MISC 04-299544

November 18, 2009


Long, J.



This case arises from the late Freda (Bond) Bunker's July 30, 1981 transfer of land from herself individually to the Freda R. (Bond) Bunker Trust (the “Trust”) and an alleged mistake in the description of the land being transferred. Deed from Freda B. Bunker/ a/k/a Freida B. Bunker to Richard A. Meaney, as Trustee of the Freda R. (Bond) Bunker Trust (July 30, 1981), recorded in the Barnstable Registry of Deeds at Book 3341, Page 162 (Trial Ex. 6). The land in question is 11 Pleasant Lake Avenue in Harwich, shown as Lot No. 3 on a 1975 subdivision plan. See Ex. A, Subdivision Plan of Land in Harwich, Mass. (Nov. 12, 1975) (the “1975 Subdivision Plan”).

Plaintiff Paul Anastasio is a good faith purchaser for value of what he understood to be (and what his deed described as) the entirety of Lot 3. A title issue exists, however, because the deed from Ms. Bunker to the Trust contained a metes and bounds description of the parcel that, if applied literally (and if the abutters’ calls are ignored), only would have transferred approximately two-thirds of Lot 3, leaving the remainder (the “disputed area”) in the ownership of Ms. Bunker, individually. Defendant Barbara Nawrocki is Ms. Bunker’s niece and the assignee of the interests of Ms. Bunker's heirs and the beneficiaries of the Trust. If the metes and bounds description is applied, the defendant would be the current record owner of the disputed area.

The case was tried before me, jury-waived. Despite receiving notice, the defendant neither attended nor offered evidence at the trial. She did, however, participate in the case’s pre-trial phases. Based on the exhibits and testimony presented at trial and my assessment of the credibility, weight, and inferences to be drawn from the evidence, I find and rule that a mistake was made in the metes and bounds description contained in the Bunker to Trust deed and that Ms. Bunker intended to convey the entirety of Lot 3. Accordingly, the deed (and all subsequent deeds) shall be reformed.


Ms. Freda Bunker and her husband Malcolm owned and lived for many years in a house with several outbuildings (two sheds and a barn/garage) on a parcel of land in Harwich accurately depicted on the 1975 Subdivision Plan as Lot 3. See Ex. A. On July 30, 1981, after Malcolm’s death, Ms. Bunker deeded the property to the Trust, which, as more fully set forth below, had been formed for the purpose of protecting her assets. [Note 1] Deed from Freda B. Bunker/ a/k/a Freida B. Bunker to Richard A. Meaney, as Trustee of the Freda R. (Bond) Bunker Trust (July 30, 1981), recorded in the Barnstable Registry of Deeds at Book 3341, Page 162 (Trial Ex. 6) (hereinafter, the “1981 Deed”). As previously noted, however, the 1981 Deed contained a metes and bounds description of the land that, if applied literally, described a somewhat smaller parcel than Lot 3 (about two-thirds the size). Indeed, the metes and bounds description would locate the lot line directly through the barn/garage.

The metes and bounds description, however, was not the only description in the 1981 Deed. It also contained a monuments description of the property — the boundaries of the neighboring properties (the abutters’ calls) — all of which were described as being owned by persons other than Ms. Bunker. This monuments description also had its problems since the neighboring properties were not accurately described. [Note 2] However, it shows that Ms. Bunker clearly intended to include in the conveyance all that was owned up to the neighboring property boundaries.

The Trust was created for a particular purpose. Ms. Bunker was elderly (in her 80s), her relatives and caregiver were concerned that her financial advisor might misappropriate her assets, and they wanted to protect them for her remaining life. [Note 3] Accordingly, Ms. Bunker retained an attorney, Richard Meaney, to assist her. Attorney Meaney drafted the Trust instrument (with himself as trustee), [Note 4] the 1981 Deed to transfer Ms. Bunker's home to the Trust, and other documents making him her guardian, the executor of her new testamentary will, and giving him power of attorney to act on her behalf.

Attorney Meaney's power and control over Ms. Bunker’s assets were later expanded (again by instruments he drafted, to which Ms. Bunker signed assents), changing the beneficial interests of the remaindermen, extending the duration of the Trust so that it would continue for five years after Ms. Bunker's death, giving Attorney Meaney new trustee powers (he could now deal with the Trust property “as if he were the beneficial owner thereof”), and adding an in terrorem clause giving him the authority, in his sole discretion, to eliminate the contingent beneficial ownership of any remainderman who challenged anything he did. Shortly after this was accomplished, Attorney Meaney petitioned for Ms. Bunker to be declared mentally incompetent and was appointed her guardian on October 30, 1981. Her will was changed while she was under guardianship, granting her residuary estate to the Trust and inserting an in terrorem clause substantially identical to that in the Trust. Ms. Bunker died on June 28, 1984.

