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SJC-13436

THOMAS GIBNEY1 vs. JOHN A. HOSSACK & another.2

Essex. December 6, 2023. – April 10, 2024.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

Devise and Legacy, Residuary interests, Survivorship. Will, 

Construction. Intent. Practice, Civil, Presumptions and 

burden of proof, Summary judgment. Uniform Probate Code.

Complaint filed in the Essex Division of the Probate and 

Family Court Department on October 4, 2019.

The case was heard by Jennifer M.R. Ulwick, J., on a motion 

for summary judgment.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Juliet A. Davison for John A. Hossack.

Frank P. Muzio for the plaintiff.

1 Individually and as personal representative of the estate 

of Heather W. Hossack.

2 Donald Etchison, interested party.
2

WENDLANDT, J. "Death is not the end; there remains the 

litigation over the estate."3 The legal system long has used 

default rules of construction to resolve estate litigation over 

the terms of a will; these rules purport to reflect a testator's 

presumed intent in the absence of contrary evidence. One such 

default rule is set forth in G. L. c. 190B, § 2-603 (anti-lapse 

statute), of the Massachusetts Uniform Probate Code (MUPC). It 

generally provides that where a devisee falls within a class of 

specific familial relatives of the testator and where the 

devisee predeceases the testator, the devise does not lapse; 

instead, the devise falls to the living issue of the predeceased 

devisee. The rule is based on a judgment about the typical 

testator's probable intent to preserve the devise for the 

predeceased devisee's lineal descendants, thereby keeping the 

devise in the family. A testator can avoid the default 

presumption by indicating "a contrary intention shown by the 

terms of the will." G. L. c. 190B, § 2-601.

This case presents the question whether a testator's choice 

to make a devise to an individual "if she survives me,"

demonstrates a contrary intention to avoid application of the 

anti-lapse statute. Concluding that in the present circumstance 

it does, we affirm the well-reasoned decision of the Probate and 

3 8 A. Bierce, The Collected Works of Ambrose Bierce 365 

(1911).
3

Family Court judge allowing summary judgment in favor of Thomas 

Gibney, the devisee of the residuary estate as set forth in the 

last will and testament (will) of Heather W. Hossack (Heather or 

decedent).

1. Background. The material facts relevant to our 

decision largely are undisputed; where disputes persist on 

summary judgment, we consider the facts in the light most 

favorable to the nonmoving party, here, John A. Hossack (John).4 

See Hill-Junious v. UTP Realty, LLC, 492 Mass. 667, 668 (2023).

In March 2019, Heather died. She was forty-eight years 

old. Heather was single and had been in a long-term 

relationship with her partner, Donald Etchison; Gibney was her 

neighbor and friend of many years. Gibney was Heather's primary 

health care proxy.5 Heather did not have children. She was 

predeceased by her parents, but survived by her brother, John.

a. The will. In March 2016, three years prior to her 

death and shortly after her father died, Heather executed her 

4 Because they share a surname, we refer to Heather and John 

Hossack by their first names to avoid confusion.

5 Etchison was the alternative health care proxy.
4

will,6 setting forth her desired distribution of her cash assets, 

her personal and real property, and the remainder of her estate.

More specifically, Heather devised cash assets held in

"Baird accounts and U.S. Trust accounts"7 to her mother, Ethel 

Wyman, "if she survives me." At the time of the will's 

execution, Wyman was eighty-five years old. In addition, 

Heather devised cash assets held in "Fidelity accounts" to John, 

the only other living member of her immediate family. His 

devise also was conditioned "if he survives me." The will 

specified the meaning of "surviv[ing]" the decedent, providing:

"Requirement of Survival. No beneficiary shall be 

considered to have survived me and to be entitled to any of 

my estate unless such beneficiary survives me for at least 

NINETY (90) days."

Heather left all her tangible personal property and her 

real property to Etchison. Unlike the devises to Wyman and 

John, Etchison's devises were "per stirpes."8

6 Heather executed the will immediately before she was 

scheduled to have surgery. She did not alter her will after the 

surgery.

7 Gibney's complaint states that "the Baird accounts are not 

at issue in this [c]omplaint" because "[Heather] named [John] as 

the beneficiary of the Baird accounts." 

8 "Per stirpes" means that the descendants of a deceased 

devisee take "the same share or right . . . as their parent 

would have taken if living." 2 T.H. Belknap, Newhall's 

Settlement of Estates and Fiduciary Law in Massachusetts § 24:4, 

at 44 (5th ed. 1997).
5

Heather named Gibney the devisee of the residuary estate. 

This residuary devise, like Etchison's devise, was "per 

stirpes."

