Daly v. Farrell

| Mass. | May 22, 1925

Sanderson, J.

Ellen Farrell, the mother of the plaintiffs and defendant, executed a deed dated August 14, 1905, conveying to the defendant, as trustee, two parcels of land, one in Cambridge and one in Boston. The terms of the trust as stated in the deed were, in part, to pay to Ellen Farrell during her fife the net rents and profits and at her death to convey two fifths of the estate to the defendant, two fifths to the plaintiff Theresa E. Daly, and one fifth to the plaintiff Anna M. Moran; with a provision that $300 should be paid out of the estate to her son John P. Farrell, and $1 to her son James F. Farrell. The grantee was given a power of sale and in October, 1910, sold the Cambridge real estate. It appeared that in 1912 the grantor executed and caused to be recorded in the registry of deeds a paper purporting to revoke the deed of trust to the defendant, and stating that the deed was made to evade the law as to wills. At about the same time she made a will, and she died February 2,1923.

The plaintiffs bring this bill to compel the defendant to convey to them their respective interests in the remaining real estate, in accordance with the terms of the deed of trust. The defendant alleges in her answer that the deed to her was procured by the misrepresentation of Joseph B. Moran, and that it was afterwards disaffirmed by Ellen Farrell. The judge who heard the case found that there were no misrepresentations made, but that on the contrary the grantor executed the deed in full knowledge and understanding of its contents and that the deed carried out her express intention to protect herself and her daughters from a possible undue generosity on her part to a son; that the deed does not on its face indicate a purpose to evade the testamentary laws of the State, as claimed by the mother in her written dis-affirmation, and was not so intended by her; and that the “disaffirmance” without the consent of the beneficiaries, which was not given, was ineffective and the defendant must account for such of the real estate conveyed to her, as was claimed by the plaintiff at the hearing.

A final decree was entered requiring the defendant to execute and deliver to the plaintiffs deeds in accordance with the provisions of the trust deed. The material questions of fact have been decided against the defendant’s contention, upon evidence admitted without objection. The deed to the trustee established a valid trust and there was no power of revocation reserved.

Decree affirmed with costs.