DEBORAH A. ALLEN, Individually; DEBORAH A. ALLEN, Executrix of the Estate of Ethel M. Allen; and DEBORAH A. ALLEN, Trustee of Allen Realty Trust v. HAROLD J. ALLEN, JR.

I. INTRODUCTION

In this case, Harold Allen, Jr. and Deborah Allen, brother and sister, each claim ownership of the family home, 257 Marrett Road, Lexington, Middlesex County, Massachusetts ("Property"), by virtue of a deed from Ethel Allen, their mother, now deceased. Harold Allen, Jr. claims his interest as the surviving joint tenant under a July 23, 2001 deed from Ethel Allen. Deborah Allen claims her interest under a November 30, 2001 deed from Ethel Allen, and argues that her mother's signature on the earlier deed to Harold, Jr. was a forgery.

II. PROCEDURE

On January 19, 2010, Deborah Allen, as executrix of the estate of Ethel M. Allen, filed a verified complaint and requested a judicial endorsement of a memorandum of lis pendens. The endorsement issued that day. The January 19, 2010 verified complaint contained two counts, one of fraud, and one of conversion; the requested relief was to declare that Deborah Allen held title to the Property in her capacity as fiduciary. Deborah Allen individually, and as trustee of the Allen Realty Trust, was added as a party plaintiff on March 3, 2010. [Note 1] By agreement, the parties sold the Property in the fall of 2010, and the proceeds are being held in escrow pending resolution of this case by the court.

On March 10, 2011, the court denied the defendant's motion to amend his counterclaim to add a claim for undue influence against Deborah Allen, individually, as well as against his sister Nancy Oldro. Because the undue influence claim would, if shown, set aside various estate planning transfers, including the creation of the Allen Realty Trust, the defendant also sought to name the beneficiaries of that trust: Walter Mikowski, Karen McCord, Sandra Madigan, and Julia Mikowlski. The denial was without prejudice to commencing a separate lawsuit encompassing these claims in a court of competent jurisdiction. [Note 2]

This case was tried to the court (Piper, J.) on May 9, 2011, May 13, 2011, May 25, 2011, and May 31, 2011. A court reporter was present to transcribe testimony and proceedings. At the close of the taking of evidence, the court suspended the trial and directed counsel to file posttrial legal memoranda, and proposed findings of fact and rulings of law, and to return to the court for closing arguments. Closing arguments were held on September 14, 2011, and later, following receipt of the final transcript, the case was taken under advisement. Based on the trial exhibits, the testimony at trial, and the parties' Agreed Statement of Facts, filed March 22, 2011 as part of their Joint Pretrial Conference Memorandum, as trier of fact, drawing such inferences from the evidence as I consider reasonable and appropriate, I make the following findings of fact and rulings of law.

III. FINDINGS OF FACT

A. Preliminary and stipulated facts.

1. Ethel Allen ("Mrs. Allen") and Harold Allen, Sr. were married and had six children: the defendant Harold J. Allen, Jr.; the plaintiff Deborah A. Allen; Nancy Oldro; Sandra Madigan; Ethel Mikowlski; and Lawrence Allen. During their lives, the elder Allens owned the property at issue in this case, 257 Marrett Road, Lexington, Middlesex County, Massachusetts. The Property was their family residence for many years.

2. Harold Allen, Sr. died September 28, 1996. Ethel Allen died December 20, 2009. At the time of her death, Ethel Allen lived with her daughter Nancy Oldro in Nashua, New Hampshire.

3. At the time of her death, Mrs. Allen left five issue, Deborah Allen, Nancy Oldro, Harold Allen, Jr. (the Defendant), Sandra Madigan, and Larry Allen.

4. Deborah Allen is the named executrix in Ethel Allen's will and also the trustee of the Allen Realty Trust, in which capacity she asserts she holds title the subject property at 257 Marrett Road, Lexington, Massachusetts. However, upon the death of Ethel M. Allen, Harold J. Allen, Jr., produced a deed that purports to have conveyed 257 Marrett Road, Lexington to Harold J. Allen, Jr. and Ethel M. Allen as joint tenants, on July 23, 2001. This deed, the authenticity and effect of which is central to this litigation, was recorded with the Middlesex County (South District) Registry of Deeds ("Registry") on August 10, 2001 in Book 33426, Page 459, and bears a certificate of an acknowledgment by Mrs. Allen which is signed by Attorney Paul Maloy, a notary public, and which is dated July 23, 2001.

