## Facts

- Kathleen Juliet McDonough executed a handwritten will in 1975 and died in 1984.
- The will devised all property to her sister, Helen McDonough Cooper; if Helen predeceased Kathleen, the will devised all property to Kathleen’s nephews Marshall John McDonough, Jr., and David Condon McDonough, and her niece Martha McDonough Sullivan “in equal shares, that is one-third to each.”
- David and Martha (the plaintiffs) and Marshall Jr. were siblings and regularly visited Kathleen.
- Kathleen had two other nieces, Helen M. Jones and Corrine M. Austin (the interveners/defendants), who lived far away and rarely saw Kathleen due to a long-standing family feud.
- Helen McDonough Cooper predeceased Kathleen and left no issue.
- Marshall John McDonough, Jr. also predeceased Kathleen and left no issue.
- The will contained no residuary clause and did not provide for Jones or Austin.
- After Kathleen’s death, David and Martha brought an action in the Probate Court against Martha in her capacity as executrix, and against the other nieces as interveners, seeking a declaration that the second-paragraph devise was a class gift so that the surviving members would take the entire estate.
- The other nieces argued the will was unambiguous and that extrinsic evidence of intent was inadmissible; the probate judge nevertheless allowed testimony offered by David and Martha about Kathleen’s intent.
- The Probate Court concluded the will was unambiguous, construed the devise as separate gifts to individuals, and ruled that Marshall Jr.’s one-third lapsed and passed by intestacy to Kathleen’s heirs at law (including Jones and Austin).
- David and Martha appealed.

## Issues

1. Whether the devise to the named nephews and niece “in equal shares, that is one-third to each” was a class gift, so the surviving members took the whole estate, or individual gifts, so the predeceased member’s share lapsed.
2. Whether construing the devise as a class gift was supported by the will’s overall plan and the presumption against partial intestacy, given the omission of a residuary clause and the apparent exclusion of the feuding branch of the family.

## Decision

- The Appeals Court reversed the Probate Court.
- The devise in the second paragraph was construed as a class gift to the testatrix’s favored group of nieces and nephews (the three siblings), despite their being named and assigned equal fractional shares.
- Because the gift was to a class, Marshall Jr.’s death before the testatrix did not cause his one-third interest to pass by intestacy; instead, the surviving class members, David and Martha, took the entire estate.
- The case was remanded for entry of a judgment consistent with the class-gift construction.

## Legal Principles

- The controlling question in construing a will is the testator’s intent, determined from the will read as a whole and in light of circumstances known to the testator when the will was made.
- A class gift is a gift to a group identified by relationship or group description, where the members who take are determined at distribution; surviving members generally take when one member predeceases the testator.
- Naming beneficiaries individually and stating equal fractional shares are factors that may suggest separate gifts, but they are not conclusive; context and the dispositive plan can support class treatment.
- Courts prefer a reasonable construction that avoids partial intestacy, especially where intestacy would divert property to relatives the will appears to omit.
- The absence of a residuary clause can strengthen the inference that the testator intended a single comprehensive disposition rather than a plan that would leave a portion to intestate succession.

## Conclusion

Sullivan v. Sullivan held that Kathleen McDonough’s contingent devise to her two nephews and niece—though naming them and specifying “one-third to each”—was a class gift when read in context of the will’s evident scheme and the avoidance of intestacy; therefore, the surviving siblings took the entire estate and no portion passed by intestate succession to the omitted nieces.


Sullivan v. Sullivan, 529 N.E.2d 890 (1988)