Petition for Writ of Certiorari — Hunter v. Porter
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Supreme Court, U.S.
(i) FILED
04-483 SEP 2 8 2004
IN THE
Supreme Court of the United States
NOREEN JUDITH HUNTER, PETITIONER
Vv.
NONA PORTER, ADMINISTRATRIX OF THE ESTATE OF
JOSEPH 8S. HUNTER
PETITION FOR A WRIT OF CERTIORARI
TO THE APPEALS COURT FOR THE
COMMONWEALTH OF MASSACHUSETTS
PETITION FOR A WRIT OF CERTIORARI
Noreen Judith Hunter
137 Nahant Street
Lynn, Massachusetts 01902
(781) 842-3468
——————————
CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM
i
QUESTIONS PRESENTED
1. Is it consistent with due process for the State
court to dismiss with prejudice and without a trial as
time-barred the plaintiffs civil action for declaratory
relief filed prior to her putative father’s estate being
settled, seeking adjudication that she is an out of
wedlock child with a right to inherit from her putative
father’s estate? .
z.. Does it square with fundamental fairness to deny
the plaintiff the right to a trial on the merits of her
claim by denying her equitable tolling of the one year
limitation in M.G.L. c. 197 s. 9 since the Legislature's
standard in passing the M.G.L. c. 190 s. 7 was too strict
and when the plaintiff was already asserting her right
to inherit in earlier litigation which case did not become
final for over a year after her putative father’s death?
3. Does the treatment of this plaintiff deny her
rights under the Massachusetts Constitution and the
Fourteenth Amendment, by providing unequal
treatment of illegitimate children and _ favoring
legitimate children.
il
TABLE OF CONTENTS
QUESTIONS PRESENTED......cccsssscscsecscsssescsssececssserseeneccssssscssossesees i
PARTIEG TO THE PROCTRIM I scssscscsisesiisiescssiiniiasscantemsennennnannni iii
TABLE OF CONTENT G cvscccsnicsrcesniscisssesnsinetansnnctesinsnsmenninanennn iv
TABLE OF A. UTRIORITUIG cccicicnccissccsntrsnnesannessnsascnceninnnnesionecness Vv
OPINIONS BELOW ccsscessssssscssssnntivossnannnsesapsanentinatashsesensummnmannenanness 1
JURIBIICTION, ocsaciissarocosiinnadnsnianenstainanasdnandennaneiecsaliiemianmadaimmaiaaenth 1
RELEVANT PROVISIONS INVOLVED .........sscssssssssssssescseseeseseeeees 1
STATEMENT snccinsiscainiisnicsnsuttaninshsnhaniininiiaaneamnanaannaaaant 3
REASONS FOR GRANTING THE PETITION ....0.......cccsssssssseseeseenesees 11
CONCLUSION osccsossnnscinssisnissisiissdasicanichaitalsaheaianbiihaiianindaadnaiaianaiicae 22
APPENDIX
APPEALS COURT DECIGION cssccinsisesscrscssscsesemnsenvensonsscoontecne la
APPEALS COURT DECISION .......ssssscccscescnssccessosscscscocsossce 12a
NORFOLK PROBATE & FAMILY COURT JUDGMENT....47a
SIC FAR DENIAL. ..ccccccscsscssescscsascessescsccenssesesccnecessonsssosesess 48a
ill
TABLE OF AUTHORITIES
BLIXT V. BLIXT, 437 MASS. 649 (2002), CERT. DEN., 537 U.S.
RIES Nena eR 22
CHRISTO V. EDWARD G. BOYLE INS. AGENCY, 402 MASS. 815
RSE SEE eo nee et eT ee OR 17
COMMONWEALTH V. CHASE, 385 MASS. 461 (1982).............. 15
COMMONWEALTH V. GRUTTNER, 385 MASS. 474 (1982)....... 14
FLYNN V. CONNORS, 39 MASS. APP. CT. 365 (1995)........ 16,17
G.L.C. 209C, DEPARTMENT OF REVENUE V. ROE, 29 MASS.
I a alah ince tahini 16,17
Re Wg i, GI 00 ci, Ot cscnccecsescesnenescecnenensnsonantenesscenniann 19
GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH, 440
nan En 22
HOUGHTON V DICKINSON, 196 MASS. 389 (1907) .................. 13 _
LOWELL V. KOWALSKI, 380 MASS. 663, 670 (1980) .....11, 12, 22
LYONS V. LABOR RELATIONS COMMISSION, 19 MASS. APP.
EE ED yee Ea ee OC 15
MACKEEN V. KASINSKAS, 333 MASS. 695 (1956) ................... 17
Se , ssesaeeeseiosoinieacen 6
MATHEWS V. LUCAS, 427 U.S. 495, 506 ...........ccccccceseee 18, 21, 22
MCLEARN V. HILL, 476 MASS. 519 (1931)...........cccccccscsscesseees 17
MILLS V. HABLUETZEL, 456 U.S. 91 (1982)................ 15, 18, 21
NOREEN JUDITH HUNTER VS. NONA PORTER
ADMINISTRATRIX OF THE ESTATE OF JOSEPH S. HUNTER,
sa a cceuniieuneiinaninanabes 1
PAQUETTE V. KOSCOTAS, 12 MASS. APP. CT. 52 (JUNE 10,
ISERIES Re ae ee a Re 13
POWERS V. WILKINSON, 399 MASS. 650 (1987) .........cccececeseee- 16
REED V. CAMPBELL 477 U.S. 852 (1986)........ccccccccosecssesecseseee 19
SHAFNACKER V. RAYMOND JAMES & ASSOC., 425 MASS. 724
alt cipieiaeaibbdasbiiaabiiaadaes 17
SULLIVAN V. FARRELL, 383 MASS. 119 (DECEMBER 3, 1980)
Ssaaisiielashseieieebeasaelcaicnaieeiedinithbintainbindintnaindiieninaiibebbentlbiaaas 13
TELESETSKY V. WIGHT, 395 MASS. 868 ........cccccccececececesesoeseees 16
TRIMBLE V. GORDON, 430 U.S. 762 (1977)..........ccc.ccccccceeee 17, 21
iv
WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164,
STD... scanineniuinenneisnsiannbessnnaannmenmnnaninanannsennssnnnenassnta 18, 20, 21
1
OPINIONS BELOW
The published decision and judgment of the
Massachusetts Appeals Court in Noreen Judith Hunter
vs. Nona Porter Administratrix of the Estate of Joseph
S. Hunter, 57 Mass. App. Ct. 233 (2003), affirming the
motion judge of the Probate and Family Court
Department, is set forth in the Appendix hereto (App.
1-11).
The published decision and judgment of the
Massachusetts Appeals Court in Kathleen C. Keville,
temporary guardian v. Marian Bourne McKeever et al.,
42 Mass. App. Ct. (1997) affirming the trial judge of the
Probate and Family Court, is set forth in the Appendix
hereto (App.11-46).
The order of the Supreme Judicial Court of
Massachusetts in Noreen Judith Hunter v. Nona
Porter, Administratrix of the Estate of Joseph S.
Hunter, Mass. (6/30/04), denying the Plaintiff-
appellant’s Application For Further Appellate Review,
is set forth in the Appendix hereto (App.47).
The unpublished Order of the Norfolk Division of
the Probate and Family Court Department of
Massachusetts (Smoot, J.) in Noreen Judith McKeever
Hunter v. Nona Hunter Porter, Norfolk Probate
Docket No. 97E0118(2/20/99), is set forth in the
Appendix hereto (App.48).
JURISDICTION
The order of the Supreme Judicial Court of
Massachusetts, the state court of last resort having
jurisdiction to review the decisions of all inferior state
courts, refusing to allow further appellate review of the
2
Appeals Court’s affirmance of the Probate and Family
Court’s decision, was entered on June 30, 2004.
(App.47).
RELEVANT PROVISIONS INVOLVED
United States Constitution, Amendment XIV,
Section 1:
... No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any state
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the law.
Massachusetts General Law Chapter 190 Section 7
.. A person may establish paternity, if within
the period provided under Section 9 of Chapter
One Hundred Ninety Seven for bringing actions
against executors and administrators, such
person either (a) delivers to the executor or
administrator an authenticated copy of a
judgment rendered by a court of competent
jurisdiction during the decedent’s lifetime
adjudging the decedent to be the father of the
person born out of wedlock, or (b) commences, in
a court of competent jurisdiction, an action in
which the executor or administrator is a named
party and in which such paternity is ultimately
proved. -
Massachusetts General Law Chapter 197 Section 9
3
. an administrator shall not be held to answer
to an action by a creditor of the deceased unless
such action is commenced within one year after
the date of death of the deceased .. .
Massachusetts General Law Chapter 197 Section 13
.. A creditor of the deceased, whose right of
action shall not accrue within one year after the
dare of death of the deceased, may present his
claim to the probate court at any time before the
estate is fully administered; and _ if,upon
examination thereof, the court shall find that
such claim is or may become justly due from the
estate, it shall order the...
administrator to retain in his hands, sufficient
assets to satisfy the same. ...
STATEMENT
On December 11, 1997, Joseph S. Hunter’s
(“Joseph”) daughter Noreen Hunter (“Noreen”) filed a
’ Complaint for Declaratory Judgment along with the
Plaintiffs birth certificate in the Norfolk Probate
Court, which was served upon her half-sister, Nona
Porter (“Nona”), the Administratrix of the Estate of
Joseph S. Hunter on December 12, 1997, claiming her
rights as an illegitimate child to inherit from her father,
Joseph, who died intestate on April 27, 1996.
Noreen brougkt a Motion for a Speedy Trial on
July 3, 1998. A Pretrial Conference was held on
October 5, 1998. Both parties filed Pretrial
Memoranda. On November 23, 1998, the Porter filed a
Notice of Objection and a Motion to Dismiss for Failure
to Comply with M.G.L. c. 197 s. 9 and M.G.L. c. 190 s. 7.
On January 7, 1999, Noreen filed an Opposition to
4
Porter’s Motion to Dismiss for Failure to Comply with
M.G.L. c. 197 s. 9 and M.G.L. ¢. 190 s. 7 with Exhibits.
The Judgment on Motion to Dismiss was ordered on
January 19, 1999 and docketed on February 26, 1999.
On March 17, 1999, Noreen Hunter filed her Notice of
Appeal.
Joseph was born in 1905 and emigrated from
Lithuania to the United States in 1924. In 1928, he
married Edythe Hunter and subsequently had two
children, a daughter, the Respondent, Nona Porter, and
a son, Ronald Hunter (“Ron”), born in 1943.Over the
next sixty years, Joseph amassed substantial assets
including certain real property on Marlborough Street
and Harvard Avenue in Boston.
From the early 1950’s through 1987, Marian
McKeever (“Marian”) worked for Joseph as his
bookkeeper and secretary. In 1953, Marian moved into
Joseph’s Marlborough Street property and began
collecting rents there, keeping them for herself .
Marian claimed that beginning in the early 1950’s, she
and Joseph had a personal relationship and that their
relationship produced a daughter, the Petitioner,
Noreen Judith Hunter, born on December 9, 1955.
There was no formal adjudication of Joseph’s
paternity of Noreen at that time. However, Marian
often used the name Marian Hunter and in September
of 1980, shortly after Hunter formally acknowledged
Noreen as his daughter in an affidavit, Noreen changed
her name to Noreen Judith Hunter.
Sometime in 1982, after his wife had passed
away, Joseph moved into the Marlborough Street
property with Marian and from that time forward,
Marian was Joseph’s companion and_ personal
attendant. His behavior at this time was somewhat
erratic and it was eventually found that from August,
5
1982, Joseph was incapable of handling his own affairs.
In December of 1982, he executed a deed conveying a
joint interest in the Marlborough Street property to
Marian.
In December of 1990, Nona filed a petition for
conservatorship in the Probate and Family Court
Department alleging that Joseph had become
incapacitated by reason of mental weakness.
On May 24, 1991, Noreen filed a petition for
permanent guardianship and eventually Attorney
Kathleen Keville (“Keville”) was appointed temporary
guardian of Joseph’s person and estate. Shortly
thereafter, Keville filed a complaint seeking to set aside
Joseph’s two conveyances of his real estate to Marian
and Noreen in 1982 and 1990, respectively.
A dispute arose over Joseph’s assets between
Marian and Noreen (Joseph’s out of wedlock daughter)
on the one side and Nona Porter, Joseph’s other
daughter, on the opposing side. A lengthy trial ensued
and an amended judgment entered on January 24, 1994.
During the course of the proceedings, Marian
claimed that Noreen was Joseph’s daughter. However,
the trial judge expressly found that there was no
“credible evidence’ that Noreen was, in fact, Joseph’s
daughter and accordingly he made no adjudication of
Joseph’s paternity of Noreen. Besides other post-
judgment motions seeking to undo this judgment,
Marian again sought to have a paternity test conducted
to determine that Joseph was Noreen’s father. The
trial judge, however, refused to do so “without
prejudice to the filing of an appropriate action.”
