## Facts

- Frank E. Peabody died leaving a will and was survived by his wife, Gertrude Peabody, and his daughter, Amelia.
- Frank’s will left most of his property to benefit Gertrude and Amelia, including a testamentary trust that gave Amelia a life interest.
- The will’s ninth paragraph stated: “The provisions of this will for the benefit of my wife, Gertrude Peabody, are in lieu of dower and of all her statutory rights in or to any part of my estate.”
- The will provided that if Amelia died intestate, the balance of the trust would be distributed among Frank’s partners at Kidder, Peabody & Company who were living at both Frank’s death and Amelia’s death.
- Amelia later died intestate. By the time of her death, all potentially qualifying partners were deceased.
- The will contained no further gift-over if the class of partner beneficiaries failed.
- The trustees sought instructions on distribution of the trust remainder. Amelia’s estate contended that the ninth paragraph barred Gertrude (or her estate) from receiving any share of property passing by intestacy.
- Under the Massachusetts intestacy statute applicable to a decedent survived by a spouse and one child, intestate property would be divided one-third to the spouse and two-thirds to the child.

## Issues

1. Does a will clause providing that benefits for the spouse are “in lieu of dower and of all her statutory rights” bar the spouse (or the spouse’s estate) from taking a statutory intestate share of property not effectively disposed of by the will because a contingent remainder gift fails?
2. If the remainder passes by intestacy, how is it distributed between the widow’s estate and the daughter’s estate under the intestacy statute?

## Decision

- The Supreme Judicial Court of Massachusetts held that the ninth paragraph did not bar Gertrude (or her estate) from taking a share of property that passed by intestacy due to the failure of the contingent remainder gift.
- Because the will did not dispose of the trust remainder after the class gift to partners failed, the remainder passed by intestacy.
- The remainder was to be distributed one-third to Gertrude’s estate and two-thirds to Amelia’s estate.
- The court affirmed the probate court’s resolution of the distribution question.

## Legal Principles

- When a testamentary disposition fails and the will makes no effective alternative provision, the undisposed-of property passes by intestacy.
- A statement of disinheritance or a general clause that a spouse’s testamentary benefits are “in lieu of dower” or “statutory rights” does not, without clear and effective dispositive language, prevent the spouse from taking as an heir in a partial intestacy.
- The will governs only property it actually disposes of; for property left undisposed of, the intestacy statute supplies the rule of distribution.
- To exclude an heir from taking intestate property, there must be an effective disposition of that property (expressly or by necessary implication) or a legally effective waiver/election that clearly reaches the intestate share at issue.

## Conclusion

The court ruled that the will’s “in lieu of dower and of all her statutory rights” clause did not eliminate the widow’s right to share in trust property that became intestate after the will’s contingent remainder gift to the testator’s business partners failed; the remainder therefore passed under Massachusetts intestacy law, with one-third to the widow’s estate and two-thirds to the daughter’s estate.


Waring v. Loring, 504 N.E.2d 644 (1987)