JOHN A. HARRISON and BONNIE C. HARRISON vs. STEPHEN M. LALIKOS, EXECUTOR OF THE ESTATE OF EDITH S. HAYES, ALEX A. MAHAN, and MARJORIE MAHAN.

This is a suit for Declaratory Judgment brought pursuant to G.L. c. 231A, whereby Plaintiffs seek a determination of their rights under a restrictive clause in a deed to a parcel of land in the Wingaersheek Beach section of Gloucester from themselves to Joseph E. and Edith S. Hayes. Said deed is dated July 9, 1965, and recorded with Essex District Deeds, Book 5283, Page 793.

This case was tried on March 5 and 6, 1992, in Boston. Four witnesses testified and fifteen exhibits were admitted into evidence, in addition thereto, the parties have stipulated to certain uncontested facts, all of which are incorporated herein for the purpose of any appeal. The proceedings were transcribed by a duly appointed Court Reporter.

On all of the evidence and in consideration of the parties' briefs, I find as follows:

1. The premises involved are known as Lot 51 Wingaersheek Beach, Gloucester ("Locus"). In addition to an oceanfront lot on a private beach, Locus consists of a beach cottage, having one large room, and a bathroom. On May 2, 1965, Joseph E. and Edith S. Hayes conveyed Locus to Plaintiffs apparently in consideration of $22,000. [Note 1]

2. The source of the purchase money was from the sale of Plaintiffs' home in Salem, N.H.

3. Within weeks of the sale, Mr. Hayes contacted Mr. Harrison seeking to buy back Locus, stating that the Hayes's had made a mistake and wished to repurchase the property.

4. Mr. Harrison was first contacted by Mr. Hayes in that regard, at Mr. Harrison's place of business, an automobile dealership in Lawrence in which Mr. Harrison was a principal and an officer. At that time, Mr. Harrison had an above average familiarity with real estate transactions, having been involved in commercial and residential transactions.

5. The parties negotiated the terms of a reconveyance, and as stated above, on July 9, 1965, Plaintiffs reconveyed Locus to the Hayeses apparently in consideration of $22,000 (See Note 1) Mrs. Hayes had no direct involvement with Plaintiffs in the negotiations.

6. The July deed contains the following language:

This conveyance is made on the condition that in the event the grantees, or their heirs, shall desire to convey the premises, they shall first offer to sell the same to the grantors, or their survivors, at a price not in excess of twenty-five thousand and no/100 ($25,000.00) dollars, and the said grantors shall have the right of first refusal in connection therewith.

It is not clear who prepared the deed, although it is notarized by C. Leo Moriarty, Esq. The deed was in Plaintiffs' possession a day or so prior to the closing.

7. Proceeds from the sale were used by Plaintiffs in partial payment for a new home in Andover.

8. Joseph E. Hayes predeceased Edith S. Hayes; Edith S. Hayes died on April 7, 1989, and at the time of her death was the sole owner of Locus. Mrs. Hayes died testate, having executed a will dated February 20, 1981, in which she devised Locus to Defendant, Alex A. and Marjorie Mahan.

9. Plaintiffs allege their right of first refusal is valid and was triggered by the devise. They seek hereby to enforce it.

10. There is no credible evidence to support any allegation of fraud or mutual mistake on the part of the Hayeses. Plaintiffs have alleged certain reasons for the reconveyance, but I find it as likely that Plaintiffs sold Locus to acquire funding for the Andover home, as for the reason advanced.

Mr. Harrison, who negotiated the reconveyance is and was a knowledgeable and experienced businessman. He and his wife executed the deed after ample opportunity to review it. As of the time of the sale, they received fair consideration therefore, and accordingly, even without the lack of credible evidence, their claims of fraud, mutual mistake and lack of consideration are insupportable. Moreover, at least as to pertinent issues, while the deed may be somewhat poorly drafted, its words are neither doubtful nor ambiguous and, accordingly, may not be supplemented by parole evidence. Oldfield v. Smith, 304 Mass. 590 (1939)

A literal reading of the deed renders the clause granting the right of first refusal void. Clearly the words "devise" and "convey" are not synonymous (See Black's Law Dictionary, 5th Ed.), and thus the condition precedent to Plaintiffs' exercise of their rights of first refusal has not and cannot occur -- the grantees have died and have devised Locus to other than their heirs. The clause is not activated by transfer as a result of death; it does in fact contemplate title passing by at least inheritance, as it refers to conveyance by "heirs". Had the grantors wished to impose a condition that became viable at the time of death of the grantors, suitable language could have been inserted to accomplish that result. In a similar situation, the Appeals Court has stated that restraints upon alienation as a matter of public policy are not favored. Accordingly, if upon one of two or more possible constructions there is no restraint, such construction is preferred. Fisher v. Fisher, 23 Mass. App. Ct. 205 , 207 (1986). Accordingly, I find that upon the death of Mr. Hayes, title to Locus vested in Defendants, the Mahans (subject to probate matters), free and clear of Plaintiffs' right of first refusal.

Were the deed to be revised, which I do not find reason to do, the only reasonable revision would be to insert after the word "heirs" the words "or devisees" on the basis that the unknown drafter may have made the not uncommon mistake of overlooking the distinction between "heirs" and "devisees", in which instance title (subject to probate) still vests in Defendants, the Mahans subject in such instance, to Plaintiffs' right of first refusal. That right, however, expires by statute, on July 9, 1995.

Plaintiffs submitted a Post-Trial Memorandum and both Plaintiffs and the Mahans submitted Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of said 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.