5. The plaintiff in this case alleges that Ethel Allen's signature on the July 23, 2001 Deed is a forgery.

B. Prior Estate Planning by Harold Allen, Sr. and Ethel Allen

6. Harold Allen, Sr. owned and operated a home heating oil business known as Sherwood Oil Co., Inc. Lawrence Allen worked for Sherwood Oil from 1972 until 1990. Harold, Jr. worked for Sherwood Oil beginning in the middle to late 1970s. Sandra Madigan's husband, David Madigan, worked for Sherwood Oil between 1972 and 1986. Sandra Madigan worked at Sherwood Oil beginning in 1992 until it was dissolved.

7. In 1987, Harold, Sr. transferred a 1/3 interest in Sherwood Oil to Harold, Jr. and a 1/3 interest to Lawrence. Harold, Sr.'s brother-in-law, Edward Hunt, held the remaining 1/3 interest. The conveyances to Harold, Jr. and Lawrence were gifts. Harold, Sr. and Ethel gave Harold, Jr. and Lawrence the stock inter vivos, as the sons' share of the parents' estate. The estate plan at the time contemplated that the daughters were to receive as their share of their parents' estate any proceeds from real estate and other assets, apart from the Sherwood Oil assets.

8. In this same time period, the principals of Sherwood Oil and Mr. Madigan purchased a building for Sherwood Oil on Forest Street in Arlington. They also purchased a real estate brokerage franchise called Realty World, and operated it from extra space in the Forest Street building. In or around 1987, the owners decided to sell the real estate and divest themselves of the Realty World franchise. Mr. Madigan received the entire interest in Realty World as compensation.

9. In 1990, a dispute broke out between Lawrence and Harold, Jr. Lawrence accused Harold, Jr. of stealing oil by a practice known as "short ticketing." As a result of the dispute, Harold, Jr. and Edward terminated Lawrence from the Sherwood Oil business. Lawrence prevailed in a lawsuit against Harold, Jr., Edward, and Sherwood Oil, but did not collect on the judgment. Harold Jr. was represented by Attorney Paul Maloy in this lawsuit. Harold, Jr. and Lawrence have been estranged since this dispute.

10. Sherwood Oil was dissolved in 1996 or 1997. Gulf Oil Company took possession of the assets of Sherwood Oil pursuant to a security agreement.

11. In 1997, Harold, Jr. formed a new home heating oil company called Arlmont Fuel, which he still owns. Sandra Madigan worked at Arlmont Fuel from 1997 until 1999. Ethel was sometimes present at Arlmont Fuel between 1997 and the summer of 2001, where she would greet customers and answer phones. Nancy Oldro also was present at Arlmont Fuel at times during the summer of 2001, during which time she would clean the offices.

12. Harold, Sr. and Ethel each executed wills dated February 6, 1991. In each of those wills, they left their estate to the other spouse, and, in the event that the spouse predeceased them, they each left their estate in equal shares to their daughters Ethel Mikowlski, Nancy Oldro, and Deborah Allen. Each will had the following provision: "I have specifically made no provision in this Will for my daughter, SANDRA MADIGAN and my sons, HAROLD J. ALLEN, JR. and LAWRENCE ALLEN, because I have already made provisions for them."

13. Harold, Sr. and Ethel each executed a will, and Harold, Sr. and Ethel both executed a trust, all dated May 1, 1992. Ethel also executed a power of attorney that day. The wills, trust, and power of attorney were prepared by attorney Paul Maloy. The wills provided that they each left their estate to the other spouse, and, in the event that the spouse predeceased them, to the trust. Each will had the following provision: "Insofar as I have failed to provide in this will for any of my issue whether born before or after my death, such failure is intentional and not occasioned by accident or mistake."

14. The trust provided that upon the death of Harold, Sr. and Ethel, $100,000.00 each would be paid to their daughters, Ethel Mikowlski, Nancy Oldro, and Deborah Allen. The residue of the trust property would be paid in equal shares to Ethel Mikowlski, Nancy Oldro, Deborah Allen, and Sandra Madigan.

15. In 1993, Harold, Sr. and Ethel had new wills prepared by another attorney, and asked Mr. Maloy to return their wills, health care proxies, and powers of attorney.

16. In his June 4, 1993 will, Harold, Sr. left his estate to Ethel and, in the event she predeceased him, bequests of $100,000 each to Ethel Mikowlski, Nancy Oldro, and Deborah Allen. The residue of the estate was left to Ethel Mikowlski, Nancy Oldro, Deborah Allen, and Sandra Madigan. The will specifically provided:

I have intentionally and not as the result of any accident or mistake, omitted to provide in this will for my sons, LARRY ALLEN and HAROLD J. ALLEN, JR., and the issue of either son, not for lack of love or affection, but rather because they have been provided for by gifts which were made to them during my life.

