MISC 14-488189

July 7, 2017

Essex, ss.




Plaintiff Royal Bradburn Barrows, Jr. ("Plaintiff"), in this action asks the court to invalidate and rescind a deed ("Deed") by which Plaintiff granted title to the property ("Property") located at 75 Rogers Street, West Newbury, Essex County, Massachusetts, to Lois Falkowski ("Defendant"). [Note 1] Plaintiff had owned the Property since 1985, [Note 2] and currently resides there, having reserved for himself in the Deed a life estate in the Property. Plaintiff in this action acknowledges that it was he who executed the Deed. However, in this litigation Plaintiff claims that he would not have conveyed the Property by the Deed but for Defendant's fraud, and that the Property was conveyed for consideration which was legally inadequate or which Plaintiff never received.


Plaintiff filed the complaint in this case on November 18, 2014 seeking: recission of the Deed due to undue influence; recission of the Deed due to failure of consideration; asking that the court endorse a memorandum of lis pendens; and other proper relief. Defendant filed an answer to the complaint on January 6, 2015 in which Defendant brought counterclaims for: waste of the Property; Defendant sought damages, attorneys fees and costs; and other appropriate relief.

On January 13, 2015, a case management conference was held at which both parties were represented by counsel. During that conference the court (Piper, J.) questioned whether the Land Court possessed subject matter jurisdiction over Defendant's counterclaims (specifically those claims for waste, which sound in tort) and ordered counsel either to dismiss certain claims consensually or appear promptly for a hearing to resolve the court's subject matter jurisdiction. In response, on February 2, 2015 the parties submitted to the court a signed stipulation dismissing, without prejudice, the counterclaims for waste. Following the close of discovery, on January 25, 2016, Plaintiff filed a motion to amend the complaint a second time, which was heard on February 23, 2016, and allowed over Defendant's objection. Plaintiff's second amended complaint, accepted for filing as of the date of that hearing, removed the claim for recission of the deed due to undue influence and added a count for recission of the deed due to fraud.

The court held a pretrial conference on March 28, 2016, during which the court ordered the parties to revise their joint pretrial memorandum by filing a more focused list of witnesses, supplying summaries of anticipated witness testimony, expanding the list of agreed facts, and giving a list of agreed and, if any, contested exhibits. The amended joint pretrial memorandum, filed on May 10, 2016, listed ten uncontested facts, to which the parties by their counsel stipulated before trial.

On May 19, 2016, the court, prior to the start of trial, denied all motions in limine. The court heard evidence at the two trial days held in Boston on May 19 and 20, 2016. Pamela St. Amand was sworn as court reporter to record the trial testimony and produce a written transcript. Six witnesses testified at trial: Royal Bradburn Barrows, Jr., Jeffrey Barrows, Lois Falkowski, Linda Dida Hagan, Megan Mahoney, and Kevin Pearson. Fifty-seven exhibits were entered into evidence, many by agreement, and all as reflected in the transcripts. Following the close of evidence, and after the transcript of the trial testimony was received, the parties submitted proposed findings of fact and proposed rulings of law supported by memoranda of law. Counsel later returned to the court to offer their closing arguments on the record, concluding the trial. After the transcript of that final session arrived at the court, I took the case under advisement. I now decide the case.

Based on all the testimony, exhibits, stipulations, agreed facts, and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, proposed findings of fact and rulings of law with supporting memoranda, and the arguments of the parties by their counsel, I make the following findings of fact and rulings of law.


1. June C. Rogers and Anne Willard granted title to the Property, located at 75 Rogers Street, West Newbury, Massachusetts, to Plaintiff, Royal L. Bradburn Barrows, Jr., by deed dated July 29, 1985 and recorded with the Essex (South) Registry of Deeds ("Registry") in Book 7851, Page 156.

2. Plaintiff owned the Property individually from July 29, 1985 to January, 2011.

3. Plaintiff was married to Defendant for but a few months in 2002; their divorce was finalized within the next year.

4. I credit the testimony of both Plaintiff and Defendant that during their brief marriage Defendant asked Plaintiff to "put her name on the deed to" the Property, I find that this request was made between two and five times during the marriage.

5. I credit the testimony of Plaintiff that one reason for the divorce was Defendant's ongoing and serious problems with substance abuse.

6. No title interest in the Property was transferred to Defendant during the marriage.

7. I credit the testimony of both Defendant and Plaintiff that Defendant resided at the Property for around 2 months each year between 1998 and 2013 while Plaintiff was in Florida seasonally, except during the years 2003 and 2009, and I find that Defendant collected rent from tenants and in a general manner looked after the Property while Plaintiff was away in Florida.

8. I credit the testimony of Defendant that Plaintiff allowed her to write checks on Plaintiff's account to pay bills when Defendant first began to stay yearly at the Property, but that Plaintiff at some point began to have the bills forwarded to him in Florida where he would pay them himself.

9. I credit Defendant's testimony that she did not always move out of the Property as soon as Plaintiff returned from Florida, but would sometimes continue residing there until she could find another place to live.

10. I find that this yearly pattern of Defendant staying at the Property while Plaintiff was away, while plainly beneficial to Defendant, also was beneficial to Plaintiff.

11. I credit Defendant's testimony that she also lived at the Property from time to time between 1998 and 2013 at times while Plaintiff also was residing there, that her motor vehicles were registered to the Property address, and that she sometimes used the Property address as her official address even when she was not living there.

12. There is no evidence that I find to support the contention that prior to 2012 Defendant paid Plaintiff any rent or otherwise paid money for staying at the Property. I find that, beginning in 2012, Defendant paid around $300.00 a month for several months and that these payments continued into 2013.

13. I credit the testimony of Plaintiff that Defendant kept a horse or horses on the Property between 2002 and 2009, and I credit the testimony of Defendant that she would take care of her horse(s) on the Property even when she wasn't residing there. I credit Defendant's testimony that she did some landscaping and grading work on the Property during these years.

14. I credit Defendant's testimony that she was imprisoned by the Commonwealth of Massachusetts between May and October of 2009 following a conviction for operating a motor vehicle while intoxicated.

15. I credit the testimony of both Plaintiff and Defendant that they were romantically involved from time to time in the years following their divorce, and were romantically involved in a more committed manner from early 2009 until some point in 2012.

16. I find that Plaintiff remained in contact with Defendant throughout her incarceration-- through visits, phone calls, and handwritten letters. Five of these handwritten letters were entered into evidence. I find that these letters and the testimony of both Plaintiff and Defendant show that a romantic relationship existed between them prior to, during, and after Defendant's incarceration.

17. I find, given the evidence and testimony presented, that Plaintiff had strong romantic feelings for Defendant during her incarceration and that Plaintiff and Defendant were in a loving, romantic, and sexually intimate relationship following her incarceration.

