WANDA IZBICKI vs. RICHARD R. COOMBS, ELLEN L. COOMBS, GERALDINE REILLY and DIANE SHIRLEY, individually and jointly.

On February 19, 1988, Wanda Izbicki ("Plaintiff") commenced this action seeking to rescind and cancel a certain sale of property located at 24 Heywood Street in Worcester from her to the Defendants, Richard R. and Ellen L. Coombs, or in the alternative, to confirm and record a life estate in her, in certain property located at 33 Bedford Avenue, Worcester. An answer and counterclaim were filed by the Defendants on March 8, 1988, wherein the Defendants requested damages in the amount of ten thousand dollars ($10,000.00) for repairs made upon the premises located at 33 Bedford Avenue.

A trial was held in the Land Court on April 4, 1989, at which time all testimony was recorded and later transcribed by a court- appointed reporter. Eight witnesses testified and twelve exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. At the close of the Plaintiff's evidence, the Defendants moved for a directed finding on the issue of undue influence as a basis for rescission of the conveyance to the Coombses, which motion was allowed.

On all of the evidence, I make the following findings of fact:

1. The Defendants, Ellen L. Coombs ("Coombs"), Geraldine Reilly ("Reilly") and Diane Shirley ("Shirley") (at times referred to collectively as "Nieces") are sisters. The Plaintiff, Wanda Izbicki, is their aunt. The Defendant, Richard R. Coombs, is the husband of Ellen L. Coombs.

2. On July 12, 1954, the Plaintiff and her husband, Walter Izbicki, secured a building permit (Exhibit No. 7) from the city of Worcester and, pursuant thereto, constructed a one-family dwelling on property owned by them at 24 Heywod Street in Worcester. They occupied this dwelling from the time of its completion to approximately May of 1983. [Note 1]

3. On February 10, 1982, the Nieces each received an undivided one-third (1/3) interest in the premises known as and numbered 33 Bedford Avenue, Worcester (See Exhibit No. 11). Their aunt, Adele Ladago, [Note 2] was and had been, living on the premises for some time prior thereto. Following their acquisition of title to 33 Bedford Avenue, the Nieces allowed their aunt to remain on the premises rent-free, provided she assumed financial responsibility for the payment of all utilities.

4. During 1982, the Defendants, Diane Shirley and Ellen Coombs, visited the Plaintiff at 24 Heywood Street. In the course of such visits, Shirley and Coombs noticed that the Plaintiff was having difficulty caring for herself and the premises and believed she should not be residing there alone. Shirley suggested to the Plaintiff that she sell her home and move to 33 Bedford Avenue where she could enjoy the same living arrangement as her sister (See Finding No. 3).

5. In the fall of 1982, the Plaintiff informed Shirley and Coombs that she would like to move into the first floor apartment of 33 Bedford Avenue. Shirley and Coombs then improved the premises by such means as wallpapering, painting, putting in a new bathroom floor and ceiling and installing new locks on all of the doors. Thereafter, in early 1983, the Plaintiff assumed occupancy of the first floor apartment, while her sister [Note 3] occupied the second floor. From this time forward, the Plaintiff routinely spent holidays and a few weeks each summer in Harwichport, at the home of her sister, Stella Reidl.

6. By deed dated May 13, 1983, recorded at Book 7767, Page 133 in the Worcester District Registry of Deeds (Exhibit No. 2), the Plaintiff conveyed 24 Heywood Street to the Defendants, Richard R. and Ellen L. Coombs. The recited consideration for this conveyance was $30,000.00.

On this same date, the Coombses granted the Plaintiff a mortgage in the sum of $25,000.00 as security for the payment of the purchase price. This mortgage is recorded at Book 7767, Page 134 in the Worcester County District Registry of Deeds (Exhibit No. 3).

7. At some point following the Plaintiff's move to 33 Bedford Avenue, she asked her nieces for "something in writing" relative to her occupancy of the premises. Thereafter, an agreement ("Agreement") (Exhibit No. 1) was drawn up, which Agreement reads as follows:

We, Ellen Coombs, Geraldine [Reilly] and Diane Shirley, the owners of premises at 33 Bedford Avenue, Worcester, MA, for and in consideration of the payment of One ($1.00) Dollar agree that Wanda Izbicki shall have the right to occupy those premises at 33 Bedford Avenue, Worcester, MA, owned by us until her death or until such time as she determines that she no longer wishes to occupy the premises. During the period of occupancy the said Wanda Izbicki shall pay no rent but shall share the expenses of all utilities with Adele Ladago.