17. Harold, Sr. and Ethel also wrote a letter dated June 4, 1993. In the letter, they stated:

To Our Children and To the Executors of Our Estates:

We have specifically not provided for our sons, Larry and Harry, under our wills for the reasons discussed below. Larry and Harry were given a 2/3 interest in Sherwood Oil Company in 1987. Sherwood Oil was our business and was the most substantial asset in our estate. It is our opinion that the value of this gift to our sons was substantial, and we do not feel that our sons are entitled to any more of our estate.

Upon the death of the survivor of us, we have given $100,000 each to our three daughters, Deborah, Nancy and Ethel. We have given the balance of our assets equally to our daughters, Deborah, Nancy, Ethel and Sandra. The reason Sandra does not receive a $100,000 bequest is that she was the beneficiary of distributions that were made from Sherwood Oil Company to her husband which, Sandra has estimated, had a net value of $100,000.

We would ask our executors to vigorously contest any action brought by either of our sons to claim an inheritance from either of our estates. We would also ask the Probate Judge reviewing either of our estates not to allow any such action, in light of our stated purpose in this letter.

18. In 1995, Attorney Harriet Onello prepared a will on behalf of Ethel Allen. In this will, dated July 26, 1995, Ethel left bequests of $100,000 each to Deborah Allen, Nancy Oldro, and Ethel Mikowlski, with the residue of the estate passing in equal shares to Deborah, Nancy, Ethel, and Sandra Madigan. The will further provided:

I have intentionally and not as the result of any accident or mistake, omitted to provide in this Will for my Husband, HAROLD J. ALLEN and for my sons, LARRY ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for lack of love or affection, but rather because my Husband has otherwise been provided for and because my sons have been provided for by gifts which my Husband and I made to them during our life.

19. On the same day that the will was prepared, July 26, 1995, Harold, Sr. and Ethel executed a deed conveying the Property to Ethel. Attorney Onello forwarded the deed to the Registry for recording on July 27, 1995.

20. On October 19, 1995, Ethel executed a power of attorney naming Deborah Allen her agent and attorney in fact, with Ethel Mikowlski as successor

21. Harold Allen, Sr. passed away on September 28, 1996.

22. On June 22, 2000, Ethel Mikowlski was killed in an automobile accident. On October 12, 2000, Ethel Allen executed a new will, prepared by Attorney Onello. In this will, Ethel left bequests of $125,000 each to Deborah Allen and Nancy Oldro, $40,000 to Ethel Mikowlski's husband Walter Mikowlski, Sr., and $20,000 each to Ethel Mikowlski's children, Walter Mikowlski, Jr., Karen McCord, and Julia Gamache (nee Mikowlski). The residue of the estate was to pass in equal shares to Deborah, Nancy, and Sandra Madigan. The will further provided:

I have intentionally and not as the result of any accident or mistake, made no specific provision for my sons, LARRY ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for lack of love or affection, but rather because my sons have been provided for by gifts which my late Husband and I made to them during our life.

23. In late April of 2001, Ethel began the process of moving to live with her daughter, Nancy Oldro, in Nashua, New Hampshire. There is substantial dispute as to the precise date when Ethel began living in New Hampshire full time. Both Deborah Allen and Nancy Oldro testified that Ethel was there full time in July of 2001. Sandra Madigan testified that it was not until November that Ethel resided full time in New Hampshire. On balance, the testimony convinces me that Ethel moved to New Hampshire during the spring months, and was fully moved in by mid-July of 2001. Specifically, I credit the testimony that Ethel first went to New Hampshire in the spring to be nearer to Walter Mikowlski during his final days (he died on May 13, 2001). I also credit the testimony that Ethel's bed finally was moved to Nashua in July of 2001, and after that, Nashua was her principal abode.

24. While Ethel Allen was living in New Hampshire, Deborah Allen and Nancy Oldro brought Ethel to Attorney Hariett Onello, to put in place more estate planning. Ethel established the Allen Realty Trust, by a declaration of trust dated November 30, 2001 and recorded in the Registry at Book 34789, Page 195 on February 8, 2002. Deborah Allen is the trustee of the Allen Realty Trust. Ethel executed a deed ("Trust Deed") to the Ethel M. Allen and Deborah Allen, as Trustees of the Allen Realty Trust, dated November 30, 2001 and recorded in the Registry at Book 34789, Page 202 on February 8, 2002. The Trust Deed reserved a life estate to Ethel, and she also executed a Declaration of Homestead dated November 30, 2001 and recorded in the Registry at Book 34789, Page 204 on February 8, 2002. These conveyances were prepared on Ethel's behalf by Attorney Onello as part of an estate plan for Medicaid planning purposes. Ethel and Deborah Allen were present at Attorney Onello's office for the execution of these documents.