18. Defendant moved to the Property after her incarceration ended, and resided there full-time from October of 2009 to February of 2014. Based on the evidence presented, although Defendant and Plaintiff long had known one another and had been romantically involved before, including being married for a few months in 2002, the only time period during which Plaintiff and Defendant lived together and were romantically involved for an extended period of time was from October of 2009 to some point in 2012.

19. I credit Plaintiff's testimony that Defendant asked him to put her name on a deed to the Property several times between October of 2009 and January 26, 2011, when the Deed was signed.

20. I credit the testimony of Robert Barrows, brother of the Plaintiff, that in late November 2010, during a family Thanksgiving dinner gathering, Defendant initiated a discussion about estate planning; that Defendant appeared to be knowledgeable about wills; and that Defendant expressed a wish to be provided for under Plaintiff's will, and a wish that the Property be left by will to her, instead of to Plaintiff's children.

21. I credit in part the testimony provided by each of Robert Barrows, Plaintiff, and Defendant regarding that Thanksgiving gathering. I find that a goal of that conversation was for Defendant to obtain the opinion of Robert Barrows in the presence of Plaintiff about whether Plaintiff should engage in estate planning. I find that including Defendant in Plaintiff's estate plan and, specifically, leaving the Property to Defendant, was discussed during that dinner. I find that Robert Barrows did not caution Plaintiff, either at the time or privately later, against including Defendant in his estate plan. I find further that Robert Barrows did not make any statement to Plaintiff, at the time of the November, 2010 conversation, or privately later, which suggested that he or another family member should inherit the Property instead of Defendant, or that Plaintiff should reconsider leaving the Property to Defendant.

22. I credit the testimony of both Plaintiff and Defendant that in December of 2010 they sat down together and Plaintiff created a handwritten document titled "Last Will and Testament this day December 28, 2010." Plaintiff in that document made a preliminary list of all of Plaintiff's real and personal property, and an incomplete list of who would inherit the listed property when he passed away. The first entry on the list states: "Lois," which I find to be a reference to Defendant, and then states: [sic] "Leave Lois all Properties at 75 Rogers W.New House-and all it Belongings, out Buildings, garages, Barns, Horse Barns 3 ½ Acres Land, Plus $100,000.00." I find this to be a reference to the Property. This document also lists other individuals who were contemplated to receive sums of money, boats, cars, and for one individual, Sasha Glenn, "House Fla." which the I infer is a reference to Plaintiff's real property in Florida.

23. I credit the testimony of Plaintiff that he did not prepare the undated document entered into evidence titled "Estate Planning Worksheet." Rather, I find that the names and other information in the worksheet were filled in by Defendant. I find that this document reflects certain information set out in the December 2010 "Last Will and Testament" document handwritten by Plaintiff, and that this Worksheet document was derived from this previously created "Last Will and Testament" handwritten document. I also find that Defendant assigned to herself in the Worksheet a number of items of personal property. I find, based on the Worksheet and on Defendant's testimony, that Defendant was interested in inheriting from Plaintiff, in addition to the Property, a number of items of personal property of significant value, and that she took steps to convince Plaintiff to leave that personal property to her.

24. I find that neither the handwritten "Last Will and Testament" nor the "Estate Planning Worksheet" were complete documents. Both are unsigned and bear every appearance of being works in progress. I find that both were, at best, incomplete and preliminary drafts of estate planning documents.

25. I find that during the time on which Plaintiff focuses the court's attention, from November of 2010 until January 26, 2011, when the Deed was signed, Plaintiff and Defendant were in a romantic relationship which had been ongoing, most recently, for over a year. I also find that during this time Defendant was engaged in a series of efforts to convince Plaintiff to include her in his estate plan. I credit Plaintiff's testimony that Defendant researched estate planning on the internet during this time, and made herself more knowledgeable about estate planning.

26. I find that these efforts by Defendant to inherit Plaintiff's real and personal property in the months leading up to Plaintiff signing the Deed were pointed, self-interested, and persistent. I also find that these efforts occurred within the context of an ongoing romantic relationship which arose after many years of intermittent relations between Plaintiff and Defendant, which oscillated from casual to close. I find that Defendant was no stranger to Plaintiff, nor was Defendant a stranger to the Property. Rather, Plaintiff repeatedly welcomed Defendant back into Plaintiff's life, and regularly invited her to stay on the Property over the course of many years.

27. I credit the testimony of Linda Dida Hagan that she told both Plaintiff and Defendant that "the state" could "take" the Property if Plaintiff did not add Defendant's name to the deed. I find that Hagan did not say this in attempt to manipulate Plaintiff on Defendant's behalf, but because estate planning was being discussed, and because Hagan wanted to relate her own experience. She had cared for an ailing relative for an extended period of time, followed by a "taking" of that relative's real property by the state. I infer that Linda Dida Hagan was describing, inartfully, a situation in which her relative's real property was seized in some fashion due to enforcement of a lien for unpaid health care costs. I do not believe, however, that this is what the parties to this case took away from this dialogue with Hagan; they may have understood, simplistically and incorrectly, that Hagan was saying that property of an intestate decedent could pass to the Commonwealth because no will or other provision had been made for the property's disposition. I credit this witness' testimony that at the time this conversation occurred she considered both Plaintiff and Defendant to be her friends. I do not find any credible evidence that there was any agreement between Plaintiff and Linda Dida Hagan to talk about Linda Dida Hagan's experience in front of Plaintiff as a way to convince him to engage in estate planning or to place title to the Property into Defendant's name. I infer, however, given all of the evidence and testimony presented, that Defendant did seize the initiative and had a hand in intentionally turning that conversation to the topic with which she was absorbed: Plaintiff's estate planning and Defendant's desire to be a beneficiary of his estate and assets.

28. Based on Defendant's testimony I do not find that Defendant has or had any special knowledge or expertise about how to protect real property from being subjected to a lien for health care obligations, how to prevent a creditor from being able to place a lien securing debt against personal assets (including real estate), or how to keep putative heirs from inheriting property.

29. I credit Plaintiff's testimony that Defendant restated three times that the state would "take his property away" if he didn't "put her name on the deed," and that he harbored some vague and general concern about the need to prevent the state from "taking away" the Property, a concern that may have been, in some part at least an impetus, but not the only or the major impetus, for him to sign the Deed.

30. I find, based on the testimony of both Plaintiff and Defendant, that Plaintiff had a strong sentimental attachment to the Property and that he did not want to see the work he had put into the Property over the years be undone; rather, he wanted the Property to continue after his death to be maintained much in the same manner it had been maintained all along.

