OLIVER H. GRIFFITH, JR., Administrator of the Estate of Gene Downs vs. CHARLES NORMAN and MARY ELOISE BROWN.

Plaintiff seeks to set aside a conveyance of the property at 136 South Main Street, Sherborn ("Locus") procured, Plaintiff alleges, by the undue influence of Defendant, Charles Norman ("Norman"). The grantor under the deed, Gene Downs, ("Downs") died on June 23, 1990. Plaintiff is the Administrator of Downs' Estate and one of two heirs at law of Downs, the other being Downs' half-sister, the Defendant, Mary Eloise Brown, who is joined as a party only because she is an heir (she is mistakenly listed as Downs' sister on Plaintiff's appointment as Administrator). In addition to raising various affirmative defenses, Defendant counterclaimed, alleging that Defendant performed services for the decedent and is entitled to Locus or, in the alternative, to the fair value of the services.

This Court issued a Preliminary Injunction on September 18, 1990, enjoining Norman from conveying, mortgaging, encumbering, or otherwise alienating Locus.

A trial was held on August 20 and 21, 1991 at which time a stenographer was appointed to record and transcribe the testimony. Twenty-two Exhibits (some with multiple parts) were introduced into evidence, all of which are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Sergeant Michael McLaughlin (a Sherborn Police Officer), Stanley Robinson (a friend of both Downs and Norman, but primarily Norman), Peter M. Grey, M.D. (a psychiatrist), and Plaintiff, all for Plaintiff; and John C. Jackson, Jr. (a friend of Downs), Beverly Paulino (a registered nurse), and Norman, all for Defendants.

On all the evidence, I find and rule as follows:

1. In 1961, Locus was purchased by Downs and her husband, William Downs, as tenants by the entirety. When they divorced, William Downs conveyed his interest in Locus to Downs for nominal consideration, by deed dated September 5, 1967, and registered as Document No. 447614, Certificate No. 124880 in the Middlesex South Registry District (Exhibit 5).

2. In approximately 1970, Norman began residing with Downs at Locus, remaining there with her until her death in 1990. Norman is, and was at all relevant times, legally married to another woman. Norman testified that he and his wife have been amiably separated for almost 30 years.

3. Downs worked as a librarian at the Framingham Public Library until January, 1990, when she became ill. She was 70 years old then. Norman appears to be 75 or older. Norman had no steady employment during their relationship. Downs and Norman held common interests in nuclear energy, and the two engaged in joint research, writing, and publishing efforts. Norman customarily made Downs' breakfast and lunch, drove her to and from her employment at the Library, did other odd jobs around Locus, paid some of the light and telephone bills and once helped in making arrangements to forestall a mortgage foreclosure of Locus (apparently without monetary contribution, however). Whatever the allocation of responsibilities, the relationship was one of long standing and, as far as may be inferred by outsiders, satisfactory to Downs.

4. Exhibits 14A and 14B show Locus in about 1961 as a well-maintained, substantial residence, entirely consistent with the character of the locality. Over the years Locus has been let go. It is in bad repair, and the grounds are cluttered with metal debris, old appliances and cars, an abandoned boat and other junk. Norman at some point moved a house trailer onto the land. He has attempted gardening and has maintained poultry, numerous dogs and a goat on Locus.

5. The inside of the house is a jumble of clutter, old furniture, books and papers, certainly not equalling the Collier brothers, but evoking memory of them. By the end of her life, and surely for some substantial time before, Downs was living in squalor. Exhibits 13A-13X are photographs of both the inside and outside of Locus.

6. On March 13, 1990, after receiving information that Downs might be ill, Officer Shirley Ohl and Sergeant Michael McLaughlin ("McLaughlin") went to Locus to check on Downs. They were met at the rear of the house by Norman. McLaughlin told Norman he had reports that Downs was sick and wanted to check on her well-being. Norman told McLaughlin that Downs was feeling pretty good, she was eating well and could get around with Norman's help. Three times McLaughlin asked permission to enter Locus to see Downs, but Norman refused to let them enter. Norman did agree to bring Downs to the police station at 2:00 P.M.

7. When Norman arrived with Downs at the station, McLaughlin went to the passenger side of their vehicle, where Downs was seated. He observed she was pale, the right side of her face drooped, and she had trouble speaking. A pinch test to the back of her hand indicated she was dehydrated. Believing Downs was seriously ill, McLaughlin radioed for an ambulance. Both Norman and Downs refused an ambulance, and Norman himself drove Downs to the Milford-Whitinsville Regional Hospital ("Milford Hospital"). Downs slumped over during the trip and had to be propped up by Norman. When they all reached Milford Hospital, McLaughlin went to speak to Downs and observed that she was unable to talk and appeared in a zombie-like state.

