This is a complaint by Marianne Shilosky, plaintiff, against her father, Andrew J. Stellato, Sr., defendant, to recover possession and title to certain premises in Worcester, in the County of Worcester of which the defendant is the present life tenant, as well as being an action for waste, both at common law and pursuant to the provisions of G.L. c. 242, §§1 to 9 inclusive. The plaintiff seeks to terminate the defendant's life tenancy and to recover damages for his waste of the premises. The other three children of the defendant, Andrew Stellato, Jr., Salvatore Stellato and Adrienne Curran, also join in this action. The defendant initially was defaulted, but on motion the default was removed and a late answer together with a counterclaim allowed. The counterclaim alleges waste on the part of the prior life tenant, the ex-wife, now deceased, of the defendant, one Libyer Stellato, the mother of the plaintiff and her siblings, and seeks to recover damages for her waste of the premises.
A trial was held at the Land Court on August 16, 1990 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial the plaintiff, Marianne Shilosky, and the defendant, Andrew J. Stellato, Sr., were the only witnesses.
At the conclusion of the trial the defendant moved for a directed finding on the ground that the plaintiff had failed to identify the property subject to the Probate Court decree which incorporated by reference the complaint in the divorce action. Leave was granted by the Court, however, for the plaintiff's counsel to file an attested copy of the complaint in the divorce action which includes title references to the deeds to which reference hereinafter is made. In addition, the answers by the defendant to the plaintiff's request for admission admitted the property in which the defendant had a life estate in the deeds with which we are here concerned. The request for admissions and the answers thereto do not specifically tie the deeds into the life estate granted by the Probate Court, but this action has always been understood to be based on this premise through arguments on the plaintiff's motion for summary judgment, the pre-trial conference and the trial. The gamesmanship attempted by counsel for the defendant has no place in practice pursuant to the Massachusetts Rules of Civil Procedure. I therefore disallowed the motion by the defendant and have marked a copy of the complaint in the divorce proceedings as Exhibit No. 15.
On all the evidence I find and rule as follows:
1. The decedent, Libyer Stellato, who died a resident of Worcester on November 4, 1985 and the defendant, Andrew Stellato, Sr., had four children, the plaintiffs in this litigation. Upon motion by the original plaintiff, Marianne Shilosky, and allowed by the Court (Fenton, J.) on January 17, 1989, the plaintiffs' brothers and sister, Salvatore Stellato of Lake Wales, Florida; Andrew J. Stellato, Jr. of Portland, Oregon and Adrienne Curran of Palo Park, Illinois were added as parties plaintiff.
2. After the defendant lost the home where the families previously had lived through financial difficulties, Libyer Stellato ("the decedent") acquired title to land which ultimately became known as and numbered 17 Belcourt Road. The decedent purchased the property from the City of Worcester by two deeds and subsequently conveyed the premises to herself and her husband as tenants by the entirety by a deed dated July 20, 1959 and duly recorded with Worcester District Deeds (to which all recording references refer) in Book 4042, Page 525 (Exhibit No. l) and by a deed dated July 20, 1959 and recorded in Book 4042, Page 526 (Exhibit No. 2). Mr. and Mrs. Stellato also held title to the premises described in a deed from Mary DiTullio to Mr. and Mrs. Stellato dated July 20, 1959 and recorded in Book 4042, Page 527 (Exhibit No. 3). The title reference in this deed refers to a deed from the decedent to one Frank Calocci, so apparently she was the original owner of such lots as well as the tax title property. Mr. and Mrs. Stellato also owned the premises now known as and numbered 1 Chequesset Road conveyed by Libyer P. Stellato, as administrator of the estate of Maria DiTullio to Andrew J. Stellato and Libyer P. Stellato dated January 9, 1965 and recorded in Book 4533, Page 183 (Exhibit No. 4).