31. I credit the testimony of Defendant that one reason she wanted Plaintiff to deed the Property to her was because she too felt a sentimental attachment to the Property. This feeling was grounded in her intermittent residence at the Property, and the investments of her money and labor into the Property over the years.

32. I find, based on the credible testimony of several witnesses, that much of the money and effort Defendant devoted to the Property was largely self-serving. I find that Defendant expended money and energy on the horse barn where her own horses were kept, and other horses were boarded as part of her business, as well as on improvements to the basement quarters where she lived. I find that Defendant made money from the horse boarding business which was not shared with Plaintiff, and that she only paid rent for staying in the renovated basement beginning in 2012. I find that Defendant did engage in landscaping and helped with some other work to the Property, such as driveway repair, that made the Property more attractive and livable.

33. I credit, to some extent, Defendant's testimony that Plaintiff did not want his children to inherit his property. I find, based on that part of Plaintiff's testimony which I credit and the draft "Last Will and Testament" of December 2010, that Plaintiff did not want anyone to inherit his real or personal property, including the many cars and boats that he owned-- whether they were his children, his brother, or the state--if he believed they did not want to, and would not, take care of the property. Plaintiff's concern regarding his children inheriting the Property was that he found them to be strangers to it, and did not believe that they would want or care for the Property. Plaintiff's relationship with those children was not at all close, and I find he did not consider them to be necessary (or even likely and favored) objects of his estate planning.

34. I credit the testimony of Plaintiff that Brian Quinn was a friend of his who engaged in repairs and improvements on the Property from time to time.

35. I credit the testimony of Defendant that neither she nor Plaintiff knew any lawyers with expertise in real estate, that she asked Brian Quinn to refer them to a lawyer with whom they could discuss estate planning matters, and that Brian Quinn referred them both to Nicholas J. Decoulos, Esquire ("Attorney Decoulos").

36. I credit the testimony of both Plaintiff and Defendant that it was Defendant who contacted Attorney Decoulos and set up the meeting with him. I find that it was Defendant who told Attorney Decoulos what they were hoping to accomplish during that meeting.

37. I find that Plaintiff compensated Attorney Decoulos for drafting the Deed.

38. I do not credit Plaintiff's testimony that he did not know what a deed was at the time he signed the Deed, nor do I credit his testimony that he thought wills and deeds were synonymous. I find instead that the Plaintiff understood when he signed the Deed that a deed is used to convey real property at the time the deed is executed and delivered, that is, during the grantor's lifetime, and that "adding someone to" a deed or signing a deed conveying real property over to someone is a significant act. I do not credit Plaintiff's testimony that he did not know that the deed he signed in Attorney Decoulos' office was different from a will. I find that Plaintiff appreciated that he was signing a deed that gave Defendant an immediate interest in the Property. I do not credit Plaintiff's testimony that he thought deeds are like wills, which are revocable at any time before death.

39. There is no evidence that I credit that Defendant prevented Plaintiff from inquiring about what he was signing, or otherwise kept him from thoroughly reading or asking questions about the Deed before he signed it. There is no evidence that I credit to show that Attorney Decoulos acted improperly, that he in any way made himself unavailable to hear and respond to Plaintiff's concerns regarding the Deed at the time the Deed was signed, or that he had some divided loyalty or favoritism in Defendant's direction at the expense of Plaintiff.

40. I find that, before signing the Deed, Plaintiff had the ability to ask Attorney Decoulos questions about the document. I find that during the transaction Attorney Decoulos was acting as Plaintiff's attorney, believed he was acting as Plaintiff's attorney, and was never led to believe--by Plaintiff, Defendant, or anyone else--that this was not so. Rather, I find that Attorney Decoulos acted on the understanding that he was representing Plaintiff in accomplishing the transfer of the Property to Defendant, subject to his life estate, and that doing that was a common goal of Plaintiff and Defendant.

41. Attorney Decoulos was the notary who took Plaintiff's acknowledgment of the Deed.

42. Plaintiff placed his signature just below the words "WITNESS my hand and seal this 26th day of January, 2011."

43. Plaintiff placed a second signature on the Deed's second page two lines below the bolded and capitalized words "THE GRANTOR RESERVES FOR HIMSELF A LIFE ESTATE HEREIN."

44. The consideration stated in the Deed is as follows: "The undersigned, Royal L. Bradburn Barrows, Jr., of West Newbury, Essex County, Massachusetts, for consideration of One ($1.00) Dollar and other valuable consideration paid, grants Lois Falkowski, of 75 Rogers Street, West Newbury, Massachusetts . . .."

45. The Deed is dated January 26, 2011, and was recorded with the Registry in Book 30189, Page 569 the following day, on January 27, 2011.

46. I credit Plaintiff's testimony that many years prior to signing the Deed he purchased real property in Florida and then conveyed that Florida property into a real estate trust, and that this property was conveyed into trust in this way based on advice given Plaintiff by friends, to guard against exposing his title to risks flowing from Plaintiff's possible liabilities.

47. I credit the testimony of Robert Barrows that he is the trustee of the property held by the real estate trust in Florida, that he became trustee at Plaintiff's request, that he was not involved in setting up the trust, and that Plaintiff is the sole beneficiary of that trust.

48. I credit the testimony of Linda Dida Hagan, Megan Mahoney, and Kevin Pearson that Defendant engaged in significant work on the Property after signing the Deed. I find based on this testimony that the majority of this work was to improve Defendant's personal living quarters in the basement, and the facilities used in the horse boarding operation that Defendant was running on the Property between 2009 and 2014. I find that Plaintiff paid for most of the supplies and outside professional labor needed to do this work. I find that Defendant also engaged in some landscaping and general maintenance, such as lawn mowing and improving runoff drainage around the Property. I also find that Defendant helped Plaintiff with the tenants and with general maintenance of the Property when she lived there.

49. I find, based on the testimony of Plaintiff and Defendant that there was a breakdown of their romantic relationship in 2012; after this breakdown Plaintiff became involved romantically with another tenant, something which led to further deterioration of the relationship between Plaintiff and Defendant. In July of 2013 Plaintiff was charged criminally in connection with a domestic abuse protective order obtained by Defendant, but Plaintiff was acquitted in December of 2013. Plaintiff, due to that protective order, was unable to visit or access the Property for around seven months. In September of 2013 Plaintiff filed a summary process action to evict Defendant from the Property, but Defendant, after showing proof of rent payments, was ordered by the summary process court to depart from the Property by February of 2014. Plaintiff was unsatisfied with the state of the Property upon returning to it, finding that it had not been adequately maintained. The relationship between Plaintiff and Defendant has continued to be contentious. There is no testimony which I credit that Defendant now is welcome on the Property, or that Defendant's assistance in maintaining the Property would be welcome in the future.

