TERRENCE M. MCCARTHY and LAURIE M. DURKAN vs. DONALD F. BRAGDON and SUZANNE M. BRAGDON

Introduction

Terrence M. McCarthy and Laurie M. Durkan (McCarthy and Durkan) seek partition of the property located at 7 Addington Circle, Weymouth, Massachusetts (the property). Their partition petition recites that together they hold a one-half undivided interest in the property as tenants in common by a 2012 deed, together with a one-half remainder interest in a life estate in the property held by Donald F. Bragdon and Suzanne M. Bragdon (the Bragdons) by a 2013 deed. The Bragdons disagree. They claim that, by the 2013 deed, the Bragdons, McCarthy, and Durkan each relinquished their rights to their prior one-half undivided interests, with the Bragdons retaining a life estate in the property and McCarthy and Durkan only retaining a remainder interest. The Bragdons move to dismiss this action for failure to state a claim, arguing that because McCarthy and Durkan only hold a remainder interest in the property, they cannot bring a petition for partition under G.L. c. 241, §§1 et seq. McCarthy and Durkan disagree on both counts: they argue that they hold a one-half possessory interest in the property and that, in any event, it does not matter because they are entitled to partition whether they hold a possessory interest or a remainder interest. For the reasons set forth below, the court agrees with the Bragdons, and the Motion to Dismiss is allowed.

Procedural History

On March 6, 2020, McCarthy and Durkan filed their Petition for Partition under G. L. c. 241, §1, seeking partition of the property and naming as respondents the Bragdons. On May 1, 2020, the Bragdons filed Defendants/Respondents, Donald F. Bragdon and Suzanne M. Bragdon's Motion to Dismiss Petition for Partition With Prejudice (Pursuant to Mass. R. Civ. P. 12(b)(6)) (Motion to Dismiss), the Brief in Support of Defendants/Respondents, Donald F. Bragdon and Suzanne M. Bragdon's Motion to Dismiss Petition for Partition With Prejudice, and the Appendix (App.). On May 4, 2020, McCarthy and Bragdon filed Plaintiffs/Petitioners' Opposition to Defendants/Respondents' Motion to Dismiss Pursuant to Rule 12(b)(6), Plaintiffs/Petitioners' Brief in Opposition to Defendants/Respondents' Motion to Dismiss Pursuant to Rule 12(b)(6), and Plaintiffs/Petitioners' Appendix. The Motion to Dismiss was heard on June 19, 2020, and taken under advisement. This Memorandum and Order follows.

Standard of Review

A motion to dismiss may be brought pursuant to Mass. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, such as the 2012 and 2013 deeds, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n.4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Applying this standard, for the reasons set forth below, the Motion to Dismiss is ALLOWED.

Facts

For the purposes of deciding the Motion to Dismiss, the court treats the following facts as either undisputed or inferred in the plaintiffs' favor:

1. There are four owners comprised of two couples for the property.

2. On August 27, 2012, the property was conveyed from Shpetim Kadiu and Dallandyshe Kadiu to the Bragdons, as tenants by the entirety, by a deed recorded with the Norfolk Registry of Deeds (registry) in Book 30361, Page 551. Exh. No. 1 of the Motion to Dismiss.

3. The Bragdons conveyed a one-half interest in the property to themselves as tenants by the entirety, and a one half-interest to McCarthy and their daughter Durkan, all four of them holding title as joint tenants, by a deed dated September 5, 2012, and recorded with the registry in Book 30404, Page 93 (the 2012 deed). Exh. No. 2 of the Motion to Dismiss.

4. The Bragdons, McCarthy, and Durkan executed and recorded a deed dated November 18, 2013, and recorded with the registry in Book 31905, Page 504 (the 2013 deed). The 2013 was executed on November 18, 2013, and recorded with the registry. Exh. 3 of the Motion to Dismiss.

5. The 2013 deed states, in relevant part:

"We, Donald F. Bragdon and Suzanne M. Bragdon, a one-half interest, as Husband and Wife, Tenants by the Entirety and Terrence M. McCarthy and Laurie M. Durkan a one-half interest as Joint Tenants all of 7 Addington Circle, Weymouth, Norfolk County, Massachusetts GRANT TO Terrence M. McCarthy and Laurie M. Durkan as Joint Tenants for consideration paid in full consideration of One Hundred ($100.00) Dollars with quitclaim covenants …

The GRANTOR(S), Donald F. Bragdon and Suzanne M. Bragdon herein reserve a life estate in said Real Estate to themselves with the right to occupy and use said property during the term of their natural lives.

The Grantor(s), Donald F. Bragdon and Suzanne M. Bragdon, collectively and individually retain unto themselve(s) a life estate in and to the premises conveyed.