Marian and Noreen appealed this judgment to the
Appeals court. On April 27, 1997, while this appeal by
Marian and Noreen from the judgment was still
Seg
6
awaiting a resolution by the Appeals Court, Joseph died
intestate.
On January 31, 1997, in Keville v. McKeever, (A1-
12), the Appeals Court affirmed the judgment. In so
ruling, the opinion of Judge Armstrong adverted to the
fact that Marian had alleged below that Joseph was
Noreen’s father, that the trial judge rejected that claim
because he found no “credible evidence” to support this
claim and that accordingly “there was (and has been) no
adjudication of paternity. . .”. The Supreme Judicial
Court denied further appellate review on March 28,
1997, 424 Mass. 1107. :
On May 16, 1997, Nona was appointed the
administratrix of Joseph’s estate and on December 11,
1997, before Joseph’s estate was settled, Noreen filed a
complaint against Nona as administratrix seeking a
declaratory judgment that she (Noreen) is the out of
wedlock daughter of Joseph and is therefore entitled to
a one-third share of his estate. She also sought a
speedy trial and a notice of lis pendens to prevent Nona
from selling any of the estate’s assets without
accounting to Noreen for her one-third share.
Nona subsequently moved to dismiss Noreen’s
complaint as time-barred under the provisions of G.L.c.
190, Section 7, and G.L.c. 197, Section 9(a), because
Noreen’s action was not begun within one year of
Joseph’s death. G.L. c. 190, Section 7, provides. inter
alia that
If a decedent has acknowledged paternity
of a person born out of wedlock or if
during his lifetime or after his death a
decedent has been adjudged to be the
father of a person born out of wedlock
that person is heir to his father and of any
person from whom his father might have
7
inherited, if living, and the decedents of a
person born out of wedlock shall
represent that person and take-by descent
any estate which such person would have
taken, if living. A person may establish
paternity if, within the period provided
under section nine of chapter one hundred
and ninety-seven for bringing actions
against executors and administrators,
such person either (a) delivers to the
executor or administrator an
authenticated copy of a judgment
rendered by a court of competent
jurisdiction during the decedent’s lifetime
adjudging the decedent to be the father of
a person born out of wedlock, or (b)
commences, in a court to competent
jurisdiction, an action in which the
executor or administrator is a named
party and in which such paternity is
ultimately proved.
(emphasis supplied). Further, Section 9(a) of G.L. c. 197
provides that “an executor or administrator shall not be
held to answer to an action by a creditor of the
deceased unless such action is commenced within one
year after the date of death of the decease .. .”
Noreen opposed the motion by adducing proof
that Joseph had on serial occasions during his life
expressly acknowledged his paternity of Noreen by
notarized affidavit, by statements to his attorneys and
in other litigation with Nona and Ron. Moreover,
Noreen adduced further evidence that Nona (and Ron)
had expressly acknowledged during discovery in a
8
related suit they had brought against Joseph that
Noreen was the out of wedlock daughter of Joseph.
Noreen further contended that the earlier
consolidated action of Keville v. Mckeever, (A.12-46)
contained a claim on her part that she was Joseph’s out
of wedlock daughter and that a paternity test upon
Joseph (who was then hospitalized) was mandated in
order to prove her claim, a paternity test which Nona
opposed. Besides finding no “credible evidence” to
support his claim, the Probate judge denied Noreen’s
serial motions to compel a paternity test of Joseph
“without prejudice to renewal after the filing of an
appropriate action.”
Noreen therefore argued that this Keville v.
McKeever suit, begun in 1991 and not actually
concluded until June of 1997, more than one year after
Joseph’s death, became by the circumstances of
Joseph’s intervening death, her repeated requests in
that suit for paternity testing and the Probate Judge’s
advice to renew such request after the filing of “an
appropriate action,” an integral first part of the “action”
which should have been “commence[d] in a court of
competent jurisdiction...in which the executor or
administrator is a named party and in which such
paternity is ultimately proved, “as required by G.L.c.
190, Section 7(b).
The second part of the “action,” Noreen claimed,
was this declaratory action she brought against Nona
on December 11, 1997, a reasonable time after the
Supreme Judicial Court had denied further appellate
review in Keville V. McKeever on March 28, 1997, and
considering the ninety days for bringing a petition for
certiorari to the United States Supreme Court (June ©
24, 1997), just 167 days after the matter of Keville v.
McKeever was finally concluded. As Noreen argued,
9
her present suit to establish Joseph’s paternity and to
qualify as his daughter for the purpose of his estate
distribution
is a continuation of the /[Keville v. Mckeever]
litigation . . .; that at the moment of Joseph[‘s]
death the litigation had not been finally
adjudicated (the Supreme Judicial Court decision
was rendered on March 28, 1997); that without
the Supreme Judicial Court decision the within
complaint could not have been brought and [she]
should have had a reasonable time thereafter in
which to file the within complaint (a 90-day
waiting period should also be calculated to
determine if the state court action would be
appealed to the United States Supreme Court);
that Judge Smoot contemplated maintaining
= jurisdiction of this ongoing and continuing
request to determine the paternity; that since
the /Keville v. McKeever] litigation was ongoing
at the moment of Joseph[‘] death, [Section}.(b) of
c. 190, Section 7 was immediately satisfied and
since there has been no final determination as
yet of the paternity issue, the outcome is yet to
be determined as to whether or not paternity is
ultimately proved.
The Probate and Family Court Department,
Smoot, J., allowed Nona’s motion to dismiss Noreen’s
complaint and upon Noreen’s appeal of that ruling, the
Appeals Court affirmed the decision on January 29,
2003, in a published opinion. Hunter v. Proter, (A.1-11).
Writing for the Court, Judge Duffly concluded that
where paternity was contested, and action such as
Noreen’s must be commenced within one year form the
date of the death of the deceased; and “{blecause
Se
10
Noreen’s complaint was filed nearly twenty months
after the date of Joseph’s death, it was properly
dismissed.” (A.6).
In reaching this result, the intermediate
appellate court treated Nona’s motion to dismiss as one
for summary judgment under Mass. R. Civ. P. 56 since
it appeared that the Probate Judge considered the
sixteen exhibits attached to Noreen’s opposition. (A.8).
In addition, the Court took notice of Noreen’s proof
that Joseph had already expressly acknowledged
Noreen as his daughter by affidavit in 1980, and
through communications with his attorneys thereafter.
(A.9). Moreover, the opinion made note of the fact that
Noreen had unsuccessfully attempted at various times
in the earlier Keville v. McKeever litigation to prove
Joseph’s paternity by tests and that her post-judgment
motion there for such relief was denied by the Probate
Judge “without prejudice to renewal after the filing of
an appropriate action.” (A.9). Finally, none of Noreen’s
evidence showing that Nona her self had admitted in
related litigation with Joseph that Noreen was in fact
his acknowledged daughter was referenced by the
Appeals Court’s decision.
While the Court agreed with Noreen that the
second sentence of G.L.c. 290, Section 7, providing that
an acknowledgment of paternity by the putative father
during lifetime that a person was his offspring would
obviate the need for commencing a separate action to
establish that fact, it disagreed with Noreen’s claim
that because Nona was on notice of Joseph’s serial
acknowledgments of paternity in Keville v McKeever,
this sentence’s requirements were met and that she
(Noreen) was therefore entitled, without more, to share
in Joseph’s estate. (A.11). Instead, the Court ruled that
where the issue of paternity is contested, “the
11
additional requirement set forth in c. 190, Section 7,
applicable to the circumstance, namely, commencement
of an action to establish paternity, must be satisfied.”
(A.4).
Citing Lowell v. Kowalski, 380 Mass. 663, 670
(1980), the Appeals Court further observed that
Joseph’s notarized statement attesting to his paternity
of Noreen, relied upon by Noreen in her opposition to
Nona’s motion to dismiss, “would, upon admission in
evidence and established to be the voluntary, knowing
statement of the decedent, support an adjudication of
paternity.” (A.10). However, because the issue of
paternity was contested, Noreen was bound under
G.L.c. 190, Section 7, either to deliver an adjudication of
paternity or to commence an action in a court of
competent jurisdiction against Nona within one year of
Joseph’s death. (A.10). Finally, the Appeals Court ruled
in a footnote that it rejected
Noreen’s claim, made without cita-
tion of authority, that the require-
ment of commencing an action within
one year was fulfilled upon the
filing of her petition for permanent
guardianship on May 24, 1991.
(A.11).
Noreen then filed an Application for Leave to Obtain
Further Appellate Review of this decision with the
Supreme Judicial Court of Massachusetts.
Following the Supreme Judicial Court’s denial of
Noreen’s application on June 30, 2004 (App.47), Noreen
now brings her petition in this Court seeking a writ of
certiorari to the Appeals Court of Massachusetts.
12
REASONS FOR GRANTING THE WRIT
Substantial Reasons Affecting the Public
Interest and An Emerging Consensus Among
the Lower Courts That Imposing The Short
One Year Limitation In The Treatment Of
Illegitimate Children Is A Violation of Due
Process Warrants the Granting of This
Petition.
In Lowell v. Kowalski, 380 Mass. 663 (May 14,
1980), the Supreme Judicial Court ruled that an
illegitimate daughter was entitled to inherit from her
intestate father where the father had openly
acknowledged paternity orally and in writing but had
never formally acknowledged the child nor been
adjudicated the father. The Lowell Court held, “We
accept a judicial adjudication of paternity as one
appropriate method of establishing inheritance rights.
If, however, judicial adjudication were the only
permitted method of establishing those rights, the
classifications would be unconstitutionally restrictive
because it would unnecessarily foreclose the rights of
illegitimates who could convincingly establish their
parentage. An option limited to an adjudication of _
paternity would deny, for example, rights to a child
whose natural father publicly and _ consistently
acknowledge his child and did so in writing, perhaps
even under oath.” In the case at bar, the Plaintiff
surely complied with the holdings of the Lowell Court.
On July 7, 1980, the legislature approved
amendments to G.L. c. 190 s. 6 and 7 by adding a
provision that acknowledgment or adjudication without
intermarriage is sufficient to make the illegitimate child
L&E
13
an heir of the father. The amendment also provided
that a person may establish paternity, if within the
period for creditors’ actions prescribed by G.L. ¢. 197 s.
9, the person either:
* delivers to the administrator an authenticated copy
of a judgment adjudicating the decedent during his
lifetime to be the father of an illegitimate person; or
* commences an action in which the administrator is a
named party and in which such paternity is
ultimately proved.
In Sullivan v. Farrell, 383 Mass. 119 (December
3, 1980), the Court, following Lowell and further
determined that, “Farrell’s illegitimate child was his
next of kin for the purpose of recovery under G.L. c. 229
Section 2...”
In Paquette _v. Koscotas, 12 Mass. App. Ct. 52
(June 10, 1981), the illegitimate child of a decedent who
had acknowledge the child as his during his lifetime,
although not in writing, was entitled to status of next of
kin and qualified for appointment of her father’s estate.
In Higgins v.Ripley, 16 Mass. App. Ct. 928 (1983)
it was held that in order for an illegitimate child to
inherit from its father by reason of acknowledgment of
paternity pursuant to G.L. c. 190, section 7, neither a
writing acknowledging paternity nor a stipulation of
paternity is necessary. This case was based upon an
interpretation of Houghton v Dickinson, 196 Mass. 389
(1907) which declared that, “...the subsequent
recognition of the child as his offspring by the father,
which recognition may be shown by conduct, as well as
by declarations. The Houghton Court held the
following concerning conduct: “...such recognition [(sic)
14
of parentage] may be shown by conduct as well as by
declarations..
..During their engagement, and under a promise of
marriage intercourse took place between the decedent
and the respondent's mother. If upon knowledge of her
pregnancy, at first he refused to perform his contract,
neither then, nor at birth, did he deny the paternity of
the child, but declared him to be his own, and consented
that he should be named after him.” :
As in the cases cited above, and argued before
the Probate Court on January 7, 1999, Noreen’s
deceased father during his lifetime had acknowledged
that he was her father, not only orally and in writing,
but also by his conduct. The cases cited above, both
before and after the 1980 amendment to M.G.L. c. 190 s.
7, support the facts in the case at hand.
It should be noted that the Court in
Commonwealth _v. Gruttner, 385 Mass. 474 (1982),
declared, “We conclude that no time bar blocks the
bringing of an action to adjudicate the paternity of an
illegitimate child.” The Court held that under M.G.L. c.
273 s. 15 and M.G.L. ¢c. 209C no statute of limitations
applies to an action for the adjudication of paternity.
The Court further stated, “On the rare occasions when
the question of a limit in time to the adjudication of
paternity has been before this Court, we have
consistently held that there is no statute of limitations
that applies...The fact remains that the passage of time
bears no logical relation to the question whether a man
is actually the father ofa child.” Equity dictates that
no statute of limitation should be enforced in the case at
hand.