50. I generally credit the testimony of both Plaintiff and Defendant on points in which they are in agreement. I give less weight to their testimony when it diverges. Generally I find that Plaintiff over the years relied on Defendant to look after the Property more than he alleges. I find that while Plaintiff had some confidence in Defendant, he was not so trusting of Defendant as he asserts he was. I find instead that the weight of the credible testimony shows that Plaintiff had sufficient resolve to resist entangling and intertwining his property and his affairs with those of Defendant, should he have chosen to do that. Regarding Defendant, I generally find that she was more interested in Plaintiff's assets than she claimed to be in her testimony, that she had a strong focus on gaining benefits and assets from the Plaintiff, and that her efforts to improve the Property were generally more self- serving than she claimed.

51. I find that, in general, Plaintiff paid for nearly all improvements and upkeep to the Property, Defendant paid only minor amounts with respect the Property, and that the large majority (but by no means all) of Defendant's labor and efforts to improve the Property were aimed at her own needs, and were not calculated to benefit Plaintiff or to cater to his wishes.


Plaintiff bears the burden of proof on both the claim of fraud and the claim that the there was a failure of consideration for the Deed. I find and rule that Plaintiff has not carried his burden of proof with regard to the fraud claim, and that the deed will not be rescinded or invalidated on that basis. After considering Plaintiff's claim that the signing of the Deed was due to a mistake as to the nature of the Deed known only to Defendant, I will address this claim, although it was not expressly advanced in Plaintiff's pleadings, because the way the case was tried it is clear that the parties fully engaged on that theory, and put in appropriate competing evidence on it. I find and rule that Plaintiff failed to show that he was mistaken as to the nature of the Deed, certainly not to the degree required to keep the Deed from remaining in force. I further find and rule that there is a presumption of consideration for the Deed, and that, with or without that presumption, Plaintiff has failed to show a lack of consideration entitling him to a judgment equitably invalidating or rescinding the Deed.


I address first Plaintiff's fraud claim. "[A] deed obtained by fraud is to be considered as a void contract as to the fraudulent party." Bliss v. Thompson, 4 Mass. 488 , 492 (1808). To establish that Defendant procured the Deed by fraud, Plaintiff "must allege and prove that the defendant [1] made a false representation of a material fact [2] with knowledge of its falsity [3] for the purpose of inducing the plaintiff to act thereon, and [4] that the plaintiff relied upon the representation as true and [5] acted upon it to his damage." Kilroy v. Barron, 326 Mass. 464 , 465 (1950). "Fraud is usually proved by circumstances more or less remote; some of those circumstances, standing alone, may be of slight importance; but much must be left to the discretion of the presiding judge, who can better see the bearing of each particular fact upon the whole case." Sweetser v. Bates, 117 Mass. 466 , 468 (1875).

I start with Plaintiff's claim of a false representation of a material fact by Defendant. I find that Defendant was pointed and self-interested in her efforts first to be left the Property upon Plaintiff's death and then to have it conveyed to her during Plaintiff's life. I do find, however, that Plaintiff has not proved, by a preponderance of the evidence, that either of two statements made by Defendant, which purportedly motivated Plaintiff to act, were false statements of material fact that induced Plaintiff to act as he otherwise would not have acted.

Defendant did make statements to Plaintiff (repeating what others had said) that the Commonwealth would "take" Plaintiff's property when he died. Defendant repeated this assertion at least three times to Plaintiff, and the concern embodied in these statements at least in some part did motivate him to sign the Deed. But these did not, in context, amount to false statements of material fact constituting an element of the fraud Plaintiff alleges. The apparent source of the information that conveying title to Defendant would prevent the state from taking Plaintiff's property, was Linda Dida Hagan. Linda Dida Hagan told Plaintiff and Defendant, on the same occasion, about her personal experience of the "state" "taking a house" she had presumed she would inherit; I conclude that this was due to a lien arising from unpaid health care costs incurred by this relative of Hagan's. Plaintiff, when asked at trial if he thought the state could take the Property when he died, testified that he believed it could, and that he had a friend in Middleton who had lost his house to the "town," and who was now in a nursing home. I infer that Plaintiff's friend lost his house either to a real estate tax lien and foreclosure, a health care cost lien, or both. I find that Plaintiff is and was aware that mounting debt can result in the loss of real estate to creditors, including the Commonwealth.

I find that Plaintiff was aware and savvy enough to understand that real property does not simply escheat to the government in all cases where the land is owned by a person at death. He understood that the instances of which he was aware where property had been "taken" by the "state" on death arose where there were significant tax, health care cost, or similar liens remaining unsatisfied at the time of death. I do not find that Plaintiff felt that, without turning over title to Defendant, he stood to have the Property pass to the state--in the absence of some valid lien or charge which could not be satisfied. He knew better.

And nothing in the evidence suggests that Plaintiff, around the time he signed the Deed, was burdened by debt, or faced any impending actual prospect of suffering from debts he could not satisfy. To the contrary, the evidence suggests that Plaintiff was economically secure, and far more likely to be free from debt than the Defendant, who had a long history of economic downturns and shortfalls. She regularly had trouble making ends meet. It is of course possible that Plaintiff, like anyone else, might encounter medical and other debts that would subject his property to liens as time went on, but nothing shows any real or imminent chance of that, certainly not at or around the time of the challenged Deed of the Property. For these reasons, I conclude that the concerns voiced about the "state" "taking" the Property at Plaintiff's death were not really motivational in Plaintiff's decision to execute the Deed.

Also, these statements really were not of a fact, but rather a prediction of what might occur in the future, "hardly more than a statement of opinion -- a prophecy, as it were," which is not actionable. Saxon Theatre Corp. v. Sage, 347 Mass. 662 , 667 (1964). Such a statement cannot support a claim for fraud, especially where, as here, there was no valid basis for the concern at the relevant time, and Defendant had no ability to control the predicted outcome. Cf. Barrett Associates, Inc. v. Aronson, 346 Mass. 150 , 152 (1963) (finding a present intention to carry out a future act allowed an exception to the rule that a promissory statement is not actionable to support a civil claim for fraud).

And while the specific proposition itself–that property held by intestates on death inevitably escheats to the Commonwealth–is of course not a true one, the broader concern these statements implicate–that real estate left in the title of a decedent dying without a will may be subject to the reach of a variety of creditors and lien holders–is not false. This broader concern certainly might impel a rational property owner to take some action to address the disposition of his or her property at or prior to death. And nothing suggests that an inter vivos transfer of title to another younger person, reserving a life estate, would not be one way (if not always the best way) of responding to that more general concern.

