MISC 92161

February 28, 1980

Essex, ss.

Sullivan, J.


This is a complaint brought by the plaintiff, Mildred Yasi, of Las Vegas, Nevada, to cancel both a deed from her to Doris G. Bouchard, dated October 23, 1954 and recorded with Essex South District Deeds, Book 4112, Page 418, conveying premises in Swampscott in the County of Essex (Exhibit No. 2) and a deed from Doris Bouchard to the plaintiff in trust for the benefit of Michael Yasi et al, which deed also is dated October 23, 1954 and recorded with said Deeds in Book 4112, Page 419 (Exhibit No. 3). The plaintiff seeks to have this Court declare the deeds null and void, enter an order rescinding them and terminating the trust.

A trial was held at the Land Court on September 11, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The defendant, Michael Yasi, is the brother of the plaintiff and the father of the defendant, Robert Yasi. Doris Murphy, Anna Cassese and Ellen Snow are sisters of the plaintiff. Doris Bouchard was a secretary to the attorney who drafted the deeds which are Exhibits Nos. 2 and 3 and a straw therein. All defendants other than Michael and Robert Yasi were defaulted.

2. In 1950 the plaintiff acquired title to a parcel of vacant land on Rockland Street and Kehoe Court in said Swampscott at the suggestion of her brother, Michael, and she decided to construct a single family residence thereon. The plans subsequently were revised to include a small apartment in the basement designed for her brother. The plaintiff obtained a mortgage to finance the construction and subsequently made all payments due on the mortgage note.

3. The plaintiff, a registered nurse, had served in the Army overseas during World War II. She was working in New York in 1950, and she continued to practise her profession there until her retirement in the 1970's. She returned to Massachusetts for short visits, but she apparently never lived permanently in the Commonwealth after she left about 1924. The defendant Michael Yasi supervised construction of the new house for her and personally did some of the work. At this period of time he was separated from his wife whom the plaintiff disliked and was in poor health.

4. The principal apartment in the Swampscott property has been rented nearly continuously from the completion of the house, and initially the arrangements with tenants were handled by Robert Yasi. The basement apartment was occupied for eleven years by the plaintiff's sister, Doris Murphy, one of the defendants.

5. On October 23, 1954, the plaintiff, having previously discussed making out a will but not a trust, was taken by her brother to the office of a Salem attorney, now deceased, named Joseph Pelletier. Her nephew Robert, then a member of the bar and an employee of the Department of Natural Resources, was a close friend of Mr. Pelletier's son and a protege of the father. He was permitted to have his name on Mr. Pelletier's office and to use its facilities. When Mr. Pelletier died a few years later, the defendant Robert Yasi took a leave of absence to wind up the Pelletier practice.

6. The plaintiff advised Mr. Pelletier, whom she had not met previously, that she wished to make her will and immediately told him that her brother's wife was not to be allowed to live in the house. She continued that she wished on her death to have the house "liquidated" and the proceeds divided between three of her sisters, Anna Cassese, Doris Murphy and Ellen Snow as her other two sisters had ample means. In response to the attorney's question, "Well, what about Robert," the plaintiff, after pondering, said she indicated that he be given a small amount. The plaintiff's recollection was that she signed the will on the day of the office visit. The original of it was found a few days prior to the trial by the defendant Robert Yasi in his garage.

7. During the consultation Mr. Pelletier called over his secretary, the defendant Doris Bouchard, and said to the plaintiff, "Now you are going to turn your property over to Miss Bouchard but she is going to give it right back to you." Two deeds subsequently were executed, one from the plaintiff to Doris Bouchard and a second from Doris Bouchard to the plaintiff establishing an irrevocable trust of which the plaintiff's house was the res and the plaintiff, the trustee. In substance the trust provided that Michael Yasi might live rent free for life in one of the apartments in the plaintiff's house provided only he and domestic servants occupied the apartment. A violation of the condition gave the trustee a right to terminate the trust. The trustee was to receive the rents of the other apartment and to pay all taxes and other expenses. On the termination of Michael's life estate, the plaintiff was to have the use and enjoyment of the whole of said premises during her natural life. If the plaintiff predeceased her brother, the property was to be mortgaged to an amount of not more than $10,000 upon Michael's request to be paid over to Michael "for his proper care and support". Under these circumstances Michael also was to have the use of the entire premises for life with rents to be his and all expenses to be paid by him. Upon the death of both Mildred and Michael, the trustee was to convey the premises free of trust to the family defendants, 3/18 undivided interest to Robert and 5/18 to the three sisters, or if deceased, to their children.