8. Downs was admitted to the emergency ward where it was determined that she was suffering from cancer of the brain and lung, acute pneumonia, and a urinary tract infection (Exhibit 4). Shortly after Downs' admission, McLaughlin was present during a conversation between Norman and a social worker from Milford Hospital. The social worker advised Norman not to interfere with Downs' treatment. Norman responded that he could care for Downs better than any hospital and that Downs' problems were merely a reaction to giving up caffeine and nicotine.

9. Upon Downs' admittance, an investigation was begun by the Department of Human Services at the Hospital ("DHS"). DHS's report states Downs' initial appearance and medical state prompted a DHS caseworker to file a report of suspected elder abuse with Bay Path Elder Affairs ("BPEA") (Exhibit 4). On March 14, 1990, Jim Burns, a caseworker at BPEA, came to Milford Hospital to see Downs. Downs was unresponsive to questioning at the time. DHS began guardianship proceedings on March 16, 1990, after efforts to locate and contact relatives proved unavailing. The guardianship was not pursued due to an increase in Downs' level of awareness over the next several days.

10. On March 18, 1990, Downs stated in writing that she did not suffer from any kind of mental weakness, she did not desire a guardian, and she did not want help from DHS (Exhibit 9). The letter also stated Norman was to be personally consulted by doctors on all her health issues, and was to care for her property. She also stated that Thomas Nealon, Esq. was to take care of her legal matters. DHS found Downs to be of sound mind at this time.

11. During her stay Downs underwent a lung biopsy and a shunt was surgically implanted to relieve pressure on her brain. On March 28, 1990, Downs stated in writing that she did not want a bone scan or any other tests, until she regained her strength. Prior to discharge, Downs was offered several options for treatment including surgery and radiation. She opted to do nothing at this time, expressing her desire to return home and consider her options further. She was discharged in stable condition on April 6, 1990, at which time she refused home care services, opting instead for a private nurse (Exhibit 4).

12. On April 16, 1990, Downs was readmitted to Milford Hospital after a call from a private duty nurse who noticed Downs' speech had become slurred and she was having difficulty swallowing. She was discharged on May 3, 1990, with a poor ultimate prognosis (Exhibit 4). Per her request, Downs maintained a Do Not Resuscitate code status during her stays at Milford Hospital.

13. Downs was again admitted to Milford Hospital on May 14, 1990. She was discharged on May 25, 1990, at which time she was transferred to Southwood Community Hospital (Exhibit 4). Beverly Paulino ("Paulino"), a registered nurse, was contacted by a friend who informed her that Norman was seeking medical assistance so he could bring Downs home, as Southwood Hospital would not release Downs without some medical care at home. Paulino met Downs at the Southwood Hospital. Paulino questioned Downs about leaving the hospital and Downs assured her that she wished to return home with Norman. Paulino testified that a room had been prepared at home for Downs with a clean hospital bed and supplies for Paulino to use. Downs returned to Locus on June 21, 1990 and was cared for by Paulino until Downs' death.

14. Downs died at Locus on June 23, 1990, in the presence of Paulino. Downs' death certificate (Exhibit 1) lists her as being 70 at the time of death and lists the cause of death as "Carcinoma of the lung with brain metastasis." Plaintiff was appointed first Special Administrator (July 2, 1990) and then Administrator (August 16, 1990) of Downs' estate by the Middlesex Probate Court (Exhibits 2 and 3).

15. Stanley Robinson (Robinson), a long-time acquaintance of Downs and Norman, testified that on April 29, 1990, Norman asked him to take a signed deed, prepared by Attorney Thomas Nealon, to the Registry of Deeds, to be recorded. The deed conveyed Locus from Downs to Downs and Norman as joint tenants. Neither the deed nor any copy was introduced into evidence. In several conversations Robinson reminded Norman that Norman had told Robinson that Downs' intention was that Norman live in the house for the rest of his life, but not that Norman would have the right to sell it, or convey it to his heirs. Robinson testified that Norman instructed him to change that grantee claus giving Norman a life estate only, which he did. The next morning Robinson telephoned Downs at the Hospital to make sure that the change reflected Downs' intentions. According to Robinson, Downs responded that it did. Robinson then took the altered deed to the Middlesex South Registry District and attempted to register it.