The will was drafted by a Connecticut attorney, who was, at 

the time, an associate in a Connecticut-based law firm.9 To 

convey to the attorney her desired disposition of her assets, 

Heather filled out a questionnaire. The attorney prepared a 

draft and reviewed it with Heather by telephone, making certain 

changes thereafter.

At his deposition, the attorney could not recollect many of 

the details of his conversations with Heather. However, he

testified that because he knew that Wyman was elderly, he had 

explained to Heather that if Wyman predeceased her, the Baird 

and U.S. Trust account assets would lapse to the residuary

estate and be distributed to Gibney, the devisee of the 

residuary estate. The attorney could not recall which 

Massachusetts statutes, if any, he had consulted in connection 

with his advice to Heather.

9 The attorney was not admitted to practice in 

Massachusetts. The attorney was part of the law firm that had 

represented Heather in her capacity as the personal 

representative of her father's estate, which was probated in 

Connecticut, from 2014 to 2018. She inherited the U.S. Trust 

accounts from her father. Heather's father died shortly before 

Heather's will was drafted, and the same firm handled Heather's 

father's estate.
6

b. Probate proceedings. Following Heather's death, Gibney 

was appointed the personal representative of her estate, in 

accordance with the will.10 See G. L. c. 190B, § 3-614. 

Heather's will was admitted to probate, after the Probate and 

Family Court judge found that "[t]he will is valid and 

unrevoked."11

Counsel for the estate informed John that, because Wyman 

did not survive Heather,12 the devise to Wyman lapsed, and that 

the U.S. Trust accounts would fall to the residuary estate. 

John challenged this interpretation of the will, contending that

the anti-lapse statute required that the failed devise fall to 

him.

Gibney, the named beneficiary of the residuary estate,

filed a complaint, seeking a declaration pursuant to G. L. 

c. 231A, § 1, and instructions pursuant to G. L. c. 215, § 6,

that the decedent's use of the words "if she survives me" in her 

devise to Wyman evinced the decedent's intent to avoid

application of the anti-lapse statute. The judge allowed 

summary judgment in favor of Gibney.

10 The will designated Gibney the "Executor."

11 John does not contest the will's validity.

12 In April 2018, two years after Heather executed her will 

and one year before Heather died, Wyman died.
7

John timely appealed, and we transferred the case to this 

court on our own motion.

2. Discussion. a. Standard of review. "Our review of a 

decision on a motion for summary judgment is de novo." Metcalf

v. BSC Group, Inc., 492 Mass. 676, 680 (2023), quoting HSBC Bank 

USA, N.A. v. Morris, 490 Mass. 322, 326 (2022). "Viewing 'the 

evidence in the light most favorable to the party against whom 

summary judgment entered,' . . . '[s]ummary judgment is 

appropriate where there is no material issue of fact in dispute 

and the moving party is entitled to judgment as a matter of 

law.'" Metcalf, supra at 681, quoting HSBC Bank USA, N.A., 

supra at 326-327.

This case requires us to consider whether the phrase "if 

she survives me," which is a condition precedent of the devise 

to Wyman, together with the other terms of the will, 

demonstrate, as a matter of law, a "contrary intention shown by 

the terms of the will" to defeat application of the anti-lapse 

statute. G. L. c. 190B, § 2-601. John contends that while the 

language "if she survives me" evinces Heather's intent that 

Wyman had to survive Heather in order to take the devise, the 

language is ambiguous as to the disposition of the devise if 

Wyman did not survive Heather. Accordingly, John maintains that 

there remains a material factual dispute as to Heather's intent 

precluding summary judgment.
8

b. Anti-lapse statute and testator's intent. "The 

fundamental object in the construction of a will is to ascertain 

the testator's intent[] from the whole instrument, attributing 

due weight to all its language, considered in light of the 

circumstances known to the testator at the time of its 

execution, and to give effect to that intent unless some 

positive rule of law forbids." Flannery v. McNamara, 432 Mass. 

665, 667-668 (2000), quoting Putnam v. Putnam, 366 Mass. 261, 

266 (1974). If the language of the will is unambiguous, 

"extrinsic evidence to explain its terms is inadmissible."13 

Flannery, supra at 668, quoting Putnam, supra.

The MUPC14 sets forth certain rules of construction that 

provide default assumptions about a testator's intent, see G. L. 

c. 190B, §§ 2-602 to 2-610; the rules are based on a judgment as 

to the typical testator's probable desires had the testator had 

the foresight to consider the issue. See Restatement (Third) of 

Property: Wills and Other Donative Transfers § 5 introductory 

note, at 344 (1999) (default rules "apply because, and only to 

the extent that, the testator . . . failed to address the issue 

13 As we explain infra, the language of Heather's will is 

unambiguous; we therefore do not consider extrinsic evidence in 

determining Heather's intent.

