Hershman-Tcherepnin v. Tcherepnin

891 N.E.2d 194

452 Mass. 77

Sue-Ellen HERSHMAN-TCHEREPNIN v. Nicholas TCHEREPNIN & others.¹

SJC-10101

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 9, 2008.

Decided July 31, 2008.

John C. La Liberte, Boston (Anthony L. DeProspo, Jr., with him) for the plaintiff.

Diane C. Tillotson, Boston, for the defendants.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

This case is before this court on an application for further appellate review of a judgment by the Probate and Family Court declaring that Ivan Tcherepnin (testator), through his will, devised his home as follows: a life estate to his wife, Sue-Ellen Hershman-Tcherepnin (wife), and a one-fifth future interest in remainder to her and each of his four children by an earlier marriage. The Appeals Court reversed that judgment, concluding that the will did not give the wife a life estate. See Hershman-Tcherepnin v. Tcherepnin, 70 Mass.App.Ct. 218, 873 N.E.2d 771 (2007). We conclude that the testator devised to the wife and each child a one-fifth present possessory interest in the home as tenants in common, and granted the wife a right against partition. We also conclude that, in the particular circumstances of this case, the wife's filing of a petition for partition terminated her protection against partition.

1. Procedural background. In June, 2004, after the will was probated, the wife filed a petition for partition in the Probate and Family Court. She claimed that the will granted her "a right to occupy [the house] for life ... which [she] wishes to hold separately"—i.e., a life estate—and that the will also granted her and each of her four stepchildren a future, one-fifth remainder interest in the house. The wife requested that, if the property could not be partitioned in kind "without great inconvenience," that it be "set off" to her for an amount "as the commissioners award to make the partition just and equal."² Alternatively, she requested that the property be sold at a private sale for not less than $670,000, and that the proceeds be divided among her and the children.³ See generally G.L. c. 241, § 6 (specifying form of partition).

In March, 2005, the four children filed a response to the wife's petition and counterclaimed for a declaratory judgment.⁴ They argued that the will granted the wife and each child a one-fifth present possessory interest in the house—i.e., concurrent interests as tenants in common. The children further claimed that the testator's grant to the wife of the "right to remain [in the house] for as long as she desires" confers not a life estate but only "a mere right of occupancy and a defense to ouster and partition."

The parties filed cross motions for summary judgment. In September, 2005, a judge in the Probate and Family Court allowed the wife's motion, concluding that the will is unambiguous and that it devised to the wife a life estate, as well as a one-fifth remainder interest. She concluded that the four children were each given a one-fifth remainder interest and no present possessory interest. The judge further concluded that the wife's petition for partition did not "amount to a relinquishment of her interest in the ... property," i.e., that the wife was "within her rights, as a life tenant, to seek partition of the property without relinquishing her interest."

Thereafter, in January, 2006, the wife moved for the appointment of a commissioner and for an order to sell the real estate by private sale. The judge denied the motion without prejudice, noting that a partition by sale was premature as none of the parties had yet presented evidence showing the need for a partition, or evidence that a physical partition would be inconvenient or nonadvantageous, making a private sale necessary.⁵ The judge noted that the focus of the litigation up to that point had been the interpretation of the will, and that in allowing the wife's motion for summary judgment the judge had resolved only the matter of the respective interests of the parties in the property and had concluded that the wife could proceed to seek a partition of the property.

In June, 2006, the judge entered separate and final judgment on the children's counterclaim for a declaratory judgment, pursuant to Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). Consistent with her allowance of the wife's motion for summary judgment, the judge declared that the will unambiguously granted the wife a life estate and a one-fifth remainder interest in the property, "subject to [p]artition pursuant to the provisions of [G.L. c.] 241." The judge "specifically reserve[d] for later adjudication those aspects of the [petition for partition] relating to the value of the assigned interests in the [p]roperty." Thereafter, the children filed a timely notice of appeal.⁶

2. Factual background.⁷ a. The will. The testator's will provides, in pertinent part, as follows:

"FOURTH: If I do not leave property in this will to one or more of the children or grandchildren whom I have identified above [he identified his four children but no grandchildren], my failure to do so is intentional."