3. The latter premises were owned by the plaintiffs' grandparents and were acquired by their parents from the estate of their grandmother. In connection with the financing of the purchase, a mortgage loan was obtained, and the lender required that the premises be in the name of both Mr. and Mrs. Stellato. Apparently it is for that reason that the real estate acquired by the decedent was transferred to herself and her husband as tenants by the entirety.
4. There was no building on the Belcourt Road premises when they were acquired from the City of Worcester, and the decedent and her then husband constructed the home in which the family lived and the plaintiffs grew to maturity. The defendant was a construction worker during this period of his life, and he frequently was away from home. Many of the improvements made to the property were done by Libyer Stellato alone, although the defendant also worked thereon.
5. It appears that the decedent would become interested in a project, commence it and then move onto something else without completing the initial work. However, there are photographs entered as exhibits which reveal attractive rooms within the home.
6. After the death of the decedent's mother, her ancestral home was purchased, and Libyer began work on renovating it although the project was never completed. For approximately a year after the plaintiff's grandmother's death, an uncle of the plaintiffs remained in the property, but other than that no one appears to have lived there for many years.
7. In 1981 the Probate Court for the County of Worcester entered a judgment of divorce nisi (Exhibit No. 5) and granted to the plaintiff, Libyer Stellato, a divorce on the grounds of cruel and abusive treatment. The divorce contained this order:
the real estate consisting of the premises referred to in the plaintiff's complaint for divorce, title currently held tenants by the entirety, shall be granted by the defendant to the plaintiff as a life estate, remainder to Salvatore Stellato, Marianne Shiloski [sic], Andrienne [sic] Curran and Andrew Stellato, Jr. in equal shares as tenants in common; if the plaintiff predeceases the defendant, a life estate shall revert to the defendant with remainder to children as specified above; if the plaintiff remarries while the defendant is alive, real estate shall be sold as soon as reasonably possible, unless otherwise agreed, with net proceeds to be equally distributed between the plaintiff and defendant; the parties shall establish a trust encompassing above in which title is to be vested; and that the holder of life estate shall be responsible for real estate taxes, maintenance and capital improvements.
8. The divorce complaint (Exhibit No. 15) lists as the property in question the four deeds to which reference has hereinbefore been made.
9. After the divorce Libyer Stellato continued to live at 17 Belcourt Road and made whatever repairs were necessary to the premises herself. During different periods of time she raised her son Salvatore's son who lived with her off and on during the 1960's and 1970's until he was 21. A granddaughter who was attending medical school also stayed in the house with her grandmother. Her only income appears to have been from her work as a seamstress, but she did have monies to pay the real estate tax bill. The plaintiff physically paid such bills for her mother on her trips to Worcester, but the funds belonged to the decedent. After her parents' divorce the plaintiff bought her mother a new car and she made arrangements for insurance.
10. The plaintiff lives in Connecticut, and her siblings are scattered throughout the United States. They all were in Worcester at the time of their mother's death and attended her funeral. After a funeral a large family gathering was held at 17 Belcourt Road. Subsequently the elder son remained in Worcester and made some repairs to the home, arranged to have a tag sale of the personal property in the house and disposed of some of that which remained. During this ordeal he became ill and returned to Florida. Before he left for Florida, however, he gave the keys to his father, the defendant, and told him to "lock up the house, and don't let nobody in there." The defendant never occupied the premises, however, never rented them and made only superficial repairs on one occasion.
11. The fact that the property was vacant became apparent to vandals, and regrettably the property was extensively damaged by unknown intruders who pillaged the house. It is unclear whether the food found therein was left by Salvatore Stellato when he returned to Florida or whether third parties had been living in the home. Neighbors reported the problem to the plaintiff who physically inspected the property and ascertained that the destruction was extensive.
12. The house at Chequesset Road did not suffer vandalism so much as it rapidly deteriorated due to absence of care and the elements. Ultimately the roof fell in, but the house appears to be still standing since the City of Worcester has taken no action with regard to it. Apparently the neighbors are not concerned by its condition.
