Rood v. Newberg, 110599

• Decision Date: 05 November 1999
• Docket Number: No. 96-P-1479,96-P-1479
• Citation: 718 N.E.2d 886,48 Mass. App. Ct. 185
• Parties: (Mass.App.Ct. 1999) SHEA L. ROOD vs. MICHAEL NEWBERG (and a companion case <A HREF="#fr1-1" name="fn1-1">1 )
• Court: Appeals Court of Massachusetts

718 N.E.2d 886 (Mass.App.Ct. 1999)

SHEA L. ROOD vs. MICHAEL NEWBERG (and a companion case¹).

No. 96-P-1479

MASSACHUSETTS COURT OF APPEALS

Argued May 7, 1998.

November 5, 1999

Essex County

Warner, C.J., Smith, & Jacobs, JJ.

Probate Court, Findings by judge, Attorney's fees. Undue Influence. Fraud. Will, Allowance,

Undue influence. Damages, Interest.

Petition filed in the Essex Division of the Probate and Family Court Department on November 7,

1994.

Civil action commenced in the Essex Division of the Probate and Family Court Department on

November 22, 1994.

The cases were consolidated and heard by Edward J. Rockett, J.

Marvin R. Finn for Shea L. Rood.

Barry Ravech for Michael Newberg & another.

SMITH, J.

Dora Shaffer died on September 25, 1994, leaving a will in which she named her son,

Shea Rood (Rood), and her daughter, Estelle Newberg (Estelle), as coexecutors. On November 7,

1994, Estelle petitioned the Probate Court for the allowance of the will. Rood did not join in the

petition. Instead, he filed an affidavit of objections to the allowance of the will, claiming that

Michael Newberg (Newberg), Estelle's son and Shaffer's grandson, had used undue influence

with respect to the will and that the will was invalid for lack of testamentary capacity (the estate

action). Rood also brought a complaint in the Probate Court in which he sought an order

requiring Newberg to turn over to the estate the proceeds of four accounts in various banks which

Shaffer had held jointly or in trust for Newberg (the equity action). According to the complaint,

the accounts were as follows:

1.Salem Five Cents Savings Bank

Dora Shaffer, trustee for Michael Newberg, with approximately $86,000 in a checking account;

2.Eastern Bank

Dora Shaffer or Michael Newberg, with approximately $52,000 in a savings account;

3.Marblehead Savings Bank

Dora Shaffer and Michael Newberg, with approximately $3,300 in a checking account;

4.Marblehead Savings Bank

Dora Shaffer and Michael Newberg, with approximately $57,000 in a savings account.

The estate and equity actions were consolidated, and after a trial the judge issued a memorandum

containing his findings of fact and conclusions of law. In the equity action, the judge ruled that

Newberg had committed fraud and exerted undue influence over Shaffer and, therefore, had

obtained the four bank accounts through improper means. As a result, the judge ordered Newberg

to deliver the bank accounts to the administrator with the will annexed so the bank accounts

could be administered as part of the estate. In the estate matter, the judge made the same finding

of fraud and undue influence but allowed the will except for certain provisions benefitting

Newberg.

Rood filed a motion to amend the judge's findings of fact and conclusions of law to include a

conclusion that Estelle had conspired with Newberg to perpetrate a fraud and/or unduly influence

Shaffer in regard to the 1992 will. The judge denied the motion. The judge then allowed Rood's

request for counsel fees and costs in the amount of $58,143.12 and Estelle's and Newberg's

request for legal fees and costs amounting to $27,666.65.

Estelle and Newberg filed a motion to set aside, amend, or supplement the judge's findings or for

a new trial, in both the equity and estate actions. The judge denied the motion. Over Newberg's

objection, the judge allowed Rood's motion to amend the judgment in the equity matter, seeking

interest at the twelve percent statutory rate on the four bank accounts.

Newberg appealed from the decisions entered in the equity and estate matters. Rood, in turn,

appealed from the "judgment," as he understood it, that the attorney's fees and costs incurred by

Newberg and Estelle should be paid from the residue of the estate. Rood also claimed that Estelle

should be stripped of any benefits she received under the will because she acted in concert with

her son regarding the fraud and undue influence.

We summarize the judge's findings of fact, supplementing them with undisputed evidence,

including a statement of agreed facts submitted by the parties. At her death, Shaffer's gross estate

was $841,827. It included thirteen savings or certificate of deposit accounts in her own name

totaling $225,867, personal property valued at $14,104, twenty-one survivorship bank accounts

and certificates of deposit worth $471,256 and her interest in a home valued at $100,000.