In 1986, as trustee of the Trust, Attorney Meaney sold 11 Pleasant Lake Avenue to Peter Nelson, a business associate, for $64,500 — $75,500 less than its fair market value of $140,000. That conveyance used the description contained in the 1981 Deed (both the metes and bounds and the abutters’ calls). As previously noted, the metes and bounds description was approximately one-third smaller than the actual lot shown on the 1975 Subdivision Plan, although the monuments were the boundaries of the abutting properties. [Note 5] In September 1988, in reliance on his understanding that he owned all of Lot 3, Mr. Nelson prepared and recorded a new subdivision plan dividing Lot 3 into Lots 3A and 3B. [Note 6] See Ex. B, Subdivision Plan of Land in Harwich, MA (Sept. 26, 1988) (the “1988 Subdivision Plan”).

Some years later, after two false starts (an initial deed misnamed the grantee and a second failed to include Lot 3B), [Note 7] Mr. Nelson sold both Lot 3A and Lot 3B to Attorney Meaney and Mr. Meaney’s wife as trustees of the Meaney Trust for $1, subject to a $116,000 bank mortgage. [Note 8] Deed from Peter J. Nelson to Richard A. and Elaine M. Meaney as trustees of the Meaney Trust (May 10, 1995) (Trial Ex. 12). Attorney Meaney then used the property for his law office. The Meaney Trust later conveyed both Lots (using the same property description as the Nelson to Meaney Trust deed) [Note 9] to Constance P. Collinge individually (a client of Attorney Meaney’s) and Ms. Collinge as trustee of the C. C. Trust in return for the satisfaction of an $112,179.47 mortgage. Deed from Meaney Trust to Constance P. Collinge, individually and as trustee of the C. C. Trust (Oct. 10, 1995) (Trial Ex. 14). Ms. Collinge and the C. C. Trust later transferred the property (described the same as in their deed) to The Constance P. Collinge Trust. [Note 10] Deed from Constance P. Collinge, individually and as trustee of the C. C. Trust to Jeffrey McCarty, trustee of The Constance P. Collinge Trust (Oct. 4, 1995) (Trial Ex. 15). The Constance P. Collinge Trust subsequently sold it (with the same description) to the plaintiff, a bona fide purchaser, for $160,000, which I find to have been fair market value. Deed from the Constance P. Collinge Trust to Paul A. Anastasio (Nov. 18, 1999) (Trial Ex. 18).

On January 27, 1997, the defendant brought an action against Attorney Meaney, both individually and as trustee of the Trust, alleging breach of fiduciary duty, misrepresentation, misuse and misappropriation of Ms. Bunker’s funds and, of relevance here, alleging that the 11 Pleasant Lake Avenue property had been sold to Mr. Nelson for less than its fair market value. Nawrocki v. Meaney, Complaint (Jan. 27, 1997) (Trial Ex. 21). The defendant did not seek a reconveyance of the property, either to the Trust or Ms. Bunker’s estate, but instead confined her prayer for relief to a monetary judgment against Attorney Meaney for the difference between the sales price and fair market value. Id. at 7, ¶ (3). The Probate and Family Court found that that difference was $75,500 and, inter alia, entered judgment against Attorney Meaney for that amount. Nawrocki v. Meaney, Findings of Fact at 5-6, ¶ 31 (Dec. 18, 1998) (Trial Ex. 23); Nawrocki v. Meaney, Judgment (Dec. 18, 1998) (Trial Ex. 22). In the related Bar Disciplinary proceeding, the Supreme Judicial Court noted that independent counsel for the Constance P. Collinge Trust opined that the sale of the property from the Constance P. Collinge Trust to Paul Anastasio was “fair and reasonable as to price and terms” and independent counsel for Ms. Collinge noted that it was “agreeable to his client, provided that none of the money derived from the sale shall come into the custody, control or possession of Richard A. Meaney or his family members.” In the Matter of Richard Meaney, Supreme Judicial Court Case No. BD-98-062, Memorandum and Order at 1-2 (Oct. 12, 1999) (Marshall, J.) (Trial Ex. 19). Bar counsel had no objection to the sale if it proceeded under similar conditions. Id. at 2. The SJC thus allowed the sale to go forward, “provided that the sale [took] place under terms preventing any of the money derived from the sale from coming into the custody, control or possession of Richard A. Meaney, any family member of Richard A. Meaney, any business associate of Richard A. Meaney or any of their respective agents or any person acting for or on their respective behalfs.” Id. at 3 (emphasis in original). The SJC further ordered all proceeds be placed in escrow for the benefit of Ms. Collinge. Id.

