MISC 133803

May 19, 1992

Middlesex, ss.



Plaintiff seeks a Declaratory Judgment establishing her title to the property at 391 Pleasant Street, Melrose ("Locus").

A trial was held on November 13, 1991. A stenographer was appointed and recorded the testimony. Fifteen Exhibits were introduced into evidence; all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Plaintiff and Defendant, Deborah Lee Manley Walsh, Robert Lewin, Esq. (who did legal work concerning Locus) and Loretta Terminello (secretary to Mr. Lewin and Mr. Lewin's father, also a lawyer).

I find and rule as follows:

1. By deed (the "Trust Deed", Exhibit 3) dated December 5, 1947 and recorded at Middlesex South District Registry of Deeds (all recording references in this Decision are to that Registry) at Book 7226, Page 453, Francis L. Maggio conveyed Locus to Jacqueline LeGrand ("Jacqueline"), who later became Jacqueline LeGrand Parylak and who was the mother of plaintiff and defendant. Locus had been purchased in 1944 by Jacqueline and her then husband Harold (Exhibit 1), from whom she was separated by the time of the Trust Deed and from whom she was divorced in 1951. They conveyed to their attorney Maggio by a deed (Exhibit 2) recorded just before the Trust Deed.

2. The Trust Deed recites consideration of less than One Hundred Dollars and is on trust, as follows:

To have and to hold the granted premises with all the privileges and appurtenances thereto belonging unto the said Jacqueline LeGrand and her heirs and assigns but in trust nevertheless for the use and benefit of William Morris, Jacqueline Morris, Barbara Morris, Lorraine LeGrand and Robert LeGrand, children of the trustee.

To enter into and take possession of the granted premises, to hold and manage the same, deposit or invest any investible funds arising thereout [sic], collect the rents, interest and income thereof, pay all proper charges for interest, taxes, repairs, cost of insurance, and other proper charges; to sell and convey to any person or persons whomsoever, at such times and for such sums or prices, for cash or credit, and on such terms as shall seem to said trustee adequate and suitable, the whole or any part thereof. To mortgage, lease or let, the whole or any part thereof. To make, execute, acknowledge and deliver good and sufficient deeds, mortgages, leases or lettings, and the purchasers, mortgagees, lessees or tenants, are not to be responsible or answerable for the proper application of the purchase price or other moneys paid to said trustee.

Upon [sic] the death of the said Jacqueline LeGrand, unless the granted premises shall have been disposed of by her, by sale, the title in fee simple to the granted premises shall vest in the said William Morris, Jacqueline Morris, Barbara Morris, Lorraine LeGrand and Robert LeGrand, and their heirs and assigns forever, in equal shares as tenants in common.

Plaintiff is Barbara Morris and Defendant is Lorraine LeGrand, both as named in the Trust Deed. William and Jacqueline Morris are Plaintiff's siblings, now deceased. Robert LeGrand is Defendant's brother.

3. Jacqueline later was involved in the following conveyances of Locus:

a) Deed dated March 13, 1953 by "Jacqueline LeGrand, Trustee," recorded in Book 8044, Page 70 to Jennie B. Augelli, a straw. By deed dated March 13, 1953 at Book 8044, Page 71, Augelli conveyed Locus to Jacqueline individually (Exhibits 4 and 5). Both these deeds recite consideration of less than $100.

b) $2,400 mortgage (since discharged) from "Jacqueline LeGrand, individually and as Trustee under Deed of Trust dated December 5, 1947, and recorded with Middlesex Deeds in Book 7226 Page 453" to Fellsway Co-operative Bank dated May 12, 1953 recorded at Book 8074, Page 363 (Exhibit 6).

c) Deed dated September 14, 1972 recorded at Book 12295, Page 614 (Exhibit 7), in which Jacqueline identifies herself as "Jacqueline LeGrand Parylak, formerly Jacqueline LeGrand; Trustee", to Henry Lewin. By deed dated September 14, 1972 recorded at Book 12295, Page 615 (Exhibit 8), Henry Lewin conveyed Locus to Jacqueline in Trust for the benefit of Lorraine Adgurson (Defendant) and four children of Defendant. The terms of the Trust are identical to those set forth in paragraph 3 above, except that the ultimate takers on the death of Jacqueline are "Lorraine Adgurson, daughter of the Trustee, and Francine Rene Adgurson, Sue Ann Adgurson, Michelle Doreen Smith and Lorraine Marie Smith, children of Lorraine Adgurson, and their heirs and assigns forever, in equal shares as tenants in common." Both these September 14, 1972 deeds recite consideration of under One Hundred Dollars.

d) Deed dated December 15, 1977 recorded at Book 13356, Page 399 (Exhibit 9), Jacqueline, reciting that she conveys individually and as Trustee under the two Trusts referred to above, conveys to herself and defendant as joint tenants with right of survivorship. The expressed consideration is "love and affection, this being a conveyance from a mother to herself and her daughter."

4. From the foregoing and other evidence, we have the following (ignoring straws):

1944 - Jacqueline and Harold acquire Locus. Before 1947 they separate.

1947 - Trust Deed to Jacqueline, in trust for her five children, (three by William Morris and two by Harold).

1951 - Jacqueline and Harold divorced.

1953 - Jacqueline conveys to herself.

1956 - Jacqueline marries Michael Parylak ("Parylak").

