MISC 39073

September 17, 1979

Bristol, ss.

Randall, C. J.


This is a petition to register and confirm title to a parcel of land bordered on the north by Gene Street in the Town of North Dartmouth, Massachusetts, divided into Lots 1 and 2 all as shown on the filed plan, under the provisions of General Laws Chapter 185, Section 1. An answer was filed by Joseph T. Oliveira, Jesse T. Oliveira, Izabel Green and Rose Green, being brothers and sisters of petitioner, Frank Oliveira, in which they deny that petitioner himself has title to Lot 1 (hereinafter the locus) sought to be registered but rather allege that petitioner holds this parcel in trust for himself and for all the children of Caetano Oliveira. The title to Lot 2 as shown on the file plan is not in issue here, having been acquired by petitioner under a tax foreclosure sale from the Town of North Dartmouth.

Trial was held on the first day of June, 1979, with eight exhibits being introduced into evidence and testimony taken from four witnesses. Exhibits are incorporated by reference herein for the purpose of any appeal. All references to recorded instruments refer to the Southern District of the Bristol County Registry of Deeds.

Upon all of the evidence the Court finds the following to be the facts:

1. Caetano Oliveira and Felimina Oliveira, of Portuguese origin, were the parents of the petitioner and the respondents, the family consisting of three boys and four girls, and lived in the house on the locus for many years.

2. The father, Caetano Oliveira, returned to the Azores, his native land on various occasions. Once he remained there for some nine months. On another occasion he stayed there for some two or three years. Finally he went back for good staying in the Azores until he died in 1966. While in the Azores he raised a second family, although he apparently never remarried.

3. The petitioner, the oldest son, was the only one in the family to maintain contact with the father, Caetano, over the years even when he was in the Azores. He received a letter from his father (See Exhibit Nos. 3 and 4), dated April 4, 1963, which in translation from the Portuguese reads as follows:

Mosteiros, April 4, 1963

My dear son

"I have been very ill and have decided to turn over the house I own there in America, because I can never return, since I am in this condition it is best to turn the house and land over to your name.

Now see what documents are needed for you to send over for me to sign. It would be good for you to talk to some lawyer about this."

Signature of: Caetano Tavares Oliveira

From your father who is very fond of you.

Rua do Porto-Mosteiros S. Miguel, Azores.

4. Upon receiving the letter the petitioner consulted with Attorney Sheldon Friedland who drafted a deed (Exhibit No. 6) to locus and sent it to Caetano in the Azores for execution.

5. The deed (Exhibit No. 6) as returned by Caetano to petitioner, was dated May 15, 1963, and contained the signature of Caetano Oliveira. Attached to it was a "Certificate of Acknowledgment of Execution of an Instrument" signed and sealed by Robert J. Ryan, Jr., Vice Consul of the United States at Porta Delgada Azores wherein Caetano acknowledged the deed.

6. Thereafter, the deed was signed by Felimina Oliveira, Caetano's wife, by her "mark" witnessed by Sheldon Friedland, at her home at locus in the presence of petitioner as well as Attorney Friedland. Attached to the deed before recording were 1.10 and 1.55 U.S. and State documentary stamps respectively.

7. Petitioner visited his father in the Azores after receiving the deed, sent money to him and gave him money while visiting. After the death of Caetano on March 21, 1966, as evidenced by a copy of the death certificate (Exhibit No. 5) petitioner visited the Azores again to make sure his father's grave was properly marked.

8. Shortly before the execution of the above deed, Joseph T. Oliveira, who had been in California, returned to North Dartmouth and placed a trailer on a portion of the locus where he still lives.

9. Petitioner lived in New Bedford until moving to the locus in 1970. Felimina lived and continues to live on the locus. Petitioner has paid the real estate taxes since 1963 and prior to this for an uncertain period. During the 1940's until her marriage Izabel Green paid some or all of the real estate taxes.

10. There has been controversy between petitioner on one side and other family members, particularly Joseph on the other side for many years and especially since the citation for registration was published, always with a view towards forcing petitioner to share the ownership of the locus with other family members.

The sole question to be determined is whether or not the title conveyed by the deed, being Exhibit No. 6, from Caetano Oliveira to Francisco Oliveira was to be his alone or held by him in trust for himself and his brothers and sisters. The Court rules that the deed conveyed the locus to petitioner alone.

The letter from Caetano, Exhibit No. 4, is clear. It recites that "it it is best to turn the home and land over to your name." The deed itself is explicit, the grantee being "Francisco Oliveira." There is nothing ambiguous to allow parole evidence to show another intent and in fact there was no evidence offered to even suggest a different intent but rather a feeling on the part of the other brothers and sisters that they should have been included to share as grantees. It is true that there were discussions after petitioner received the deed as to whether or not he would share with the respondents but this had nothing to do with the issue of the grantor Caetano's intent, expressed clearly in the deed (Exhibit No. 5) and in the letter (Exhibit No. 4). A deed is to be interpreted so as to give effect to the intent of the parties as manifested by the words used. See Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 131 (1972). Nothing in the evidence tends to affect the meaning of the words of the grantor.

The Court rules that petitioner is entitled to a decree of registration of his title to locus, as shown on the file plan, subject to such other matters as may be disclosed in the abstract not here in issue.

Decree accordingly.