I find that Defendant's statements, that the state would take Plaintiff's property when he dies, though incorrect as delivered, were not, when considered in a rough and general sense, materially false, and so are not actionable.

The second falsehood that Plaintiff identifies as underlying Defendant's fraud is that Defendant, knowing that a deed usually conveys an irrevocable current interest in real property, convinced Plaintiff that a deed was merely a revocable estate planning document, like a will, and on that basis inveigled Plaintiff to sign the Deed. Plaintiff testified that he thought that the Deed was an instrument that could be altered, amended, and revoked at any time. I do not accept this evidence as credible. There is no evidence that I credit that Defendant in any way made affirmative statements which misled Plaintiff as to the nature of deeds. She did not assure him that the Deed he signed was unilaterally revocable by him. And she did not represent to him that she would, if and when he requested, reconvey the Property to him. The Deed was an instrument of outright and irrevocable conveyance, as deeds ordinarily are, and there was nothing in the language of the Deed to give Plaintiff any right to compel a reconveyance to him. Beyond what the plain words of the Deed signed by Plaintiff say, I also find that the very premise on which Plaintiff relies–that he did not know that a deed is an instrument which conveys title outright–is not factually supported.

The evidence rather persuades me that Plaintiff well understood the finality that execution of a deed carried with it. Plaintiff's own testimony is that Defendant asked Plaintiff many times over the years to "place her name" on the deed to the Property. Plaintiff refused to do so repeatedly. There was no good explanation why, if Plaintiff truly had no appreciation for the permanence or significance of a deed, he did not put Defendant's name on the deed earlier–back when they were married. Nor was any reason given why (if he thought a deed easily could be undone) Plaintiff resisted signing a deed conveying the Property to Defendant after they again began living together, unmarried, starting in 2009. Plaintiff's testimony, that after resisting her entreaties to receive a deed of the Property, he finally signed the Deed to avoid the Property going to the Commonwealth should he later die, does not line up well with his assertion that he felt he could just undo a deed unilaterally at any time. I find that Plaintiff had an appreciation for the gravity and seriousness of signing the Deed.

Plaintiff's contention that he didn't understand what a deed is also lacks credibility because this was not Plaintiff's first experience with a real estate transaction. Plaintiff obtained a deed when he purchased the Property and recorded the deed to him, and he obtained a deed when he purchased real property in Florida. Following the purchase of his Florida property, Plaintiff approached his brother, Robert Barrows, to serve as trustee, and placed the Florida property in a real estate trust, executing, no doubt, another deed to the trustee.

In addition, I find it significant that the Deed that Plaintiff signed reserved to him a life estate. The Deed was not an outright conveyance by which Plaintiff parted with all of his estate in the Property. This suggests strongly to me that Plaintiff appreciated the conclusive nature of the Deed, and acted to preserve a lifetime right to occupy the Property. If Plaintiff in fact had assumed that the Deed was something he could disregard or undo unilaterally, there would have been no reason to retain a life estate.

Nothing about this history lends support to Plaintiff's contention that he did not understand the weight and force carried by a deed of real property. I decline to credit this assertion. I find rather that Plaintiff was fully aware that a deed is a significant legal document which serves to convey title to real property with finality. I do not find that Defendant in any way represented to Plaintiff that the Deed he was signing was conditional or subject to revocation. But even if she had said something to that effect, I find that it would not have been taken by him as so. In any event, I conclude that Plaintiff has failed to carry his burden of showing that Defendant made a false statement of material fact that induced Plaintiff to grant the Property to her.

Defendant did work actively to convince Plaintiff that she was the best person to whom he should leave or transfer the Property, because of their romantic relationship and her longstanding connection to the Property. I find that Plaintiff indeed was convinced that Defendant would take care of the Property and use it in a manner similar to that in which it was being used and had long been used. To the extent that Plaintiff takes the position that he acted, in signing the Deed, on Defendant's representations that she would take care of the Property, Plaintiff has not introduced any evidence which I credit that Defendant did not plan (and does not plan) to use the Property after the termination of Plaintiff's life estate as the Property long had been used. So, even if Defendant made any express statement about her intentions regarding the Property once she took control of it–something I do not find happened–I would be unconvinced that Defendant planned to do otherwise. Plaintiff has not met the burden of showing that Defendant made a false statement of material fact known to her to be false.

Plaintiff originally brought this action on the alternative theory that Defendant had unduly influenced Plaintiff to grant the Property's title to Defendant. But prior to trial, Plaintiff expressly removed the claim for undue influence from the pleadings, abandoning it. I thus cannot and do not address whether Plaintiff was overborne by Defendant's will, by her entreaties, or by any assertion that Defendant threatened somehow to end the romantic relationship with Plaintiff if he did not sign the Deed. I do find that Defendant cajoled Plaintiff into signing the Deed. She regularly pressed Plaintiff to transfer to her his title to the Property. It is doubtful that I would find, based on my evaluation of these witnesses and the credible testimony presented, that Plaintiff was unable to resist Defendant's entreaties, but given the abandonment of the undue influence claim, the evidence put on by the parties at trial may not have addressed that contention well, and I pass by it without making any findings. I found Plaintiff as a witness to be competent to testify, capable of speaking his mind and of articulating his thoughts, memories, and positions.

Plaintiff bears the burden of proving that he relied reasonably on Defendant's purportedly false statements. I find that Plaintiff has not carried his burden to show reasonable reliance on Defendant's statements.

I already have rejected Plaintiff's contention that he did not know what a deed is. There is no evidence which I credit that Plaintiff relied on Defendant to understand what it was that he was signing in Attorney Decoulos' office. There is no showing of reasonable reliance by Plaintiff on Defendant's statement regarding the nature of the Deed that Plaintiff signed. I find that Plaintiff had both the opportunity to read the document and to ask questions about the document in Attorney Decoulos' office. In this case "[a]ll that was required of [Plaintiff] was that [he] read the document to ascertain the obvious." Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459 , 468 (2003). Just above Plaintiff's second signature on the Deed is wording in bold capital lettering stating that the grantor retains a life estate in the Property. It was Plaintiff's duty to ask attorney Decoulos what a life estate was, if he did not already know, so he would understand the interest he was agreeing to retain in the Property, and what he was conveying to Defendant. There is no evidence that I credit that Defendant interfered with the attorney-client relationship between Plaintiff and Attorney Decoulos or prevented the ordinary and expectable dialog a lawyer would have with a client who was signing a deed.