25. At the same time, Ethel and Deborah Allen executed a Designation of Beneficiary of the Allen Realty Trust, dated November 30, 2001. The Designation of Beneficiary provides that upon Ethel's death, the Property will be sold, and the Trustee shall pay out of the proceeds of the sale $125,000 each to Deborah and Nancy Oldro, and $20,000 each to Walter Mikowlski, Jr., Karen McCord, and Julia Gamache. The remaining proceeds will be distributed in onethird shares to Deborah and her partner, Nancy Oldro and her husband, and Sandra Madigan and her husband.

26. On January 6, 2004, Ethel Allen executed a new will, prepared by Attorney Onello. In this will, Ethel left bequests of $125,000 each to Deborah Allen and Nancy Oldro, and $20,000 each to Ethel Mikowlski's children, Walter Mikowlski, Jr., Karen McCord, and Julia Gamache. The residue of the estate was to pass in equal shares to Deborah, Nancy and her husband, and Sandra Madigan and her husband. The will further provided:

I have intentionally and not as the result of any accident or mistake, made no specific provision for my sons, LARRY ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for lack of love or affection, but rather because my sons have been provided for by gifts which my late Husband and I made to them during our life.

27. That same date, Ethel executed a health care proxy, naming Deborah Allen as her health care agent and Nancy Oldro as the alternate agent.

28. On February 28, 2008, Ethel Allen executed a new will, prepared by Attorney Onello. In this will, Ethel left bequests of $125,000 each to Deborah Allen and Nancy Oldro, and $5,000 each to Ethel Mikowlski's children, Walter Mikowlski, Jr., Karen McCord, and Julia Gamache. The residue of the estate was to pass in equal shares to Deborah, Nancy and her husband, and Sandra Madigan and her husband. The will further provided:

I have intentionally and not as the result of any accident or mistake, made no specific provision for my sons, LARRY ALLEN and HAROLD J. ALLEN, Jr., and their issue, not for lack of love or affection, but rather because my sons have been provided for by my late Husband and myself.

29. On January 4, 2010, Harold, Jr. informed Deborah Allen that Ethel had executed a deed in July 2001 conveying the Property to Ethel and him as joint tenants. Harold, Jr. never disclosed to his siblings the existence of this deed until this time, after their mother's death. Ethel never mentioned this deed to her daughters Deborah, Nancy, or Sandra. The record of the Deed in the Registry was never discovered by attorney Onello during her estate planning. I find that neither Deborah Allen, Nancy Oldro, nor Attorney Onello had actual knowledge of the July 2001 Deed prior to January of 2010.

C. Forensic analysis of the July 23, 2001 deed.

30. Three expert witnesses gave opinion testimony on the topic of handwriting analysis and document examination: Dennis J. Ryan, engaged by the plaintiff, and Alan Robillard and Gerald Richards, who testified for the defendant.

31. In the parlance of forensic handwriting analysis, the questioned signature is referred to as "Q1." Here, the Q1 is the signature on the July 23, 2001 Deed. Examples of signatures that are known to be made by Ethel Allen are denominated with the prefix "K."

32. The Q1 signature was naturally prepared, that is, it was executed by hand. There are several indications in the Q1 that it was created quickly, as one would expect with a signature, and was not a labored drawing, or a tracing. Variations in pen pressure also support this conclusion.

33. The Q1 was created with a ballpoint pen. Several so-called "goop marks" - created when a build up of ink and paper fibers from a ball point pen are deposited on the page - are present in the Q1. Several of the known signatures also contain goop marks in the same general area as the Q1, another indication of genuineness.

34. Mr. Ryan found several "significant dissimilarities" or "significant differences" between known examples of Ethel Allen's signature and the questioned signature, Q1, on the July 23, 2001 Deed, causing Mr. Ryan to conclude that Ethel Allen "probably did not" create the Q1 signature on the disputed deed. The conclusion of "probably did not" is a term of art, its meaning described in the American Society of Testing and Materials ("ASTM") standards as "the evidence points rather strongly against the questioned and known writing having been written by the same individual, but as in the probably range, the evidence is not quite up to the virtually certain range."