There should be equitable tolling of the one year
limitation in M.G.L. c. 197 s. 9 because the Legislature's
15
standard in passing the M.G.L. c. 190 s. 7 was too strict
and denies the Plaintiff her rights under the
Massachusetts Constitution and the Fourteenth
Amendment of the US Constitution, by providing
unequal treatment of illegitimate children and favoring
legitimate children.
Because the Plaintiff and the Defendant were in
litigation from 1993 until as late as June 28, 1997, a
constructive tolling agreement of the “one year statute”
should have been effected since the running of the
statute would begin when the Plaintiff “learned or
reasonably should have known, of the harm caused by
the Defendant’s conduct.” See Williams v. Ely, 423
Mass. 467 (1996).
In Mills v. Habluetzel, 456 U.S. 91 (1982), where
a one year statute of limitations for establishing
paternity of an illegitimate child was challenged (and
found vulnerable), equal protection analysis focused on
two related requirements. First, the period for
obtaining support...to illegitimate children must be
sufficiently long in duration to present a reasonable
opportunity...to assert claims on their behalf. Second,
any time limitation placed on that opportunity must be
substantially related to the State’s interest in avoiding
the litigation of stale or fraudulent claims.” See Lyons
v. Labor Relations Commission, 19 Mass. App. Ct. 562
(1985).
It is now undisputed that “a father’s obligation
to support an illegitimate child commences at the time
he knows or should know that he is the father of the
child, or such time he is adjudicated the father under
G.L.c. 273, section 15...” Commonwealth v. Chase, 385
Mass. 461 (1982).
16
In Flynn _v. Connors, 39 Mass. App. Ct. 365
(1995), the Court wrote in footnote #10, “The statute of
limitations issue appears to be a_ particularly
problematic one. Although we have noted that ‘the six-
year statute of limitations, applicable under G.L. c. 273,
[is not] applicable to civil actions under G.L.c. 209C,
Department of Revenue v. Roe, 29 Mass. App. Ct. at
968, the limitations period that is applicable to such
actions (none appearing in c. 209C itself) has never been
directly adjudicated.
On September 18, 1985 the Supreme Court in
Telesetsky v. Wight, 395 Mass. 868 decided to grant a
constructive allowance of an extension of time under
G.L. c. 197 s. 9 because of the “administrator’s failure to
act on a claim within sixty days after the expiration of
the four month period for presenting the claim and did
not warn the claimant that the claim would be barred
unless she brought action on it within sixty days.
Furthermore receipt of the claim by the administrator
tolls the nonclaim statute and shifts the burden to him.
G.L.c. 197 section 9, first par. (a), second par. Under the
provisions of section 9, third par., the administrator
may notify the creditor that the claim has been allowed
or disallowed. If the admini- strator fails to give notice
of disallowance to the claimant within sixty days,
following the expiration of the 4-month period running
from the date of the approval of his bond, it ‘shall have
the effect of a notice of allowance.”
In Massachusetts the constitutionality of issues
surrounding illegitimate children have been sparsely
addressed. The Court held in Powers v. Wilkinson, 399
Mass. 650 (1987), that “state action is not involved, nor
is the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States
implicated, by the application of a common law rule of
17
construction to interpret the word ‘issue’ to mean ‘only
persons of the class were born in lawful wedlock’:
therefore no constitutional rights of a persons thereby
excluded from a class of beneficiaries of a trust would
be violated by this Court’s so doing.” The case at bar
does involve state action through its vehicles G. L. ¢.197
§ 9 and G. L. c. 190 § 7.
In Flynn _v. Connors n, 39 Mass. App. Ct. 365
(1995), the Court wrote in footnote #10, “The statute of
limitations issue appears to be a particularly
problematic one. Although we have noted that ‘the six-
year statute of limitations, applicable under G.L. c. 273,
lis not] applicable to civil actions under G.L.c. 209C,
Department of Revenue v. Roe, 29 Mass. App. Ct. at
968, the limitations period that is applicable to such
actions (none appearing in c. 209C itself) has never been
directly adjudicated.
Equitable tolling is a potential remedy for the
injustice suffered by the Plaintiff. Equitable tolling of
the Statute of Limitations has been allowed in
Massachusetts in the following cases: McLearn v. Hill,
476 Mass. 519 (1931); MacKeen v. Kasinskas, 333 Mass.
695 (1956); Christo v. Edward G. Boyle Ins. Agency, 402
Mass. 815 (1988); and Shafnacker v. Raymond James &
Assoc., 425 Mass. 724 (1997).
The Supreme Court of the United States has
spoken out quite clearly on discrimination involving the
classes of illegitimate children. The first instance in
recent history to address these issues was in the case of
Trimble v. Gordon, 430 U.S. 762 (1977). The Trimble
Court ruling on Section 12 of the Illinois Probate Act,
which allowed illegitimate children to inherit by
intestate succession only from their mothers (though
under Illinois law, legitimate children could inherit by
intestate succession from both their mothers and
18
fathers) held that Section 12 of the Illinois Probate Act
violated the Equal Protection Clause of the Fourteenth
Amendment. The Trimble Court further held the
following : A classification based on illegitimacy such as
that challenged here is not “suspect” so as to require
that it survive “strict scrutiny,” Mathews v. Lucas, 427
U.S. 495, 506. Nevertheless, this Court requires, “at a
minimum, that a statutory classification bear some
rational relationship to a legitimate state purpose,”
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, :
172, and the Court’s previous decisions in this area
show that the standard is “not a toothless one.”
Mathews v. Lucas, supra at 510. P. 767.
Section 12 cannot be justified on the ground that
it promotes legitimate family relationships. A State
may not attempt to influence the actions of men and
women by imposing sanctions on the children born of
their illegitimate relationships. Pp. 768-770.
Difficulties of proving paternity in some
situations do not justify the total statutory dis-
inheritance of illegitimate children whose fathers die
intestate. Section 12 is not “carefully tuned to
alternative considerations,” Mathews v. Lucas, supra at
513, as is illustrated by the fact that, in the instant case,
the decedent had been determined to be the appellant
child’s father in a state court paternity action. Pp. 770-
773.
The fact that appellant’s father could have
provided for her by making a will does not save § 12
from invalidity under the Equal Protection Clause. Pp.
773-774.
The United State Supreme Court spoke out
again in the case of Mills v. Habluetzel, 456 U.S. 91
(1982) regarding a Texas Statute which provided that a
paternity suit to identify the natural father of an -
—oO EE
19
illegitimate child for purposes of obtaining support
must be brought before the child is one year old, or the
suit was barred. The Texas Court of Civil Appeal,
affirming the Lower Court, held that the one year
limitation was not told during minority (the child was
one year and seven months old) and did not violate the
Equal Protection Clause of the Fourteenth
Amendment. The United States Supreme Court
reversed the decision of the Texas Court of Appeals
and held the following: -
The one year period for establishing paternity
denies illegitimate children in Texas the Equal
Protection of law.
A State that grants an opportunity for legitimate
children to obtain paternal support must also grant that
opportunity to illegitimate children, Gomez v. Perez,
409 U.S. 535, and this latter opportunity must be more
than illusory, although it need not be coterminous with
the procedures accorded legitimate children.
The period for obtaining support granted by
Texas to illegitimate children must be of sufficient
duration to present a reasonable opportunity for those
with an interest in such children to assert claims on
their behalf. And the time limitation on that
opportunity must be substantially related to the State’s
interest in avoiding the litigation of stale or fraudulent
claims. Section 13.01 fails to meet either of these
requirements and thus denies equal protection.
In 1986, the United States Supreme Court spoke
out again in the case of Reed v. Campbell 477 U.S. 852
(1986). The Court declared that the interest, protected
by the Fourteenth Amendment, in avoiding unjustified
discrimination against children born out of wedlock,
requires that appellant’s claim to a share in her father’s
estate be protected by the full applicability of Trimble.
20
There is no justification for the State’s rejection of the
claim. At the time appellant filed her claim, Trimble
had been decided, and her father’s estate remained
open. Neither the date of the father’s death nor the
date appellant’s claim was filed should have prevented
the applicability of Trimble. Those dates, either
separately or in combination, had no impact on the
State’s interest in-orderly administration of the estate.
Pp. 854-857.
Further, the Reed Court took notice of the fact
that the estate was still open when the appellant
formally notified the administratrix and the Probate
Court of her claim to a one-sixth share of the estate,
prior to filing a former complaint.
In the case at hand, the Plaintiff had formally
notified the administratrix and the Probate Court of
her claim during the proceedings in the Suffolk Probate
case. Moreover, the estate was still open when the
Plaintiff filed her complaint on December 11, 1997. The
constitutionality of the Massachusetts statutory
provisions appeared to impose special burdens on
illegitimate children. Plaintiff contends that a State
may not justify discriminatory treatment of
illegitimates in order to express its disapproval of their
parents’ misconduct. The effects of G. L. ¢.197 § 9 and
G. L. c. 190 § 7 impose special burdens on illegitimate
children.
“It is true, of course, that the legal status of
illegitimacy, however defined, is, like race or national
origin, a characteristic determined by causes not within
the control of the illegitimate individual, and it bears
not relation to the individual's ability to participate in
and contribute to society. The Court recognized in
Weber v. Aetna Casualty & Surety Co., 406 U.S.164
(1972) that visiting condemnation upon the child in
21
order to express society’s disapproval of the parents’
liaison is illogical and unjust. Moreover, imposing
disabilities on the illegitimate child is contrary to the
basic concept of our system that legal burdens should
bar some relationship to individual responsibility or
wrongdoing. Obviously, no child is responsible for his
birth and penalizing the illegitimate child is an
ineffectual as well as an unjust way of deterring the
parent.’ 406 U.S. at 175.” Mathews v. Lucas, 427 U.S.
495, 505 (1976).
The Plaintiff contends that the application of the
statutes violate the rights of the nonmarital child to
equal protection of the laws as guaranteed through the
laws of the Commonwealth by the Fourteenth
Amendment to the United States Constitution. In
relevant part the Fourteenth Amendment declares “no
state shall...deny to any person within its jurisdiction
the equal protection of the laws.”
This Court should provide the equal treatment
protected by the Fourteenth Amendment to the
Constitution and avoid unjustified discrimination
against children born out of wedlock by allowing the
Plaintiff herein the remedy of equitable tolling of the
one year limitation in G. L. ¢.197 § 9 because the
legislature’s standard in passing G. L. c. 190 § 7 and
Plaintiff has been denied her rights’ under
Massachusetts law and the Fourteenth Amendment of
the United States Constitution.
It is beyond dispute that an out of wedlock child
has a constitutionally protected right to inherit from
her father and to truncate that right with an
inrealistically short limitations period for realizing that
right is a denial of the equal protection of the laws.
Mills v. Habluetzel, 456 U.S. 91, 97-101(1982). See
Trimble v. Gordon, 480 U.S. at 769-771; Lowell v.
22
Kowalski, 380 Mass. 663, 669-670 (1980); Mathews v.
Lucas, 427 U.S. 495, 505-506 (1976).
This Court has also recognized that the ©
expanding realities of the American family invoke new
protections to insure that those persons whose rights
are now emerging in this expanded reality are denied
neither due process nor the qual protection of the laws.
Goodridge v. Department of Public Health, 440 Mass.
309, 330-334 (2003). Blixt v. Blixt, 4837 Mass. 649 (2002),
cert. Den., 537 U.S. 1189 (2003). Noreen thus submits
that as long as her putative father’s estate was still not
settled, she has a right to bring this action to establish
paternity and share in the estate irrespective of the
running of the limitations period of Section 9(a).
- CONCLUSION
For all the reason identified herein, this Court
should grant Noreen’s petition for certiorari to the
Appeals Court of Massachusetts, enter an order
vacating the judgment below and remanding the matter
to the Norfolk Division of the Probate and Family
Court Department for a trial of Noreen’s claims; and/or
provide her with such relief as is fair and just in the
circumstances.
Respectfully submitted,
NOREEN JUDITH HUNTER
(pro se)
Noreen Judith Hunter
137 Nahant Street
Lynn, Massachusetts 01902
(781) 842-3468
Ee
la
(any footnotes trail end of each document)
LEXSEE 57 MASS APP CT 233
NOREEN JUDITH HUNTER
vs. NONA PORTER. nl
No. 00-P-348
APPEALS COURT OF
MASSACHUSETTS
57 Mass. App. Ct. 233; 782
N.E.2d 530; 2003 Mass. App.
LEXIS 112
March 15, 2002, Argued
January 29, 2003, Decided
SUBSEQUENT HISTORY: [***1] As Corrected
March 14, 2003. Review denied by Hunter v. Porter,
442 Mass. 1104, 810 N.E.2d 1230, 2004 Mass. LEXIS
475 (2004)
PRIOR HISTORY: Civil action commenced in the
Norfolk Division of the Probate and Family Court
Department on December 11, 1997. A motion to dismiss
was heard by John M. Smoot, J. Keville v. McKeever,
42 Mass. App. Ct. 140, 675 N.E.2d 417, 1997 Mass. App.
LEXIS 26 (1997)
DISPOSITION: Judgment affirmed.
