-: SJC-13177
to battle, personal representative of the estate
of Charles R. Dunn, B Barbara A. Howard.
-: Daniel Walsh.
-: Good morning,
attorney Daniel Walsh on behalf of Barbara Howard.
May it please the court.
We're before the court today asking the court
to determine that the lower court erred in denying
Barbara Howard's motion to dismiss.
This case, of course involves a petition for partition
that was filed in September, 2020.
Ms. Howard and Mr. Dunn own the property in question
as joint tenants.
It's a property in Boston and a two family home
that they purchased in February of 1993.
The court issued the warrant in December 11th, 2020,
followed by an amended warrant,
just correcting some type of graphical errors
in December 16th, 2020.
On January 30th, 2021,
the commissioner accepted an offer to purchase the property.
Mr. Dunn passed just about two weeks later,
on February 16, 2020.
A few days later on behalf of Ms. Howard,
I filed a motion to stay the proceedings followed by
emotion-
-: I think we may be familiar with the procedurals,
-: Thank you.
-: So I'll just ask you a question.
Why is not the issuance of the warrant,
the event that severed the four unities?
-: The issuance of the warrant is really a procedural matter.
It just establishes,
it gives direction to the commissioner.
It doesn't change any of the ownership rights.
I would look at section 10 of 241,
and it says that the warrant is issued to the commissioner
to make partition.
So the partition occurs at some point in the future.
So, the issuance of the warrant itself really doesn't change
any of the rights of the party.
(clears throat) Excuse me.
And again, looking at the four unities,
if we go back to the basic property line,
none of those unities are destroyed
by the issuance of the warrant.
-: So then, can I ask you a follow up question counsel?
-: Of course.
-: How do you explain section 26?
Which seems to say,
if the court receives notice that the death has occurred,
then the share or portion
formally belonging to the decedent,
maybe assigned or set off in the decedent's name
to be held with disposed of
as if the partition had been made prior to his death.
-: (clears throat) Thank you.
-: What does that language mean
in the context of a joint tenancy?
-: Well, we have to break that section down just a bit,
Justice Wendlandt.
If we look at the very first part of the section,
it says if a party named in the petition has died
prior to the filing thereof.
So if we look at just that section,
if it was strictly interpreted to mean that at any point,
the descendants of a joint tenant could then file a petition
for partition, it would radically change probate law.
I mean, certainly the court can envision
that the heirs of a joint tenant,
perhaps, second marriages or whatever
are dissatisfied when that parent perhaps, passes away,
they could completely circumvent property law by filing
petition for partition when that joint tenant
had no intention at all to do so.
So, I have to admit,
when I read section 26 the first time as well,
I thought that was conclusive,
but when one really kind of parses this out a little bit,
it really doesn't make sense.
And the statute has to be read in its entirety.
So, we can't just ignore this first section of the statute
that says when someone has died prior to the filing thereof,
that doesn't allow the heirs of that joint owner
to then file a petition for partition,
which would abrogate joint tenancy, property law.
That's all I have.
-: But does it really have to?
I mean, it says that the heirs shall be entitled
to the share of land set off to the decedent.
And if he died before the partition,
there is no share of land set off to him anymore.
-: But the statute does refer to somebody being able to file
after death and prior to filing thereof.
So it's difficult.
-: Counsel, don't we have to factor into that,
that this sale was not complete?
That there was still a need,
the P&S hadn't even been signed.
So, we're not that far along, right?
-: Absolutely.
And I think that's critical.
There's been no conveyance.
That's the point at which the joint tenancy
is severed and section 17 says that.
-: I'm confused though.
We gotta give some meaning to 26,
we can't just say it's stupid.
So what is the meaning you give to it?
Is it that it only applies to tenants in common?
How do we make sense of it?
Help us out here,
cause we can't just leave with, it's a bad thing.
-: Thank you, Justice Kafker,
and I think you're right on point.
It would apply to tenants in common.
I mean, with a tenancy in common,
the heirs do have an interest in the property.
I mean that's-
-: Do you want us to read the words, tenancy in common,
into section two?
We usually don't do that.
-: No, I understand.
I'm not looking to read something into it.
I'm just trying to give the court my interpretation.
So again, otherwise,
what would,
it would allow the heirs of a joint tenant to pursue
a partition with a strict reading of the statute.
But considering as a tenancy in common,
it would certainly allow those as to
after the death of that tenant in common,
to file a petition for partition.
That's a logical reading of the statute.
Otherwise we're reading into it
rights to the heirs of a joint tenant
that simply don't exist.
-: But could we read it in?
Say we read in what Justice Wendlandts first question was,
when the warrant issues,
sort of the game changes a little bit.
Could 26 be sort of a,
once the process is started provision, you can do this.
Or once the process is far enough along
that a warrant is issued
that then 26 makes some sense.
I mean, I'll be honest, I don't follow this.
So I'm asking for help.
This is not a rhetorical question.
-: No, I appreciate that.
But, you're saying you're not following section 26?
-: Well I'm trying to give meaning.
I gotta give meaning to 26.
I can't say that it's a dumb statute.
So, one meaning I gave to it is,
it's designed for this kind of situation
where the warrant is issued,
or this is far enough along that then it applies.
