MISC 10-442018

February 9, 2012

Sands, J.


Plaintiff Scott E. Hills (“Scott”) filed his Verified Complaint on October 25, 2010, pursuant to the provisions of G.L. c. 231A, seeking a declaratory judgment relative to ambiguity in a deed of property located at 1169 Shootflying Hill Road, Barnstable, Massachusetts 02632 (“Locus”). Defendant Lee Emery (“Lee”) filed her Answer on December 7, 2010. A case management conference was held on June 17, 2011, at which time the parties reported that the case was settled pending a sale of Locus.

The sale of Locus fell through after the potential buyer notified Scott of a cloud on the title to Locus. After the sale fell through, Scott filed a Motion for Judgment on the Pleadings on September 1, 2011, along with a Motion for Equitable Orders. On September 28, 2011, Lee filed an Opposition to the Motion, along with a supporting brief. Scott filed Responses to Lee’s Opposition to the Motion, along with supporting briefs. The parties elected to waive a hearing on the Motion, and the matter was taken under advisement on November 14, 2011.

Under Mass. R. Civ. P. 12(c), “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Judgment on the pleadings is appropriate when the text of the pleadings contains no material factual dispute. See Tanner v. Bd. Of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1181 (1989) (reversing lower court’s judgment on the pleadings due to specific factual dispute regarding filing with town clerk); see also Canter v. Planning Bd. Of Westborough, 7 Mass. App. Ct. 805 , 805 (1975) (reversing and remanding lower court’s judgment on the pleadings due to multiple genuine issues of material fact). Additionally, judgment on the pleadings is only appropriate where only issues of law are to be determined. See Wing Memorial Hospital v. Dep’t of Public Health, 10 Mass. App. Ct. 593 , 596 (1980) (affirming judgment on the pleadings where only question was whether plaintiff could act on existing license with no dispute of material fact).

I find the following material facts are not at issue in this case:

1.By deed dated June 9, 1962, and recorded with the Barnstable Registry of Deeds at Book 1163, Page 320 (the “1962 Deed”), Neil L. Newton and Marion R. Newton conveyed Locus to “Dorothy W. Hills [“Dorothy”] with Thorburn W. Hills [“Thorburn”] as Writ of Survivor.”

2.Thorburn was Dorothy’s son.

3. Dorothy died testate on June 22, 1978, leaving by will dated April 6, 1971, all of her estate to her daughter Ordre Warde Cameron (“Ordre”). The will stated “I purposely make no provision for my other children, THORBURN W. HILLS … or LeBAELES HILLS EMERY … or any issue of theirs.”

4.Thorburn died testate on October 16, 2001, leaving by will dated June 30, 1979, his estate to his wife Janyce, and if she did not survive him, to his son Scott. [Note 1]

5. Thorburn maintained Locus during his life.

6. Ordre died intestate on May 10, 2006, leaving as heirs her sister LeBaeles Hills Emery and her nephew Scott E. Hills. Scott filed an Administration With/Without Sureties on April 13, 2007.

7. Locus was assessed to Dorothy, c/o Ordre, for the fiscal year of 2006. Since July 2006, Scott has paid the real estate taxes for Locus.

8. Locus is the site of a summer house that is in disrepair.

9. Scott, as seller, executed a purchase and sale agreement for Locus with a third party purchaser dated August 5, 2010. By correspondence dated October 13, 2010, the purchaser advised Scott that there was a cloud on title to Locus, and the sale fell through.


Judgment on the Pleadings

Chapter 231A of the Massachusetts General Laws sets out the procedure for declaratory judgments. Section 2 states that the procedure “may be used to secure determinations of right, duty, status or other legal relations under deeds . . . including determination of any question of construction or validity thereof which may be involved in such determination.” G.L. c. 231A §2. Judgment on the pleadings is appropriate when the text of the pleadings contains no material factual dispute and only issues of law are to be determined. See Wing Memorial Hospital v. Dep't of Public Health, 10 Mass. App. Ct. 593 , 596 (1980). [Note 2] If a conclusion can be reached about the legal effectiveness of the 1962 Deed without a dispute of any facts, this court may rule on the Motion.

With no contested facts presented by either side, the principal and only issue in this case is the interpretation of the 1962 Deed. The question is whether the 1962 Deed creates a joint tenancy between Dorothy and Thorburn, a tenancy in common between Dorothy and Thorburn, or a grant to Dorothy with a contingent remainder in Thorburn that vested in Thorburn upon Dorothy’s death.

Lee argues that her Answer contests all material allegations in Scott’s Complaint, that a Motion on the Pleadings cannot lie, and therefore a trial is necessary. [Note 3] Scott argues that he need not rely on any contested facts stated in his Complaint, but only upon a legal interpretation of the 1962 Deed, which allegedly bestows title to Locus upon him. Therefore, I find that this case can be determined based upon an interpretation of the 1962 Deed, be decided on the pleadings, and no trial is necessary. See G.L. c. 231A.