He was not successful in that as Registry personnel told him the grantee clause was crazy (Robinson's description).

16. On May 1, 1990, Norman instructed Robinson to retype the deed in the original format. Robinson did so but was apprehensive because of the lack of any reference to a life estate. He therefore prepared and gave to Norman a proposed "Stewardship Agreement" which Robinson (a layman) believed would better carry out Downs' intentions. A draft of that agreement is Exhibit 8. It provides among other things for the eventual devolution of Locus to Downs' heirs. Robinson twice handed the document to Norman but it was never signed as far as Robinson knows.

17. Robinson discussed Downs's medication with Norman on several occasions. Norman said he did not have confidence in one of the drugs Downs was being given. Norman did not give Robinson a clear answer as to whether Norman was cutting down the dosage Downs was receiving.

18. Subsequently, Norman offered Robinson $100 to record the new (retyped by Robinson) deed. Robinson refused. This new deed was dated May 2, 1990, and registered with the Registry District (by whom we know not) May 17, 1990, as Document No. 822119 (Exhibit 6). It conveys Locus to Norman and Downs as joint tenants, for "Nominal Consideration". Next to the signature line there appears "Witness Signature Sandra Cournoyer". The deed is acknowledged under date of May 2, 1990 by Virginia A. Larkin (or Laikin). Neither the witness nor the notary (nor attorney Nealon) appeared as a witness.

19. There are several handwritten insertions to the deed, all having to do with the exclusion of a parcel (Lot 18 on Land Court Plan 8251F) from the conveyance. Land Court Plan 8251F (not in evidence, but of which I take judicial notice) shows that Lot 18 is a parcel carved out of the land originally owned by Downs; it has a 180' frontage on Main Street. Norman testified that Downs had had to sell off a parcel to meet mortgage payments and the handwritten insertions arouse no suspicion in me.

20. To reconstruct the chronology, all in 1990:

March 13 - April 6 - Downs in Milford Hospital.

April 6 - April 16 - Downs home.

April 16 - Downs readmitted to Milford Hospital.

April 29 - Robinson adds life tenancy language to first deed.

April 30 - Robinson telephone call to Downs in Hospital.

- Registry refuses first deed.

May 1 - Robinson retypes deed, proffers Stewardship Agreement to Norman.

May 2 - Date of retyped deed and date of its acknowledgement (both as stated therein).

May 3 - Downs discharged from Milford Hospital.

May 3 - May 14 - Downs home.

May 14 - May 25 - Downs in Milford Hospital.

(May 17) - Retyped deed is registered.

May 25 - June 21 - Downs in Southwood Community Hospital.

June 21 - Downs returns home.

June 23 - Downs dies.

21. Robinson testified that after Downs' death, Norman called him and asked him not to cooperate with any lawyers, and that Robinson would end up in jail for changing the first deed; according to Robinson, Norman said "I want you to get sick or I want you to go to Ohio; but I don't want you to testify."

22. Peter M. Grey, a psychiatrist who never saw Downs, testified that, based upon the medical records (Exhibit 4) and the testimony in court, in his opinion: Downs did not understand the full significance of signing the two deeds; Downs was enfeebled, physically and mentally, by disease at the time the two deeds were signed; the medical records indicated she was at times barely conscious; that she was under physical and mental stress when the deeds were signed; on the other hand, she was on other occasions more responsive and he did not really question her alertness and orientation; while Downs was aware that she was executing documents, she did not understand the full significance of what she was doing; and she was vulnerable and under undue influence from Norman.

23. Officer McLaughlin investigated a complaint concerning the number of unregistered vehicles at Locus (there were 6) in April 1989, which led to a show cause hearing, an arraignment and eventual trial after several pre-trial conferences. During that entire process Norman did all the negotiating, even though the complaint was against Downs, as owner of Locus.

24. Plaintiff is retired and resides in Phoenix, Arizona with his wife. They have three children and two grandchildren. Downs was Plaintiff's older sister by seven or eight years. They grew up together in Wheeling, West Virginia and there were no other siblings. The half-sister, Defendant Brown, did not live with them. Both Plaintiff's parents died by the time Plaintiff was 12 and soon thereafter Downs became Plaintiff's legal guardian and when Plaintiff was 14 until he was 18, he lived with Downs and her husband (William).

