GEORGE J. NEARY, MARGARET E. ROSSELLE, CHRISTINE WILLARD, MICHAEL NEARY, and PATRICIA CONLAN vs. PAULINE MACBETH.

George J. Neary of Medford in the County of Middlesex, and four of his five surviving children, filed a complaint in this Court on October 14, 1980 against his fifth child, Pauline MacBeth, also of said Medford, praying that a deed of registered land from Mr. Neary to himself and the defendant as joint tenants, dated September 5, 1979 and registered with Middlesex South District Registry District of the Land Court as Document No. 591263 (Exhibit No. 1) be declared null and void on grounds of lack of mental competence to understand or manage his property rights or to exercise his free will against the undue influence and fraud of the defendant. The complaint also prays that the defendant be ordered to reconvey the premises to the plaintiff George J. Neary. The defendant in her answer denied the allegations of the complaint and by way of affirmative defense, alleged that the plaintiffs lack standing to bring the action. In motions for summary judgment filed but not argued, the defendant bases George J. Neary's lack of standing on his incompetency and that of the other plaintiffs on lack of interest in the real estate and lack of authority to represent their father. The defendant's answer also set forth counterclaims against her siblings, but her motion to withdraw was allowed by the Court.

A trial was held at the Land Court on June 2, 1982, June 3, 1982 and August 3, 1982 at which the plaintiffs, the defendant, and nine other witnesses testified. A stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purposes of any appeal.

On all the evidence, I find and rule as follows:

1. George J. Neary ("Mr. Neary") is a veteran of the United States Armed Services and receives a pension from the Veterans Administration. The V. A. found him incompetent for financial matters (as opposed to physical treatment) on February 25, 1981.

2. The family home is at 25-27 Harris Road in said Medford.

3. Mr. Neary in the past has been an alcoholic who drank heavily; he also suffers from diabetes and service related epilepsy which is controlled by dilantin; at some time not disclosed by the evidence, he underwent his first leg amputation.

4. The defendant was engaged to a young man named William McCarthy whose parents testified at the trial. Her fiance was killed during service in Vietnam. At some time prior to his death, she left home to live with her aunt in the first floor of the Harris Road house and to help care for her grandmother. After her fiance's death she moved to the home of his parents where she stayed until she married Thomas MacBeth, from whom she is now divorced.

5. The defendant, a bank employee, apparently contributed to her family's support before her marriage and visited them from time to time, the frequency of her visits being a matter of dispute. At the trial, Mr. MacBeth claimed to be a resident of Maine, but he was driving a taxi locally and living in his former wife's apartment, allegedly to afford protection against her relatives.

6. As the years progressed, Mrs. Neary as well as her husband, developed a drinking problem. Other members of the family fell victim to emotional and related problems. A son "Buddy" died tragically. Mrs. Neary's health deteriorated, and in 1978 she died at Peter Bent Brigham Hospital at the same time Mr. Neary was hospitalized in a Veterans Administration Hospital for the amputation of his second leg.

7. After the death of his wife, the conduct of Mr. Neary became more bizarre. He continued to drink heavily and at times refused to recognize his wife's death and at other times stated that she had been murdered. He harrassed the nursing personnel at the hospital in which his wife had died; drinking and smoking led to a fire in the house; he frequently refused to wear the artificial limbs and crawled about without them. He was involved in an automobile accident at a time when he was driving without a license; he emptied urinals out of the windows. In a fit of displeasure with his family, he put the house on the market in April of 1979 and thereafter withdrew it. He gave his belongings to home makers whom he knew only slightly, and the condition of the house was appalling.

8. In 1979 one of his daughters, plaintiff Margaret E. Rosselle, returned to work and the youngest daughter, Christine Willard and her husband, who lived on the first floor, announced that they were moving to California. At the same time, the defendant, who was divorced and on welfare, needed a new apartment, and she moved into the house at 25-27 Harris Road in the flat with her father and brother Michael. It was planned that when Christine left for California, Michael and Mr. Neary would move downstairs into her flat. During this period, the defendant redid the bedroom for her children. Apparently, she did nothing to improve conditions in her father's room where the furniture was arranged on edge in a most unorthodox fashion.

9. Mr. Neary was afraid of being left alone by his family and he offered to convey the house to each of his children, in turn, if the child would promise to remain with him. His offers were not accepted until in September of 1979 when he executed a deed which led to the present action. The deed (Exhibit No. 1) runs to him and his daughter as joint tenants and was signed by him in the early evening while at home watching television. He had no independent legal advice. The notary public was a friend of a friend of the defendant, she did not know Mr. Neary and was asked to come to the house to take Mr. Neary's acknowledgement by her friend. She did not explain the consequences of the conveyance to Mr. Neary but she did ask him if he understood the house would now be his and "Paulie's." On his affirmative answer she had him raise his right hand and asked if the execution of the deed was his free act and deed to which he replied "yes." She did not notice any unusual behavior on his part or any evidence that he had been drinking heavily. There was no consideration for the execution and delivery of the deed.