35. To begin, there are many similarities between the Q1 and known examples of Ethel Allen's signature. The "t," "h," and "e" in the word Ethel are very consistent with known signatures. Aspects of the capital "M" in the Q1 are consistent with the known samples: the arches of the "M" are pointed and form a "V" in the middle, and the "V" does not descend to the baseline, features which are consistent with known signatures. The final "l-e-n" in the word Allen is highly consistent with the known examples. The relative height of the two l's in Allen in the Q1, the first being shorter than the second, is found in almost all of the known examples analyzed.

36. The initial capital "E" in "Ethel" in the Q1 at first appears totally wrong. Instead of a tall epsilon shape, it more resembles the numeral 6. Totally missing is the middle loop, which is present on virtually all of the known samples. The initial capital "E" is so different, in fact, that one might wonder how a forger could possibly be satisfied with it. Without more, this would appear to be a significant difference; however, there is one known sample with a very similar capital "E" and that is K1-17.

37. The initial capital "E" in the K1-17 is very similar to the same character in the Q1, most notably because of the lack of an obvious middle loop. Mr. Ryan found a suspicious pen lift in the capital "E" in the Q1. Pen lifts are often " but certainly not always " a sign of forgery. The K1-17, however, also contains a mark in the same place as the pen lift in the "E" in the Q1 and this sheds some light on both the pen lift, and the missing middle loop. Rather than indicating forgery, the pen lift in the capital "E" in the Q1 indicates where the middle loop would have been. This is more clear in the capital "E" in the K1-17, where the pen mark could be seen as an attempted middle loop. Comparing the capital "E" in the K1-17 to two known examples of Ethel Allen's initials is also helpful. In example K1-28, the middle loop also appears as nothing more than a spot. Based on all of this, I conclude, as did Mr. Robillard and Mr. Richards, that the lack of the middle loop in the initial capital "E" in the Q1 is not a significant difference. Rather, it is a known variation, albeit a somewhat rare one.

38. Additionally, I find it difficult to believe that a forger would be satisfied with an initial capital letter in a signature with such a glaring irregularity. The counter argument, that a forward-thinking forger might intentionally introduce such an irregularity to obfuscate, is just not convincing.

39. The most troubling aspect of the Q1 is the added pen stroke in the first lowercase "l" in "Allen." There is no known example of a signature that contains an added pen stroke to correct or modify that character. Mr. Robillard identifies one example of what appears to be a clarifying stroke added to that character, but it appears in handwritten text, not in a signature, and I am not convinced this is an adequate explanation. It appears the corrective mark was added to fix a lowercase "l" that had an insufficiently open upper loop; however, there are several known examples of Ethel Allen's signature where the upper loop in the first lowercase "l" is not open, for example, K1-7, and K1-9.

40. To his credit, Mr. Ryan admits that the signature may be genuine, although he opines that probably it is not. To reach a conclusion of "identity," as Messrs. Robillard and Richards did, there must be no significant differences between the questioned signature and the known samples. Based on all the evidence, I conclude that at least one significant difference exists between the Q1 and the known samples, and that Messrs. Robillard and Richards were overly confident in reaching their conclusion of "identity." No thoroughly satisfying explanation exists, in the evidence before me, to show why the corrective stroke on the lowercase "l" is there. However, in light of all the other evidence that points towards genuineness, this one unexplained difference is not enough to prove to the degree required that the signature is not genuine.

41. I am convinced, and so find as a fact, that Ethel M. Allen signed her name to the July 23, 2001 Deed. It was not a forgery.

D. The execution of the July 23, 2001 Deed.

42. Attorney Paul Maloy first did work for Harold Allen, Sr. in 1986. Until 1993, the wills and trusts in the Allen family estate plan were prepared by Maloy.

43. Exhibit 21 is a handwritten letter from Ethel Allen to Paul Maloy dated August 2, 1993. The letter informs Attorney Maloy that Harold Sr. and Ethel Allen had new wills made. The letter goes on to state, "I am sorry about that, however we were having family problems and thought it was the best thing to do." Finally, the letter requests that Attorney Maloy return all signed original copies of "the will"; all health care proxies; and all "power(s) of attorneys."

44. Attorney Maloy performed little if any work for Harold Allen, Sr. or Ethel Allen between 1993 and 2001, but continued to have a social relationship with the Allen family. As recently as 2009, Attorney Maloy was a joint venturer with Harold, Jr. in some real estate purchases in Arlington, Massachusetts, and participated with him in a conversion of a two-family home to condominium status.

45. Attorney Maloy prepared the 2000 and 2001 tax returns for Ethel Allen.

46. Sometime in July of 2001, Attorney Maloy received a handwritten note, which was written by Ethel Allen (Exhibit 36). Attached to the note was a copy of a discharged mortgage of the Property. The note reads in its entirety:

Dear Paul,

Please add Harry as a joint tenant of my house at 257 Marrett Road Lexington, Ma 02421. A copy of the deed is enclosed.

