EMILIO PINNONE, Executor of the Estate of ANGELINA PINNONE, EMILIO PINNONE, Individually, CESARE PINNONE and ROBERT PINNONE vs. IGNAZIO PINNONE.

The plaintiffs seek to set aside a deed conveying property from Angelina Pinnone to the defendant, Ignazio Pinnone and his brother Emilio Pinnone as joint tenants. A trial was held on April 22, 1987 at which five witnesses testified and six exhibits were introduced.

On October 25, 1983, Angelina Pinnone executed a deed conveying a two­family house located at 171-173 Waverly Avenue in Watertown to two of her sons as joint tenants, one of whom is the defendant. Early in 1984, Angelina Pinnone suffered a stroke and was hospitalized for approximately one and one-half months before dying on March 7, 1984. The plaintiffs claim that Angelina Pinnone was incapable of executing the deed due to lack of capacity and also, in regard to the deed, a victim of undue influence at the hands of the defendant with whom she resided. The plaintiffs have requested that the deed be set aside and that an order enter to partition the property in order that it may be sold and the proceeds divided between the four sons.

Based upon the evidence, I find as follows:

1. Angelina Pinnone, now deceased, was the sole owner of a two-family house at 171-173 Waverly Avenue in Watertown, Massachusetts as described in Transfer Certificate of Title No. 46944 (Exhibit 1).

2. Since the death of her husband, Angelo Pinnone, on October 30, 1956, Angelina had lived on the second floor of the above referenced property with the defendant. Emilio Pinnone, one of Angelina's sons, also named as joint tenant in the deed in question, resides on the first floor with his wife and family.

3. On November 15, 1981, Angelina Pinnone executed a will leaving all of her property, real and personal, to her four sons equally (Exhibit 2).

4. On September 2, 1982, Dr. Jerome Tanzar signed a medical certificate declaring that Angelina Pinnone was incapable by reason of advanced age (Exhibit 3). Apparently this was done in contemplation of a petition for appointment of a conservator or guardian, however, there is no evidence that such petition was ever filed or that such appointment was even made.

5. On September 8, 1983, Angelina Pinnone met with Attorney Alan Olson of Watertown at her home and executed a power of attorney giving the defendant the power to pay bills, cash her checks and deposit money.

6. On October 25, 1983, Angelina Pinnone, represented by Attorney Olson, executed a deed granting the property at 171-173 Waverly Avenue to the defendant, Ignazio J. Pinnone and Emilio Pinnone as joint tenants (Exhibit 4), and in conjunction therewith petitioned for a new duplicate certificate of title to said property. At this time, Attorney Olson explained the consequences of these actions to the defendant and satisfied himself that she was capable of executing the deed of her own free will.

7. Sometime in the early months of 1984, Angelina Pinnone suffered a stroke and was hospitalized.

8. On February 23, 1984, Cesare Pinnone, son of Angelina, filed a petition for appointment as temporary guardian which petition was allowed on February 24, 1984.

9. On February 28, 1984, the deed was recorded at Middlesex South Registry of Deeds.

10. On March 7, 1984, Angelina Pinnone died at Waltham Hospital as a result of a stroke suffered approximately one and one-half months previously (Exhibit 5).

The plaintiffs challenge the deed to the defendant and his brother on two grounds: the lack of capacity of Angelina Pinnone and undue influence exerted by the defendant. As to the first ground, the law dealing with the requisite capacity to execute a valid deed is set forth in Sutcliffe v. Heatley, 232 Mass. 321 (1919).

The test in cases of this kind is whether the person executing the instrument had sufficient mental capacity to be capable of transacting the business. 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 a lack of power to comprehend. But an inability to realize the true purport of the matter in hand is equivalent to incapacity. When this is established then a contract is voidable.

Id. at 232-33. The facts presented and the testimony at trial do not substantiate a finding of a lack of power to comprehend. The attorney executing both the power of attorney and the deed met with Angelina Pinnone on three separate occasions and was satisfied that she understood the transactions which were being undertaken as well as the legal significance of each. Although counsel had been initially contacted by the defendant, the testimony at trial detailed the steps counsel has taken to insure Angelina's mental capacity, including bringing along a witness who spoke Italian and conducting the deed transaction outside of the presence of the defendant.

Correspondingly, the evidence does not justify a finding of undue influence by the defendant. Angelina Pinnone lived with the defendant on the second floor of the property since her husband's death in 1956. The defendant, a disabled shipyard worker, cared for his mother by providing companionship, shopping, cleaning, and banking services on her behalf. As the defendant had never married or had children and was not on close terms with his brothers, Angelina Pinnone comprised the entire family of the defendant outside of his affiliation with the baptist church.

I find and rule that Angelina Pinnone had sufficient mental capacity on October 25, 1983 to execute a deed granting the property at 171-173 Waverly Avenue to her two sons who resided there. I also rule that such a disposition was not an unnatural way for a mother to leave her property and as such does not support a finding of undue influence by the defendant, such as to invalidate the deed.

Judgment accordingly.