10. The following December, Mr. Neary's condition had deteriorated and he was hospitalized in the Boston Veterans Administration Medical Center in Jamaica Plain on December 31, 1979. Prior to his hospitalization, he was brought by the defendant and her brother Michael to the hospital on December 10. He refused admittance but was examined by the chief of ambulatory neurology who certified that Mr. Neary was suffering from Wernicke's encephalopathy. The doctor's certificate of December 10, 1979 stated that there was a mild confusional state and a moderately severe memory disorder among other problems (Exhibit No. 3). At the trial, Dr. James Walton, a psychiatrist from the Veterans Administration, who is also engaged in private practice, testified that he had examined Mr. Neary within a week after he was admitted to the Boston Veterans Administration Medical Center on December 30, 1979, in accordance with the doctor's usual practice. He later evaluated the patient to determine whether he was competent to handle his own finances or whether a conservator should be appointed. He determined that he was not competent. He found Mr. Neary to be suffering from hallucinations, delusions and distortions with a clear memory deficit. One of his delusions was that his wife had been pregnant and was murdered bythe doctors. At other times he believed she still was alive. His diagnosis was as of March 17, 1980 and included a finding that the patient also was suffering from Korsakoff's Syndrome which was corroborated by several physicians. The disease is an amnesiac syndrome, not uncommon, and is a d isorder of cognition in which the person's memory deficit is out of proportion as compared to the other disorders of behavior. A person may be able to read or write and may be alert, yet not be able to retain new information or to remember past events. The Syndrome has various causes, but in the case of Mr. Neary, Dr. Walton believed it was caused by his alcoholism. Dr. Walton further testified that when brought to the hospital on December 30 one of his daughters (he believed it was the defendant) reported a sudden change of behavior characterized by a cessation of drinking and a discussion of his wife as if she were alive. The doctor stated that the syndrome can occur suddenly, but he was unable to state how quickly it might have manifested itself in Mr. Neary.

11. The other members of the family did not learn of the deed to the defendant until January of 1980. This was followed by Court eviction proceedings against both Christine and Michael, which Mr. Neary subsequently withdrew. It is unclear whether the Court proceedings were initiated by Mr. Neary or by Pauline. A District Court judge recommended that the differences be settled between the children and a conservator be appointed for Mr. Neary. This in fact has never been done since the parties have been unable to agree as to the person to be appointed conservator. In February of 1980, a petition was filed with the Veterans Administration for a determination as to Mr. Neary's ability to handle his own affairs. The plaintiffs were referred by the Veterans Administration to their present attorney in March of 1980. Dr. Walton signed a medical certificate for the Probate Court certifying that Mr. Neary was a mentally ill person and was incapable by reason of this for caring for himself and his estate. In February of 1981 the Veterans Administration ruled that for its purposes, Mr. Neary was incompetent.

12. Since March of 1980, Mr. Neary has lived with the plaintiff Rosselle at her home in Billerica, but he has expressed a desire to return to his own home. This would seem impossible of accomplishment, however, under the present circumstances. It seems clear, however, that the Probate Court should appoint a fiduciary to handle Mr. Neary's affairs. The only long run solution may be to have the house sold and the proceeds used for his maintenance and support. With the reduction in the amount previously paid by the Veterans Administration for his disability as a result of the federal government's economy measures, there may be insufficient funds available otherwise to support Mr. Neary.

13. Mr. Neary testified briefly at the trial, and his memory deficit was clearly apparent. The transcript suggests his testimony to be more lucid than in fact it was. His mental state at the trial was as certified by Dr. Walton on March 20, 1980, i.e., he is incapable of caring for himself and his estate.

The defendant questions the competency of Mr. Neary to bring this complaint. Even if a guardian had been appointed by the probate court, this proceeding would have been brought in the ward's name. See Kressler v. Flynn, 323 Mass. 610 , 611 (1949). Where, as here, the difficulties between the parties forestalled appointment of a fiduciary, it would be an injustice not to permit maintenance of the suit in the name of Mr. Neary since otherwise the conveyance might go unchallenged. This seems to me to be the correct result even though I agree Mr. Neary lacked competence to authorize the filing of the complaint. As to the standing of the other plaintiffs they would be the persons as heirs of Mr. Neary who on his death would have the right to disaffirm the conveyance in his stead should mental incompetence be shown. I have no difficulty in ruling that the plaintiffs are proper parties to raise a question as to the validity of the deed to the defendant.