Thank you

Ethel M. Allen

47. The note is not dated, the original was on a half-sheet of white lined paper. Exhibit 36 is a copy because the original has been lost. Attorney Maloy claims to have received the note at the Arlmont Fuel offices in Arlington.

48. After receiving the note, Attorney Maloy went to the Registry to obtain a copy of the deed. While there, he noticed there had not been a release of an estate tax lien recorded following the death of Harold, Sr. Attorney Maloy prepared a Massachusetts estate tax return to file with the Department of Revenue (Exhibit 2). The tax return is signed by Ethel Allen and dated July 19, 2001. Attorney Maloy testified the signing took place at Arlmont Fuel.

49. Attorney Maloy prepared the deed that is Exhibit 1. He testified that Ethel Allen signed the deed at Arlmont Fuel. The deed is dated July 23, 2001, although Attorney Maloy testified he had no specific recollection of Mrs. Allen signing the deed on July 23, 2001.

50. After waiting for the estate tax lien release to come back from the Department of Revenue, Attorney Maloy had the Deed recorded at the Registry on August 10, 2001.

51. Attorney Maloy testified that Harold Allen, Jr. was not present when Ethel signed the Deed, and that Attorney Maloy did not inform Harold, Jr. of the Deed, if at all, until after it was executed.

52. On Saturday, July 21, 2001, Julia Gamache moved into her late parents' house in Londonderry, New Hampshire, with her fiancé, James Gamache. This was an emotional event for Julia's entire extended family. Helping her move in that day were her sister, Karen McCord, her aunt, Deborah Allen, her uncle, Harold Allen, Jr., and other friends. Ethel Allen came to the house that day with Nancy Oldro and her husband and children. After spending several hours at the house, Ethel went back to Nancy's Nashua house with Nancy and her family, where Ethel was residing at the time.

53. To the extent that Sandra Madigan testified that Ethel Allen arrived at the Londonderry home with Harold, Jr. and Nancy Allen, and that Ethel Allen left Londonderry and returned to Massachusetts that night, I do not credit this testimony.

54. The following day, Sunday, July 22, 2001, the family celebrated the wedding shower for Julia Gamache, organized by her sister, Karen McCord. It was held at the Charles River Yacht Club in Cambridge, Massachusetts. Nancy Oldro drove Ethel to the shower, where they were observed walking in by Karen McCord and Deborah Allen. They made no stops on the way to Cambridge. At the end of the shower, Nancy Oldro drove Ethel back to their home in Nashua, again making no stops on the way. Deborah Allen, Julia Gamache and Karen McCord helped Ethel into the car. Ethel spent the night at Nancy's house. Nancy and Ethel brought some of Julia's shower presents home with them, and before they left the shower, they arranged to come to Julia's house the next day to deliver the presents and help her unpack.

55. Although there is substantial factual disagreement over how Ethel Allen came to be in Cambridge for the wedding shower, and to where she departed, I ultimately conclude she traveled to and from the shower with Nancy Oldro, because Ethel was residing in the Oldro home at that time. I credit the testimony of Deborah Allen that Ethel "walked in with Nancy [Oldro]." I find that Deborah helped get Ethel into Nancy Oldro's car after the shower, and watched Oldro's vehicle drive off. Frances M. Halloran, Harold Allen, Jr.'s mother-in-law, testified that she arrived at Julia Gamache's wedding shower with her daughter, Nancy Allen, Harold, Jr., and Ethel Allen. Mrs. Halloran's testimony was that Harold, Jr. picked her up at her home in Arlington, then they drove to 257 Marrett Road and picked up Ethel Allen. [Note 3] I do not credit Mrs. Halloran's testimony on this point.

56. The following day, Monday, July 23, 2001, is the date the Deed allegedly was signed. On this day, Nancy Oldro brought Ethel Allen back to Julia Gamache's house, along with her two sons. Karen McCord was at the house as well. Nancy and Ethel arrived around 11:00 A.M., and stayed until 3:00 P.M. or 4:00 P.M. When they left, they went directly back to Nancy's house in Nashua where they spent the night.

57. Nobody testified that they saw Ethel Allen in Massachusetts on Monday, July 23, 2001. Nobody testified that they drove Ethel Allen from Nashua, New Hampshire to Arlington, Massachusetts on that day. Importantly, at this point in her life, Ethel Allen did not drive, and nobody testified they drove Ethel Allen from Marrett Road to Arlmont Fuel, or to Attorney Maloy's office that day. To the contrary, Nancy Oldro, Karen McCord, and Julia Gamache all testified that they were with Ethel Allen in New Hampshire on that Monday.