2a
LexisNexis(R) Headnotes
COUNSEL: Roberta Golden for the plaintiff.
John T. Daley for the defendant.
JUDGES: inion: Duffly, Kass, & Trainor, JJ.
OPINIONBY: DUFFLY
OPINION:
[**531] [*233] DUFFLY, J. Ina proceeding for
declaratory judgment, Noreen Judith Hunter (Noreen)
sought an adjudication that she was born out of wedlock
to Joseph S. Hunter (Joseph) and Marian McKeever
(Marian), thereby to establish her right to inherit from
Joseph's estate. The plaintiff's complaint, filed nearly
twenty months following Joseph's death, was dismissed
as not having been timely filed as required by G.L. c.
190, § 7,n2 and [*234] G.L. c. 197, § 9(a). n3 The
former statute establishes procedures for a child born
out of wedlock seeking to share in the assets of the
estate of a father dying intestate; the latter statute
imposes a one-year limitation period for bringing an
action against an executor or administrator.
The plaintiff's appeal raises the question whether
the one-year limitation [**532] period for bringing an
action to establish paternity that is imposed through
operation of G.L. c. 190, § 7, is inapplicable when the
decedent has, by word or deed during his lifetime,
acknowledged paternity of a person seeking to inherit
from his estate. n4 We affirm the dismissal.
a
3a
[*235]
[***4] In 1924, Joseph immigrated to the United
States where, over the next sixty years, he amassed
substantial assets. Id., 42 Mass.App.Ct at 141-142.
Marian, Joseph's long-time bookkeeper, secretary, and,
later, personal attendant, gave birth to Noreen on
December 9, 1955. n6 At the time of Noreen's birth,
Marian had been employed [*236] for five years as
Joseph's bookkeeper. Joseph was then married, and had
been since 1928; he and his wife had two children, a son
and Nona Porter. Joseph's [**533] wife died in 1982.
Sometime in 1982, Joseph moved into one of his
properties with Marian. Joseph died intestate on April
27, 1996; Nona Porter was appointed to administer
Joseph's estate and, in that capacity, is the defendant in
the matter now before us.
[***5] In our prior opinion, we chronicled Joseph's
increasing dementia and the stripping of his assets by
Marian, Noreen, and Marian's son, Frank. Id., 42
Mass. App.Ct. at 144-148. We found no reason to disturb
the judgment that, beginning in at least August, 1982,
Joseph was incompetent and "that the McKeevers
[Noreen, Marian and Frank] have no interest in
Joseph's estate." Id., 42 Mass.App.Ct. at 147, 155. n7
That conclusion, however, was not based upon the right
of a child born out of wedlock to seek to inherit from
her father's estate pursuant to G.L. c. 190, § 7, and is,
therefore, not dispositive of the issues here on appeal.
As we have observed, Joseph died in April, 1996.
Noreen's complaint was filed on December 11, 1997. In
4a
that complaint, Noreen alleges that [***6] she is the
out of wedlock child of Marian and Joseph, and she asks
that "the Court adjudicate the Plaintiff to be the
daughter of Joseph S. Hunter for the purposes of
establishing entitlement to his estate." Noreen's
materials in opposition to the defendant's motion to
dismiss contain documents supporting her assertion
that Joseph acknowledged paternity of Noreen during
his lifetime. See note 5, supra. n&
Discussion. Under G.L. c. 190, § 7 [***7] , the
limitations period set out in G.L. c. 197, § 9, is made
applicable to actions filed [*237] by a person born out
of wedlock seeking to establish a right to inherit from
her father. Thus, where paternity is contested, the
action must be commenced within one year from the
date of death of the deceased. See Flannery v.
Flannery, 429 Mass. 55, 59, 705 N.E.2d 1140 (1999)
("G.L. c. 197, § 9(a), bars the plaintiff's claim one year
from the date of the decedent's death"); Eresian v.
Mattei, 52 Mass.App.Ct. 16, 17, 750 N.E.2d 30 (2001)
("There is a short statute of limitations, G.L. c. 197, §
9(a), which requires creditors to bring an action against
the executor or administrator within one year after the
date of death of the deceased"). Because Noreen's
complaint was filed nearly twenty months after the
date of Joseph's death, it was properly dismissed.
We agree with Noreen that the second sentence of c.
190, § 7, provides an option, in addition to adjudication,
by which an illegitimate child may establish paternity
following the death of a putative father. That sentence
states [***8] as follows: "If a decedent has
acknowledged paternity of a person born out of wedlock
SSSSLa_00_
5a
or if during his lifetime or after his death a decedent
has been adjudged to be the father of a person born out
of wedlock that person is heir of his father." G.L. c. 190,
§ 7. We disagree, however, with Noreen's claim that
because the administrator was on notice of the
existence of evidence constituting Joseph's [**534]
"acknowledgment" of paternity, n9 Noreen fulfilled the
prerequisites to establishing paternity set forth in c.
190, § 7, and is entitled, without more, to share in
Joseph's estate. Where the issue of paternity is
contested, the additional requirement set forth in c. 190,
§ 7, applicable to the circumstances, namely,
commencement of an action to establish paternity, must
be satisfied. See, e.g., Higgins v. Ripley, 16
Mass.App.Ct. 928, 928, 450 N.E.2d 186 (1983); Doe v.
Roe, 19 Mass. App.Ct. 270, 272, 473 N.E.2d 719 (1985).
[***9] When, in the context of claims to inherit, the
issue of paternity is uncontested, no action need be
commenced and paternity may be established by
stipulation of the parties that during the decedent's
lifetime he acknowledged that he was the father of the
person claiming a right to inherit from his estate.
[*238] See Lowell v. Kowalski, 380 Mass. 663, 670, 405
N.E.2d 135 (1980) (where "it was established, based on
a stipulation of the parties, that, on numerous occasions,
the defendant's intestate acknowledged the paternity of
the plaintiff orally and in writing"). n10 See also
Paquette v. Koscotas, 12 Mass.App.Ct. 52, 53, 421
N.E.2d 483 (1981) (parties' stipulation that decedent
acknowledged paternity "obviates any further inquiry
by us for other evidence of acknowledgment").
6a
[***10] The court in Lowell identified three forms
of evidence that could establish paternity in contested
proceedings: "the father's written acknowledgment of
his paternity (see for such an example, G.L. c. 273, § 15
nll ]...), his sworn testimony to the same effect, or an
adjudication of paternity under G. L. c. 273." Lowell v.
Kowalski, 380 Mass. at 670. The court left for later
determination "the question whether, in a contested
proceeding, proof of paternity may be made out in the
absence of" the above described evidence. Ibid. We will
assume for purposes of our discussion that the
notarized statement, see note 5, supra, constitutes a
"sworn statement" that would, upon admission in
evidence and established to be the voluntary, knowing
statement of the decedent, support an adjudication of
paternity.
[***11] Here, because the issue of paternity was
contested, the [*239] plaintiff was bound under
[**535] G.L. c. 190, § 7, either to deliver an
adjudication of paternity, or to "commencef[], in a court
of competent jurisdiction, an action in which the
executor or administrator is a named party and in
which such paternity is ultimately proved." Delivery of
the adjudication or commencement of the action must
occur within the one-year period provided under G.L. c.
197, § 9. There was no adjudication of paternity, nor
did the complainant launch an action within a year from
the date of Joseph's death to prove he was her father.
n12 The claim was properly dismissed as untimely.
Noreen also seeks to apply to this case the holding
in Commonwealth v. Gruttner, 385 Mass. 474, 475, 4382
N.E.2d 518 (1982), |***12] that "no time bar blocks the
Ta
_bringing of an action to adjudicate the paternity of an
illegitimate child." That decision was specific to criminal
nonsupport actions brought pursuant to G.L. c. 273, §
15, against living, putative fathers, and has no :
relevance to the circumstances of this case.
Judgment affirmed.
nl As administratrix of the estate of Joseph S. Hunter.
n2 This section provides, in relevant part, as follows:
"If a decedent has acknowledged paternity of a
person born out of wedlock or if during his
lifetime or after his death a decedent has been
adjudged to be the father of a person born out of
wedlock that person is heir of his father.... A
person may establish paternity if, within the
period provided under section nine of chapter one
hundred and ninety-seven for bringing actions
against executors and administrators, such person
either (a) delivers to the executor or
administrator an authenticated copy ofa
judgment rendered by a court of competent
jurisdiction during a decedent's lifetime adjudging
the decedent to be the father of a person born out
of wedlock, or (b) commences, in a court of
competent jurisdiction, an action in which the
executor or administrator is a named party and in
which such paternity is ultimately proved." [***2]
n3 This section provides as follows:
"(a) Except as provided in this chapter, an
executor or administrator shall not be held to
-
8a
answer to an action by a creditor of the deceased
unless such action is commenced within one year
after the date of death of the deceased and unless,
before the expiration of such period, the process
in such action has been served by delivery in hand
upon such executor or administrator or service
thereof accepted by him or a notice stating the
name of the estate, the name and address of the
creditor, the amount of the claim and the court in
which the action has been brought has been filed
in the proper registry of probate."
n4 Noreen further claims that, even if the one-year
limitation period under G.L. c. 197, § 9(a), applies, her
complaint is rendered timely by application of G.L. c.
260, § 32 (new action may be brought within one year |
of dismissal or "for any matter of form"), or by virtue of
equitable tolling. Finally, she claims that G.L. c. 190, §
7, is unconstitutional. These arguments lack merit. In
any event, we decline to "consider a claim that is
asserted for the first time after judgment has been
entered below." [***3] R.W. Granger & Sons v. J &S
Insulation, Inc., 435 Mass. 66, 73, 754 N.E.2d 668
(2001). :
~ ome ee ee
n5 The defendant's motion to dismiss was based on the
asserted failure of the plaintiff "to comply with the one
year statute of limitations for creditors of an estate."
Attached to the plaintiff's opposition were sixteen
exhibits. Among them is a document purportedly
signed by Joseph and notarized on July 31, 1980, stating
that "Joseph Hunter . .. does hereby acknowledge that
he is the true father of the female person born in
Boston, Massachusetts, on December 9, 1955, whose
EEENREENE em i <n
9a
birth record shows the name 'McKeever.' I further
consent that the legal name of Noreen Judith
McKeever be changed to Noreen Judith Hunter." Also
attached is an affidavit of Hubert Yorra, in which the
affiant states that he is an attorney admitted to practice
in the Commonwealth, that he previously represented
Joseph "in connection with various matters," and that in
the course of his personal and professional relationship
with Joseph he met Noreen "together with Mr. Hunter
[who] stated to me on numerous occasions that Noreen
was his daughter."
It has not been made to appear that these
matters, which are outside the pleading, were
excluded by the Probate Court judge. We
therefore treat the motion as one for summary
judgment, as provided by Mass.R.Civ.P. 12(b)(6),
365 Mass. 754 (1974).
n6 Marian alleged that Noreen was Joseph's daughter,
but that there was no adjudication of paternity. Keville
v. McKeever, 42 Mass.App.Ct. at 144. We noted the trial
judge's finding that there was no ‘credible evidence’
that Noreen was in fact Joseph's daughter. Id. at 144 n.
6. Because it has not been made to appear that this
issue was actually litigated and determined in the
earlier proceedings, we place no reliance on that finding
in reaching our present decision. See Jarosz v. Palmer,
436 Mass. 526, 530-531, 766 N.E.2d 482 (2002). Indeed,
the Probate Court judge, on October 18, 1993, denied a
postjudgment request to have a paternity test
conducted, "without prejudice to renewal after the
filing of an appropriate action."
10a
n7 We also upheld the judgment that the McKeevers
were liable to Joseph, individually, or jointly and
severally, for various sums amounting to approximately
$ 1.5 million dollars. Keville v. McKeever, 42
Mass.App.Ct. at 142.
n8 Noreen does not claim that Joseph's oral and written
acknowledgment of his paternity constitutes a
"voluntary acknowledgment of parentage" pursuant to
G.L. c. 209C, § 11, that -- if properly executed (in
writing, jointly by the parents, acknowledged in the
presence of a notary public), filed (with the registrar of
vital records and statistics), and neither rescinded nor |
challenged as provided by the statute -- "shall |
-thereafter have the same force and effect as a
judgment." G.L. c. 209C, § 11.
n9 Noreen claims that some of the documents attached
to her opposition to the motion to dismiss, see note 5,
supra, would have been available to Nona Porter in
prior proceedings.
nl0 In Lowell v. Kowalski, supra, the court determined
the intermarriage requirement in an earlier version of
c. 190, § 7, to be unconstitutional. Under that version,
an illegitimate child was permitted to inherit by
intestacy from her father's estate only if her parents
had intermarried, and the father had either
acknowledged the child as his or had been adjudged to
be the child's father in a proceeding under G. L. c. 273.