Under the heading "SPECIFIC BEQUESTS OF PROPERTY," the will states, in pertinent part:

"SIXTH: I give one fifth (1/5) ownership of the property at 96 Russell Avenue, Watertown, Ma., the right to remain there for as long as she desires, and her choice of furnishings and bric-a-bracs in my house and office, my Macintosh IIci, monitor and TI laserprinter, fifty thousand ($50,000) dollars in cash or stocks, my 1987 SAAB automobile and the print `Boy and Bug' by Margo Hoff to Sue Ellen Hershman-Tcherepnin....[⁸]

"TENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, and all photos and documents pertaining to my mother, to Sarina Tcherepnin....

"ELEVENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, the Macintosh 5300 powerbook and accessories and the Sharp videocamcorder and tripod to Nicholas Tcherepnin....

"TWELFTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown and its furnishings, Macintosh 660AV and accessories, psalteries and santur, electronic music instruments, including Serge Modular stuff, and the Steinway grand piano to Stefan Tcherepnin....

"THIRTEENTH: I give one fifth (1/5) of the property at 96 Russell Ave., Watertown, one fifth (1/5) of all furnishings, all photographic equipment and the Sony Hi-8 videocam and accessories to Serge[⁹] Tcherepnin, my son...." (Emphases added.)

Under the heading "RESIDUARY ESTATE," the will provides:

"FOURTEENTH: I give my residuary estate to my children, Sarina, Nicholas, Stefan and Serge Tcherepnin and my wife, Sue Ellen Hershman-Tcherepnin...."

And under the heading "DIVISION OF BEQUESTS," the will provides:

"SEVENTEENTH: Any specific bequest or residuary bequest made in this will to two or more beneficiaries shall be shared equally among them, unless unequal shares are specifically indicated."

b. Circumstances of the making of the will. The house came into the Tcherepnin family in 1981, when it was acquired by the parents of the testator's former wife, Anne, the mother of the testator's four children: Sarina, Nicholas, Stefan, and Sergei. In 1983, the property was transferred from Anne's parents to Anne and the testator. Seven years later, in 1990, the testator and Anne divorced. In 1994, Anne transferred title solely to the testator.

All of the children lived in the house through the 1980's, and two of them (Stefan and Sergei) lived there longer. Sergei lived in the house until 1993, when, at approximately age twelve, he moved to Falmouth to live with his mother. He kept his bedroom in the Watertown house, however, and visited nearly every weekend. Stefan also lived in the house until 1993, when, at approximately age fifteen, he apparently moved out. Later, at age sixteen or seventeen, Stefan returned to live in the testator's house for approximately five more years: from "approximately 1994 to 1999" (according to Stefan), or from July, 1995, to "some time in 2000" (according to the wife).¹⁰ Stefan's girl friend also lived in the house, from "approximately 1997 to 1998," according to Stefan, or "[s]ome time in the [f]all of 1997 to the [s]pring of 1998," according to the wife.

The wife, a musician (like the testator), met the testator at various concerts in the early 1980's. She moved into the house in 1995, and occupied Sarina's bedroom.¹¹ The same year, the testator became ill and his illness progressed over the next few years. In late December, 1997, approximately three and one-half months before he died, the testator married the wife. Following the marriage, the testator encouraged his children to welcome the wife into the family, which they did.

The testator executed his will on March 13, 1998, approximately one month before he died on April 11, 1998. He drafted the will himself using a computer software program (the record is devoid of any information about the will-drafting software).¹² Although the wife claimed, in her answers to interrogatories, that it was her "understanding" that the testator met privately with Attorney Robert DiLibero "to discuss execution of his will," the wife also asserted that she did not "know" whether the testator "consulted anyone regarding the drafting of his will," and that she did not herself assist him.¹³

At the time the testator executed the will (and at the time of his death), the children's ages were as follows: Sarina, twenty-nine; Nicholas, twenty-seven; Stefan, twenty; and Sergei, sixteen. Stefan was living in the house (apparently with his girl friend), and Sergei, while living with his mother in Falmouth, visited the house nearly every weekend. In fact, all three sons, including Nicholas, "maintained" their own bedrooms in the house. According to the sons, "everyone"—including the testator—considered the property the "`family' home...