MISC 127590

March 28, 1989

Suffolk, ss.



On April 12, 1988, Albert L. and Cornelia Lanzilli ("Plaintiffs") commenced the above-entitled action seeking a declaration, pursuant to G.L. c. 231A, that a certain deed conveying a three-family dwelling house located at 138 Marginal Street in East Boston, Massachusetts ("Property" or "Premises") to their son, Thomas F. Lanzilli ("Defendant"), be declared null, void and without effect, and further seeking an award of damages. Said deed is dated November 23, 1982 and is recorded at Book 10143, Page 311 in the Suffolk County Registry of Deeds. Pending resolution of the issues presented herein, the Court granted the Plaintiffs' motion for a preliminary injunction enjoining the Defendant, his agents, servants, employees and representatives from alienating, transferring, encumbering, pledging or otherwise disposing of the property and further enjoining him from interfering with the Plaintiffs' personal liberty, which Order was dated April 21, 1988.

A trial was held in the Land Court on October 4, 1988 at which a stenographer was appointed to record and transcribe the testimony. Eight witnesses testified and thirteen exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. At the close of the Plaintiffs' evidence, the Defendant moved for a directed verdict, [Note 1] which motion was taken under advisement.

On all of the evidence, I find the following facts:

1. The Plaintiffs, ages 82 a nd 77 years respectively, are the parents of the Defendant. They presently reside in Groton, Massachusetts, where they have registered their automobile and are registered voters. The Plaintiffs have maintained contact with their family and friends in East Boston through occasional visits, at which times they resided at the subject property. Further, Cornelia Lanzilli writes a weekly column in an East Boston area newspaper.

2. The Plaintiffs acquired title to the Property on March 10, 1958 by deed from Raefaele, Sylvester and Gabriele Morcaldi, and resided there in one of its three apartments until moving to Groton in 1980. During this period, the remaining two apartments remained unoccupied due to the building's disrepair.

3. At some time in 1980, the Plaintiffs and Defendant arrived at an oral agreement ("Agreement") with respect to the Property. Pursuant thereto, the Plaintiffs moved to their summer home in Groton and the Defendant repaired and renovated the Property. Specifically, the Defendant agreed as follows: 1) to occupy the third floor apartment with his family; 2) to rent the second floor apartment, using the rental income therefrom for the payment of expenses associated with the Property; and 3) to renovate the first floor of the Premises as a "handicap apartment" specifically for the Plaintiffs' future occupancy. A $36,000.00 construction mortgage on the Property was obtained by the Plaintiffs through the East Boston Savings Bank (Exhibit No. 4) on November 12, 1980 for purposes of financing the renovations.

4. From late 1980 to April of 1981, the Defendant expended substantial amounts of money, time and labor in rehabilitating the Property, including the installation of access ramps to the first floor apartment for the accommodation of the Plaintiffs. He and his family then moved into the third floor apartment. Subsequent thereto, the Plaintiffs obtained a $10,000.00 second mortgage on the Property in order to further advance the repairs and renovations.

5. In about July of 1981, the Defendant secured a tenant for the second floor apartment. The first floor apartment, however, remained unoccupied until September of 1982 when the Plaintiffs' son, Albert, Jr., commenced occupancy thereof on his parents' behalf. The first floor is still occupied by Albert, Jr. at present, but no rent has been paid to the Defendant for such occupancy.

6. During the period from approximately late 1980 to November of 1982, the Defendant collected rental income from the tenants occupying the second floor apartment and paid the water bills, sewer bills, real estate taxes and insurance associated therewith. During this time, however, the Plaintiffs took all tax deductions relative to the Property.

7. In late 1982, the Defendant realized that, in the absence of tax benefits for the payments associated with the property, he could no longer afford making renovations thereto. After a discussion with the Plaintiff, Cornelia Lanzilli, it was agreed that the Plaintiffs would convey the Property to the Defendant, subject to the outstanding mortgages which he agreed to pay. The Defendant's assumption of such mortgages was approved by the East Boston Savings Bank (See Exhibit No. 3).

8. In November of 1982, Cornelia Lanzilli's attorney, Alfred E. Saggese, Jr., prepared the deed conveying the Property from the Plaintiffs to the Defendant (Exhibit No. 1), which deed was properly executed and thereafter recorded by Mr. Saggese.

9. In 1986, the Defendant refinanced the Property for $71,000.00, and paid off the outstanding mortgage notes of $36,000.00 and $10,000.00. The Defendant used this newly obtained financing to continue renovations and repairs on the Property.