Status of the 1962 Deed

The basic governing principle for the interpretation of deeds is that their meaning, as derived from the presumed intent of the parties involved, is to be ascertained from the words used in the written instrument itself. See Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). Scott argues that the words of the 1962 Deed created a joint tenancy in Dorothy and Thorburn, Thorburn took full title to Locus when Dorothy died, and that Scott was the sole beneficiary under Thorburn’s will and thus has good legal title to Locus. Alternatively, Scott argues that the 1962 Deed created a contingent remainder that vested in Thorburn upon Dorothy’s death, and that as the sole beneficiary of Thorburn’s will, Scott has good legal title to Locus. Either argument, if successful, would grant Scott good legal title to Locus.

On the other hand, Lee argues that the 1962 Deed created a tenancy in common between Dorothy and Thorburn, that Dorothy left her one-half interest in Locus to her daughter Ordre, and Ordre, through intestacy, left two equal parts of her one-half share, one-quarter interest to Lee and one-quarter interest to Scott. See G.L. c. 190, §3(5) (“If he leaves no issue and no father or mother, to his brothers and sisters and to the issue of any deceased brother or sister by right of representation; and, if there is no surviving brother or sister of the intestate, to all the issue of his deceased brothers and sisters. If all such issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise, according to the right of representation..”)

Unfortunately, the language “Writ of Survivor” used in the 1962 Deed is not language generally recognized in conveyancing. Lee cites G. L. c. 184, §7 in support of the argument that the 1962 Deed created a tenancy in common between Dorothy and Thorburn. In pertinent part, the section states: [a] conveyance or devise of land to two or more persons … shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy.

G. L. c. 184 § 7. Additionally, Lee argues that under this statute, the law presumes a tenancy in common, not joint tenancy. See Cross v. Cross, 324 Mass. 186 , 188 (1949); see also Hoag v. Hoag, 213 Mass. 50 , 52 (1912). However, the last clause of the cited material requires an evaluation of the “tenor of the instrument,” or the intent of the parties, as evidenced by the words chosen for the deed. Moreover, when it appears plainly from the deed that the grantor or testator intended that the survivors take the whole, that intent shall be given effect. See Frost v. Courtis, 167 Mass. 251 , 253 (1897). The 1962 Deed states “with Thorburn W. Hills as Writ of Survivor.”

Scott cites Stimpson v. Batterman, 59 Mass. 153 (1849), which held that the devise in a will to the “children and survivor or survivors of them” are “apt words to create [a joint tenancy],” even though the words “joint tenancy” did not explicitly appear in the deed; it was the intent of the parties that governed. See id. at 155. Scott also cites a Wisconsin Supreme Court Case, Weber v. Nedin, 210 Wis. 39, 45 (1933), which references Stimpson, and states:

[i]t is not necessary in a grant or devise to use the term “joint tenancy.” Any other expression which clearly discloses an intent to create an estate in joint tenancy is sufficient … The word “survivor” or “survivorship,” however, has no equivocal meaning. Survivorship is an incident of an estate in join tenancy and of no other under our law.

Though not controlling, Weber is influential in light of the fact that Wisconsin had a similar statute to G. L. c. 184, §7.

Lee also argues that the four required unities to create a joint tenancy – unity in time, of title, of interest, and of possession – do not exist in this case. See Moat v. Ducharme, 28 Mass. App. Ct. 749 , 751 (1990). Specifically, Lee argues that the language of the 1962 Deed grants the Locus “to Dorothy W. Hills, with Thorburn W. Hills as writ of survivor” (emphasis added), rather than “to Dorothy W. Hills, and Thorburn W. Hills as writ of survivor” (emphasis added), and that such language did not grant Thorburn a possessory interest at the time of the grant, destroying the required unity in time, and thereby creating a tenancy in common.

The use of the word “survivor” relative to Thorburn, however, shows that the intent of the parties was that Thorburn had the right to Locus if he survived Dorothy. It appears that the parties intended a right of survivorship be granted to Thorburn, as evidenced by the language “with Thorburn W. Hills, as writ of survivor,” and because Thorburn survived Dorothy, that right must be given deference. [Note 4]

Even if the 1962 Deed did not create a joint tenancy, it at least created a contingent remainder in Thorburn that came to fruition when Dorothy predeceased Thorburn, and thus grants Scott good legal title to Locus. Regardless of the approach taken, the tenor of the 1962 Deed manifestly appears to grant Thorburn 100% exclusive right to Locus following Dorothy’s death, and a proper analysis of G. L. c. 184, §7 and the relevant case law requires such a finding.

As a result of the foregoing, I find that the 1962 Deed granted Locus to Dorothy, with a right of survivorship in Thorburn. Consequently, on Dorothy’s death, Thorburn took 100% interest in Locus, and upon his death, his son Scott took 100% interest in Locus. I ALLOW Plaintiff’s Motion for Judgment on the Pleadings.

Judgment to enter accordingly.


[Note 1] The record does not contain evidence of the death of Janyce, but neither party disputes the fact that Janyce predeceased Thorburn.

[Note 2] See Tanner v. Bd. Of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1181 (1989) (rescript opinion).

[Note 3] A review of the facts contested in Lee's response to Scott's Complaint shows that there is no true dispute of any material fact relied upon in making this decision.

[Note 4] Aside from the clear intention that Thorburn receive Locus following Dorothy’s death, the grant could as easily be read to grant Locus to both parties, with Thorburn additionally serving as the party with the right of survivorship. Such a reading grants Thorburn and Dorothy the same title to the same property at the same time to be possessed equally and thus is in compliance with the four unities of joint tenancy.