14 The MUPC, which was enacted on January 15, 2009, see 

St. 2008, c. 521, governs the will, which was executed in 2016.
9

explicitly in a will provision"). Thus, these presumptions

govern the interpretation of a will "[i]n the absence of a 

finding of a contrary intention shown by the terms of the will." 

G. L. c. 190B, § 2-601.

One such default rule of construction is the anti-lapse 

statute, which provides in relevant part: "[i]f a devisee who 

is . . . a lineal descendant of a grandparent [of the testator]

. . . fails to survive the testator, . . . the issue of the 

deceased devisee who survive the testator take in place of the 

deceased devisee." G. L. c. 190B, § 2-603.15

Applied to the present case, if the anti-lapse statute 

governs Heather's will, the U.S. Trust accounts, which were 

devised to Wyman, a "lineal descendent of [Heather's] 

grandparent," who "fail[ed] to survive the testator, [Heather]," 

fall to John, "the issue of the deceased devisee[, Wyman,] who 

survive[d] the testator[, Heather]." G. L. c. 190B, § 2-603. 

If, however, the anti-lapse statute does not apply, Wyman's 

15 At common law, if a devisee predeceased the testator, the 

devise lapsed unless the will disclosed a contrary intention. 

See Hobbs v. Chesley, 251 Mass. 155, 157 (1925); Worcester Trust 

Co. v. Turner, 210 Mass. 115, 121 (1911). The essential purpose 

of the "anti-lapse" statutes in the Commonwealth, including its 

most recent iteration in the MUPC, is "to provide that legacies 

and devises to certain relatives who predecease the testator 

pass to specified substitute takers, usually the descendants of 

the predeceased devisee who survive the testator." 14E H.J. 

Alperin, Summary of Basic Law § 18:23, at 46 (5th ed. 2014),

citing Restatement (Third) of Property: Wills and Other 

Donative Transfers § 5.5 & comments c, d.
10

devise passes to the residuary estate devised to Gibney. See 

G. L. c. 190B, § 2-604 ("a devise, other than a residuary 

devise, that fails for any reason becomes a part of the 

residue").

c. Language of survivorship. The anti-lapse statute is 

grounded in the judgment that the typical testator probably did 

not intend to "disinherit[] a line of descent." Restatement

(Third) of Property: Wills and Other Donative Transfers § 5.5 

comment f, at 383. See generally Halbach & Waggoner, The UPC's 

New Survivorship and Antilapse Provisions, 55 Alb. L. Rev. 1091, 

1099 (1992) (stating that anti-lapse statutes "give effect . . . 

to what are perceived as highly probable intentions. They 

prevent unintended disinheritance of one or more lines of 

descent, by presumptively creating an alternative or substitute 

gift in favor of the descendants of certain of the decedent's 

predeceased relatives").

When a will imposes no survivorship condition or alternate 

disposition on a devise if the devisee predeceases the testator, 

there is no indication in the terms of the will that the 

testator contemplated the possibility that the devisee might 

predecease her. As such, the anti-lapse statute fills in the 

testator's missing intent with a presumption against 

disinheritance of certain lineal descendants, allowing the 

devisee's living issue to take in the devisee's stead. G. L. 
11

c. 190B, § 2-603. Accord Dewire v. Haveles, 404 Mass. 274, 277 

n.5 (1989) ("The policy underlying [the anti-lapse statute] 

might fairly be seen as supporting, as a rule of construction 

. . . , the substitution of a class member's surviving issue for 

a deceased class member if the class is made up of children or 

other relations of the testator").

A different situation is presented here. The language "if 

she survives me" evinces that Heather had the foresight to 

consider that the devisee -- Wyman, her eighty-five year old

mother -- might predecease her and, upon such consideration,

conditioned the devise upon the devisee's survival. There is no 

need to substitute a judgment (in the form of the rule of 

construction embodied in the anti-lapse statute) as to what the 

testator might have done if she had considered the issue; 

Heather contemplated the eventuality and provided for it 

expressly in the will. In these circumstances, the anti-lapse 

statute's presumed intention must cede to the expressed 

intention of the testator: that the devise fail, or lapse, if 

the survivorship condition is not met.16

16 While not dispositive, this appears to be the 

understanding prevalent among practitioners in the Commonwealth. 

See Drafting Wills and Trusts in Massachusetts § 1.9.2 (Mass. 

Cont. Legal Educ. 6th ed. 2023) ("The [MUPC] attributes to words 

of survivorship their plain meaning; such language is sufficient 

to avoid the anti-lapse statute"); Massachusetts Basic Practice 

Manual § 1.2.3(i) (Mass. Cont. Legal Educ. 7th ed. 2022) ("In 
12

Our conclusion in this regard is informed by the 

Legislature's rejection of Uniform Probate Code (UPC)

§ 2-603(b)(3) -- a proposed subsection of the anti-lapse statute

that set forth a rule of construction suggested here by John. 