58. While the analysis of the handwriting convinces me that Ethel Allen's signature on the July 23, 2001 Deed is authentic, I am convinced that she did not sign the Deed in the presence of Attorney Maloy on July 23, 2001. Attorney Maloy's testimony admits the possibility that the Deed was not signed in front of him, and that the Deed was not signed on July 23, 2001, despite its date and certificate of acknowledgment. Attorney Maloy had a long time personal and business relationship with Harold, Jr. I am convinced and find that Ethel signed the Deed in front of Harold, Jr., without Attorney Maloy being present, and Harold, Jr. brought the signed Deed to his attorney, represented that Ethel had signed the Deed, and asked for Attorney Maloy to notarize the acknowledgment, which he then did. I find that the certificate of acknowledgment, which recites that Ethel appeared personally before Attorney Maloy in his capacity as notary public, and that she acknowledged in his presence the Deed as her free act, was inaccurate. She did not appear personally before him at any time to acknowledge the Deed, and the certifications on this point are false.

IV. DISCUSSION

"A deed will not be declared void if by any reasonable rule it can be upheld." 3 American Law of Property § 12.38 (A. James Casner, ed., 1952). A "notary's certificate is proof presumptively of a valid acknowledgment." Hale v. Hale, 332 Mass. 329 , 333 (1955). "[T]he requirement of an acknowledgment of due execution on the deed goes only to its recording.... Failure to record a deed does not affect its validity as among the parties to it." Collins v. Huculak, 57 Mass. App. Ct. 387 , 390 n. 6 (2003) (internal citations omitted). "The principal function of an acknowledgment is that it is required for the recording of a deed, and furnishes formal proof of the authenticity of the execution of the instrument when presented for recording.... In ordinary circumstances, title to real estate may be transferred by a deed which has not been acknowledged, and such deed is good against the grantor and his heirs and those having actual notice." Gordon v. Gordon, 80 Mass. App. Ct. 860 , 862-63 (1979) (internal citations omitted). This is to say: "A conveyance of an estate in fee simple... shall not be valid as against any person, except the grantor..., his heirs and devisees and persons having actual notice of it, unless it..., is recorded in the registry of deeds for the county or district in which the land to which it relates lies." G.L. c. 183, § 4. When an "instrument of defeasance, not being acknowledged" is "improvidently admitted to registration" then "the record does not operate as constructive notice" of the conveyance. Graves v. Graves, 72 Mass. 391 , 392-93 (1856). [Note 4]

"The actual notice of [G.L. c. 183, § 4] has been construed with considerable strictness. Knowledge of facts which would ordinarily put a party upon inquiry is not enough." Id. (citing McCarthy v. Lane, 301 Mass. 125 , 128 (1938)). Harold Allen, Jr., the party relying on the 2001 Deed, which I have found was not acknowledged, bears the burden of proving actual notice. See Tramontozzi v. D'Amicis, 344 Mass. 514 , 517 (1962); see also McCarthy, 301 Mass. at 128 ("Actual notice is a question of fact. There is nothing in the record which compelled the judge to find that the petitioner had actual notice of an earlier deed").

I am not aware of any Massachusetts appellate decision which holds that a latent defect in the acknowledgment of an instrument, which goes to record despite the defective acknowledgment, renders the recorded deed incapable of providing constructive notice to a subsequent purchaser for value. [Note 5] The Bankruptcy Court and the United States District Court for the District of Massachusetts both recently held that the omission of the grantor's name on the acknowledgment form was a material patent defect which, despite the recording of the instrument (in that case, a mortgage), rendered the instrument incapable of providing constructive notice to a subsequent purchaser for value. See Agin v. Mortgage Electronic Registration Systems, Inc., (In re Giroux), No. 08-14708-JNF, Adv. P. No. 08-1261, 2009 WL 1458173 at *10 (Bankr. D. Mass. May 21, 2009), aff'd No. 09-CV-10988-PBS, 2009 WL 3834002 (D. Mass. Nov. 17, 2009). Both decisions rely heavily on the 1946 decision of the Supreme Judicial Court in McOuatt v. McOuatt, 320 Mass. 410 (1946). [Note 6] In McOuatt, the court held: where the grantor of a deed signed the deed in the presence of a notary, but did not specifically speak any words to "acknowledge" that the execution was his free act and deed, that "[t]he only conclusion that can be reached from [that evidence] is that the deed was not duly acknowledged.[.]" 320 Mass. 415 . In McOuatt, the court did not reach the question whether a deed with that kind of latent defect would be able to impart constructive notice, because in that case, the deed was determined to be void on other grounds. [Note 7]