10. Following the conveyance of the Premises to him, the Defendant assumed responsibility for the payment of the mortgage, insurance, taxes and bills associated therewith and collected rental income from the second floor tenant. In addition, he began claiming all related tax deductions on his tax returns. His brother, Albert, Jr., continued to live in the first floor apartment.

The issue before this Court is whether the deed purporting to convey the subject property from the Plaintiffs to the Defendant was executed by means of forgery, fraud, deceit, misrepresentation and undue influence, and accordingly, should be declared null and void. In Massachusetts, the law with respect to the issue of the requisite capacity to execute a valid deed is clearly settled. In order to void a deed, the Court must find only that the grantor was incapable of understanding the full extent of his actions. The Supreme Judicial Court has enunciated this principle in more detail as follows:

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 [he or 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. When this is established then a contract is voidable.

Sutcliffe v. Heatley, 232 Mass. 231 , 232-233 (1919). See also Krasner v. Berk, 366 Mass. 464 , 467 (1974); M. DeMatteo Construction Co. v. Daggett, 341 Mass. 252 , 260 (1960); Meserve v. Jordan Marsh Co., 340 Mass. 660 , 662 (1960). Moreover, one who signs a legal document, such as a deed, is presumed to be fully aware of its terms unless it can be proved that he or she was induced to sign the same by means of fraud or undue influence. Bruno v. Bruno, 10 Mass. App. Ct. 918 (1980); Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412 , 440 (1980); Dobija v. Hopey, 353 Mass. 600 (1968). "Undue influence" is defined as that which destroys free agency and constrains the person whose act is under review to do that which is contrary to his or her own untrammeled desire. Neill v. Bracket, 234 Mass. 367 , 369 (1920) ; Miles v. Caples, 362 Mass. 107 (1972). The party alleging undue influence bears the burden of proof in that regard by a preponderance of the evidence. Bruno at 918; Viens v. Viens, 302 Mass. 366 (1939). In applying the foregoing principles to the present facts, I find and rule that the Plaintiffs have failed to sustain their burden of proving that the deed conveying the subject property to the Defendant was procured by undue influence, fraud, forgery, deceit or misrepresentation, and that accordingly, the deed constitutes a valid conveyance of the Premises to the Defendant.

While the Plaintiffs are in fact advanced in years, the evidence before the Court, and the reasonable inferences which may be drawn therefrom, does not sustain a finding that the Defendant exerted undue influence over them or otherwise exploited their age or other infirmities in accomplishing the conveyance to him of the Property. First, the record reveals that as of 1980, the Plaintiffs had vacated the Premises. In accordance with the terms of their oral agreement, the Plaintiffs moved to their summer home in Groton, while the Defendant took up occupancy of the Property and repaired and renovated the same with the Plaintiffs' financial assistance. An intent to remain in Groton, on the part of the Plaintiffs, is inferrable from the fact that they registered to vote there and registered their automobile there as well. Additionally, as part of the agreed upon renovations, the Defendant transformed the first floor of the Premises into a "handicap apartment" for the exclusive benefit of the Plaintiffs in the event they wished to return to East Boston.

The record also reveals that during the period in which the Defendant expended his time and labor on the aforementioned repairs and renovations, the Plaintiffs were claiming all tax deductions relative to the Property on their tax returns, thereby leaving the Defendant to pay all of the expenses associated with the Property without his deriving any tax benefit therefrom. After the 1982 conveyance, however, the Defendant began, taking such tax deductions without any opposition thereto by the Plaintiffs. Moreover, the subject deed was prepared by Cornelia Lanzilli's own attorney, who testified that, in his opinion, both Plaintiffs were legally competent at the time the deed was executed. Said findings do not amount to a showing of a lack of comprehension in the Plaintiffs. Conversely, they describe a decision arrived at by competent adults, cognizant of the consequences of their actions. See Corrigan v. O'Brien, 353 Mass. 341 , 350 (1967).

I find and rule accordingly that the Plaintiffs executed the deed conveying the property located at 138 Marginal Street, East Boston to the Defendant of their own free will, with full knowledge and understanding of the ramifications of their act. Accordingly, title to the Property must be and hereby is adjudged to have vested in the Defendant as of November 23, 1982. The Defendant's motion for dismissal pursuant to Mass. R. Civ. P. 4l(b) (2) is therefore allowed and the preliminary injunction issued to the Plaintiffs on April 21, 1988 is hereby vacated.

The Plaintiffs and Defendant have submitted requests for findings of fact which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts which I deem pertinent.

Judgment accordingly.


[Note 1] The Defendant's motion for a directed verdict will be treated herein as a motion for dismissal pursuant to Mass. R. Civ. P. 41(b) (2).