THOMAS DALEY vs. MICHAEL J. DALEY.

By amended complaint filed on February 15, 1990, Plaintiff requests that the Court set aside the conveyance to Defendant of a parcel of land known as 304 Purchase Street in Milford ("Locus") and order Defendant to convey Locus to Plaintiff and Defendant as joint tenants. Plaintiff alleges that Defendant obtained Locus by deed ("the Deed") obtained through fraud and undue influence and further alleges that Defendant gave no consideration therefor, and that the Deed fails to state properly the grantor's intention. In the alternative, Plaintiff alleges that the signature on the Deed conveying Locus is a forgery, neither signed nor authorized by the grantor. Plaintiff seeks an accounting for all rents and monies collected by Defendant on Locus and appropriate restitution, together with costs and attorneys' fees.

This case was tried on April 16, September 17 and October 23, 1991, at which times the trial proceedings were transcribed by a court-appointed reporter. Eight witnesses testified and nine exhibits and a chalk were introduced into evidence. The parties also filed Stipulations of Agreed Facts. All of the exhibits, the Agreed Statement of Facts, and the chalk are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Locus is located at and known as 304 Purchase Street in Milford. The Deed describes Locus and several other parcels, some of which parcels Helen M. Daley ("Mrs. Daley"), the grantor, had conveyed prior to the Deed's execution.

2. Mrs. Daley, the owner of Locus in 1975, had six children: Michael ("Defendant"), Mary E. Marley. ("Marley"), Helen M. Hildreth ("Hildreth"), Walter, James, and an adopted son Thomas ("Plaintiff").

3. Both Plaintiff and Defendant grew up in the house on Locus; Defendant lived their for approximately 43 years.

4. On October 14, 1975, Mrs. Daley executed a will ("the Will"), wherein she devised Locus to Plaintiff and Defendant as joint tenants. The Will was never revoked or substituted, nor has it been probated.

5. Mrs. Daley lived at Locus until October of 1980 at which time she suffered a stroke paralyzing her on her left side, she, however, was right-handed, and was still able to write. She was institutionalized at Saint Vincent's Hospital in Worcester for ten days after which when she was transferred to the Providence House also in Worcester, an extended care facility. While there, her condition improved, and she was able to move around using a walker. After becoming ill on a weekend visit with her family, she was admitted into the Milford-Whitinsville Regional Hospital ("the Milford Hospital"). She remained there until August of 1981 when she was transferred to the Webster Nursing Home in Webster and in December of 1981 to the Milford Medical Home. On April 15, 1982, she suffered a second stroke again affecting her left side. She was then admitted into the Milford Hospital. As a result of her second stroke, Mrs. Daley totally lost the use of her left arm and her left leg was considerably weakened. She also had difficulty speaking and swallowing. There was no evidence, however, that either stroke affected the use of her right hand. Mrs. Daley was institutionalized from her first stroke until her death on March 14, 1986.

6. After consulting with a social worker, presumably in 1981, Marley suggested to Mrs. Daley that it would be advantageous to convey Locus at least two years prior to her death. At some time in 1981 or 1982, Mrs. Daley told Marley that she wished to leave Locus to Defendant with the stipulation that Plaintiff could live there as long as he wanted and that Defendant would take care of him.

7. Between April and December of 1982, Mrs. Daley was on a number of drugs, including an anti-psychotic drug and others whose side effects were hallucinations and confusion. [Note 1]

She had periods of confusion and agitation. She had trouble remembering the date and time of day, and occasionally had trouble recognizing people.

8. Since approximately 1973, Marley has been an I.V. nurse at Milford Hospital and while there her mother was one of her patients. As stated in Finding Number 6, above, Mrs. Daley had expressed her wish to Marley that title to Locus go to Defendant with, in effect, a life estate to Plaintiff. Marley asked Defendant to prepare the necessary documents for the transfer and, in August of 1982, Defendant had the Deed drafted by an attorney. It is not clear what instructions passed between Marley and Defendant or Defendant and the attorney.

9. Marley subsequently spoke with Mrs. Daley's doctor who recommended a psychiatrist examine Mrs. Daley. On August 4, 1982, after consulting with Mrs. Daley, Dr. James Robeson, a psychiatrist affiliated with the Milford Hospital, filed a report concerning Mrs. Daley's ability to competently convey Locus, which report states that "[Mrs. Daley] relates desiring to turn[sic] her property to her children at this time."

10. At some time the Deed was prepared (Exhibit Number 1) which, in effect conveys all of Mrs. Daley's property to Defendant including a 57 acre parcel which had been previously conveyed to someone else. There is no mention of a life estate or any other interest going to Plaintiff.

11. Both parties called handwriting experts who testified to the authenticity of Mrs. Daley's signature on the Deed. After considering the testimony of both experts, examining the pertinent documents and considering the facts surrounding the alleged execution, I find there to be no credible evidence that Mrs. Daley ever authorized or signed the Deed or authorized anyone to sign the Deed in her behalf.

12. Independently of the foregoing finding, I further find that Mrs. Daley never acknowledged the Deed.

Accordingly, I find that the Deed from Mrs. Daley to Defendant, as recorded at Book 7561, Page 378 in the Worcester Registry of Deeds must be and is hereby set aside.

On the issue of the accounting, I had indication that the issue would be deferred until a determination of the issues herein. It would appear that it is now necessary for the Will to be probated and allowed in order to determine the actual ownership of Locus. Once that has been accomplished, the question of an accounting can be properly addressed.

The parties submitted Post-Trial Memoranda and Requests for Findings of Fact and Plaintiff submitted Requests for Rulings of Law. I have not attempted to rule on each of those Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.