Zaleski v. Zaleski

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; SPALDING
• Citation: Zaleski v. Zaleski, 111 N.E.2d 451, 330 Mass. 132 (Mass. 1953)
• Decision Date: 03 April 1953
• Parties: ZALESKI v. ZALESKI.

Page 451

111 N.E.2d 451

330 Mass. 132

ZALESKI v. ZALESKI.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 3, 1953.

Decided April 3, 1953.

Francis C. Zacharer, Lowell, for the plaintiff.

Richard K. Donahue, Lowell, for the defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

SPALDING, Justice.

The principal objectives of this bill in equity are to set aside a deed of real estate on the ground that it was obtained by fraud, and for an accounting of rents and profits. From a decree favorable to the defendant, the plaintiff appeals. The case comes here with findings of material facts and a report of the evidence.

The findings are these. The plaintiff and the defendant are son and daughter respectively of Amelia Zaleski who died on April 21, 1946, leaving a will which has been duly admitted to probate. In 1939 Amelia, who owned a parcel of real estate, conveyed it to the plaintiff by a deed absolute in form, but upon an oral trust that he hold it for the benefit of his brother Henry who was not capable of caring for himself. In her will executed in 1937 Amelia devised the same property to the plaintiff under a somewhat similar trust. ¹ 'The plaintiff and Henry lived in the homestead alone and got along fairly well for a time.' The plaintiff provided food and paid the taxes on the property up to and including 1946. He failed to pay the taxes after 1946 and did not maintain the property in proper condition, allowing the water pipes to be damaged by freezing. Early in 1948 Mr. Garvey, counsel for Amelia's estate and for Laura, visited the property and found that the house was unheated and Henry was in bed in order to keep warm. The plaintiff on that occasion informed Mr. Garvey that he could not take care of the property and desired to turn it over to Laura. In consequence thereof Mr. Garvey prepared a deed conveying the premises to Laura which was executed by the plaintiff on February 11, 1948. The judge found that this transaction was fully explained to the plaintiff by Mr. Garvey and that 'there was no misrepresentation with regard to this matter as alleged in the bill.' ²

Shortly after acquiring the property the defendant caused it to be converted into a two family house out of the proceeds of a mortgage, and one of the apartments is now occupied by a tenant who pays rent therefor. The defendant has adequately taken care of the expenses and maintenance of the home and 'is the sole owner [of it] as trustee * * * subject to the aforesaid mortgage, [and] * * * holds same under a duty to provide support and maintenance for * * * Henry Zalesky.'

There was no error.

1. On the principal issue in the case (Fraud in the procurement of the deed) the findings of the judge show that the plaintiff cannot prevail. These findings were not plainly wrong and must stand. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83-84, 195 N.E. 900.

2. The final decree, among other things, enjoined the plaintiff 'from interfering with the management and control of the said real estate by the defendant, Laura Zalesky, as trustee, and from the use and occupancy * * * [of it] without the consent * * * of the defendant' (paragraph 3). The plaintiff argues that this provision is beyond the scope of the pleadings. We do not agree. The defendant's answer as amended included a counterclaim in which she alleged that the plaintiff was preventing the defendant from maintaining the property for the benefit of Henry and prayed that the plaintiff be ordered to refrain from such interference.

3. Finally, it is argued that there is an inconsistency between that portion of the decree quoted above and paragraph 1 thereof which provides that the defendant 'is the sole owner as t...