I do not find, based on all of the evidence and testimony presented, that Plaintiff had a special relationship of trust with Defendant that made him dependent on her for extraordinary advice and guidance or which placed her in a fiduciary relationship with him. The many earlier rebuffed attempts by Defendant to receive title to the Property are persuasive on this point. Plaintiff long was on notice that Defendant was not neutral about what Plaintiff should do with the Property. He well understood that she regularly and openly had pushed to obtain a title interest in the Property, something which Plaintiff repeatedly had refused to grant. It would have been unreasonable for Plaintiff suddenly to believe that Defendant was in a special, fiduciary-like relationship with him--becoming all at once objective and without self-interest in what she said to him about deeding the Property over to her.

I do not find that Plaintiff relied on Defendant in making business decisions. Plaintiff independently purchased dozens of vehicles, several boats, and two parcels of real property. There is no evidence that any of this was done with any meaningful input from Defendant. Plaintiff did not make Defendant a trustee on his Florida property. Plaintiff testified credibly that Defendant consistently has been reliant on him for monetary support, for a place to reside from time to time, and that, in general, Defendant relied on him and others for support over many years. There is no evidence that I credit that Plaintiff consulted with Defendant in a reliant or deferential way before making decisions regarding business, property, or disposition of assets. Plaintiff did allow Defendant to pay bills on his behalf when she first began her yearly seasonal residence in his house, but later he forwarded all bills to his Florida property, from where he paid them himself. While I find that Plaintiff benefited by having Defendant collect rent from tenants while he was away in Florida, this is insufficient to show that Plaintiff relied upon and consulted Defendant with regard to managing the Property, or otherwise to help him manage his affairs. "A relationship of trust ‘may be found on evidence indicating that one person is in fact dependent on another's judgment in business affairs or property matters.'" Collins v. Huculak, 57 Mass. App. Ct. 387 , 395 (2003) (quoting Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412 , 444). I find no such relationship of trust existed.

I further am persuaded that Plaintiff did not rely on Defendant in regard to property matters because Plaintiff testified that he relied on himself and his brother regarding real estate transactions. Plaintiff's testimony at trial was that Defendant did internet research, and Plaintiff appreciated that she knew a bit about estate planning in that way. When Plaintiff and Defendant discussed leaving the Property to Defendant in front of Robert Barrows, it was to obtain his opinion, on which Plaintiff apparently placed some weight. Nothing suggests that Plaintiff placed any great weight on the legal or business advice of the Defendant. I give no weight to Plaintiff's assertions that he signed the Deed because he trusted Defendant, because he didn't know about estate planning or deeds, and because she possessed superior knowledge.

I am led to find that Plaintiff really did not rely in any material way on Defendant's advice and related statements when he decided to sign the Deed. And, in any event, even had he placed any reliance on statements made by the Defendant leading up to the signing of the Deed, doing so would have been unreasonable. See Nei v. Burley, 388 Mass. 307 , 311 (1983) (given the information available to the plaintiff and the abandoned opportunity to obtain further information, the necessary reliance to support a claim of fraud was not found).

Plaintiff has failed to show that Defendant made a false statement of material fact which Defendant knew to be false. Plaintiff also has not shown that he relied to any meaningful extent reliance on any of Defendant's material statements. I conclude that Plaintiff has not proven that he signed and delivered the Deed due to fraud perpetuated by Defendant.

Because Plaintiff has failed to prove that he executed the Deed as a result of Defendant's fraud, Plaintiff's claim that he did not understand the full meaning and import of the Deed will not defeat it. "‘In the absence of fraud practiced upon him . . . mere ignorance of the contents of an instrument which a party voluntarily executes is not sufficient ground for setting it aside if ultimately the paper is found to be different from what he supposed it to be.'" Farrell v. Chandler, Gardner & Williams, Inc., 252 Mass. 341 , 343 (1924) (quoting Atlas Shoe Co. v. Bloom, 209 Mass. 563 , 567 (1911)). "One who knowingly signs a writing that is obviously a legal document without bothering to ascertain the contents of the writing is ordinarily bound by its terms, in the same manner as if he had been fully aware of those terms, unless it can be proved that he was induced to sign it by fraud or undue influence." Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412 , 440 (1980).


Plaintiff, in his memorandum filed following the taking of evidence at trial, asked the court to find separately that the deed ought to be rescinded because Defendant knew that Plaintiff, in signing the Deed, was mistaken about what a deed is and the legal effect of a deed. In closing arguments counsel for Defendant took the position that the court should not consider this argument, because it was not raised in the pleadings. Of course, an issue not raised in the pleadings can, if tried by implied consent of the parties, be treated as if it were raised in the pleadings without later amendment of those pleadings, so long as it appears that the parties fairly understood that the evidence was aimed at the unpleaded issue. See Allen v. Allen, 86 Mass. App. Ct. 295 , 304 (2014). The kind of mistake claimed by Plaintiff is closely related to Plaintiff's claim of fraud. Both claims rest on the ground, which I already have rejected, that Defendant made a false statement that led Plaintiff to misapprehend what a deed really is. On this alternative but closely-allied theory, Plaintiff claims that Defendant, if not directly misleading Plaintiff, knew that he was mistaken about what a deed is and does, and yet allowed him to convey the Property to her by deed. Even accepting that the question of Plaintiff's mistake in signing the deed was tried by the implied consent of the parties to this case, that alternative theory does not aid Plaintiff.

Ordinarily, without a showing of fraud or undue influence, any mistake by Plaintiff about the legal significance of a deed would not be actionable. See Ward v. Ward, 70 Mass. App. Ct. 366 , 370 (2007). It is true that there is no rule which would bar such a claim absolutely. See Mickelson v. Barnet, 390 Mass. 786 , 791 (1984) ("There has never been a rule that equity will afford relief only in case of mistake of fact."). The particular type of mistake advanced here by Plaintiff, where one party knows that the other is mistaken as to the nature or significance of a written instrument, may, in appropriate cases, provide grounds for recission of a deed. See Ward, 70 Mass. App. Ct. at 369, n.5. If the mistake otherwise is proved up, "[r]escission [of a deed] is appropriate where property has not been sold to a bona fide purchaser, and the wrongdoer still holds the property at the time of trial." Demoulas v. Demoulas, 428 Mass. 555 , 581 (1998). Plaintiff's claim for relief due to his mistake about the nature and legal effect of a deed, if known by Defendant at the time of signing, could, if proved, be enough to order rescission of the Deed.

Plaintiff's claim of mistake fails, however, because, as already discussed, I find unpersuasive Plaintiff's testimony that he did not appreciate what a deed is, and I give that evidence no weight. I find Plaintiff did in fact know what a deed is–at least that Plaintiff appreciated that a deed is a significant legal document granting with finality a current interest in real estate. Plaintiff brings no challenge to the wording or validity of the instrument itself; he accepts, as he must, that as written and signed the Deed passed the Property's title to Defendant, with the Plaintiff retaining a life estate only.