The court recognized the difficulty in avoiding :
fraudulent claims of paternity "where the father is
deceased .... Thus, because the possibility of fraud is
usually greater with respect to claims against the
ata te sian
lla
estate of a deceased man than against the estate of a
deceased woman, we recognize that the State has a
compelling interest in imposing a stricter standard for
establishing an illegitimate child's right to inherit from
its father than from its mother." Jd. at 669. At the same
time, the court noted, "Where paternity is conceded, we
see no justification for denying the right of a child to
inherit form his or her natural father. The possibility of
fraud is wholly absent." Id. at 670.
nll General Laws c. 273, § 15, which imposes a duty of
support upon parents of children born out of wedlock,
provides that "a voluntary acknowledgment of
parentage or an adjudication of paternity under [G. L.
c. 209C]... shall be conclusive on all persons in
proceedings under this section." As we observed at note
8, supra, the Legislature has prescribed in G.L. c. 209C,
§ 11, the form of acknowledgment that will operate as
an adjudication of paternity.
nl12 We reject Noreen's claim, made without citation to
relevant authority, that the requirement of
commencing an action within one year was-fulfilled
upon the filing of her petition for permanent
guardianship on May 24, 1991.
12a
LEXSEE 42 MASS. APP. CT. 140
KATHLEEN C. KEVILLE, temporary guardian, nl
vs. MARIAN BOURNE McKEEVER n2 & others. n3
No. 94-P-744.
APPEALS COURT OF
MASSACHUSETTS
42|Mass. App. Ct. 140; 675
N.E.2d 417; 1997 Mass. App.
LEXIS 26
February 16, 1995, Argued
January 31, 1997, Decided
COUNSEL:
Gary R. Greenberg for Marian Bourne McKeever &
others.
Robert S. Potters for John Meldon, trustee.
David A. Guberman (Joanna E. Scannell & James J.
McCusker with him) for Kathleen C. Keville.
Ira Nagel, guardian ad litem, was present but did not
argue.
JUDGES: Present: Armstrong, Dreben, & Laurence,
JJ.
OPINIONBY: ARMSTRONG
l3a
OPINION: [*141]
[**421] ARMSTRONG, J. Joseph S. Hunter
(Joseph) immigrated to [*142] the [***2] United
States in 1924 and, over the next sixty years, amassed
substantial assets. The present appeals concern the
parties' dispute over the ownership of those assets: on
the one side are Joseph's son and daughter; on the other
are the children of Joseph's long time bookkeeper,
secretary, and, later, personal attendant, Marian
McKeever (Marian).
In December, 1990, Joseph's daughter, Nona Porter
(Nona), with the consent of Joseph's son, Ronald
Hunter (Ron), filed a petition for conservatorship in the
Probate and Family Court alleging that Joseph had
become incapacitated by reason of mental weakness. A
guardian ad litem, appointed to investigate Joseph's
mental capacity, filed a report in which he opined that
Joseph was incapable by reason of mental weakness to
handle his financial affairs or personal needs. The
guardian ad litem recommended, inter alia, that the
court appoint an independent third party to serve as
guardian of the estate of the ward.
On May 24, 1991, shortly after the guardian ad litem
had filed his report, Marian's daughter, Noreen Hunter
(Noreen), filed a petition for permanent guardianship
alleging that Joseph was “unable to make or [to]
communicate informed decisions." [***3] By various
decrees that were entered in the Probate Court,
Attorney Kathleen Keville was appointed temporary
guardian of Joseph's person and estate.
On September 23, 1991, Ms. Keville filed a complaint
in the Probate Court seeking to set aside two
ti : pee . - ainenniaiitemenieeee ait
l4a
conveyances, in 1982 and 1990, by Joseph. The
complaint alleged that both conveyances were made at
a time when Joseph was incompetent and subject to
undue influence and, additionally, that the latter
conveyance was procured through fraud and forgery.
The guardian also sought the return of significant sums
of money allegedly removed by Marian, Noreen, and
Frank McKeever (Frank), Marian's son, n4 from
Joseph's bank accounts and safe deposit boxes. n5 In
addition, the guardian sought a declaration that certain
mortgages were invalid.
[*143] After a lengthy trial of the consolidated
guardianship, equity, and contempt actions, during
which the parties attempted unsuccessfully to enter
into a settlement agreement, the probate judge issued
extensive findings of fact and rulings of law. By a
judgment dated September 8, 1993, and amended on
January 24, 1994, Joseph was declared to have been
incompetent from at [**422] least August of 1982, and
Ms. Keville, as we have indicated, was appointed
permanent guardian of his person and estate. In
addition, the 1982 deed was revoked and rescinded, and
Marian was ordered to convey to Joseph all of her
interest in the property. Similarly, the 1990 deed was
declared void, and Marian and Noreen were ordered to
convey their interest in the property to Joseph. The
McKeevers were also adjudged liable to Joseph,
individually, or jointly and severally, for various sums
amounting to approximately $ 1.5 million dollars.
Lastly, the judgment declared void, as against the
guardian, the mortgages referred to above. Following
the denial of their motions for judgment
notwithstanding the findings and rulings and for new
trial, and the denial in part of their motion to alter or
a
15a
amend the judgment, findings, [***5] and rulings (the
judge struck one sentence from the memorandum of
decision), the McKeevers appealed from the amended
judgment and the postjudgment orders. John Meldon,
as trustee of the Porsche Realty Trust, has also
appealed from the amended judgment.
1. The facts. We sketch the pertinent facts, distilled
from the judge's 148-page decision. Joseph was born in
Lithuania in 1905 and immigrated to the United States
in 1924. In 1928, he married Edythe Hunter, and the
couple had two children, Nona, in 1931, and Ron, in
1943.
From 1924 until about 1962 Joseph worked as a
manufacturing jeweler and a retail jeweler. Starting in
about 1953, Joseph also began to purchase real estate,
primarily through trusts that he established for the
benefit of himself and his family, and gradually
developed a "fairly substantial real estate business."
Among the properties Joseph purchased, as the trustee
of the J. Hunter Realty Trust, were a five-floor, fifteen-
room house located at 390 Marlborough Street in
Boston, and a twenty-five unit apartment complex
located at 231, 233, 239, and 243 Harvard Avenue in
Boston and Brookline.
From the early 1950s through 1987 Marian worked
for Joseph as his bookkeeper [***6] and secretary.
During the period of [*144] her employment, Marian
was never paid more than forty or fifty dollars a week
by Joseph. Marian had been previously married and had
one child, Frank, by that marriage. In 1953, Marian
moved into the Marlborough Street property and, in
subsequent years, ran the property as a rooming house,
collecting and keeping the rents for herself. In
l6a
December, 1955, Marian gave birth to Noreen.
Although there was (and has been) no adjudication of
paternity, Marian alleged that beginning in the early
1950s she and Joseph had had a personal relationship
and that Noreen was Joseph's daughter. n6 Indeed,
after meeting Joseph, Marian often used the name
Marian Hunter and, in September, 1980, Noreen
changed her name to Noreen Judith Hunter.
In the mid to late 1970s, Joseph seemed to become
increasingly unable to conduct his business affairs or to
keep track of his personal financial assets. [***7] In
addition, around 1980, there were changes in Joseph's
interactions with his family and others. n7 Sometime
[**423] in 1982, Joseph moved into the Marlborough
[*145] Street property with Marian. From that time
forward, Marian was with Joseph constantly and acted
as a barrier to his contacts with his children. Joseph's
behavior became "increasingly bizarre." He accused his
daughter, Nona, who was doing work for him at the
Harvard Avenue property, of sleeping with tenants
and, as a result of a dispute with her, ordered her to
stop working for him and to vacate her apartment at
the property.
On December 23, 1982, Joseph, signing as a trustee
of a trust that had expired nine and one-half years
earlier, executed a deed conveying a joint interest in
the Marlborough Street property to Marian. Shortly
thereafter, Ron, having learned of Noreen's claim to be
his half sister, met with her. Noreen told Ron that
Joseph "was crazy, had always been crazy, and that he
didn't know what was going on."
a Dia a a
17a
In the mid-1980s, Joseph's mental condition
continued to deteriorate. n8 In October, 1988, Joseph's
personal physician observed that Joseph "demonstrated
mental confusion, and was not well oriented and his
powers of concentration were very limited." The
following February, Joseph was called to testify in a
legal proceeding involving one of his properties and was
unable to state his correct age or provide other
information.
Although there was some taking of Joseph's liquid
assets in the mid-1980s, the judge found that, starting
in 1988, the McKeevers "engaged in a thorough
stripping of essentially all of [Joseph's] assets":
"Although in the mid-1980's the value of
[Joseph's] bank assets were in excess of a |
million dollars, by the [*146] date of the
appointment of the temporary guardian in
this matter, only one thousand dollars
remained in his name. The defendants [the
McKeevers], by the use of forged
documents, converted and appropriated for
their own use virtually all of [Joseph's] cash
assets and safe deposit holdings, resulting in
the eventual closing of all but one of his
accounts."
In addition, Marian forged Joseph's name and
transferred ownership of his car to herself, Noreen
forged Joseph's name to obtain credit cards, and Frank
deposited Joseph's Social Security checks in his own
accounts.
18a
On March 3, 1990, Marian forged Joseph's signature
on a deed transferring title to the Harvard Avenue
property from him, individually and as trustee of the J.
Hunter Realty Trust, to Marian and N oreen, as
trustees of the Bourne-Hunter Realty Trust, a trust
they had created that same day and of [***10] which
they were the sole beneficiaries.
The stripping of Joseph's assets by the McKeevers
continued even after the appointment of the guardian
ad litem in December, 1990. n9 It was also subsequent
to the appointment of the guardian ad litem that the
Bourne-Hunter Realty Trust encumbered the Harvard
Avenue property by obtaining three successive
mortgage loans, at an annual [**424] interest rate of
thirty percent, with each loan paying off the previous
one. nl10
[***11]
On April 29, 1991, Joseph was admitted to a nursing
home. At the time of the admission, he was "observed as
confused, probably knew his name, but was not
oriented to place." As of May 18, 1991, Marian and
Noreen agreed that Joseph [*147] should be
transferred to the Alzheimer's special care unit at the
facility. Joseph's personal physician reported at the
time of Joseph's hospital admission in May, 1991, that
Joseph had a history of Alzheimer's dementia, and that
he carried a secondary diagnosis of presenile dementia.
Based on these findings and others, the judge
concluded that Joseph had been incompetent from at
least August of 1982, and that by December, 1982 (the
time of the conveyance of the Marlborough Street
property), he did not have the ability to understand the
Ov: shea or CAI TA, ~
19a
nature of his property or to appreciate the natural
objects of his bounty. The judge further ruled that the
deed purporting to convey the Harvard Avenue
property was void "by reason of the fact that [it] was
forged, the transfer was fraudulent and the result of
undue influence and Joseph . . . was incompetent at the
time." The court fashioned a judgment, the relevant
portions of which are set forth above.
2. [***12] The McKeevers' appeal.
a. Right to jury trial or to a framing of jury
issues.
There is no merit in the McKeevers' argument that the
judge erred in denying them their right to a trial by
jury as guaranteed by art. 15 of the Massachusetts
Declaration of Rights and as demanded by them. See
generally Department of Rev. v. Jarvenpaa, 404 Mass.
177, 185-186, 534 N.E.2d 286 (1989); Dalis v. Buyer
Advertising, Inc., 418 Mass. 220, 221-222, 636 N.E.2d
212 (1994). It is apparent that the guardian, who was
seeking essentially to set aside certain conveyances of
property by Joseph, and to restore to Joseph's estate
cash and personal property taken from him, was
seeking primarily equitable relief and that her claims
were analogous in subject matter and remedy sought to
cases traditionally heard within the court's equity
jurisdiction, as it existed at the time of the adoption of
the Constitution. Consequently, the McKeevers were
not entitled to a jury trial as of right. See Parker v.
Simpson, 180 Mass. 334, 336, 355, 62 N.E. 401 (1902)
(defendant had no right to trial by jury in suit in equity
seeking rescission of a contract on the grounds of fraud
and [***13] undue influence). See also Whitlock v.
20a
Hause, 694 F.2d 861, 865-867 (1st Cir. 1982). Compare
and contrast Dalis v. Buyer Advertising, Inc., 418
Mass. at 223 & n.3.
- Similarly, the judge did not err in denying the
McKeevers' motion, styled as one pursuant to
Mass.R.Civ.P. 39(c), 365 Mass. 802 (1974), to frame for
a jury the issues of fraud, [*148] undue influence, and
incompetency. Rule 39(c) retains the pre-rules practice
of framing issues in "equity" cases for jury trial. Smith
& Zobel, Rules Practice § 39.5 (1977). As with prior
practice, the framing of jury issues is not a matter of
right but is directed to the discretion of the court.
Marcoux v. Charroux, 329 Mass. 687, 688-689, 110
N.E.2d 362 (1953). Charles River Constr. Co. v.