This Agreement bears the signatures of only Ellen L. Coombs and Diane Shirley. Reilly refused to sign the same, as she believed the Plaintiff's financial situation made it possible for her to pay at least the real estate taxes, insurance and maintenance expenses relative to the property. Despite her refusal to sign the Agreement, however, Reilly did not object to the Plaintiff's occupancy of an apartment at 33 Bedford Avenue, nor did she ever attempt to remove the Plaintiff from the premises.

The evidence fails to support any further finding that this Agreement was intended to constitute any part of the consideration for the Plaintiff's sale of 24 Heywood Street to the Coombses. In addition, I interpret the phrase in the Agreement which reads, "or until such time as she determines that she no longer wishes to occupy the premises", to be a limitation on her tenancy, such that she holds no right to sell, lease or rent her interest therein. Accordingly, while I find that the Agreement does give the Plaintiff the right to reside in one of the apartments located at 33 Bedford Avenue, it does not vest a life estate in the premises in her.

8. The Plaintiff began complaining to her nieces about the lack of heat at 33 Bedford Avenue in the winter months of late 1986 (See Exhibit No. 5). Despite her having been instructed by her brother, Edward Ladago, on how to read the water gauge and refill the steam boiler located in the basement of 33 Bedford Avenue, the Plaintiff was physically unable to fulfill this task, as access to the basement was from the outside of the house and required her to turn a hot water valve. Nevertheless, either Shirley or Coombs would routinely respond to the Plaintiff's calls regarding the heat.

9. By letter dated February 19, 1987 (Exhibit No. 5), Reilly informed the Plaintiff that, from that date forward, the Plaintiff would have to bear financial responsibility for all repairs needed at 33 Bedford Avenue. She also suggested that the Plaintiff consider moving to Harwichport with the Reidls, as the premises at 33 Bedford Avenue were becoming unmanageable for her.

10. At the end of 1987, the Plaintiff left 33 Bedford Avenue in order to visit the Reidls in Harwichport over the Christmas holiday. Although she did not inform the Nieces of her leaving at this time, I find that, in view of her habitual holiday visits to the Reidls, the Nieces were on notice of the same. In the Plaintiff's absence, the water pipes at 33 Bedford Avenue froze and burst, resulting in water damage throughout the premises. Repairs for such damage totalled $9,800.00 (Exhibit No. 12) and were paid for by the Defendants. While in Harwichport, the Plaintiff received notice of this incident by a certified letter from Reilly dated January 19, 1988 (Exhibit No. 6).

11. On February 19, 1988, the Plaintiff received a letter from the Nieces informing her of their decision to sell the premises at 33 Bedford Avenue. The Plaintiff thus remained in Harwichport until approximately November of 1988.

In consideration of the foregoing, I rule that, by the terms of the Agreement, the Plaintiff has acquired the right to reside in one of the apartments located at the premises known as 33 Bedford Avenue in Worcester until such time as she chooses to discontinue such occupancy. Further, as noted herein, since the Plaintiff holds no right to sell, lease or rent said premises to third persons, and as she is not presently responsible for the payment of taxes, insurance and maintenance relative thereto, she does not hold a life estate in the property.

I further rule that, as the terms of the Agreement were not agreed upon by all three of the Nieces, and as it may have been without adequate consideration, the Plaintiff's decision to resume occupancy of one of the apartments on the premises at 33 Bedford Avenue shall, from that time forward, include her assumption of responsibility for the payment of a share, proportionate and attributable to her living area, of all utilities, taxes, insurance and maintenance associated therewith. In addition, I rule that the Plaintiff be given sixty (60) days from the entry of a final judgment herein, after all appeals are resolved, to make her decision regarding occupancy of 33 Bedford Avenue. In the event the Plaintiff chooses to forego resumed occupancy thereof, the Nieces may sell, lease or rent the premises free and clear of any and all rights which the Plaintiff may assert therein.

Finally, as I find that the water damage sustained by the premises at 33 Bedford Avenue in the winter of 1987 were due in part to the Nieces' failure to inspect the premises in the Plaintiff's known absence, they are not entitled to a reimbursement of the cost of such repairs from the Plaintiff.

Judgment accordingly.