Keville v. McKeever, 94-P-744

• Decision Date: 28 March 1997
• Docket Number: No. 94-P-744,94-P-744
• Citation: 42 Mass.App.Ct. 140,675 N.E.2d 417
• Parties: Kathleen C. KEVILLE, temporary guardian, 1 v. Marian Bourne McKEEVER 2 & others. 3
• Court: Appeals Court of Massachusetts

Page 417

675 N.E.2d 417

42 Mass.App.Ct. 140

Kathleen C. KEVILLE, temporary guardian, ¹ v. Marian Bourne McKEEVER ² & others.³

No. 94-P-744.

Appeals Court of Massachusetts Suffolk.

Argued Feb. 16, 1995.

Decided Jan. 31, 1997.

Further Appellate Review Denied March 28, 1997.

Gary R. Greenberg, Boston, for Marian Bourne McKeever & others.

Robert S. Potters, Boston, for John Meldon, trustee.

David A. Guberman (Joanna E. Scannell & James J. McCusker with him), Boston, for Kathleen C. Keville.

Ira Nagel, guardian ad litem, was present but did not argue.

Before ARMSTRONG, DREBEN and LAURENCE, JJ.

ARMSTRONG, Judge.

Joseph S. Hunter (Joseph) immigrated to the 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." 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 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, ⁴ from Joseph's bank accounts and safe deposit boxes. ⁵ In addition, the guardian sought a declaration that certain mortgages were invalid.

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 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 amend the judgment, findings, 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 and secretary. During the period of 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 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. ⁶ 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. In addition, around 1980, there were changes in Joseph's interactions with his family and others. ⁷ Sometime in 1982, Joseph moved into the Marlborough 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."

In the mid-1980s, Joseph's mental condition continued to deteriorate. ⁸ 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 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.

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 Noreen, as trustees of the Bourne-Hunter Realty Trust, a trust they had created that same day and of 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. ⁹ 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 interest rate of thirty percent, with each loan paying off the previous one. ¹⁰

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 13, 1991, Marian and Noreen agreed that Joseph 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 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 ...