Kirksey, 20 Mass. App. Ct. 333, 337, 480 N.E.2d 315
(1985). Smith & Zobel, supra. Here, the McKeevers'
motion to frame jury issues was marked for hearing on
the first day of trial. The judge, noting, inter alia, that
the McKeevers had made no mention of a jury trial in
their pretrial memorandum or at a pretrial conference
held six weeks prior to trial and, in fact, had urged that
the trial go forward as scheduled, stated that [***14]
the McKeevers had waived their claim by their inaction
until the morning of trial. In their brief, the McKeevers
fail to address the basis for the judge's ruling and fail to
articulate (much less demonstrate) how the judge
abused his discretion in denying the motion to frame
jury issues. In the circumstances, [**425] there is no
reason to disturb the judgment. n11
[***15]
b. Failure to enforce written settlement agreement.
During the course of trial, and after the probate judge
ee TM Lee Lees
2la
had heard evidence for nine days, counsel reported to
the court a proposed settlement agreement involving
the guardian, the McKeevers, and Nona and Ron. By its
express terms, the agreement required the approval of
the judge on or before March 15, 1993. It further
required that written notice of the settlement be sent
to the Internal Revenue Service and the Department
of Revenue (which were to be afforded the opportunity
to object). Ron was not in court on the day the
settlement was [*149] reported and, as evidenced by
the statements of his counsel, appears to have been
unaware of its contents. Upon review of the agreement,
Ron refused to sign it, voicing his "outrage" with its
terms. Responding to an invitation of the judge, Ron
and Nona moved to reconvene the trial, while the
McKeevers moved for the entry of judgment pursuant
to the proposed settlement agreement. The judge
allowed the former motion and denied the latter. In his
supplemental rulings of law, the judge, noting that the
agreement expressly provided that the settlement be
subject to his approval and the entry of an [***16]
appropriate order, stated that, after a more careful
review of the settlement, he found it to be deficient and
not a just and equitable resolution of the dispute. n12
In view of the judge's finding, and the express
requirement that the agreement was subject to the
judge's approval, there is no need to consider the
McKeevers' claims that Ron's signature to the
agreement was a "mere formality" or that Ron was
otherwise estopped from arguing against the
enforcement of the agreement. Moreover, the judge did
not abuse his discretion in denying the McKeevers'
motion (filed April 1, 1993) to amend their answer to
22a
assert the settlement agreement as an affirmative
defense and counterclaim; such an amendment, in the
circumstances, would have been futile. See Bass River
Lobsters, Inc. v. Smith, 7 Mass. App. Ct. 197, 198-199,
386 N.E.2d 1276 [***17] (1979); Dexter's Hearthside
Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct.
217, 219, 508 N.E.2d 113 (1987) (motion to amend
properly denied where it failed to surmount the
inherent invalidity of the claim).
c. Conveyance of Marlborough Street property. The
McKeevers argue that the judge erred in failing to
direct a verdict in their favor with regard to the
Marlborough Street conveyance or, alternatively, that
the judge's finding that Joseph was incompetent at the
time of the transfer was clearly erroneous.
As we have indicated, in December, 1982, Joseph, as
trustee of the J. Hunter Realty Trust, signed a deed
conveying a joint interest in the Marlborough Street
property to Marian. In her original and amended
complaints, the guardian requested as preliminary
relief that the court sever the alleged joint tenancy "and
convert it into a tenancy in common pending a
determination [*150] of this action." On September 23,
1991, the judge ordered that the joint tenancy be
"temporarily severed and temporarily converted into a
tenancy in common." The final judgment revoked and
rescinded the deed conveying the joint interest in the
Marlborough Street property and ordered that full
[***18] title revert to Joseph, individually.
[**426] We agree with the guardian that so-much
of the McKeevers' appeal as pertains to the issues now
raised has been rendered moot by Marian's death (some
fifteen months prior to Joseph's death). As the guardian
23a
correctly notes, "If the judgment [is] upheld, then it
vest[s] full title in Joseph; if the judgment [is] reversed
and the conveyance to Marian upheld, then full title [is]
in Joseph as the survivor of the two joint tenants." nl3
Thus, the underlying controversy between the parties
is no longer a viable one. See Wolf v. Commissioner of
Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885
(1975). n14
d. Conveyance of Harvard Avenue property. The
McKeevers argue that the probate judge's admission,
consideration, and reliance on clearly inadmissible and
prejudicial evidence concerning Joseph's competency at
the time of the Harvard Avenue conveyance and his
gift of certain monies (presumably in 1989-1990)
constitutes reversible error. In the alternative, they
argue that, even if all of the objectionable evidence
were determined to have been properly admitted, the
guardian did not make a sufficient showing of
incompetence. We disagree.
i. Testimony of Dr. Benjamin Brussel. In January,
1987, Marian brought Joseph to see her psychiatrist,
Dr. Brussel, to [*151] obtain a letter attesting to
Joseph's competency. Dr. Brussel, who was board
certified in psychiatry and neurology (and had been on
the staff of the Beth Israel Hospital since 1956), had
"some knowledge" of Joseph based on statements made
[***20] by Marian during the course of her own
therapy. Marian was present during Dr. Brussel's
session with Joseph, but, after some preliminary
conversation with Marian, the examination consisted
solely of interaction between Dr. Brussel and Joseph.
After examining Joseph for forty to forty-five minutes,
eae 24a
Dr. Brussel concluded that Joseph was suffering from
severe dementia.
Contrary to the McKeevers' assertion, the judge did
not err in permitting Dr. Brussel to testify, over their
objection, about dementia and to render his opinion that
Joseph was suffering from severe dementia. The
admission of expert testimony lies largely in the
discretion of the trial judge. Commonwealth v. Devlin,
365 Mass. 149, 152, 310 N.E.2d 353 (1974). "It is well
established that the professional specialty of a medical
practitioner offered as a witness need not be precisely
and narrowly related to the medical issues of the case."
Kapp v. Ballantine, 380 Mass. 186, 192-193 n.7, 402
N.E.2d 463 (1980). Letch v. Daniels, 401 Mass. 65, 68,
514 N.E..2d 675 (1987). "The crucial issue is whether the
witness has sufficient ‘education, training, experience
and familiarity' with the subject matter of [***21] the
testimony." Letch v. Daniels, 401 Mass. at 68.
McLaughlin v. Selectmen of Amherst, 422 Mass. 359,
361-362, 664 N.E.2d 786 (1996). Although Dr. Brussel
did not hold himself out as an expert in dementia, and
he was qualified by the court as an expert in psychiatry
(the treatment of mental illness). He stated that he
knew about dementia and had treated ten to twenty
patients who suffered from dementia. In the
circumstances, the judge did not abuse his discretion in
admitting Dr. Brussel's opinion testimony.
The McKeevers' additional claim that the admission
of Dr. Brussel's testimony violated Marian's
psychiatrist-patient privilege n15 [**427] is also
without merit. Indeed, it is difficult to perceive how
Marian's privilege was violated. The only [*152]
specific communication by Marian to Dr. Brussel to
which the McKeevers refer in their brief is Marian's
25a
request, made in a therapy session, that Dr. Brussel
evaluate Joseph as to his mental competence. The
record fails to disclose the nature of any other
communication made by- Marian to Dr. Brussel
concerning Joseph's mental condition, or that Dr.
Brussel, in rendering his opinion, divulged any
communication made to him by Marian [***22] in the
course of her therapy. The McKeevers concede in their
brief that the details of Marian's own therapy with Dr.
Brussel were not revealed at trial, and we decline to
speculate, as the McKeevers urge, that Marian's
therapy necessarily involved her relationship with
Joseph. In any event, it is apparent that Dr. Brussel's
independent _examination of Joseph provided the
primary basis of his conclusion that Joseph suffered
from dementia.
[***23)
li. Admission of Joseph's testimony in unrelated
Probate Court matter. The judge did not err in
admitting in evidence, over the McKeevers' objection, a
brief transcript of Joseph's testimony in an unrelated
1986 legal proceeding. In that proceeding, Joseph was
unable to give his correct age, and the judge
determined that he was not competent to testify. The
testimony was admissible, not for the truth of its
contents, but as evidence of Joseph's state of mind. See
Liacos, Massachusetts Evidence § 8.2.6 (6th ed. 1994).
iii. Admission of handwriting expert's opinion. At
trial, the guardian's expert, Joyce McCann, testified
that Marian had forged Joseph's name on the 1990 deed
transferring the Harvard Avenue property to the
Bourne-Hunter Realty Trust. The McKeevers now
26a
argue, in the context of their competency discussion,
that the judge erred in accepting McCann's opinion
because the handwriting specimen she used as J oseph's
was not properly authenticated but instead was
attributed to Joseph by the plaintiff's attorney.
Continuing, they claim that, because there was no
independent determination by the fact finder that the
specimen was genuine, there was no basis upon which
McCann [***24] (who was otherwise unfamiliar with
Joseph's handwriting) could render an opinion. See
Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 292,
87 N.E. 630 (1909) (standard of handwriting cannot be ~
proved by the [*153] opinion of witnesses); Davis v.
Meenan, 270 Mass. 313, 314, 169 N.E. 145 (1930) (it is
for the judge in the first instance to decide whether
there is sufficient evidence to permit the standard
offered to be introduced in evidence).
The McKeevers' argument fails for the reason, if no
other, that they did not move to strike McCann's
opinion (that Marian had forged Joseph's name to the
1990 deed) upon learning during cross-examination of
the attribution of the signature. See Pataskas v.
Judeikis, 327 Mass. 258, 260, 98 N.E.2d 265 (1951);
Sheinkopf v. Eskin, 4 Mass. App. Ct. 826, 350 N.E.2d
469 (1976). That aside, in reaching her opinion, McCann
used specimens of Marian's signature, including "three
original checks." In the circumstances, there was
evidence upon which McCann properly could have
rendered her opinion. The McKeevers' additional
argument, that the judge should not have credited
McCann's opinion as to the signature on the 1990 deed
because [***25] the original deed was not admitted in
evidence, would not require a reversal of the judgment.
See Commonwealth v. Camelio, 1 Mass. App. Ct. 296,
g
sh
3
x
:
27a
298 & n.3, 295 N.E.2d 902 (1973). No suggestion is
made that the copy of the deed presented to McCann is
not a photographically precise copy of the original, and,
in fact, it was the [**428] McKeevers who offered the
copy in evidence. n16
iv. Additional evidentiary issues. Even if we were to
assume, arguendo, that the judge erred in admitting in
evidence, and considering in his findings, (1) [***26] an
answer filed by Joseph in another action which pleaded
that he was incompetent and (2) a tape recording and
transcript of a 1987 meeting between Noreen, Nona,
and several attorneys at which Noreen stated that
Joseph had been incompetent for twenty years and that
_ he did not know what day, month, or time of the year it
was, a reversal of the judgment is not required. The
judge found specifically that "the ultimate findings in
this case concerning incompetence, forgery, fraud,
undue influence and the other major issues would
remain the same even if [he] had found in the
defendants' favor on the evidentiary issues raised
[*154] in their postjudgment submissions [which
include the evidentiary issues discussed herein]."
On review of the judge's findings, as detailed in our
statement of the facts, and as augmented in the margin,
nl7 we conclude that there was ample evidence apart
from the answer and the tape recording to support the
judge's ruling that Joseph was incompetent at the time
of the Harvard Avenue conveyance. Contrary to the
McKeevers' assertion, it is also clear that the judge, in
determining the question of competency, had in mind
the legal standard that they claim is here applicable,
[***27] ie., whether Joseph had the ability to
28a
understand the nature of his property and to appreciate
the natural objects of his bounty.
[***28]
e. The contempt action. Within days of receiving the
September 23, 1991, order restraining them from using
or disposing of any of Joseph's cash assets, or cash
assets traceable to him, the McKeevers closed several
bank accounts containing substantial sums of money
that, the probate judge found, were directly traceable
to Joseph. By the terms of the judgment, the
McKeevers were ordered to pay to the court the sum of
$ 220,125, which represented amounts traceable to
Joseph that the McKeevers had expended for their own
personal use. No sanction independent of the judgment
was imposed on the McKeevers. Although the judge
noted in his findings and judgment that the McKeevers
had violated the court's orders, he made no specific
finding that they were in contempt. Accordingly, it
would be an empty exercise to [*155] consider the
McKeevers' argument that they should not have been
held in contempt. n18
[***29]
[**429] f. Computation of monies owed by
McKeevers. There is no merit in the McKeevers'
argument that the probate judge wrongfully denied
them credit for over $ 700,000 that they claim to have
expended to renovate the Harvard Avenue property
after a fire. The McKeevers' brief assertion on this
point, which fails to discuss the record or cite any
relevant authority, does not constitute appellate
argument as contemplated by Mass.R.A.P. 16(a)(4), as
ipa hom Ml sak) Rar ar
ee be Te
WD te UI Sendo cach
29a
amended, 367 Mass. 921 (1975). See Lolos v. Berlin, 338
Mass. 10, 13-14, 153 N.E.2d 636 (1958). That aside, it is
clear that the judge rejected as self-verifying the
exhibit that purported to list $ 719,000 of expenditures
on the Harvard Avenue property, and _ cross-
examination severely undermined Noreen's testimony
attempting to support a number of the listed
expenditures. The judge's finding rejecting the alleged
credit in the aggregate was not clearly erroneous. n19.