Specifically, UPC § 2-603(b)(3), provided, in relevant part: 

"words of survivorship, such as in a devise to an individual 'if 

he [or she] survives me,' . . . are not, in the absence of 

additional evidence, a sufficient indication of an intent 

contrary to the application of [the anti-lapse statute]." 

Uniform Probate Code § 2-603(b)(3), 8 U.L.A. (Part I) 146

(Master ed. 2023).

order to avoid the question of whether the devise lapses under 

the Massachusetts anti-lapse statute if the beneficiary 

predeceases the testator, the phrase 'if he [or she] survives 

me' should be used"); A Practical Guide to Estate Planning in 

Massachusetts § 3.1.4(l) (Mass. Cont. Legal Educ. 5th ed. 2022) 

("It is always best to avoid the complexities involved in the 

application of [the anti-lapse] statute by providing in the will 

for the possibility of a beneficiary predeceasing the testator 

by use of phrases such as the following: If he survives me"); 

Drafting Wills and Trusts in Massachusetts § 1.9.2 (Mass. Cont. 

Legal Educ. 3d ed. 2013) (legacy specifying "that the relative 

must survive the testator as a condition of receiving the 

legacy" avoids legacy "pass[ing] to the relative's issue"); M.A. 

Leahy, R.C. Barry, Jr., & B.P. Willensky, Massachusetts Bar 

Association, Drafting the Simple Will 10-11 (2008) ("If 'to 

Jason James, if he survives me,' then bequest will lapse if 

Jason does not survive the testator . . . . If 'to Jason 

James,' the anti-lapse statute applies"); Halbach & Waggoner, 

The UPC's New Survivorship and Antilapse Provisions, 55 Alb. L. 

Rev. at 1104 (discussing common understanding "that attaching 

words of survivorship to a devise is a foolproof method of 

defeating an anti[-]lapse statute").
13

Under the proposed subsection, the testator would have had 

to make an explicit statement of disinheritance or to identify 

an alternative devisee to avoid the anti-lapse statute. See 

Uniform Probate Code § 2-603 comment, 8 U.L.A. (Part I) 150 

(Master ed. 2023).17 Given the comprehensive scheme set forth in 

the MUPC, we regard the Legislature's rejection of this proposal 

as purposeful. Cf. City Elec. Supply Co. v. Arch Ins. Co., 481 

Mass. 784, 788 (2019), quoting Leary v. Contributory Retirement 

Appeal Bd., 421 Mass. 344, 348 (1995) ("When interpreting the 

absence of language in an otherwise 'detailed and precise 

[statute], we regard [an] omission as purposeful'").

In the present case, the devise is to Wyman, who was in her 

mid-eighties when Heather executed the will, "if she survives 

me." Absent language in the will to the contrary, this language

sufficed to show Heather's intent to avoid the anti-lapse 

statute. See Flannery, 432 Mass. at 667, quoting Putnam, 366 

Mass. at 266 (we must "ascertain the testator's intention from 

17 Because the UPC's comments provide a rationale for a 

subsection of the anti-lapse statute that the Legislature did 

not adopt, John's reliance on them is misplaced. See Uniform 

Probate Code § 2-603 comment, 8 U.L.A. (Part I) 149-152. The 

UPC editors' proposed subsection and the attendant comments have 

been criticized for misapprehending the case law, citing to 

cases that subsequently were superseded, and substituting the 

editors' boilerplate language for the generally accepted words 

of survivorship. See Cooper, A Lapse in Judgment: Ruotolo v. 

Tietjen and Interpretation of Connecticut's Anti-Lapse Statute, 

20 Quinnipiac Prob. L.J. 204, 211-218 (2007).
14

the whole instrument" [emphasis added]). Rather than calling 

into question this conclusion, the will as a whole supports it. 

In particular, the will specifies that a devisee is only

considered to have "survived" Heather if the devisee survives

her for at least ninety days, further evincing that the 

circumstance of a predeceased devisee was contemplated and 

specifically considered. In addition, the devises to Wyman and 

John are conditioned "if [he or she] survives me," while the 

devises to Gibney and Etchison are made "per stirpes"; in other 

words, where Heather intended that a devise should fall to a 

deceased devisee's issue, she did so expressly. The absence of 

similar language for Wyman and John bolsters our conclusion that 

Heather intended for Wyman and John to receive their devises

only if they survived her; otherwise, these devises would lapse 

and fall to the residuary estate.18

Order granting summary

judgment affirmed.

18 Because the will is not ambiguous, we need not consider 

extrinsic evidence. See Flannery, 432 Mass. at 668.