Home ELLEN M. DORAN vs. WALTER F. NALLY, JR. & others.

10 Mass. App. Ct. 893

September 18, 1980

1. The judge did not err in finding and ruling that, when the plaintiff and her joint tenant signed the deed of conveyance and caused it to be placed in the hands of a New Hampshire lawyer who simultaneously represented the sellers, the buyers, and the bank which was to make the mortgage loan to the buyers, no delivery had yet been made to the buyers and that it was implicit that the deed would not be delivered to the buyers until they had executed the mortgage note and delivered the balance of the purchase price. The mere execution of the deed did not sever the cotenancy. Sondheim v. Fenton, 326 Mass. 28 , 30 (1950). See Moynihan, Introduction to the Law of Real Property 223 (1962). Assuming, without deciding, that the cotenants' act of executing the deed could operate as a severance of the joint tenancy prior to delivery if that were shown to have been their intention (see Mamalis v. Bornovas, 112 N.H. 423, 426-427 [1972]), we find nothing in the record from which the judge might have inferred such an intention. It follows that the cotenancy had not terminated at the time of the death of one of the cotenants and that the plaintiff, as the surviving cotenant, became entitled to receive the entire purchase price when it was paid several days later. Sondheim v. Fenton, supra at 30-31. 2. The evidence that the plaintiff and her cotenant went to the Bay State Savings Bank on April 7, 1976, and added her signature to the signature card of the savings account previously standing in the cotenant's name alone, and that the bankbook and the bank's records were revised to show joint ownership, was sufficient to warrant the judge's finding that the ownership of the account was intended to be as indicated in the bank's records. Blanchette v. Blanchette, 362 Mass. 518 , 523-524 (1972). Ross v. Ross, 2 Mass. App. Ct. 502 , 509 (1974), cert. denied, 420 U.S. 947 (1975).

Judgment affirmed.

Home WILHELMINA H. O. MARSHALL vs. RALPH O. MARSHALL & others.

10 Mass. App. Ct. 893

September 18, 1980

The probate judge did not err in ordering rescission of the deeds by which the eighty-four year old plaintiff had conveyed her two parcels of real estate to her three sons, reserving a life estate in herself. The evidence most favorable to the plaintiff was that her son Ralph asked her to accompany him to the office of an attorney; that the attorney was acting as such for Ralph, not for her; that she was kept waiting in the attorney's office for six hours while Ralph and the attorney conferred in the next room; that they emerged with documents which they did not explain to her and which she signed in deference to the urgings of Ralph; and that she learned only later that she had thereby made the transfers of the properties

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to her sons. The judge's findings were not as clear as they might have been, but we infer from his decision that he accepted as factual the evidence outlined above. He specifically found that Ralph took the plaintiff to the attorney's office; that she was highly susceptible to Ralph's influence; that Ralph "urged his mother to execute the aforesaid instruments and that such urging constituted undue influence in view of the age of the plaintiff, her susceptibility to [Ralph's] influence . . ., and her presence in the defendant's attorney's office"; that "after the plaintiff's execution of the deeds as aforesaid, [she] was chagrined to discover that she had caused the properties to be transferred to the defendants"; that she later asserted repeatedly "that she never intended to convey the properties to the defendants"; and that "the plaintiff did not know that she had conveyed title of the properties to the defendants." We think that those findings support either the judge's conclusion that Ralph obtained her signature by the use of undue influence, compare Lyons v. Elston, 211 Mass. 478 , 480-482 (1912), or a conclusion that the transactions cannot stand because Ralph abused the plaintiff's trust and confidence in him by inducing her to execute documents in his favor without fully disclosing to her all the adverse legal effects of the documents or causing her to obtain independent legal advice before executing them. Compare Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412 , 444-445 (1980).

Judgment affirmed.