## Facts

- Helen Nesmith executed a 1977 will naming her cousin, Frederic T. Greenhalge, II, as executor and principal beneficiary.
- Article Fifth devised all tangible personal property to Greenhalge except items Nesmith designated “by a memorandum left by [her] and known to [Greenhalge], or in accordance with [her] known wishes,” which were to go to others living at her death.
- In 1972, Nesmith (with Greenhalge’s assistance) prepared a document titled “MEMORANDUM” listing tangible personal property gifts; it was revised in 1976, but neither version mentioned the disputed painting.
- Nesmith maintained a plastic-covered notebook in her desk titled “List to be given Helen Nesmith 1979,” in which she recorded intended recipients of specific items of tangible personal property.
- The notebook included an entry: “Ginny Clark farm picture hanging over fireplace. Ma’s room.”
- Home care nurses testified they saw Nesmith write in the notebook and heard her repeatedly state that Virginia Clark was to receive the farm-scene painting.
- Clark testified Nesmith told her the painting would go to Clark and that Nesmith would record the gift in the book she kept for that purpose.
- Nesmith executed two codicils in 1980 that modified some bequests and otherwise ratified and confirmed the will.
- After Nesmith died in 1986, Greenhalge distributed items under the will, the earlier memorandum, and selected notebook entries, but refused to deliver the painting to Clark, claiming the notebook was not part of the will.

## Issues

1. Whether the notebook qualified as the “memorandum” referenced in Article Fifth and was incorporated by reference into the will.
2. Whether the notebook satisfied the requirement that an incorporated document exist at the time of execution of the will or a republishing codicil.
3. Whether the executor could deny effect to the notebook for the painting while relying on it for other distributions.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed judgment for Clark.
- The court held the notebook functioned as the memorandum contemplated by Article Fifth and was incorporated by reference.
- The court held the notebook existed by 1979 and therefore existed when the 1980 codicils republished the will, satisfying the timing requirement.
- The court ordered effect given to the notebook entry gifting the farm-scene painting to Clark.

## Legal Principles

- The primary rule of will interpretation is to effectuate the testator’s intent as ascertained from the instrument as a whole, consistent with law.
- A writing may be incorporated by reference into a will when the will manifests intent to incorporate it, the writing is sufficiently identifiable to avoid mistake, and the writing exists when the will (or a republishing codicil) is executed.
- A codicil that ratifies and confirms a will republishes the will as of the codicil’s execution date for incorporation-by-reference timing purposes.
- A document may satisfy a will’s reference even if not in the precise form described, so long as it serves the referenced function and is adequately identified.

## Conclusion

The court enforced the testator’s distribution scheme by treating her notebook of tangible personal property gifts as the incorporated “memorandum” referenced in the will, validated because the notebook existed when the later codicils republished the will, entitling Clark to the specific painting listed for her.


Clark v. Greenhalge, 411 Mass. 410, 582 N.E.2d 949 (Mass. 1991)