In witness whereof, the said Donald F. Bragdon, Suzanne M. Bragdon and Grantor(s), Terrence M. McCarthy and Laurie M. Durkan set their hand(s) and seal(s) this 18 day of November, 2013"

6. The 2013 deed was executed by Donald F. Bragdon, Suzanne M. Bragdon, Terrence M. McCarthy, and Laurie M. Durkan. McCarthy and Durkan are named as grantors in the 2013 deed. The designation of "Grantee" appears next to both signatures of McCarthy and Durkan. The attorney who prepared the 2013 deed, Gerald Thomas Murphy, also acted as the notary public for all signatories of the 2013 deed.

Discussion

The parties agree that the Bragdons hold some kind of life estate in the property by virtue of the 2013 deed. McCarthy and Durkan argue that whether that life estate is in the entire property or only in one-half of the property is irrelevant, as they are entitled to bring a partition action whether they hold a present possessory interest and a remainder interest or a remainder interest only. They are mistaken. The right to partition presupposes a present, possessory interest in land. Bernat v. Kivior, 22 Mass. App. Ct. 957 , 958 (1986); see Towle v. Wingate, 229 Mass. 556 , 557 (1918). As a result, "[t]he holder of a remainder interest only may not maintain partition proceedings." Allen v. Libbey, 140 Mass. 82 , 83 (1885). The right of a grantee of a life estate to occupy the premises defers the rights of the remaindermen to the premises and thus the remaindermen could not maintain a partition proceeding.

The decision in Ciani v. MacGrath, 481 Mass. 174 (2019), on which McCarthy and Durkan rely, is not to the contrary. In Ciani, the question focused on determining whether the surviving wife, who was seeking partition, held a life estate in an undivided one-third interest in each property through G. L. c. 191, §15; there was no dispute that the children held possessory interests in the remaining two-thirds. Id. at 176. After interpreting the statute, the court concluded that the wife did have a life estate and had the right to possession. The court further held that the four surviving children each had a right to partition, as they had both an estate in possession, absolutely, in the remaining property, as well as a remainder estate in the surviving wife's share. Id. at 187.

Thus, the question of what life estate the Bragdons hold under the 2013 deed will determine if McCarthy and Durkan can seek partition. If the Bragdons hold a life estate in the entire property, with McCarthy and Durkan holding a remainder interest only, then McCarthy and Durkan have no right to seek partition. If the Bragdons hold a life estate only in their former one-half undivided interest in the property, with McCarthy and Durkan holding both a remainder in that one-half undivided interest and also holding their own one-half undivided present possessory interest, then McCarthy and Durkan may seek partition. This requires an interpretation of what the 2013 deed granted.

"Deeds should be 'construed as to give effect to the intent of the parties.'" Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123 , 131 (1990), quoting Harrison v. Marcus, 396 Mass. 424 , 429 (1985). That intention should be determined from the language used in the instrument, in light of the material circumstances and pertinent facts known to the parties at the time of execution. Id.; Walker v. Sanderson, 348 Mass. 409 , 412 (1965). "In interpreting a deed, as with any contract, [a court] 'must construe all words that are plain and free from ambiguity according to their usual and ordinary sense.'" Boston Redev. Auth. v. Pham, 88 Mass. App. Ct. 713 , 717 (2015), quoting Suffolk Const. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726 , 729 (1999). Words that are clear and unambiguous, by themselves, may be ambiguous when read in the context of the entire deed instrument, or as applied to the subject matter. See id. at 718.

A life estate may be created by a deed that grants such a right to the grantee or reserves such a right in the grantor. See Hinckley v. Clarkson, 331 Mass. 453 , 454 (1954); Thayer v. Shorey, 287 Mass. 76 , 78-79 (1934). A life estate arises by a conveyance using such words as "to B during his life" or "to B until his death." See Matteson v. Walsh, 79 Mass. App. Ct. 402 , 408 (2011) (conveyance "to B during his life" or "to B until his death" or other similar words of limitation will create a life estate in B). A life estate may also be recognized without necessarily using the exact term "life estate." Thus, in Thayer, language stating that grantor reserved "to herself the right to occupy, rent, or improve the granted premises during her life" was construed as a life estate. Thayer, 287 Mass. at 87. Similarly, language in a deed reserving "rights … to occupy the granted premises for the rest of her life" was also held to confer a life estate. Bernat, 22 Mass. App. Ct. at 958. On the other hand, slightly modified language can change the type of resulting ownership in the grantee: where A conveys to B, with A reserving to himself "the right to occupy the premises with the grantee during the terms of his natural life," A holds a life estate as tenant in common with B, thereby making B both a present owner of an undivided one half interest in the fee, and the holder of the remainder in the other half. Breare v. Board of Assessors of Peabody, 350 Mass. 391 , 392-393 (1966).