Plaintiff did not claim that he did not know he was signing a deed; rather, he claimed not to know what a deed is or does. It would not be enough even if Plaintiff had shown that perhaps he did not appreciate the full legal import of signing the Deed. See Corrigan v. O'Brien, 353 Mass. 341 , 350 (1967) ("It was not necessary that [the plaintiff] understand all of the effects of the [] tenancy which she held previously, or all of the effects of her deed . . . It was enough that she had a grasp of the essentials of the transaction so far as they affected her paramount concern.").

I do not accept Plaintiff's assertions that he did not know what a deed is, did not understand a deed to be distinct from a will, and that he thought both kinds of documents were easily reformed, revoked, or amended. I find that Plaintiff knew that a deed transfers at once and without unilateral right of revocation an interest in real property. I find that Plaintiff understood that a will is different–it creates an expectation of a future right to take title to real or personal property but may be amended and revoked during the testator's lifetime.

Plaintiff also introduced no evidence that would lead me to infer that Defendant knew that Plaintiff lacked awareness about what he was signing. First, Plaintiff was aware that he was signing a deed. Plaintiff made no allegations that, prior to or during the signing of the Deed, Defendant hid part of the document, hurried him to sign it, or otherwise did anything to keep him from investigating and understanding the nature of the papers he was signing. There was no testimony that Defendant interrupted Plaintiff in Attorney Decoulos' office or interfered with Plaintiff's ability to gain clarity regarding the document before him.

Plaintiff had a significant burden of proof to obtain relief due to a mistake as to the nature of the instrument signed. The evidence introduced by Plaintiff was not enough to carry that burden. "It is settled that where reformation of an instrument is sought on the ground of a mutual mistake the proof must be full, clear, and decisive . . . And the principle applies when cancellation for such a mistake is sought." Kidder v. Greenman, 283 Mass. 601 , 613 (1933) (internal quotation marks removed). "The proof that both parties intended to have the precise agreement set forth inserted in the deed, and omitted to do so by mistake, must be made beyond a reasonable doubt, and so as to overcome the strong presumption, arising from their signatures and seals, that the contrary was the fact." Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 , 49 (1869). Plaintiff did not carry the burden of showing that the Deed should be rescinded due to mistake.

Failure of Consideration

Plaintiff claims that the Deed should be deemed void for lack of consideration or inadequate consideration. The Defendant argues that, because the deed is a sealed instrument, no consideration is necessary, and also that consideration, in the form of both love and affection and an undertaking as to ongoing property maintenance, was provided.

It remains the rule that no consideration need be shown to support the conveyance if a deed is a sealed instrument. Ward v. Ward, 70 Mass. App. Ct. 366 , 371-372 (2007); see also Mather v. Corliss, 103 Mass. 568 , 571 (1870) ("a seal implies a consideration"). I am aware, however, that the "conclusive presumption" of consideration in sealed instruments has been criticized by our appellate courts. See Knott v. Racicot, 442 Mass. 314 , 322 n.14 (2004) (declining to consider whether the conclusive presumption of consideration in sealed contracts should be abolished, but noting that Massachusetts is in the minority of jurisdictions that retains the rule). I find that, because the Deed is treated as a sealed instrument under G.L. c. 4, § 9A, consideration is presumed under current Massachusetts law.

That conclusion drawn, I need look no further. However, given that Plaintiff's underlying claims of fraud have not prevailed on the merits, and the criticism of the sealed instrument rule in our appellate courts, I proceed to review the consideration provided for the Plaintiff's conveyance of the Property by the Deed.

A lack of consideration does not void a deed as matter of law. Comstock v. Son, 154 Mass. 389 , 390 (1891). It certainly is the rule that consideration is not essential if, for example, a deed conveys property to be held in trust. See Taylor v. Buttrick, 165 Mass. 547 , 549 (1896) and cases cited. But where, as appears to be the case here (but for the sealed instrument rule), equitable cancellation or recission of the Deed for failure of consideration may well be available to Plaintiff, it is worthwhile to address Plaintiff's assertion that Defendant has not supplied consideration. Plaintiff's focus is on the failure of Defendant to carry out responsibilities for the care and maintenance of the Property. Cf. Rayner v. McCabe, 319 Mass. 311 , 313 (1946) (niece's failure to care for aunt as promised in exchange for deed grounds for equitable cancellation of deed); Vincent v. Torrey, 11 Mass. App. Ct. 463 , 467 (1981) (co-tenant's failure to care for elderly couple in exchange for deed grounds for equitable cancellation of deed).

Defendant says that the consideration given was the dollar recited in the Deed and also "love and affection." In general, the consideration stated in a deed (or wording suggesting that consideration was paid) is inconclusive because "it is not the purpose of a deed to set forth the agreement of the parties as to the price paid for the thing conveyed." Farquhar v. Farquhar, 194 Mass. 400 , 405 (1907)); see also Bressel v. Jolicoeur, 34 Mass. App. Ct. 205 , 208 (1993) (finding that this rule was not changed by the passage of G.L. c. 183, § 6, which requires the full consideration paid and nature of such consideration to be stated in deeds). However, "[a]nything that the grantee is required by the terms of the deed to pay or to do is part of the consideration, whether so described in the deed or not." Locke v. Homer, 131 Mass. 93 , 106 (1881). In addition, "so far as a deed states the terms of the conveyance it is as binding as any other written contract." Farquhar, 194 Mass. at 405.

The Deed states that Plaintiff grants the Property to Defendant "for consideration of One ($1.00) Dollar and other valuable consideration paid." There is no evidence that I credit that the dollar was not given by Defendant. Plaintiff had both the opportunity and responsibility to put on evidence to show no such payment was made. See Berman v. Geller, 325 Mass. 377 , 378-379 (1950) ("It is well settled that recital of consideration in a deed may be rebutted by parol testimony"); Boynton v. Rees, 25 Mass. 329 , 332 (1829) ("[T]he party objecting to [the deed] must prove that no consideration was given."). I find no reason to say that the dollar recited in the Deed was not given by Defendant to Plaintiff.

That, of course, is of little real world significance. The payment of a nominal amount in exchange for the transfer of title to a large and valuable improved property may serve as a "peppercorn" of consideration, by itself, but, in the context of the Property and the relationship of the parties to the Deed, it is important to scrutinize the other consideration which may have flowed to the Plaintiff in connection with the conveyance.

The Deed, by including the term "other valuable consideration," invites the introduction of parol evidence to determine the "other valuable consideration" supplied. See Preble v. Baldwin, 60 Mass. 549 , 555 (1850). The fact that this description of the consideration does not comply with G.L. c. 183, § 6 does not limit either party's ability to show what consideration actually was paid. See Bressel, 34 Mass. App. Ct. at 208; Bullard v. Briggs, 24 Mass. 533 , 537 (1829) ("[A]s inadequateness of consideration may be relied on as evidence of fraud, the party claiming under it may show that another and a greater consideration was given than that which is expressed.").

