Clark v. Greenhalge

Helen Nesmith executed a will making her cousin, Frederic T. Greenhalge, II (defendant), executor and primary beneficiary of her tangible personal property. However, Article Fifth of Nesmith’s will limited the bequest to Greenhalge by requiring that property specifically described by Nesmith in a “memorandum” that was known to Greenhalge, be distributed to the persons identified therein, if living, or according to Nesmith’s “known wishes.” In 1972, Nesmith created a document titled “Memorandum” (Memorandum) that listed specific bequests of her tangible personal property. Nesmith also maintained a notebook titled “List to be given Helen Nesmith 1979” (Notebook) that also contained a list of specific bequests of personal property, including a bequest of a farm scene painting (Painting) to Virginia Clark (plaintiff), a close friend and neighbor of Nesmith. Over their ten years of friendship, Nesmith often stated her intention to give the Painting to Clark and told Clark that she would record the gift in a book she maintained for that purpose. In 1980, Nesmith executed two codicils to her will, changing some bequests not affecting Article Fifth and otherwise reaffirmed the will. After Nesmith’s death in 1986, Greenhalge distributed the gifts described in the Notebook, including gifts to himself, but refused to distribute the Painting to Clark. Clark then commenced an action against Greenhalge. Greenhalge claimed that he was unaware of the Notebook until he received it after Nesmith’s death, however, Nesmith’s home care nurses testified that Greenhalge was aware of the Notebook and its contents. The probate judge found that the Notebook was a “memorandum” incorporated by reference into Nesmith’s will since it was in existence at the time of execution of the codicils and awarded the Painting to Clark. Greenhalge appealed to the Supreme Judicial Court of Massachusetts.