25. After Plaintiff left high school he went into the Air Force and lived apart from Downs, mostly on the west coast. However, he testified that he maintained a friendly relationship with Downs and corresponded with her every three or four months. The relationship became closer when Plaintiff married, as his wife got along well with Downs. At one point after Downs' divorce, Plaintiff made between four and six mortgage payments on Locus. Plaintiff visited Downs at Locus eight or nine times over the years. I conclude that Plaintiff overstates when he describes his relationship with Downs as friendly. I do not imply they were unfriendly, only that there was increasingly little contact and that Plaintiff (and certainly the half sister) were not significant to Downs. There is no suggestion that anyone in particular caused the relationship to be as it became.

26. Neither Norman nor Downs informed Plaintiff that Downs was ill. After Downs' funeral, Norman, showing Plaintiff Norman's deed, refused Plaintiff's entrance to Locus. At that point Plaintiff consulted counsel, became appointed as Downs' Special Administrator, and with the help of Officer McLaughlin, obtained access to Locus.

27. Nurse Paulino testified and I accept: she attended Downs at Downs' death and for the three days before; Downs wanted to die at home; Downs was increasingly weak, but her mind was alert; Locus was generally a mess but Downs' bedroom had been prepared for her; there was a hospital bed with clean sheets, supplies for Paulino to use and the area in which Downs was was clean; Downs asked often for Norman, if he was not in the room; she never asked for anyone else.

28. The Supreme Judicial Court has discussed our law as to undue influence, in Bruno v. Bruno, 384 Mass. 31 (1981), at pp. 34-35, as follows:

We believe that principles of law established by our cases concerning undue influence are substantially in accord with those set forth in Restatement (Second) of Contracts § 319 (1) (Tent. Draft No. 12, 1977). Clearly, unfair persuasion of one party under the domination of another constitutes undue influence under the law of Massachusetts. The definition of undue influence, which appears in the first portion of § 319 (1), is substantially equivalent to the emphasis in our cases on the domination of the will or the destruction of free agency. (citations omitted)

Similarly, the alternative definition of undue influence in the second portion of §319 (1), which treats undue influence as unfair persuasion facilitated by the relationship of the parties, has a counterpart in our cases treating improper influence in the context of a "confidential relationship." (citations and footnote omitted). Thus, unfair persuasion in the context of a confidential relationship constitutes undue influence in Massachusetts. (citations omitted)

The Court footnotes the Restatement, as follows:

"§ 319. WHEN UNDUE INFLUENCE MAKES A CONTRACT VOIDABLE.

(1) Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who, by virtue of the relation between them, is justified in assuming that that person will not act in a manner inconsistent with his welfare."

29. This case is made more difficult than it might be by a lack of direct evidence as to the execution of the deed and by Norman's lack of focus in his presentation pro se. We do not know even if Norman was present at the execution of the deed. On the other hand, we have no direct evidence on this point from Plaintiff, on whom rests the burden of proof.

30. The evidence does not make clear the progression by which Downs became dependent on Norman but by 1990, when the initial events in this case occurred, she was substantially, if not totally, dependent on Norman for her physical well-being when she was not in hospital. During the acute phases of her illness, her dependence was total. That fact, together with the live-in relationship of Downs and Norman over the years leads me to conclude that there was a "confidential relationship" between Downs and Norman.

31. Plaintiff's evidence went to the point that Downs was very sick and enfeebled by her illness. I have no question of that and of her vulnerability. I also conclude that her illness may have caused her at times not to comprehend the significance of her acts but that other times she was aware of that; when she was not dominated by her illness, her mind was sound.

32. I conclude, based on the relationship between Downs and Norman, that Downs' desire was that Norman should be able to live at Locus for the rest of his life. Norman testified vaguely that they had talked about having Locus established as a community farm of some sort after they both were gone, but I do not find that Downs thought of that as a serious proposition. In sum, I credit Witness Robinson's testimony, that Downs wanted Norman to stay on but did not want to disinherit her heirs in the long run. I conclude that to the extent Norman procured a deed giving himself an unencumbered joint estate, he did so by undue influence, but that the first deed, as altered by Robinson, was not the product of undue influence.

33. Accordingly, I order that no Certificate of Title be issued in Norman's name as surviving joint owner, but that a Certificate of Title be issued in the joint names of Oliver H. Griffith, Jr. and Mary Eloise Brown as tenants in common in equal shares, subject to such matters as may remain outstanding in the probate of Downs' estate and subject also to a life tenancy in Norman.

Judgment accordingly.