Plaintiff filed a complaint on November 14, 1978 praying that a deed dated May 23, 1977 conveying certain property owned by himself and his wife to the defendant, Mary H. Halliday as trustee of the Jane E. Ford Trust, be declared null and void and rescinded, contending firstly, that his signature upon the deed is not genuine and secondly that even if the signature were genuine it was procured by fraud, trick or sham, or undue influence or duress.
Defendant answered on December 1, 1978 claiming that the May 23, 1977 deed to her as trustee of the Jane E. Ford Trust was properly executed by both plaintiff and his wife. She denied the plaintiff's allegations that he did not sign the deed or alternatively that his signature was fraudulently or otherwise obtained.
A trial was held on May 29, 1979 at which a stenographer was sworn to take the testimony. Four witnesses testified. Eight exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal. An agreed statement of certain material facts was submitted to the Court on the day of trial, which is incorporated into the Court's findings of fact.
Upon all of the evidence the Court finds the following facts:
1. The plaintiff, Robert E. Ford and his wife Jane E. Ford acquired title to the property located at 13 Hornbeam Road, Scituate as tenants by the entirety on May 19, 1964 (See Exhibit A attached to the Complaint) and used this as a family home thereafter.
2. Robert E. Ford and Jane E. Ford were married to each other when they took title on May 19, 1964 and remained so until the death of Mrs. Ford on August 29, 1977.
3. Mrs. Ford suffered from cancer and spent much of her last year in the hospital.
4. Mr. Ford had a problem with alcohol. As a result, at random periods during his marriage he lived apart from his family and at one time was institutionalized.
5. Throughout her last year Mrs. Ford had become increasingly anxious about the welfare of the couple's two teenage daughters, Debra and Bronwyn. She was extremely concerned about her husband's ability to provide for them alone.
6. While in the Tufts-New England Medical Center in May 1977, Mrs. Ford engaged the defendant, Attorney Mary H. Halliday, to draft a trust instrument for the benefit of the Fords' two daughters. It was Mrs. Ford's intention to provide for her children by placing the Hornbeam Road property in the trust for the benefit of her two daughters.
7. The defendant drafted the Jane E. Ford Trust, naming herself as trustee and placing the family home in trust for the two Ford daughters. She also drafted a deed of the property from plaintiff and Mrs. Ford to herself as Trustee of the Jane E. Ford Trust. These instruments were drafted in compliance with Mrs. Ford's instructions to her.
8. On May 20, 1977, the defendant, accompanied by a paralegal from her firm, visited Mrs. Ford in her hospital room. There the trust agreement and the deed were signed by Mrs. Ford, who acknowledged her signature on the deed before the paralegal, Mary Appuliesi, a notary public.
9. The defendant retained the trust instrument. Mrs. Ford retained the deed in order to obtain her husband's signature to it.
10. A few days later, after Mrs. Ford had been released from the hospital, she telephoned the defendant at her office and informed her that her husband, the plaintiff, had signed the deed.
11. The deed, dated May 23, 1977, and bearing two signatures, that of Jane E. Ford and the second purporting to be that of Robert E. Ford, the plaintiff, was sent by mail to defendant's office.
12. On June 3, 1977 the trust instrument and the deed were recorded by defendant at the Plymouth County Registry of Deeds in Book 4272, Page 349 and Book 4272, Page 360 respectively (See Exhibits 1 and 2).
13. Jane E. Ford died on August 29, 1977. About a month prior to her death Mrs. Ford requested plaintiff to sign a three page typed document (not in evidence) by which he would agree, after her death, to see to their children's educations and otherwise provide for them. Plaintiff signed this document.
14. In March of 1978 the plaintiff attempted to mortgage the property but was told that he could not do so since he was not the record owner of the property.
15. Plaintiff then checked at the Plymouth County Registry of Deeds and discovered the recorded trust and the deed of the Hornbeam Road property to the defendant as trustee, with his wife's name and his own name as grantors.
16. Later in the Spring of 1978 plaintiff paid a visit to the defendant at her office. There he told her that he had signed the deed, that "he would have signed anything Mrs. Ford asked him to sign" and that "he loved her very much." But in subsequent conversations with the defendant and in Court, plaintiff positively denied signing the deed.
17. At the trial plaintiff's purported signature on the deed was compared with several samples of plaintiff's signatures, including that on two personal checks (Exhibits 4 and 5), on his driver's license (Exhibit 6), on his Milton's charge card (Exhibit 7), and on three samples prepared for the Court (Exhibit 3). An enlarged comparison chart displaying the signature on the deed, the above mentioned signatures as well as the plaintiff's signature in the agreement mentioned in paragraph 13 was entered into evidence as Exhibit 8.
18. Elizabeth McCarthy, a qualified handwriting expert, testified that the signature of Robert E. Ford on the May 23, 1977 deed was not that of plaintiff.
The sole question to be resolved here is whether or not the signature of plaintiff is a valid one. The Court finds that it is not.
The Court reaches this conclusion after weighing all the evidence. The testimony of the handwriting expert and a close examination by the Court of the various samples as shown on the enlarged comparison chart (Exhibit 8) convinces the Court that a person other than the plaintiff signed the deed. To buttress this conclusion was the testimony of the plaintiff that he did not sign the deed. In addition there was his testimony that one month before she died Mrs. Ford had requested him to sign the agreement set forth in paragraph 13 hereof to bind himself to provide for the children and for their education which he did. It would seem reasonable to believe that Mrs. Ford wanted this agreement signed because she was very uncertain about the legality or validity of the deed conveying their property to the defendant as trustee.
In assessing this curious set of facts the Court reaches the conclusion that Mrs. Ford was overwhelmed with the fear that her husband could not achieve some security for her children. Facing imminent death she took matters into her own hands and with the best of intentions, signed or had somebody else, sign her husband's name to the deed.
In reaching this conclusion the Court is in no way critical of the defendant who acted responsibly as an attorney in this matter. She had no reason to doubt the signature as that of plaintiff and acted in good faith in causing the deed to be recorded.
The Court rules that the May 23, 1977 deed conveying the property held by Robert E. Ford and Jane E. Ford as tenants by the entirety to the defendant as trustee of the Jane E. Ford Trust is of no effect because Mr. Ford did not sign the deed. Without his assent there could be no alienation of the estate by Mrs. Ford. Plaintiff, as the surviving spouse holds title to the property. See Licker v. Gluskin, 265 Mass. 403 , 407 (1929).
A copy of the judgment shall be recorded in the Plymouth County Registry of Deeds.