The circumstances in the instant case are much like those in McOuatt. In McOuatt, the acknowledgment was held defective despite it being uncontested that the grantor did in fact sign the deed. 320 Mass. 412 -13. Here, Ethel Allen signed the Deed, but the acknowledgment is more than defective - she never acknowledged the Deed in any fashion. She did not indicate to the notary that the execution was her free act and deed, at any time after she executed it. She did not sign in his presence, and did not acknowledge the Deed later. Here, as in McOuatt, the defects in the acknowledgments were latent. That is, in each the deed appeared regular on its face, and in both cases, the deeds were in fact recorded. Id. at 411. So, in this case, I am presented with the question not answered in McOuatt, and not presented in In re Giroux, namely, whether such a deed - improvidently recorded with a latent defect concerning its acknowledgment - is capable of providing constructive notice. [Note 8] I conclude that on the facts I have found, the Deed does not provide constructive notice.

The consequence of an improvidently recorded instrument is that it cannot impart constructive notice, even if the defect is not apparent on the face of the instrument. To hold otherwise is to write into the law a duty of inquiry that does not exist. The mortgage in In re Giroux did not provide constructive notice because the acknowledgment itself was determined to be defective. 2009 WL 1458173 at *9. The acknowledgment's defect was that "[t]he notary was required to obtain satisfactory evidence of the [grantor's] identity and to ascertain that his signature on the mortgage was voluntarily affixed" and that "[t]he acknowledgment, because of its patent defect, cannot permit that inference." 2009 WL 1458173 at *9. In other words, that the omission of the grantee's name on the instrument was patent allowed the court to determine that the acknowledgment itself was defective. See id. Here, I have determined the acknowledgment is defective after considering evidence at trial. Whether the defect in the acknowledgment was latent or patent does not change the analysis with regards to constructive notice. The difference between a latent and a patent defect is only meaningful to someone who does, in fact, possess actual knowledge of the instrument. Actual notice of the July 23, 2001 Deed was required for it to be effective against the Trustees, who were subsequent grantees of the Property. [Note 9] G.L. c. 183, § 4. It is not sufficient that the July 23, 2001 Deed was in fact properly indexed in the registry of deeds, and as recorded, appeared on its face regular. The deed, not in fact having been acknowledged in any fashion, was not "entitled to record," and so imparted no constructive notice to the Trustees. To hold otherwise would reward a grantee, paying nominal consideration, who puts on record a deed purportedly acknowledged, but which in truth was not.

The result is that the Trustees' title to 257 Marrett Road is superior to Harold, Jr.'s title. Harold Allen, Jr. has not proved that the Trustees had actual knowledge of the July 23, 2001 Deed when they were granted the same property from Ethel Allen. This is not a situation where the Trustees would have been on inquiry notice, even if that doctrine did apply. There was no off-record reference to the July 23, 2001 Deed, or anything suspicious that would have led the Trustees to believe title to the Marrett Road Property was anywhere but in Ethel Allen. I draw the inference that Harold, Jr. knew of the conveyance, but he did not inform his sisters of this fact for almost ten years. He did this deliberately, withholding disclosure of the Deed from his siblings, waiting for the passage of time and the demise of their mother. Had they been aware of the Deed during Ethel's lifetime, the siblings could have addressed with her the instrument and its consequences. By waiting until she had passed away, and only then springing the news of the Deed, Harold, Jr. intended to exploit his conscious concealment of the Deed.

There is no unfairness in the result I reach. Here, the grantor, Ethel Allen, should have known that she did not acknowledge the 2001 Deed to Attorney Maloy because she did not sign it in his presence and never thereafter made any acknowledgment to him. Harold, Jr. owns the consequences of the bad acknowledgment as grantee under the Deed because, I find, it was Harold, Jr. or his agent who arranged for the unjustified "notarization" by Attorney Maloy. Harold, Jr. withheld from his sisters knowledge of the Deed, stymying their ability to address its existence at a meaningful time. The Deed to Harold, Jr. was in direct contradiction to the otherwise long and unwavering treatment of the Property by both Ethel and Harold, Sr.; all the other deeds and documents consistently gainsaid any intention to give any interest in the house to Harold, Jr. He remained silent deliberately, while the rest of the family - including Ethel Allen - went on with their estate planning as if the Property never had been conveyed to Harold, Jr.

Judgment will enter in this case declaring that title to the Property stands in the current Trustees by virtue of the November 2001 Trustee Deed.

Judgment accordingly.