Law of Wills, 2016A

Fifth. It is clear that the judge fairly construed the evidence in reaching the determination that Helen
Nesmith intended the notebook to serve as a memorandum of her wishes as contemplated under
Article Fifth of her will.
Lastly, the appellant complains that the notebook fails to meet the specific requirements of a
memorandum under Article Fifth of the will, because it was not “known to him” until after Helen
Nesmith’s death. For this reason, Greenhalge states that the judge improperly ruled that the
notebook was incorporated into the will. One of Helen Nesmith’s nurses testified, however, that
Greenhalge was aware of the notebook and its contents, and that he at no time made an effort to
determine the validity of the bequest of the farm scene painting to Virginia Clark as stated therein.
There is ample support in the record, therefore, to support the judge’s conclusion that the notebook
met the criteria set forth in Article Fifth regarding memoranda.
We note, as did the Appeals Court, that “one who seeks equity must do equity and that a court will
not permit its equitable powers to be employed to accomplish an injustice.” Pitts v. Halifax Country
Club, Inc., 19 Mass.App.Ct. 525, 533, 476 N.E.2d 222 (1985). To this point, we remark that
Greenhalge’s conduct in handling this controversy fell short of the standard imposed by common
social norms, not to mention the standard of conduct attending his fiduciary responsibility as
executor, particularly with respect to his selective distribution of Helen Nesmith’s assets. We can
discern no reason in the record as to why this matter had to proceed along the protracted and costly
route that it did.
Judgment affirmed.
Problems
1. On March 13, 2015, Harriet executed a will containing the following bequests: “$100,000 to
Louise; house to Donna; residue to persons named in the list I left taped to my refrigerator.” After
Harriet’s death, her executor found five sheets of paper attached to the refrigerator. Each sheet
contained the name of several persons. One sheet included the name of Polly Davis. Polly wants to
share in the residue. Can Polly successfully use the doctrine of incorporation by reference to get her
wish? If Polly can prove that Harriet promised her a portion of her estate will she be able to inherit?
2. On January 15, 2012, Thomas included a clause in his will stating that he wanted the items listed
in his red notebook to be incorporated into his will. The notebook contained the following items:
“Jan. 14, 2010-car to Jean; March 26, 2011-lake cabin to Greg; Dec. 25, 2012-mink coat to Martha;
Feb. 17, 2013-painting with the purple doves to Gayle.” Will the bequests in the notebook be
incorporated into Thomas’ will?
3. On May 10, 2011, Warren mailed a letter to David stating, “There are some items I want to leave
you when I die. In particular, I want you to have my baseball season tickets, my time share in Miami,
and my car collection.” On May 12, 2011, Warren executed his will. Will the contents of the letter be
incorporated into Warren’s will.
4. On March 3, 2013, Simon told his niece, Nicole, “If you finish college, I will leave you a few
things in my will. I have written a list of the things I want you to have in my Bible.” On June 13,
2013, Simon executed his will. On October 30, 2014, Simon died. After his death, Simon’s executor
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