[***20]
g. Counsel fees. The guardian sought compensation
for her fees, expenses, and costs and those of her
counsel under G. L. c. 206, § 16, and G. L. c. 215, § 45.
By the terms of the judgment and a subsequent order
of the Probate Court, the judge awarded compensation
in excess of $ 500,000 to be paid from various escrowed
and trusteed funds.
In view of the decision we reach on the merits of
their appeal, it is established that the McKeevers have
no interest in Joseph's estate. Hence, they are in no
position to challenge the award of fees. In any event,
there was no error.
A judge has considerable discretion in awarding
attorney's fees under the applicable statutes. His award
is presumed to [*156] be right and will not be
disturbed without a showing that the fee is excessive.
See Rhode Island Hosp. Trust Natl. Bank v. Burns, 12
Mass. App. Ct. 251, 254, 423 N.E.2d 1 (1981); Strand v.
Hubbard, 31 Mass. App. Ct. 914, 915, 576 N.E.2d 688
(1991). In making his award of attorney's tees in the
case at bar, the judge had in mind the appropriate
30a
standards set forth in Cummings v. National Shawmut
Bank, 284 Mass. 563, 569, 188 N.E. 489 (1933), such as
the time spent, the [***31] amount in dispute, the
importance of the matter involved, and the results
achieved. n20 See, e.g., Paone v. Gerrig, 362 Mass. 757,
763, 291 N.E.2d 426 (1973) (citing Cummings for
attorney's fees under § 16); Rhode Island Hosp. Trust
Natl. Bank v. Burns, 12 Mass. App. Ct. at 258 n.10
(citing Cummings); Strand v. Hubbard, 31 Mass. App.
Ct. at 915 (listing similar factors for awards of
attorney's fees under § 45).
Here, the quality of the efforts by the guardian and
her counsel is attested to by the benefits obtained for
Joseph. The magnitude of the effort is reflected in the
probate judge's voluminous findings and the eight
volumes of the record appendix plus the transcripts of
the fourteen-day trial during [***32] which thirty-
three witnesses testified and 198 exhibits were
admitted in evidence.
The McKeevers' initial objection to the award of
attorney's fees -- that the guardian depleted Joseph's
estate by failing to settle the case -- overlooks the facts
that the motion to reconvene the trial was filed by
Joseph's children, not by the guardian, and that the
probate judge refused to enforce the proposed
settlement, later ruling that it was not a just and
equitable resolution of the dispute. Similarly, there is
nothing in the McKeevers' second objection, that the
guardian and her attorneys performed duplicative and
unnecessary services, that would require a reversal of
the order for counsel fees. Although the McKeevers cite
what are said to be examples of such services (e.g.,
duplicative charges for telephone conferences and "time
ARS Nahas si REY IRN le ae
3la
billed by more than one attorney in the courtroom or in
depositions when only one attorney's presence was
necessary"), they do not explain why any of the
supposed examples involve [**430] duplicative or
unnecessary efforts. To the contrary, in fashioning the
award for attorney's fees [*157] the judge reasonably
could have concluded, in view of the size of Joseph's
estate and the [***33] factual complexity of the case,
that it was not unnecessary or a waste of judicial
resources for lawyers on the same side of the case to
discuss matters together or to participate in the same
events. n21
3. The appeal of Porsche Realty Trust.
a. Voidable deed. The judge found that the Harvard
Avenue deed was forged and, accordingly, the Porsche
Realty Trust mortgage was void. The trustee for the
Porsche Realty Trust, while conceding that "this legal
conclusion follows from this finding," argues that the
finding upon which the ruling is premised is clearly
erroneous. Specifically, he asserts that the notary's
certificate on the 1990 deed is proof presumptively of a
valid acknowledgment, see Jantosca v. Iantosca, 324
Mass. 316, 321, 86 N.E.2d 59 (1949); Hale v. Hale, 332
Mass. 329, [***34] 333, 125 N.E.2d 142 (1955), and that
the guardian failed to overcome the presumption by
clear and convincing evidence. Therefore, the trustee
argues, because the finding that the deed was forged
was clearly erroneous, its mortgage was not void but, at
most, was voidable because of Joseph's incompetence.
n22 See Farnum v. Silvano, 27 Mass. App. Ct. 536, 538-
539, 540 N.E.2d 202 (1989). In the trustee's view, even
if Joseph was incompetent or subject to undue influence
32a
at the time the deed was signed, the mortgage would
still be enforceable as the trust was, essentially, a bona
fide purchaser for value.
[***35]
Whether a _ notary's certificate is a "true
presumption" or "rather the drawing of an inference of
regularity and compliance with law," Hale v. Hale, 332
Mass. at 333, we agree with the guardian that it was
rebutted by (a) the notary's admission that she
notarized a signature on a document (the 1990 deed)
that was not signed in her presence; (b) Marian's
admission that the Harvard Avenue deed was signed
out of the notary's presence, and (c) McCann's expert
opinion that [*158] it was Marian who signed J oseph's
name to the deed. n23 That Marian may have signed the
deed in Joseph's physical presence would not preclude a
finding of forgery particularly where, as here, there
was no evidence the probate judge was bound to accept
that Joseph, who was incompetent, knew and approved
of what Marian was doing. To the contrary, the judge
accepted McCann's opinion that Marian signed the deed
herself (rejecting the claim that Marian had merely
guided Joseph's hand) and stated expressly that any
Suggestion of a subsequent ratification of the deed by
Joseph was completely without merit.
[***36]
Even if the deed conveying the Harvard Avenue
property were merely voidable, it would not follow that
Porsche's mortgage was valid notwithstanding Joseph's
incompetence. Although Farnum v. Silvano, 27 Mass.
App. Ct. at 538-539, the case relied upon by Porsche,
Pe ee ae
33a
indicates that a transaction entered into by a mentally
incompetent person is voidable, it does not consider the
question whether the grantee of a voidable deed may
give good title to a bona fide purchaser. That question
was answered [**431] in Cleaveland v. Malden Sav.
Bank, 291 Mass. 295, 296-297, 197 N.E. 14 (1935):
"The deed of the plaintiff to her son was
voidable~ because she was non compos
mentis at the time of the execution and
delivery. Such a deed is ineffectual to
convey a title to land good against the
grantor unless ratified and confirmed by the
grantor when restored to soundness of mind
.... If the mental incompetency of the
plaintiff is established in a proceeding by
which the defendant is bound, the defendant
as an innocent purchaser for value from the ~
son to the extent of its mortgage stands no
better than the son and acquired no title to
the land. Since the deed of the plaintiff to
the [***37] son has been declared void, she
has been in truth the owner [*159] of the
land at all times here material." (Citations
omitted.)
b. Equitable lien. Notwithstanding the judge's
finding that Porsche's mortgage on the property was
void and of no legal effect, he determined that Richard
Finnerty, trustee of the K & F Realty Trust, and John
Meldon, trustee of the Porsche Realty Trust, were
entitled to an equitable lien in the amount of $
31,115.97. This sum represents proceeds from the
mortgages that were paid out at the closings directly
for the benefit of the Harvard Avenue property (i.e., for
34a
the payment of taxes and insurance). The judge, citing
Farnum v. Silvano, supra, stated that no additional
"consideration need be given for improvements .. .
which the mortgage funds might have subsidized . . .
because they were not requested by [Joseph]... ." The
trust, relying on cases such as Kressler v. Flynn, 323
Mass. 610, 83 N.E.2d 876 (1949), and pointing to a
stipulation between the parties that was an exhibit at
trial, argues that the amount of the equitable lien
should be adjusted upward. We agree.
In Kressler, the court stated: "If an insane person
has in [***38] his possession or control the
consideration or its proceeds or the benefits which
accrued to him out of the transaction which he seeks to
set aside, he should upon the granting of rescission be
required to restore to the other party what he derived
and still has from the transaction." Id. at 613. Indeed,
even where a conveyance of property is rescinded
because of a defendant's wrongful actions, "in the
absence of special circumstances rendering _ it
inequitable the defendant will, in general, be entitled to
credit for payments made by [him] or out of [his] funds
for taxes . . . and for necessary repairs [though
generally not improvements to the property] to the
extent that they increased the value of the property."
Lang v. Giraudo, 311 Mass. 132, 140-141, 40 N.E.2d 707
(1942). Cf. Farnum v. Silvano, 27 Mass. App. Ct. at
541 (generally, consideration ought not to be given to
any improvement in the property which the defendant
may have made because they were not requested by
the plaintiff).
In the instant matter, the guardian entered into a
stipulation with the trustees of the K & F Realty Trust
and the Porsche Realty Trust, the purpose of which
35a
was "to compromise [***39] and limit the evidence that
Porsche and/or Finnerty must [*160] present in its
defense in this case." The signatories stipulated that on
March 27, 1991, $ 43,923 of the proceeds of the first
mortgage given to Finnerty by Noreen and/or Marian,
as trustees of the Bourne-Hunter Realty Trust, was
deposited in a bank account. The signatories further
stipulated in paragraph 3 that after the date of the
deposit, certain disbursements amounting to $ 41,635.32
were made from the same bank account for the benefit
of the Harvard Avenue property. These sums were in
addition to the $ 31,115.97 paid for taxes and insurance.
The signatories agreed that the trust and Finnerty
would not be required to present further evidence with
respect to the amounts paid or with respect to whether -
the disbursements actually provided a benefit to
Harvard Avenue. The stipulation also recites:
"The parties do agree . . . that if the Court
enters judgment in the litigation assigning
ownership of 231-243 Harvard Avenue ... to
Joseph . . . that the expenditures listed in
Exhibit A [$ 41,635.32] were made for the
benefit of Harvard Avenue, and that the
Guardian will not contest the authenticity of
the disbursements [***40] against Porsche
and/or Finnerty. This stipulation does not
preclude or -prevent the Guardian from
presenting evidence or arguing that these
[**432] expenditures were made from funds
other than from Porsche and/or Finnerty. . .
There was no sound basis on the record for limiting
the amount of the equitable lien to $ 31,115.97. By the
36a
terms of the stipulation, the guardian undertook the
burden of demonstrating that the expenditures listed in
the agreement were made from funds other than from
the Porsche Realty Trust and/or Finnerty. We have
found no such evidence (none was cited to us), n24 and
the judge made no specific finding that the guardian
sustained her burden on this issue. If we were to
assume that the distinction between repairs and
improvements [*161] has application in the present
case, n25 the purpose of the stipulation was to limit the
evidence that the Porsche Realty Trust and the K & F
Realty Trust were required to present. The trustees
were not required to offer further evidence that the
disbursements actually provided a benefit to the
Harvard Avenue property; thus, it was not incumbent
on the trustees to demonstrate that the expenditures
made were for "necessary" repairs or [***41] work. In
the absence of any finding that the Porsche Realty
Trust or the K & F Realty Trust were involved in the
McKeevers' machinations, we think that equity
demands that the amount of the lien be adjusted to
reflect the amount specified in the stipulation. n26
[***42]
4. Summary. The McKeevers' appeal from
paragraph 4 of the judgment, as amended, is moot. The
judgment, as amended, is modified by striking from
paragraph 8 thereof the figure $ 31,115.97, and
inserting in place thereof the figure $ 72,751.29. As so
modified, the judgment is affirmed. The orders denying
the motion for judgment notwithstanding the findings
and rulings and the motion for new trial, and denying in
part the motion to alter or amend the judgment,
findings, and rulings, are affirmed.
— ae —
37a
So ordered.
nl The above-captioned action was consolidated for
trial with a petition for guardianship of Joseph S.
Hunter. Ms. Keville was initially appointed temporary
guardian of Joseph's person and estate. By a decree
dated September 8, 1993, she was appointed permanent
guardian of Joseph's person and estate. That provision
was stayed on appeal, and Ms. Keville was ordered to
continue in her capacity as temporary guardian. During
the pendency of the appeal, a suggestion of Joseph's
death was filed in this court. Thereafter, Mary H.
Schmidt, the special administrator of Joseph's estate,
filed a motion to substitute party requesting that she
be substituted for Ms. Keville, the former guardian. We
allow the motion to substitute but retain the original
names in the case caption to avoid confusion.
n2 Marian Bourne McKeever was sued individually and
as trustee of the Bourne-Hunter Realty Trust. A
suggestion of Marian's death was filed in this court on
January 18, 1995. Attorney Stephen W. Howe was
appointed special administrator of Marian's estate. The
defendants have moved to substitute Howe as the
representative for Marian in this matter. We allow the
motion to substitute.
n3 Noreen Judith Hunter, individually and as trustee of
the Bourne-Hunter Realty Trust; Frank J. McKeever,
individually; Richard J. Finnerty, as trustee of the K &
F Realty Trust; John Meldon, as trustee of the Porsche
Realty Trust; and seven trustee process defendants.