8. The trust contained no provision for revocation. The plaintiff contends that she was never advised of this or that she would be unable to sell the trust property. The thrust of her complaint is that she was never advised that a trust was being created by the exchange of deeds and that she would be unable to convey the property.

9. The plaintiff is able to remember only one visit to Mr. Pelletier's office at which time the will and deeds were signed. The instruments are all dated October 23, 1954 and the deeds were recorded on October 25. She testified that the date of her visit to Mr. Pelletier was October 23, that she waited for the instruments to be prepared and then executed them. Defendant Robert Yasi contradicted this testimony by recalling the Pelletier files on the matter contained correspondence between the attorney and his aunt. It seems improbable that the will and two deeds were drafted and executed in one day although the will and the deed from the plaintiff to Mr. Pelletier's secretary obviously could have been. The second deed establishing the trust did not require signature by the plaintiff so it is possible, despite the date which it bears, that it was drafted after the execution by the plaintiff of her will and the deed to Ms. Bouchard. This version does not ring true, however, for the Court has concluded that Miss Yasi even today, and certainly over twenty-five years ago, was a career professional well vested in financial affairs who would not have conveyed her Swampscott premises without assurance that they were to be reconveyed. The provisions as set forth in the trust deed faithfully track the plaintiff's wishes as she explained them at the trial. The one difference is their incorporation in an instrument which has no power of revocation, and it is this that the plaintiff contends is the result of fraud, misrepresentation or mistake.

10. The plaintiff testified that she had executed two wills subsequent to that drafted by Mr. Pelletier, but there was no evidence introduced as to how any later testamentary instruments differed from her earlier will.

11. In 1978 the plaintiff agreed to sell her Swampscott home to another nephew, Arthur Murphy, and it was this proposed transaction which allegedly brought to her attention for the first time the existence of the trust and its irrevocability. Presumably an examination of the records pertaining to the title on behalf of the purchaser or his mortgagee revealed the plaintiff's inability to sell the trust res. An attempt was made at the trial to show an earlier awareness by the plaintiff, but this never was established.

12. After the plaintiff learned that she was unable to sell the property, this "Complaint to Cancel Deed and Trust" was filed on October 20, 1978. Paragraph 11 thereof reads as follows:

11. The Plaintiff's attorney failed to explain her property rights to her and misrepresented to her and she believed that by signing the deed to his secretary, she would be forever settling her estate and her property rights. The Plaintiff's attorney did not explain to her that the property was being placed in trust for the benefit of her brother, Michael Yasi and that he had not put a provision in the trust allowing her to terminate the trust if she desired to sell said property.

13. Michael Yasi now lives in Tuscon, Arizona and is said to be in precarious health. He and his wife reconciled some time after the execution of the documents in question here.

The length of time which elapsed between the execution of the plaintiff's will and the two deeds, and the trial obscured the parties' recollection of the circumstances at the critical time, and death has taken one of the principal actors in the drama. The time which has elapsed, however, would seem to buttress the defendants' arguments that the instruments in evidence do indeed reflect the plaintiff's expressed intent in 1954, whatever she may wish today.

The general rule in this Commonwealth is, that a voluntary settlement, when completely executed with no power of revocation reserved, cannot be revoked or set aside except upon proof of mental incapacity, mistake, fraud, or undue influence.

Taylor v. Buttrick, 165 Mass. 547 , 549 (1896); accord Barnum v. Fay, 320 Mass. 177 , 180 (1946); Clune v. Norton, 306 Mass. 324 , 326 (1940). If fraud is shown, the deceived party may obtain relief even though a party is generally bound by a signed instrument whether or not he has read it. Spritz v. Lishner, 355 Mass. 162 , 164 (1969); O'Reilly's Case, 258 Mass. 205 , 209 (1927); Farrell v. Chandler, 252 Mass. 341 , 343 (1925).