Shaffer had inherited a substantial amount of money when her mother died. From 1972 to

1989-1990, Rood advised her concerning her financial affairs and assisted her in other ways,

such as driving her to banks and helping her write checks to pay her household bills.² In 1984,

Shaffer conveyed ownership of her home, at Rood's suggestion, to Newberg and herself jointly

with the right of survivorship because she was fearful that Newberg might marry and move out;

Newberg had lived with her since 1971 because Shaffer did not want to live alone.

In 1972, Shaffer and Rood opened a safe deposit box at the Security National Bank (Security

National). On numerous occasions, Shaffer told Rood that if she ever became seriously ill, he

was to take all of her bankbooks and jewelry from the box and place them in his own safe deposit

box so that the items would not become part of her estate and be taxed upon her death.

Sometime in 1989 or 1990, Rood, who was an industrial packaging salesman, became very busy

with his own business obligations and did not have the time to assist Shaffer with her various

errands. Therefore, Shaffer told Rood that Newberg would help her. She also told Rood that she

intended to make her checking account at Salem Five Cent Savings Bank a joint account with

Newberg for her convenience. On December 21, 1989, Shaffer changed the Salem account to

read in her name as "Trustee for Michael Newberg."

On January 28, 1991, Shaffer went to Security National and removed the bankbooks and jewelry

from the safe deposit box that she shared with Rood and took those items to her home. On

January 30, 1991, Newberg opened a safe deposit box at the Shore Bank in his name and put the

bank books and jewelry in that box. On January 31, 1991, Shaffer opened a second safe deposit

box at the same bank, and, on February 1, she had the box also placed in Rood's name. She

closed this box on May 11, 1992.

On April 11, 1991, Shaffer was hospitalized with pneumonia. Because of Shaffer's previous

instructions to him to remove her property from the safe deposit box at Security National, Rood

went to the bank. However, he did not find the jewelry and bankbooks in the box. That same day,

Rood visited Shaffer in the hospital. He told her that he had gone to the safe deposit box and

discovered that all of the bankbooks and jewelry were missing. Shaffer had forgotten her

instructions to Rood. She also did not remember that she had removed the items herself.

Therefore, upon being told that they were missing, Shaffer became extremely agitated and

demanded to know why Rood had gone to the safe deposit box. Fearful of aggravating her

medical condition, Rood left the room without answering her question.

After he left, Rood told Newberg about the missing bankbooks and jewelry and about his

mother's reaction. Newberg told him not to worry because the items were at Shaffer's home in

her dresser drawer. Newberg knew that the items were actually in his safe deposit box.

On several occasions between the time that Shaffer returned home from the hospital until her

death, she complained to Newberg about Rood taking the items from her safe deposit box and

that she did not trust him. Newberg did not remind her that she, not Rood, had removed the items

or that he, Newberg, had placed them in his own safe deposit box.

On June 18, 1991, Shaffer changed her checking account at the Marblehead Savings Bank

(Marblehead Savings) to a joint account in her and Newberg's names. She also opened a savings

account at the same bank on July 22, 1991, in those names. On April 30, 1992, Shaffer opened

yet another savings account in the same names at Eastern Bank. The judge found that these three

accounts were made joint accounts because of fraud and undue influence of Newberg.

On October 16, 1992, Newberg drove Shaffer to her attorney's office where she informed the

lawyer that she wanted to change her will. Newberg was present both when Shaffer discussed the

provisions she wanted and when she told her lawyer that one of the reasons she was changing the

will concerned Rood's removing her property from the safe deposit box without her permission.

Newberg gave the lawyer a list of bankbooks and dispositive provisions that he had prepared.

On October 23, 1992, Newberg again drove Shaffer to her lawyer's office. The will was then

executed in Newberg's presence. Shaffer told one of the witnesses to the will that she was

changing her will because Rood had taken items from her safe deposit box and she had a difficult

time getting them back. Newberg heard the statement but did not respond or otherwise correct

her. In addition, Shaffer gave a durable power of attorney to Newberg that day.

The will, prepared and signed by Shaffer, named Rood and Estelle as coexecutors and also

named them as residuary beneficiaries in equal shares. The will provided that any bank accounts

in the names of Shaffer and another person shall belong to that other person at the time of

Shaffer's death. In the previous will executed in 1986, a similar provision stated that any bank

account or other security that Shaffer owned jointly with one of her children shall go to that child

at the time of Shaffer's death. Therefore, Newberg would not have received joint or trustee

accounts under the 1986 will.³ The new will also bequeathed certain furniture and fixtures to

Newberg.

The judge found as a fact that Shaffer was opinionated, feisty, stubborn, and...