38a
n4 We shall refer to Marian, Noreen, and
Frank, collectively, as the McKeevers.
n5 The guardian obtained an ex parte
restraining order on September 23, 1991,
prohibiting the McKeevers, among other things,
from "using or disposing of any of [Joseph's] cash
assets, or cash assets traceable to [Joseph]." On
August 13, 1992, the guardian filed a complaint for
civil contempt alleging that the McKeevers had
violated this order.
ieee |
n6 The judge found that there was no "credible
evidence" that Noreen was, in fact, Joseph's
daughter.
n7 The rental units at Harvard Avenue began
to deteriorate, and a number of tenants stopped
paying rent; he received foreclosure notices on
several of his properties (and eventually sold off
most of his real estate holdings); ten of his
accounts were turned over to the abandoned
property division of the Treasury Department.
Indeed, Joseph spent much of his "business" time
"fiddling" with his jewelry and "looking through
boxes of jewelry over and over."
During the late 1970s and early 1980s Joseph
made uncharacteristic gifts of money and became
lost and disoriented at a family gathering. He
became increasingly unable to answer questions
from his grandson about his early years. By 1981,
Se
39a
Joseph had some difficulty focussing on
conversations and appeared unable to understand
fully that his wife had been hospitalized with a
broken hip. In addition, Joseph, for the first time,
failed to attend one of Ron's theatrical
performances in Boston and seemed unaware that
Nona had been away for one year in the Peace
: Corps.
In 1982, Joseph was the plaintiff in a lawsuit
involving a fire loss at one of his properties. He
was unable to assist his then attorney in the suit
and, in August, 1982, he could not answer simple
preliminary questions put to him at a deposition.
In fact, after the deposing attorney had
terminated the deposition, Joseph asked his
attorney several times, "What was that all
about?," "Why am I here?," and "Where's my
money?" That same year, Joseph's personal
physician, in response toe Joseph's intellectual
deterioration, prescribed for Joseph a
psychotropic drug -- Hydergine -- used then for
individuals who were forgetful and were
developing intellectual deficits and losing their
powers of concentration. Joseph also manifested a
"continuingly increasing inability to handle his
financial affairs," as evidenced by his failure in
1982 to pay his assessed city taxes on the
Marlborough Street property.
[oe
40a
n8 Joseph's personal physician observed that
he was "progressively more forgetful," and,
although he could make some decisions, "the
complexity of the decisions would determine
whether [Joseph] could understand them"; he
seemed unable to appreciate his wife's death in
1984, and failed even to recognize the home he
had owned and shared with his wife since 1939; he
conveyed a joint interest in that home to Ron,
even though he no longer had an ownership
interest in the property; and he was unable to
comprehend that a trust that held property
owned by him on Tremont Street in Boston had
terminated, leaving Ron and Nona as _ the
property's beneficial owners.
n9 For three months, the guardian ad litem
was "frustrated" in his efforts to see Joseph. When
he finally did see him in March, 1991, Joseph did
not know his own name and was not responsive to
such questions as time, date, and day of week. In
response to the guardian ad litem's inquiry
concerning deadbolts on the front door of the
Marlborough Street property, Marian stated that
she had had them installed because Joseph had
been "wandering" for about. three years.
nl0 On March 22, 1991, the Bourne-Hunter
Realty Trust borrowed $ 80,000 from Richard F.
Finnerty, as trustee of the K & F Realty Trust.
This loan was refinanced on May 3, 1991, by the
borrowing of $ 235,000 from the K & F Realty
Trust. A third mortgage, to the Porsche Realty
Trust, closed on July 10, 1991. Again the funds
4la
were provided by Richard Finnerty. In all,
Finnerty disbursed approximately $ 300,000 in
connection with the three loans.
nll There is no merit in the McKeevers'
additional claim that the court lacked subject
matter jurisdiction over the action because the
guardian failed to post a bond in accordance with
G. L. c. 246, § 1. Section 1, as amended through
St. 1986, c. 708, § 8, and as read against the
backdrop of the Massachusetts Rules of Civil
Procedure, "is no longer jurisdictional in the
primary sense, and .. . the plaintiff's failure to file
the required bond should not be treated as having
deprived the court of jurisdiction to determine the
action. on the merits." Big D Carpets, Inc. v. The
Welch Group, Inc., 37 Mass. App. Ct. 312, 315, 639
N.E.2d 1085 (1994). See Bird v. Capital Site
Mgmt. Co., 423 Mass. 172, 174-175, 667 N.E.2d 826
(1996). Moreover, as the guardian succeeded in
establishing the liability of the McKeevers, the
McKeevers have not been prejudiced by the
absence of a bond, "the sole purpose of which is to
secure payment of the defendant's costs and
damages resulting from the attachment on trustee
process." Big D Carpets, Inc. v. The Welch Group,
Inc., 37 Mass. App. Ct. at 315-316.
nl2 There also is no evidence in the record
before this court that notice was sent to the
Internal Revenue Service and the Department of
Revenue, as required by the agreement.
n13 We reject the McKeevers' assertion that
the issue is not moot because if the Marlborough
42a
Street conveyance is upheld as valid "there can be
no dispute that the property would be held in a
tenancy in common" by virtue of the judge's order
of September 23, 1991, and the judgment itself.
Apart from the question whether the McKeevers
are estopped from reversing their earlier position,
as stated in various postjudgment motions, that if
Marian prevails in her appeal, the Marlborough
Street property "will be restored to a joint
tenancy with Marian ... and Joseph . . . as joint
tenants," see Brown v. Quinn, 406 Mass. 641, 646,
550 N.E.2d 134 (1990), it is apparent that the
judge's order of September 23 was interlocutory
in nature and manifested the judge's intention
that, after a trial on the merits, title to the
Marlborough Street property was to be either
solely in Joseph or in Joseph and Marian as joint
tenants. [***19] .
n14 Though we do not reach the question, we note that
the guardian offered substantial evidence in support of
her allegation that Joseph was incompetent at the time
of the Marlborough Street conveyance
n15 General Laws c. 233, § .20B, as amended
through St. 1990, c. 177, § 361, provides that, with
certain exceptions, "in any court proceeding ...a
patient shall have the privilege of... preventing a
witness from disclosing, any communication .. .
between said patient and a_ psychotherapist
relative to the diagnosis . . . of the patient's
mental . . . condition." Section 20B defines
"patient" as "a person who, during the course of
diagnosis or treatment communicates with a
psychotherapist," and further defines
ett
43a
"communications" as "relating to diagnosis or
treatment."
nl16 In their reply brief, the McKeevers argue
that, because the Harvard Avenue deed was
acknowledged by a notary, it is presumptively
valid and the guardian failed to rebut that
presumption by clear and convincing evidence.
This argument comes too late. See Campbell
Hardware, Inc. v. R.W Granger & Sons, 401
Mass. 278, 280, 516 N.E.2d 150 (1987). In any
event, the argument fails for the reasons set out,
infra, in our discussion of the appeal of the
Porsche trust.
nl7 The judge also considered the opinion of
Dr. Michael Miller, a witness for the guardian who
was the director of inpatient psychiatry at Beth
Israel Hospital. In preparing his testimony, Dr.
Miller examined Joseph and reviewed, among
other things, the deposition transcripts of Dr.
Brussel and Joseph's personal physician. Doctor
Miller concluded that Joseph's behavior in 1987-
1988 was consistent with a course of primary
degenerative dementia of the Alzheimer type and
that, at the time, Joseph, most likely, did not have
the capacity to make important decisions for
himself and for his business matters. The
McKeevers' expert, Dr. Benjamin Liptzin, agreed
that Joseph was suffering from "the early stage of
dementia" in 1982. Both Dr. Miller and Dr. Liptzin
were asked a hypothetical question, based on
facts in evidence, about Joseph's competency in or
about December, 1982. Doctor Miller testified that
"putting the facts together with the more recent
information there is a good chance that Joseph
44a
was incapable at that time." Doctor Liptzin
testified that he had insufficient information to
answer the question, but that the facts posed in
the question would be "worrisome" to him.
nl18 In any event, it is doubtful that the judge
would have erred in adjudging the McKeevers in
contempt. A central thrust of the McKeevers'
argument is that the judge's order was not clear
and unambiguous as it failed to specify in any
detail what constituted cash assets traceable to
Joseph. See generally Larson v. Larson, 28 Mass.
App. Ct. 338, 340, 551 N.E.2d 43 (1990); Whelan v.
Frisbee, 29 Mass. App. Ct. 76, 82, 557 N.E.2d 55
(1990). They claim that Marian's name was on
three of the bank accounts at issue and that they
believed that the money in the accounts was hers.
It is apparent, however, that the judge did not
find those assertions credible.
nl9 The McKeevers' scant argument on this
subject in their brief does not attempt to identify
any specific items on the list as to which
documentation was purportedly adequate. It is
not our function to construct such an argument.
n20 The standards to be applied in
determining the reasonableness of the fees to be
allowed a fiduciary involve comparable criteria.
Paone v. Gerrig, 362 Mass. 757, 763, 291 N.E.2d
426 (1973). See also McMahon v. Krapf, 323 Mass.
118, 123, 80 N.E.2d 314 (1948).
EEE —————————_
45a
n21 In their request to the Probate Court for
attorney's fees, the McKeevers also sought
compensation for the services of two attorneys to
meet with various witnesses and to prepare for
and attend the trial.
n22 The trustee challenges the judge's finding
that Joseph was incompetent at the time of the
1990 conveyance. As we have discussed, there
was ample evidence to support the judge's finding
and ruling. We have also rejected, in connection
with the McKeevers' appeal, the argument that
the legal standard for entering into a contract,
rather than a donative transfer, was applied in
determining the question of competency.
n23 The trustee states in his brief that
although there are no Massachusetts cases "on
point," many other jurisdictions have ruled that
the presumption can be overcome only by clear
and convincing evidence, a burden of proof he
urges us to adopt. The record provided by the
trustee, however, does not disclose whether he
pressed this point below, and, consequently, we
need not consider it. It is to be noted that, even if
we were to assume that the more stringent
burden is applicable, the evidence in this case is
on par with that accepted as clear and convincing
proof in an out-of-State case cited by the trustee.
See Sadacca v. Monhart, 128 Ill. App. 3d 250, 254-
255, 83 Ill. Dec. 468, 470 N.E.2d 589 (1984).
n24 In her brief, the guardian does not point to
any part of the voluminous record that
demonstrates that the funds used were other than
from the Porsche Realty Trust and/or Finnerty.
46a
We note that a number of checks were drawn on
the account (to pay for the expenses listed in the
stipulation) immediately following the deposit of
the funds.
n25 For a strong argument that the distinction
should not make a difference, see United States v.
Francis, 623 F. Supp. 535, 537-538 (D.V.I. 1985).
n26 We reject the trustee's arguments that
the judge erred in failing to adjust further the
amount of the equitable lien to reflect additional
sums ($ 18,471.50) that were allegedly spent on
n26 We reject the trustee's arguments that the
judge erred in failing to adjust further the amount
of the equitable lien to reflect additional sums ($
18,471.50) that were allegedly spent on 6,091. The
former amount was not covered by the
stipulation, and it is difficult to discern, from the
record references provided by the Porsche Realty
Trust, how the figure was arrived at. As to the
Porsche Realty Trust's closing costs, it is enough
to say that those costs did not directly benefit
Joseph or his property and, indeed, only a portion
of the mortgage proceeds was used to benefit the
Harvard Avenue property. Compare and contrast
Fuss v. Fuss (No. 2), 373 Mass. 445, 450-451, 368
N.E.2d 276 (1977). It is to be noted that the judge
found that Noreen's purpose in obtaining the
mortgage loans was "to put as much on the
property as soon and as quickly as possible
because Nona and Ron were going to try to take
the property from her, and by having a lien on the
property, it would be a lot harder to do."
47a
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
PROBATE AND FAMILY COURT DEPARTMENT
NOREEN JUDITH HUNTER vs. NONA PORTER.
2/20/1999
JUDGMENT ON MOTION TO DISMISS
After hearing, it is ordered that the Complaint for
Declaratory Judgment filed December 11, 1997 is
dismissed. The complaint was not filed within one year
of Joseph S. Hunter’s death as required by G.L.c. 190
Sec. 7 and G.L.c. 197 Sec. 9.
A memorandum of decision will not fillow this judgment
as contemplated at the hearing on the defendant’s
moiton to dismiss since it appears that the statute of
limitations clearly mandates dismissal. Furthermore,
extraneous equity considerations, if relevant, would
favor the defendant. See Keville v. McKeever, 42 Mass.
App. Ct. 140 (1997).
1/19/99
John M. Smoot
Associate Justice
48a
LEXSEE 442 MASS. 1104
NOREEN JUDITH HUNTER
vs. NORA PORTER
June 30, 2004, Decided
[NO NUMBER IN ORIGINAL]
SUPREME JUDICIAL COURT OF
MASSACHUSETTS
NOTICE: [*1] UNPUBLISHED ORDER
RENDERED UNDER RULE 1:28 OF THE RULES
OF THE APPEALS COURT.
OPINION: Further anpellate review denied.
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