The plaintiff, having purchased a property with a mistaken description in good faith and for value, now asks for the reformation of the deed. Alternatively, he asserts that the defendant is judicially estopped from claiming any right to the disputed area after having successfully claimed in the Probate and Family Court that all of Ms. Bunker's land had been misappropriated by the Attorney Meaney. As a second alternative, the plaintiff asserts title by adverse possession.

Standard for Reforming a Deed Due to Mutual Mistake

“It is well settled that legal instruments, including deeds, may be reformed on the ground of mutual mistake.” Buk Lhu v. Dignoti, 431 Mass. 292 , 294 (2000) (citations omitted). Such reformation may occur “upon full, clear, and decisive proof of the mistake.” Simches v. Simches, 423 Mass. 683 , 687 (1996) (quoting Berman v. Sandler, 379 Mass. 506 , 508-09 (1980), internal quotations omitted). As in this case, reformation is appropriate when, due to a scrivener’s error, “the parties intended to convey . . . a considerably larger piece of land than that actually described in [the] deed . . . .” Burke v. McLaughlin, 246 Mass. 533 , 538 (1923); see also American Oil Co. v. Cherubini, 351 Mass. 581 , 587-88 (1967) (reforming defect in description of land in deed due to mutual mistake); Franz v. Franz, 308 Mass. 262 , 266 (1941) (reforming clear language of instrument when scrivener’s error resulted in language being contrary to the clear intent of the parties); Crowley v. Holdsworth, 264 Mass. 303 , 307-08 (1928) (reformation of the deed is appropriate to convey all of the property the parties intended to convey).


The following facts show by full, clear, and decisive evidence that a mutual mistake was made in the description of the property in the 1981 Deed and that the parties intended to convey the entire parcel depicted as Lot 3 on the 1975 Subdivision Plan.

First, the metes and bounds description in the 1981 Deed describes only two-thirds of the lot then owned and occupied by Ms. Bunker. Had the parties intended to divide Lot 3, the disputed area would have been referenced as being owned by Ms. Bunker in the abutter's call. [Note 11]

Second, the monuments description in the 1981 Deed indicates that the parties clearly intended to include all the land then owned by Ms. Bunker. See Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004) (“Descriptions that refer to monuments control over those that use courses and distances . . . [and if] abutter calls are used to describe property, the land of an adjoining property owner is considered to be a monument.” (internal citations omitted)). That description attempted to refer to abutting properties, see note 2, supra, and does not state that the eastern boundary consists of land owned by Ms. Bunker.

Third, the deed conveyed the property to the Trust for the benefit of Ms. Bunker. “To ascertain the settlor's intent, we look at the trust . . . as a whole . . . .” Berman v. Sandler, 379 Mass. 506 , 510 (1980). The Trust was established to protect Ms. Bunker's assets from her advisers (ironic given that it proved to be the vehicle by which one of those advisers, Attorney Meaney, misappropriated these assets for his own benefit). To effectively do so, it was important for the Trust to contain all of Ms. Bunker's assets and for Ms. Bunker to only receive income from the Trust. In fact, when it was discovered that there was personal property left outside the Trust, the Trust was amended to include that property as well. The drafter thus would not have knowingly left a piece of land out of the Trust corpus.

Fourth, neither Ms. Bunker nor the drafter, Attorney Meaney, would have subdivided the lot to create an unbuildable lot. The disputed area is too small for anyone to build on it unless it is merged with an abutting lot. In similar fashion, they would not have intended for the property’s lot line to run through the barn, which would have created an easement issue at the least.

Fifth and finally, the drafter's (Attorney Meaney's) contemporaneous and subsequent actions are also clear evidence of the mistake. Given Attorney Meaney's record and role in the transaction (e.g., writing the Trust instrument, the 1981 Deed, and a new will; taking the role of trustee; granting himself broad powers; and later petitioning to have Ms. Bunker declared mentally incompetent), it is unthinkable that he would have left any portion of land or power out of his grasp. Consistent with this conclusion, he subsequently sold the land as trustee to Mr. Nelson and orally represented to Mr. Nelson that he was conveying all of Lot 3, describing it to Mr. Nelson by reference to the 1975 Subdivision Plan and physical landmarks on the ground. Mr. Nelson clearly viewed the transfer to include the entirety of Lot 3, evidenced by the fact that he later subdivided the parcel using lines different from those that would have resulted from a strict application of the metes and bounds description in the 1981 Deed. See Ex. B. Mr. Nelson submitted the 1988 Subdivision Plan (which refers to the 1975 Subdivision Plan) to the planning board, which subdivided Lot 3 and made two buildable lots, 3A and 3B, with appropriate frontage and boundaries. See Ex. B. Mr. Nelson's subdivision plan boundaries also avoided passing through the barn. After subdividing and recording the new plan, Mr. Nelson then sold the land to Attorney Meaney, describing it by reference to both the 1981 Deed description and the 1988 Subdivision Plan. Using that same description, Attorney Meaney (through the Meaney Trust) later sold the property to Constance P. Collinge and the C. C. Trust, bona fide purchasers for value.