A close reading of the language of the 2013 Deed is therefore required to determine the nature of the Bragdons' life estate and the interest held by McCarthy and Durkan. The 2013 deed names all four owners of the property under the 2012 deed - McCarthy, Durkan, and the Bragdons - as grantors, and specifically identifies each of their ownership interests. This leads to the conclusion that all the named parties in the granting clause were intended to be grantors and intended to voluntarily convey all of their respective fractional interests. In other words, in the 2013 deed, McCarthy, Durkan, and the Bragdons conveyed 100% of the property. The next question is to whom, and in what interests, the property was conveyed. The 2013 deed states that the property is conveyed to McCarthy and Durkan as joint tenants. Thus, 100% of the granting parties' interests in the property were conveyed to McCarthy and Durkan.

Here is the rub: Following the description of the property in the 2013 deed, there are two different clauses purporting to create life estates in the Bragdons. The first life estate clause provides that the Bragdons, as grantors, "herein reserve a life estate in said Real Estate to themselves with the right to occupy and use said property during the term of their natural lives." The second life estate clause appears in the 2013 Deed immediately after the first life estate clause. The second life estate clause states the grantors, "Donald F. Bragdon and Suzanne M. Bragdon, collectively and individually retain unto themselve(s) a life estate in and to the premises conveyed."

The language of each of these two life estate clauses is sufficient to grant a life estate in the Bragdons. Compare Thayer, 287 Mass. at 87; and Bernat, 22 Mass. App. Ct. at 958. The interpretive question is what the grantors intended by including two life estate clauses in the 2013 deed. McCarthy and Durkan argue that the term "retain" indicates that the Bragdons were only reserving a life estate to what used to be their undivided half interest in the property from the 2012 deed. In McCarthy's and Durkan's construction of the 2013 deed, the word "retain" would suggest that they would continue to have possession of their prior one-half share from the 2012 Deed. This interpretation, focusing on the second life estate clause, ignores the first life estate clause. Both clauses must be read together to ascertain the intent of the parties. See Harrison, 396 Mass. at 429 (intent of the parties is ascertained from the language of the whole instrument). While the two life estate clauses may be inartistic, see Bernat, 22 Mass. App. Ct. at 958, read together, their intent is clear. The clauses are intended to leave no doubt that each of the interests granted to McCarthy and Durkan in the 2013 deed - the one-half interest held by the Bragdons and the one-half interest held by McCarthy and Durkan under the 2012 deed - are subject to the Bragdons' life estate. The first life estate clause, using language of reservation, is intended to apply to McCarthy and Durkan's one-half interest from the 2012 deed, and the second life estate clause, using the term "retain," is intended to apply to the Bragdons' one-half interest from the 2012 deed. The effect of these two life estate clauses is to grant the Bragdons a life estate in the entire property. The intent of the 2013 deed is that the grantees McCarthy and Durkan were meant to have full ownership interest in the property, subject to a life estate of the Bragdons in the entire property, thus leaving McCarthy and Durkan with a 100% remainder interest that would be reserved by the Defendants from the Plaintiffs' prior undivided half interest in the Property, and retained as to the Defendants' prior undivided half interest in the Property.

McCarthy and Durkan relinquished their prior possessory undivided one-half interest in the property by voluntarily signing onto the 2013 deed as grantors. Not only did the 2013 deed specifically designate them as grantors and clearly identified what interests they were conveying, but McCarthy and Durkan also executed the deed, thereby fulfilling the formalities of what is typically required by a grantor in order to make a valid conveyance. That their signature block lists indicates that they are also grantees does not change the fact they were grantors. Thus, the Bragdons are entitled to the benefit of the presumption that one who signs an instrument has read and understood its contents and has assented to its terms and legal effect. Hull v. Attleboro Savings Bank, 33 Mass. App. Ct. 18 , 24 (1992) ("One who signs a writing that is designed to serve as a legal document, as this and its enclosure were, is presumed to know its contents); see Collins v. Huculak, 57 Mass. App. Ct. 387 , 393 (2003) (person signing deed is on notice that the deed is of significance).

By the 2013 deed, the Bragdons hold a life estate in 100% of the property, and McCarthy and Durkan hold the remainder interest in 100% of the property. As McCarthy and Durkan do not hold any present possessory interest in the property, they are not entitled to partition. Their petition for partition must be dismissed.

Conclusion

For the foregoing reasons, Defendants' Motion to Dismiss is ALLOWED. Judgment shall enter dismissing the petition for partition with prejudice.

SO ORDERED