The plaintiffs attack the deed on two grounds: the mental incompetency of Mr. Neary and the undue influence of the defendant. As to the former the rule in the Commonwealth is well settled. In Meserve v. Jordan Marsh Co., 340 Mass. 660 at page 662 (1960) it was stated as follows:

"The rule as to avoiding transactions because of mental incapacity was stated in Reed v. Mattapan Deposit & Trust Co. 198 Mass. 306 , 314, as follows: "[T]he true test is, was the party whose contract it is sought to avoid in such a state of insanity at the time as to render him incapable of transacting the business. When this fact is established the contract is voidable . . . and it is no defense . . . that the other party acted fairly and without knowledge of his unsoundness or of any circumstances which ought to have put him on inquiry." In Sutcliffe v. Heatley, 232 Mass. 231 , 232-233, this court set aside the transaction of an alleged incompetent, saying, "If she could not understand the nature and quality of the transaction or grasp its significance, then it was not the act of a person of sound mind. There may be intellectual weakness not amounting to lack of power to comprehend. But an inability to realize the true purport of the matter in hand is equivalent to mental incapacity." See Hermanson v. Seppala, 255 Mass. 607 , 609-610; S.C. 272 Mass. 197 , 200-202; McNally v. Clare, 281 Mass. 82 , 84; Wodell v. John Hancock Mut. Life Ins. Co., 320 Mass. 1 , 3; Kressler v. Flynn, 323 Mass. 610 , 611, and cases cited."

The facts in the present case bring it very close to Sutcliffe v. Heatley, supra, from which the Meserve court quoted. Mr. Neary had suffered the double trauma in 1978 of his wife's death and his second limb amputation. His behavior after the death of his wife (corroborated at a later date by the testimony of Dr. Walton) was abnormal. His delusions about the circumstances of her death while alone perhaps insufficient to demonstrate incapacity to execute a deed, see Meigs v. Dexter, 172 Mass. 217 (1898), if coupled with his other actions and his alcoholism, lead to the conclusion that he was not of sound mind. Although the medical evidence is of a slightly later period and recognizes the possibility of a change between the date of execution of the deed and December 10, I find and rule that the evidence as to the conduct of the defendant from October of 1978 to December 10, 1979 is compelling and demonstrably so strange a pattern as to compel a conclusion that the defendant lacked mental competency when he executed the deed. The deed, therfore, is null and void on this ground.

It also is vulnerable to attack on the ground of undue influence. There was no direct evidence that the defendant harangued her father to execute a deed in her favor. Rather it appeared from the evidence that Mr. Neary offered the house to whichever child happened to be present in order to secure a promise of care and companionship. Lyons v. Elston, 211 Mass. 478 , 480-482 (1912). The other children refused the gift whereas the defendant accepted it. Absent direct evidence of improper persuasion to obtain this end, it is clear that "the power of a strong will over an irresolute character or one weakened by disease, over-indulgence or age may be manifest although not shown by gross or palpable instrumentalities." Neill v. Brackett, 234 Mass. 367 , 369 (1920). Mr. Neary was a few months away from a later medical diagnosis of mental incompetency, he was drinking heavily, he acted peculiarly, he was dependent on the defendant with whom he was living, he had no independent advice and the formalities of execution were arranged by the defendant. The conveyance deprived Mr. Neary of the ability to sell or mortgage his real estate in order to obtain funds for his future support or to obtain a real estate tax abatement. He effectively limited his ability to accomplish these ends by putting title jointly in his name and that of the defendant's. The conveyance also favored the child who had most completely severed the family ties. His inability to remember doubtless contributed to this course of action.

Moreover, the defendant can be said to have abused her father's trust and confidence in her by arranging for him to execute a deed in her favor without disclosing all the adverse legal aspects or causing him to obtain independent legal advise. Marshall v. Marshall, Mass. App. Ct. (1980). [Note 1]

I therefore find and rule that the deed is voidable both on the grounds of mental incompetency and undue influence, that even though Mr. Neary presently lacks capacity to avoid the instrument, the other plaintiffs have sufficient interest under the circumstances here to make the determination to avoid the deed, that they have done so, that the deed accordingly is of no force and effect, that the defendant must convey to George Neary all her right, title and interest in the premises at Harris Road in Medford, more specifically described in Certificate of Title No. 105921, issued by said Registry District, that all of the parties are restrained from taking any action in respect to said real estate other than ministerial steps such as the payment of taxes, insurance premiums and utility and water bills and making of usual repairs until the appointment by the Probate Court of a conservator or guardian to assume the management of Mr. Neary's affairs. As Mr. Neary has no legal guardian, I hereby appoint Elliott M. Davidson, Esquire, to act as guardian ad litem for him until the Probate Court appoints a fiduciary.

Judgment accordingly.