Based upon all of these facts, the plaintiff bought the land based upon the reasonable belief that it contained the entirety of Lot 3. Indeed, he testified that his negotiations were for the whole property. As a result, this is not a case of a purchaser attempting to “reap the harvest of a bargain he never intended to make.” Burke, 246 Mass. at 540-41. There is no evidence that the plaintiff was anything other than a bona fide purchaser for value. [Note 12] Considering the various descriptions of the property, especially the monuments in the 1981 Deed and the later deeds’ clear descriptions of the parcel by reference to the 1988 Subdivision Plan, the plaintiff cannot fairly be said to have notice that the lot he was buying was in any way smaller than all of Lot 3. The mistake was the same in each transaction, so all of the deeds in the chain of title beginning with the 1981 Deed must be reformed. See G.L. c. 183, § 15. Since there has been no bona fide purchaser of the disputed area of Lot 3 and there is no evidence that anyone attempted to retain it prior to the plaintiff’s acquisition, no one is prejudiced by the reformation of the deeds and such relief may be granted. [Note 13] Burke, 246 Mass. at 538.


For the foregoing reasons, reformation of the 1981 Deed and all subsequent deeds is appropriate. The plaintiff shall submit a proposed judgment reflecting this relief and complying with the Registry and title standard requirements for implementing it by no later than Friday, December 4, 2009.


Keith C. Long, Justice

Dated: 18 November 2009


[Note 1] Ms. Bunker was the lifetime beneficiary of the Trust. The beneficiaries after her death were five named individuals (including the defendant), all of whom have subsequently assigned their interests to the defendant.

[Note 2] The property to the north, for example, was described as “now or formerly of Mrs. Alpheus Howes,” but, in actual fact, it is Railroad Avenue, a town way.

[Note 3] The facts in this paragraph, the following paragraph, and the beginning of the paragraph after that are taken from Nawrocki v. Meaney, Barnstable Probate & Family Court, Docket No. 97E-0006-GC1, Findings of Fact (Dec. 18, 1998) (Trial Ex. 23).

[Note 4] Among other things, the Trust instrument gave the trustee broad powers of amendment.

[Note 5] See, however, n. 2, supra.

[Note 6] Mr. Nelson testified at trial that he purchased the property in reliance on the 1975 Subdivision Plan and the abutters’ boundary lines, both of which were shown him by Attorney Meaney with the representation that they described the property being conveyed.

[Note 7] Deed from Peter J. Nelson to Richard A. and Elaine M. Meaney as trustees of the Meaney Family Trust (Feb. 8, 1994) (Trial Ex. 10) (misnaming the Trust); Deed from Peter J. Nelson to Richard A. and Elaine M. Meaney as trustees of the Meaney Trust (Jan. 3, 1995) (Trial Ex. 11) (erroneously omitting Lot 3B).

[Note 8] Mr. Nelson testified at trial that there had been an electrical fire at the house, requiring him to gut and reconstruct it. The $116,000 mortgage paid for the repairs and reimbursed Mr. Nelson for his equity investment. The deed conveying the property to the Meaney Trust used the metes and bounds description that originated in the 1981 Deed, but also described the land as Lots 3A and 3B as shown on the 1988 Subdivision Plan.

[Note 9] See n. 8, supra.

[Note 10] Even though Ms. Collinge and the C. C. Trust did not have title at the time of this conveyance (the deed predates the deed into them), this conveyance is nonetheless effective under the doctrine of estoppel by deed. Zayka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992) (“Estoppel by deed occurs when, as in this case, a grantor conveys property by deed which, unknown to the grantee, the grantor does not own at the time of the conveyance, but which the grantor later acquires. In such a case, the grantor (and anyone claiming under him) is estopped from asserting against the grantee a claim of title to the property conveyed. It appeals to reason and a sense of what is equitable that, when a person manifests an intention to transfer a title to property, an after-acquired ownership of that property will make good that imperfection of the original conveyance.” (internal citations omitted)).

[Note 11] The 1981 Deed describes the eastern boundary to be along “land now or formerly of heirs [of] Franklin Dodge.”

[Note 12] Indeed, independent counsel in the Bar Disciplinary proceeding against Attorney Meaney reviewed the transaction and found it to be “fair and reasonable as to price and terms.” See discussion and citations, supra, at 5-6.

[Note 13] Having found that reformation on the basis of mistake is appropriate, I need not and do not rule on the issues of adverse possession or judicial estoppel.