MISC 80277

March 30, 1978

Middlesex, ss.

Randall, J.


This matter comes before the Court on plaintiff's complaint to establish a curtesy interest in certain property known and numbered as 8 Hersey Street, Newton, Massachusetts conveyed by Lulu E. Graham, the plaintiff's deceased wife, to the defendants Robert Samuel Graham and George Herbert Graham, the plaintiff's sons, recorded as document No. 462635 in Middlesex South Land Registry Book 774, page 90. The plaintiff argues the conveyance is void for lack of a valid delivery to the defendants, that Lulu E. Graham therefore died seized of the property, and hence plaintiff is entitled to a curtesy interest under G. L. c. 189, §1.

A hearing was held on February 6, 1978; 4 witnesses testified and 5 exhibits, incorporated herein for the purpose of any appeal, were introduced. Oral arguments were heard on March 21, 1978 and briefs were submitted.

The Court finds as follows. In the early part of November 1962, the defendant, George Graham, accompanied his mother, Lulu Graham, to Attorney Aylaian's office. Mrs. Graham told Mr. Aylaian she wanted her boys to have the house immediately. A few weeks later George and his mother returned to the office, and Mrs. Graham signed the deed Mr. Aylaian had prepared stating that now her boys had the home. The deed was handed to George who read it. George, fearing that if his father discovered this deed he would abuse his mother as he had done in the past, handed the deed to Mr. Aylaian and asked him to hold it for safe keeping. Mr. Aylaian, who had been consulted by Mr. Graham in 1959 in connection with a possible divorce action and who knew of the plaintiff's physical treatment of Mrs. Graham, agreed to hold the deed and not record it until after her death.

Shortly after this meeting George telephoned his brother, Robert, in California and informed him their mother had "signed the house over" to the both of them and that he had given Mr. Aylaian the deed to hold. Robert assented to these actions.

Thereafter, from time to time Mrs. Graham stated to George she was glad her boys had the house.

Mrs. Graham died on January 13, 1969. The deed was recorded the next day.

The Court concludes Mrs. Graham intended a present transfer of the property to her sons in 1962 and that this intention was accomplished. There was a physical delivery to George Graham. Robert Graham's knowledge of the transaction and acquiescence therein operates as a delivery and acceptance as to him. Bianco v. Lay, 313 Mass. 444 , 448 (1943). The fact the deed was not recorded until long after its execution does not affect the validity of the conveyance between the grantor, Lulu Graham, and the grantees, the defendants. Aronian v. Asadoorian, 315 Mass. 274 , 276 (1943).

The plaintiff relies on Boyle v. Owens, 326 Mass. 163 (1950) wherein it was decided that a deed prepared during the grantor's lifetime was intended to take effect upon the death of the grantor and therefore there was no valid delivery during the grantor's lifetime. In that case the grantor had stated she wished the grantees to have the house after her death. In contrast, in the present case, the grantor instructed Mr. Aylaian to effectuate a present transfer. In the Boyle case no adequate reason appeared for the delay between execution and recording of the deed. Here, the plaintiff's treatment of Mrs. Graham testified to by both George Graham and Mr. Aylaian, provides an explanation for the delay in recording. The Boyle case is not persuasive in light of the differing factual patterns.

Chapter 189, §1 states in material part:

"A husband shall upon the death of his wife hold for his life one-third of all land owned by her at the time of her death." (Emphasis supplied)

As the Court has concluded Mrs. Graham conveyed the property during her lifetime, it was not owned by her at the time of her death, and hence there is nothing to which the plaintiff's curtesy interest may attach under c. 189, §1.

In any event, even if Mrs. Graham had owned the property at her death, it does not appear that the plaintiff has followed the procedure set forth in c. 189, §1 for claiming a curtesy interest and hence he is not entitled thereto.

Consequently, the plaintiff's complaint is dismissed with prejudice.

Judgment accordingly.