MISC 143450

March 23, 1992

Middlesex, ss.




Miscellaneous Case No. 143450 was commenced by complaint filed March 21, 1990, pursuant to G.L. c. 240, ยง1. Plaintiff therein ("Plaintiff") requests that defendant ("Defendant" or "Coates") and all other persons unknown, claiming any right title, estate, lien or interest in a parcel of land in Carlisle ("Locus") be required to set forth the nature of their claims. By said complaint, Plaintiff further seeks a declaration that she is the owner of Locus and that Defendant has no interest therein.

Pursuant to G.L. c. 240, and as a result of an Order to Try Title issued by this Court on July 25, 1990, Defendant, Coates, brought Miscellaneous Case No. 150629, wherein she seeks a declaration as to the rights of herself and Bedford Construction Company, Inc. in Locus.

On November 8, 1991, the Court, on its own motion, consolidated the above-captioned matters. On the same date, Plaintiff and Defendant filed a Stipulation of Agreed Facts.

This case was tried on November 8, 1991, with no stenographer present. Two witnesses testified and seven exhibits were introduced into evidence. All of the exhibits 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 consists of approximately 4.83 acres of land located on Russell Street in Carlisle and shown as Lot 2 on a plan entitled, "Plan of Land Carlisle, Mass." dated April 19, 1963, and recorded in the Middlesex North Registry of Deeds in Plan Book 98, as Plan 66. [Note 2] There is excepted and excluded therefrom so much thereof as is shown as Lot 2 on a plan entitled "Plan of Land in Carlisle, Mass: dated April 10, 1964, and recorded in Plan Book 100, as Plan 9a.

2. Bedford Construction Company Inc. ("the Corporation") was incorporated on February 29, 1960, by Francis A. Corcoran, Sr. ("Corcoran"), father of Coates, and by Edward J. Alex and Francis P. Harte. Upon incorporation, Corcoran was the majority shareholder in the Corporation, holding 254 shares out of a total of 500 shares or 50.8% of the outstanding shares.

3. In 1961, Corcoran discussed with his son Francis A. Corcoran, Jr. ("Corcoran, Jr.") the transfer of the Corporation to Corcoran, Jr. At a meeting, in mid to late 1961, Corcoran delivered to Corcoran, Jr. the corporate books and records along with Corcoran's stock certificates and the corporate seal. There is no evidence that the stock certificates were signed or of the nature of the delivery (i.e. conditional transfer, absolute . . . ). There is no evidence that a transfer of stock was recorded on the Corporate books. Corcoran, Jr. had no recollection of doing so.

4. Corcoran was a strong-willed person and he and Corcoran, Jr. had constant battles concerning control of the Corporation even after the aforesaid "delivery".

5. By deed dated April 5, 1963, Ernest A. and Adele J. Needham conveyed Locus, along with abutting land, to the Corporation.

6. Corcoran died testate in 1964 leaving his interest in the Corporation to his wife, Margaret T. Corcoran ("Mrs. Corcoran").

7. In the mid-1960's the Corporation went into receivership, and, in conjunction therewith, Corcoran, Jr. turned over the corporate records to Attorney John Dick, corporate counsel, neither apparently making copies of the records. On December 21, 1966, the Corporation was dissolved. The records appear to be lost, but, in any event, no records of the Corporation were produced at trial.

8. Upon dissolution of the Corporation, its assets, including Locus, passed directly to its shareholders. Those shareholders were Edward J. Alex, with 245 shares, Francis P. Harte with 1 share, and Mrs. Corcoran, with 254 shares.

9. On August 22, 1971, Mrs. Corcoran died testate, leaving 30% of her estate including an undivided 15.24% interest in the Corporation to Coates, as tenant in common with the other shareholders, of Locus.

10. On March 29, 1979, Corcoran, Jr., individually and on behalf of the Corporation, executed a deed conveying his interest in Locus to Clay E. King ("King").

11. On March 6, 1990, King executed a deed conveying his interest in Locus to Plaintiff.

The only disputed issue in this case is whether Corcoran's shares in the Corporation were transferred to Corcoran, Jr.

To effect a completed gift of certificated securities, there must be a settled donative intention on the part of the donor, together with an actual or symbolic delivery of the subject matter of the gift to the donee in such a manner as completely to transfer the dominion and control of it in the lifetime of the donor. Monaghan v. Monaghan, 320 Mass. 367 , 369-70 (1946); The Berkeley, Inc. v. Brettler, 354 Mass. 24 , 25 (1968).

In the present case, Plaintiffs have not met their burden of establishing that Corcoran intended to relinquish dominion and control of the Corporation. Although, Corcoran allowed his son to run the corporation, he appears to have retained some voice therein. Moreover, there is no evidence that he indorsed the stock shares or took any other action to transfer ownership while there was no absolute requirement in 1961 that the certificates be indorsed, considering the relationship between the Corcorans before and after 1961, the fact that Corcoran, Jr. took no actions as to a transfer of the stock on the record, and the unavailability of such records, I am unable to find the requisite intent necessary to make a transfer.

Accordingly, I find and rule that Coates is the owner of an undivided 15.24% fee simple interest, as tenant in common with others, in Locus.

Judgment accordingly.


[Note 1] Originally, Francis P. Harte and the Heirs of Mary Harte were Defendants in both cases, presumably as shareholders of Bedford Construction Company Inc., discussed infra. However, they have settled and are no longer parties to these actions.

[Note 2] Unless indicated to the contrary, all recorded instruments are located in this Registry.