Defendant introduced letters from Plaintiff to Defendant and elicited testimony to show that Plaintiff cared romantically for Defendant, and to support Defendant's claim that the additional consideration was the parties' mutual love and affection. Love and affection can be adequate consideration, good and effective as between the parties to a deed, even though it is not "valuable" consideration. Ward v. Ward, 70 Mass. App. Ct. 366 , 371 (2007), citing Parsons v. Parsons, 230 Mass. 544 , 551 (1918). I find that Plaintiff and Defendant were in a committed, romantic, sexually intimate relationship when the Deed was signed. I find that love and affection, which flowed from that romantic and mutually supportive relationship then in full bloom, was a central part of the Plaintiff's motivation for giving Defendant title to the Property, and serves, as between the parties, as proper and adequate consideration for the Deed.

The Deed was the embodiment of a gift by the Plaintiff to the Defendant, born out of their relationship at the time the grant was made. The transfer was complete and effective once the Defendant, as the donee, accepted the gift, which she did without delay. "The absence of consideration, however, may result in the gift of a deed. The gift is completed when donative intent is expressed by recording the deed coupled with acceptance by the donee. ... Here, title was successfully transferred regardless whether the transfer was based upon the execution and recording of the deed with sufficient consideration, the absence of consideration but under seal, or the completion of a gift. ..." Ward, supra, at 371, n. 8.

This is enough, by itself, to sustain the validity of the conveyance in the face of Plaintiff's claims of inadequate consideration. Even were I to find that Plaintiff was not acting solely out of love and affection, there plainly was a more than ample supply of love and affection at the time to make the transfer effective and binding as between the two parties.

Beyond that, I also find that Defendant's undertakings that she would be act as a qualified caretaker of the Property after his death affords additional consideration supporting the challenged conveyance. The state of the relationship between Plaintiff and Defendant at the time the Deed was recorded, and the feelings of love and affection that then did exist no doubt gave Plaintiff confidence that Defendant would carry out his wishes with regard to the Property should she outlive him.

Plaintiff claims that Defendant promised, while he remained alive and retained his life estate, to perform ongoing maintenance of and improvements to the Property in exchange for the Deed. I find that, in general, the idea that Defendant would participate in taking care of the Property was a further motivation for Plaintiff's signing of the Deed. But I do not find that what these parties contemplated was that Defendant was to be solely responsible for maintaining and improving the property during Plaintiff's lifetime. He, who was residing on the Property, was to continue to take a central role in maintenance and improvements, with assistance from the Defendant, who, after all, would be the sole owner of the Property after Plaintiff's death. Nor do I credit Plaintiff's assertion that he performed all of the work on the Property after the Deed was signed. I credit the testimony of both Megan Mahoney and Kevin Pearson that Defendant did perform landscaping and other work after the Deed went to record. Those efforts by Defendant came to an end once the parties' relationship ended. I credit Plaintiff's testimony that after Defendant last moved from the Property, there has been no ongoing maintenance by her.

I find that Plaintiff, when he signed the Deed, did not consider fully the possibility that the parties' relationship would end, leaving the Defendant, without a right of possession during the balance of Plaintiff's life, to be away from the Property. To the extent there was an understanding that Defendant would render assistance keeping up the Property while the Plaintiff was alive, that was a more minor part of the parties' intentions when the Deed was recorded. And the departure of the Defendant from the home certainly explains her failure to provide that help. That the breakup of the relationship (and Defendant's resulting departure) occurred even though the parties might have contemplated a far different scenario when the Deed was executed, does not now, after the fact, make that initial expectation less valuable as consideration for the Deed.

The same is so with respect to any undertaking by the Defendant to continue to care for the Property after Plaintiff's death. Plaintiff, in signing the Deed, undoubtedly was motivated by an expectation that Defendant would keep and maintain the Property after his death. This expectation was more dominant than any thought that Defendant would help with the upkeep of the Property during Plaintiff's lifetime. Although I find this motivation was part of what led Plaintiff to convey the Property, I note that there is no language in the Deed laying out any ongoing obligations of Defendant to maintain the Property, and I do not find there was any unwritten but express agreement about that. Cf. Durgin v. Allen, 324 Mass. 157 , 160 (1949) (contract to care for grantors contained in deed); Collins v. Keefe, 332 Mass. 375 , 377 (1955) (same). While Plaintiff, in signing the Deed, had in mind that Defendant was going to reside at, care for, and maintain the Property after his death, there is nothing in the Deed, nor in the evidence I credit, which would allow me to conclude that there was any trust created or intended that, as a legal matter, would require the Property to be kept and maintained by Defendant either during or after Plaintiff's lifetime. There are no record title conditions or restrictions to that effect imposed (or intended to be imposed).

I find and rule that the Plaintiff's attack on the consideration given in exchange for the Deed fails, first, because it is a sealed instrument and the resulting presumption of consideration has not been refuted. Second, the execution and delivery of the Deed constituted a valid and accepted gift, and cannot now be undone. Finally, there was adequate and valuable consideration supplied for the conveyance, in any event.

I conclude that Plaintiff's allegations of fraud are not proved, that he is not entitled to rescission or modification of the grant he made based on a theory of mistake, and that Plaintiff has failed to establish that the conveyance may be set aside for lack of consideration. I will direct entry of a judgment upholding the Deed and leaving intact the title to the Property which Defendant took under the Deed, subject to Plaintiff's life estate.

I recognize that Plaintiff, faced with the later rupture of the romantic and supportive relationship he and the Defendant enjoyed when the Deed was given, now entirely regrets his decision to have made the conveyance which he challenges in this litigation. Given the acrimony that has flared between the parties since the recording of the Deed, Plaintiff may feel he imprudently gave up a valuable property to a person for whom he longer has any affection. He also now may question the fidelity of the Defendant's feelings for him, professed ardently at the time he signed the Deed. But the court, however understanding it may be of the Plaintiff's current situation, is obliged to decide this case based on the facts and the law as the court understands them. And they do not allow the court to provide Plaintiff the remedies he has sought.

Judgment accordingly.


[Note 1] The Deed, which more fully describes the Property, is dated January 26, 2011 and was recorded with the Essex (South) Registry of Deeds in Book 30189, Page 569 on January 27, 2011.

[Note 2] See deed dated July 29, 1985 from June C. Rogers and Anne Willard to Royal L. Bradburn Barrows, Jr. recorded with the Essex (South) Registry of Deeds in Book 7851, Page 156.