One party cannot enforce a contract against another whose signature he has procured by fraud or fraudulent representations, which induced the signer reasonably to believe and understand that the instrument was substantially different from what it really was.

Boston Five Cent Savings Bank v. Brooks , 309 Mass. 52 , 55 (1941); Trombly v. Ricard, 130 Mass. 259 , 260 (1881); see Jason v. Jason, 289 Mass. 72 (1935). The plaintiff's complaint does not raise a claim of mental incapacity or undue influence; therefore she must prove that her signature on the deed was a result of either fraud or mistake.

The misrepresentation of the legal effect of a deed may give rise to an action for fraud. Busiere v. Reilly, 189 Mass. 518 , 521 (1905). It is clear that if the legal effects of the instrument she was signing were misrepresented to the plaintiff and she believed that she retained control over the disposition of her property during her lifetime, she would be able to obtain cancellation of the deed. Manha v. First Safe Deposit National Bank, 353 Mass. 750 (1967); Busiere v. Reilly, supra; Motherway v. Wall, 168 Mass. 333 (1877). The plaintiff was justified in relying on the explanation by Attorney Pelletier of the consequences of the exchange of deeds since he had a full duty of disclosure arising out of their confidential relationship. See Ruczinski v. Russ, 337 Mass. 514 (1958).

The evidence suggests that the question of revocability was not reached in the conference which the plaintiff had with her attorney and that he prepared an estate plan which accomplished what she then wished.

As for a claim of mistake, if the plaintiff did not know the contents of the document she signed, and the final document did not reflect her expressed intent, she would be entitled to cancellation of the deed. White v. White, 346 Mass. 76 , 80 (1963); Franz v. Franz, 308 Mass. 262 , 266 (1941). If, however, the plaintiff did know of the contents of the deed and simply did not understand completely the legal effect of her agreement, she is bound by the expression of her intent and cannot recover. Corrigan v. O'Brien, 353 Mass. 341 , 350 (1967); Daly v. Farrell, 252 Mass. 569 , 571 (1925); Coolidge v. Loring, 235 Mass. 220 , 224 (1920); Reggio v. Warren, 207 Mass. 525 , 535-36 (1911).

The events that took place on October 23, 1954 are uncertain. As was stated in Sawyer v. Hovey, 85 Mass. (3 Allen) 331, 333 (1862), "all of the witnesses are admitted to be persons ... of intelligence and respectability. Neither party has made any suggestion against the general reputation of the other as credible witnesses." Yet, their testimony is conflicting. Attorney Pelletier and Michael Yasi, who were present when the documents were drawn, are not available to the Court to testify as to what occurred on that date due to the death of one and the illness of the other. All that can be said with certainty is that the plaintiff wished to settle her estate, provide her brother Michael with a place to live, and prevent Michael's wife from taking any share in the property. These, the plaintiff testified, were the instructions given to Attorney Pelletier.

It is hard to escape the conclusion that the plaintiff at the very least knew the contents of the two instruments she executed and what the provisions of the deed back to her were to be, and that they reflected her intent. What is not clear is whether Mr. Pelletier explained to her that the provisions of the second deed were frozen in bronze, as it were, and could never be changed without the consent of all interested parties, i.e. that he instructed the plaintiff that she could not thereafter vary the provisions as to her real estate. The plaintiff insists that he did not, and there is no one to say he did. Nonetheless, I doubt that the plaintiff would have executed the will and deed without a complete explanation as to why two kinds of instruments were necessary and how the property was to be reconveyed to her. Absent a more convincing proof that the attorney failed in his duty to his client, I reluctantly conclude that on the evidence before me the relief prayed for must be denied. There is no evidence of any fraud, misrepresentation or overreaching on the part of the defendants, Michael and Robert Yasi although it is difficult to understand why they have opposed the plaintiff's wishes for what after all, is a property which she purchased and of which she has borne all expenses.

The plaintiff's four proposed findings of fact are denied; her proposed ruling of law no. 6 is granted, and the remainder are denied. The defendants' five proposed rulings of law nos. 1 to 5 inclusive and 7 are granted. Defendants' proposed ruling of law no. 6 is denied.

Judgment accordingly.