capacity, under the terms of her will, to offer Carl DiFilippo an effective or viable right to purchase the [property] with a marketable title of record, because said decedent did not own the fee simple title to said real estate at the time of her death.
"D. Carl F. DiFilippo has failed to exercise any right he had to purchase [the property] at the fair market value at the time of the death of Maria DiFilippo on September 24, 1981, under the specific terms of the will of Maria DiFilippo."
Paragraph C of the judgment is an incorrect statement of law. The executors had the "capacity" to offer the real estate to Carl subject to Annie's life estate, and, indeed, under the terms of Article Fourth of Maria's will were directed to do so.[6] (Links to an external site.)Links to an external site.
To the extent that paragraph D of the judgment states a conclusion of law, it is also incorrect. If the judge meant that the burden was on Carl to initiate the exercise of his right, rather than on the executors, that interpretation does not comport with Maria's will. She explicitly required her "executors to offer" to Carl the right to purchase the property, and only if Carl "shall not so accept said offerand purchase said property," were the executors directed to sell. While the executors were unable to offer the property until their appointment, if they had any question as to their inability to comply with the time requirements of the will they could 537 (Links to an external site.)Links to an external site.*537 (Links to an external site.)Links to an external site. have sought instructions. The executors make no claim of laches and, as their actions have shown, they were in no hurry to sell. We reject the argument made by the executors that the will provision was an option which required Carl to take the initiative. They had a duty to offer the property to Carl within a reasonable time of their appointment.[7] (Links to an external site.)Links to an external site. We consider that any time within three months after their appointment (that is, any time before January 22, 1983) would have been a reasonable time for such offer.
Having determined that the executors failed in their duty to offer the property to Carl, the question arises as to the remedy. Because of the long delay (and perhaps because the executors shared the judge's incorrect view that they could not sell the property prior to Annie's death), Carl has not had to come up with the purchase price and the beneficiaries have not had the use of the funds. It appears equitable to require the executors to offer Carl the interest of Maria in the property at its fair market value at the date of Maria's death, plus interest at the rate of six percent from the time the offer to him should have been made.
2. Extent of Maria's interest. While under the view we take of the duties of the executors, it is unnecessary to determine whether Carl has an interest in the real estate as a tenant in common which prevents him from being evicted, in order to determine the price Carl has to pay and the extent of his ownership, Maria's interest must be determined.
Carl's claim as a tenant in common with his siblings in an undivided half interest in the property rests on his interpretation of the will of Pasquale DiFilippo. The judgment made no determination as to the ownership of the property.[8] (Links to an external site.)Links to an external site.
538 (Links to an external site.)Links to an external site.*538 (Links to an external site.)Links to an external site. We turn to Pasquale's will. The relevant portions are set forth in the margin.[9] (Links to an external site.)Links to an external site. Article Fourth applies only if Alfonso predeceased Pasquale. Despite Carl's contentions to the contrary, if Alfonso survived Pasquale, he was given a remainder in the half interest of the property owned by Pasquale which vested in Alfonso at the time of Pasquale's death. "Remainder gifts, in the absence of very clear, affirmative, contrary indication, [and there is none here] are treated as vesting at the death of the testator." Old Colony Trust Co. v. Tufts, 341 Mass. 280, 282-285 (1960) (Links to an external site.)Links to an external site.. See Kendall v. Clapp, 163 Mass. 69, 69 (1895) (Links to an external site.)Links to an external site. ("words `heirs and assigns' are the usual technical words ... to signify a fee"). In addition to inheriting Alfonso's original interest, Maria inherited Alfonso's remainder subject to Annie's life estate.
The judgment is vacated and the matter is remanded to the Probate Court to fashion a judgment giving Carl the right to purchase, within a reasonable time,[10] (Links to an external site.)Links to an external site.the property for $62,378, plus interest at the rate of six percent, see G.L.c. 107, § 3, from January 22, 1983. The judgment is to provide that if Carl does not elect to purchase the property within the time set forth therein, or as extended by agreement 539 (Links to an external site.)Links to an external site.*539 (Links to an external site.)Links to an external site. the property is to be sold in accordance with Article Fourth.[11] (Links to an external site.)Links to an external site.
Explanation / Answer
In the following case presented in the Civil Court for action against executors of the will of Maria Carmela Difilippo, a dispute arose between the executive and their brother Carl Difilippo, all sons of the deceased. The probate court after analysing the findings of fact authorised executors to evict Carl if he did not vacate the property within 60 days and gave the right to sell ti a prospective purchaser at fair market value. Carl repealed the judgement, on the basis that as per the will he is entitled to purchase the property at its fair market value on the date of death of his mother and as he is a tenant in common of the property he cannot be evicted. Article IV of marysville provided clear instructions directing the executors to offer to her son Carl Difilippo the right to purchase the property at its fair market value at the time of her death, this right however needed to be exercised within a period of 6 months from her death.
Carl has been residing in one half of the house since 1956 has made all required repairs and paid the executive $150 per month in rent. At no time during the entire period after Maria's death did the executors offer to sell the property to Carl at the market price prevailing at the time of Maria's death nor did Carl offer to purchase the property. Only when call for a for sale board on the property did you realise that it had been put up for sale.
The judgement in this case was clearly incorrect for both its observations. Firstly, that the executors of the will of Maria DiFilipino did not have the capacity under the terms of A wheel of a Carl DiFilipino an effective right to purchase the property at the time of her death. This observation is incorrect as the executors really had the capacity and under the terms of article 4 of Maria's will were explicitly directed to do so. As for the second observation and subsequent statement made by the law that Carl DiFilipino failed to exercise his right to purchase the property at the fair market value at the time of the death of his mother. It is an established rule and fact that the executors to a will are responsible for ensuring that the terms and conditions as laid out in a will have been adhered to. Therefore it was their duty to offer the property to Carl and it was not up to him forcefully exercise his right, which he may well have been unaware of also. Hence, the Higher Court was right to vacate the judgement and direct the probate court to modify its judgement providing Carl reasonable time to purchase the property at the market rate prevailing at the time of death of Maria plus interest @ 6%. It is essential for a Court involved in judgement of any case related to inheritance, to ensure first and foremost that all the provisions of the will, as stipulated there in are being met. Secondly, it needs to verify that the executors to the will have fulfilled their required duties, and not manipulated facts to suit themselves and profit thereby.
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