13. The plaintiff Marianne Shilosky has paid all the real estate bills since her mother's death, from 1986 through the first half of fiscal 1991, in the total amount of $13,711.90. She has also paid water bills in the amount of $56.70. She paid $1,373.10 to have the debris removed from the property and she ultimately paid $13,000.00 to have the home at 17 Belcourt Road demolished pursuant to an order of the Worcester City Manager dated March 22, 1990 (Exhibit No. 13B) after a hearing held on March 20, 1990 to ascertain whether the building was a burned, dilapidated or a dangerous building or structure constituting a nuisance maintained in violation of Massachusetts G.L. c. 139, §1, and the property was adjudged to be a nuisance to the neighborhood and dangerous (Exhibit Nos. 11, 12, 13A, 13B and 13C). Pursuant to this determination the plaintiff engaged F & D Truck Co., Inc. which demolished the dwelling, filled the cellar hole and septic tank and obtained permits and insurance (Exhibit No. 14).
14. The earlier complaints came from the Department of Public Health (Exhibit No. 10) and were remedied by the plaintiff. The orders by the City referred to above took place during the pendency of this action.
15. While the defendant professes to have a minimal income consisting of a very small pension from Holy Cross College from his work as a cook at that institution and social security of approximately $649.00, per month, at the present time, he appears to be associated in business with an affluent third person. The defendant owns a 1988 Mercury on which he makes substantial monthly payments. His address is unclear; he gave one address to the Court at the time he was sworn as a witness and during examination produced a second address. He is, afer all, a man of eighty years old, but I believe that this discrepancy was a function not of years but of character. In any event he appears to have no financial concerns and to have a benefactor who has solved his maintenance problems for him.
General Laws Chapter 242, section 1 provides for the recovery of possession when a tenant for life commits or suffers waste on the land so held. Section 1 of the Chapter reads as follows:
If a tenant in dower, by the curtesy, for life or for years commits or suffers waste on the land so held, the person having the next immediate estate of inheritance may have an action of waste against such tenant to recover the place wasted in the amount of the damage, and such actions shall be subject to the provisions of law relative to trial by jury. . . .
There is clear evidence of waste in the property affected by this complaint. The defendant to whom the Probate Court, presumably by agreement, awarded a life estate after that of his former spouse has never taken any action in connection with the properties to which such life estate relates, yet he has refused to surrender the estate to his children. The Massachusetts law has defined waste as "an unreasonable and improper use, abuse, mismanagement or omission of duty touching real estate by one rightfully in possession which results in its substantial injury. It is the violation of an obligation to treat the premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act (citations omitted)." Delano v. Smith, 206 Mass. 365 , 370 (1910); Gade v. National Creamery Company, 324 Mass. 515 , 518 (1949). The Supreme Judicial Court also has decided that failure to pay real estate taxes constitutes waste. Thayer et al v. Shoury, 287 Mass. 76 (1934). It is clear that under Massachusetts law the remaindermen may recover possession of the premises that have been wasted as well as the recovery of their damages.
The defendant argues that the Probate Court had no authority to award the life estates in the premises to the spouses as it did with the remainder to the children of the parties in the divorce. This is a collateral attack on the decree of the Probate Court; if the spouses objected to the decree, the remedy was an appeal to the Appeals Court. I reject this position out of hand. The plaintiff has requested that counsel fees be included within the award. The statute is silent on this aspect of the case, and I have been directed to no Massachusetts cases in which such an award has been made. Accordingly I adhere to the usual rule that each party bears the cost of his own fees for legal counsel. I do award, however, to the plaintiff reimbursement of her expenses in connection with the properties during the years from the death of her mother in 1985. This includes real estate taxes, water charges, clean up charges and demolition charges in the total amount of $28,141.70. I further award possession of all the premises covered by the four deeds; to the plaintiffs, and declare the defendant's estate terminated. The plaintiffs now hold title as tenants in common free of any life estate in the premises.