1972 - Jacqueline conveys to herself as Trustee for Defendant and Defendant's children.

1977 - Jacqueline conveys to herself and Defendant.

1987 - Jacqueline dies.

5. Because there are missing heirs in this picture, a Guardian Ad Litem was appointed. She recommended that the property be disposed of in accordance with the Trust Deed.

6. Plaintiff testified that she moved to Locus in 1944, when she was twelve. At that time Defendant was one. Also in the household were Plaintiff's brother, William Morris, and Plaintiff's sister; Jacqueline, both of whom are now deceased, and Robert LeGrand, the adopted son of Harold LeGrand. Those five persons are the beneficiaries under the Trust Deed. All of them were then teenagers, except for Defendant, who was one in 1944.

7. Plaintiff moved out of Locus in 1949, when she married, but within six months, she and her husband took up residence in the upstairs apartment in Locus. Locus is a ten room residence, originally a single family, but with the upstairs made into a separate apartment.

8. Plaintiff and her husband stayed in the upstairs apartment for about two years, paying rent. Jacqueline started seeing Parylak and decided that he would be scared off if he knew that Jacqueline had three children by a former husband (Morris). Jacqueline instructed Plaintiff not to call her "mother" and that she could see Jacqueline only at other locations. Plaintiff and Jacqueline got along well until that time but the relationship deteriorated at that point and Plaintiff and her husband moved out.

9. Plaintiff did not know about the Trust Deed until about 1961, when her brother William told her about a 1953 conversation he had had with Jacqueline revealing the Trust Deed.

10. Defendant lived at Locus until she was sixteen, when she married and moved out. The relationship between Plaintiff and Defendant was friendly, both before and after they both lived at Locus. Plaintiff saw Jacqueline only infrequently, at the latter's insistence. Things did not fall out between Plaintiff and Defendant until 1988, after Jacqueline's death, when Defendant approached Plaintiff and the other Morris issue with proposed $1.00 quitclaim deeds relating to Locus, which Plaintiff refused to sign.

11. Jacqueline was strong-willed and domineering.

12. Defendant was a joint owner with Jacqueline of various bank accounts at the time of Jacqueline's death and Defendant was the beneficiary of insurance on Jacqueline's life.

13. Jacqueline (then living at Locus with Parylak) became ill in 1985; she continued living at Locus until April 1987, when, after a short hospital stay Jacqueline came to Defendant's house, where she lived until her death in December 1987. During Jacqueline's last illness Plaintiff offered to come help Defendant with Jacqueline but Jacqueline did not want Plaintiff.

14. In tax returns during at least 1983 and 1984 (and probably other years as well) Jacqueline treated Locus as her property.

15. Mr. Lewin represented Jacqueline in 1977. She told him then she wanted to be sure Locus went to Defendant and not to Parylak. She distrusted her husband and was grateful to Defendant for helping her in her illness. Jacqueline was represented by Mr. Lewin's father at the time the Trust Deed was executed but Mr. Lewin knows nothing about that.

16. Defendant claims sole ownership of Locus by virtue of the December 15, 1977 deed. Plaintiff claims that the Trust Deed controls, under which she would take at least a one-fifth interest and under which Defendant, her half-sister, would also take at least a one-fifth interest. If the Trust Deed controls the interest originally allocated to William Morris would remain to be disposed of; he died before Jacqueline, leaving no widow or issue.

17. Defendants contend that a valid trust was not created by the Trust Deed because Jacqueline did not relinquish control over Locus and did not possess the requisite intent to create an equitable interest in the beneficiaries at the time the Trust Deed was created. Additionally, Defendants contend the beneficiaries had an expectation of inheritance upon the death of Jacqueline, which could be defeated if Jacqueline disposed of the property, and thus, the Trust Deed is testamentary in nature, and violates the Statute of Wills. In the alternative, Defendants argue that if the trust is valid, a power to revoke was omitted by mistake and should be included by inference or by reformation.

18. I conclude that, certainly at later times, Jacqueline believed Locus was hers to deal with but I nonetheless conclude that the Trust Deed established a valid trust, which Jacqueline could not ignore. The Trust Deed was executed as a consequence of Jacqueline's marital problems with Harold LeGrand and in a desire to protect Locus from him. Clearly, Jacqueline changed her mind as to the disposition of Locus as time went on, but she did not reserve a power to revoke or modify. This situation does not present facts justifying a reformation to include such a power, in contrast to Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 417 (1980). Notice to the beneficiaries was not necessary, Restatement (Second) of Trusts, §36. The retained power to sell and convey, set forth in the Trust Deed, does not validate Jacqueline's self-dealing in the post-Trust Deed instruments. Jose v. Lyman, 316 Mass. 271 (1944); Restatement (Second) Trusts §170. Interests passed to the beneficiaries of the trust on its creation, even though Jacqueline ignored those interests, and the trust was not testamentary, see Leahy v. Old Colony Trust Co., 326 Mass. 49 , 51 (1950). Even though the Trust Deed does not set up express income interests, I conclude that it is definite enough to establish validity - see Ventura v. Ventura, 407 Mass. 724 (1990).

19. Locus being subject to the Trust Deed, Jacqueline's subsequent transfers are unavailing and title to Locus on Jacqueline's death vested in her five children as stated in the Trust Deed.

Judgment accordingly.