Cause I understand your point
that we can't read that first sentence to just say,
if somebody dies beforehand.
But I'm trying to find some,
looking at this as sort of a,
when the process is started, section 26 kicks in,
but, I may be wrong,
but, I'm trying to make sense of it.
-: No, thank you.
But once the process has started,
still, chapter 241 is really a procedural guide,
(coughs) Excuse me. (coughs) Excuse me.
suggesting to the court that the legal rights
of joint tenant or the legal aspects of joint tenancy
do not change at any point during our partition
until the land is actually conveyed.
So, there's statutory support for that as well.
I refer the court to section 18 of 241,
starts the petition by division when confirmed
an established by final decree under section 16,
which doesn't apply to the case at the end.
Or the sale,
if the partition's made by sale, shall be conclusive.
So, that's the point at which everything is conclusive.
The interim decree is really a set of instructions.
There's nothing that I found in either the statute
or a case law that would change the nature of joint tenancy
by the issuance of the decree.
Here in section 18,
we're reading that it's actually the sale,
that is the conclusive act.
It's the conveyance by the commissioner.
So.
-: Councel, what do you mean by issuance of the decree,
that interim order that says this is a joint tenancy?
-: Correct.
-: If that order had said this is now a tenancy in common,
then that would have been conclusive if not appealed
and became final?
-: Well, that's very true.
And that was determined
in Cowden v. Cutting 339 Mass. 164,
where the decree was actually incorrect.
The decree determined there was a tendency in common
when in fact the deed says it was a joint tenancy.
And that wasn't appealed and that was a final holding.
-: Yeah.
So, if that same error had happened here
and it hadn't been appealed,
then the heirs would be able to step in.
-: I agree.
-: Okay.
And that would give some meaning to section 26,
sentence two.
-: Yes, absolutely.
The second sentence, it would.
Absolutely. Yes.
Wendlandt: Thank you.
Thank you.
(clears throat) Excuse me.
But again,
the lower court-
-: Mr. Walsh, when the commissioner accepted an offer
to purchase the property,
did the unity of interest change because of the interest
that the would be purchases would have?
-: No, (clears throat) excuse me.
No, it really didn't, Justice Lowy.
What happened,
like in any residential or even commercial transaction,
but when a seller here was the commissioner
who was the agent by law of the sellers, the owners,
when a seller accepts an offer,
the seller now has an equitable obligation
to convey the property.
And the buyer has the opportunity to enforce that
through the specific performance.
It doesn't change the nature of the ownership.
It doesn't give the buyer the right to possession.
It's just, it's a contract and it confers rights
upon each party, really.
-: And that's true.
You're saying even in this case where there are all sorts of
bells and whistles that say that this is contingent upon
approval of the court,
open to a hearing, parties can object.
You're saying, this is the same as in the,
I forget the name of the case.
Yes.
-: That's the bank of justice.
I am.
There's nothing that changes.
In fact, you know,
the conditions you just cited might put a buyer on notice
actually, right?
That this is tied up in partition
and that anything could happen.
But the fundamental rights,
the contract rights between the buyer and the seller
could be enforced.
-: Even though there's all sorts of notice issues
that this is contingent,
that wasn't the case in the M case, was it?
Were there these contingencies?
-: In what case, I'm sorry, Justice Wendlandt?
-: I don't know. You just mentioned the name.
Is it McCarthy? Yeah, McCarthy.
-: Oh.
And McCarthy, it's correct.
That was pretty straightforward that the seller
got a better offer essentially,
and then tried to sell it to somebody subsequently.
So, there weren't all the bells and whistles
that you just mentioned now.
Not that I know of anyways.
But in this case.
-: Can we go back to the statute, section 26 for a minute?
Dan Walsh: Yes.
-: Reading the first sentence,
"If a party named in the petition has died
prior to the filing thereof, or dies during its dependency."
Does that include the petitioner
or just somebody named in the petition by the petitioner?
-: I would suggest it would include either party,
either the petitioner or the respondent.
Right? It's not identified in that statute.
So, I mean, that raises a question as well.
Could two of three joint owners,
I guess they'd have no incentive to do that
with the respondent.
But as far as the petitioner,
I don't think it leaves the opportunity for the heirs
of a joint owner to file a petition.
So,
you know, I would look to the reasoning of the lower court
in the decision to deny
the motion to dismiss and the lower court
put a lot of weight on the fact that there was
a purchase and sale agreement and thought it was
essentially inequitable to sort of turn one's back
on that agreement.
But again, it's a contract, right?
The court use its equitable powers to make the decision.
But, the rights of the parties involved in that
would still exist.
Even if this case was dismissed,
the commissioner only acted as the agent
of the owners of the property.
So the buyers would still have a right
for specific performance against Ms. Howard
as the seller of the property.
What happens after that?
Whether there's an agreement
or some other type of a resolution, who knows?
But the buyers would not be prejudiced.
So, for the court to exercise its equitable powers
because of that, I think it's a little unfair,
where Ms. Howard was a joint owner for 27 years
with the intention of receiving the entire fortune.
-: Do we know, Mr. Walsh,
that's the reason for the equity determination?
Because certainly you're right.
If Ms. Howard has the full tenancy,
then the purchase and sale could be enforced in deter.
But this seems to be a combination
of common law and statutory interpretation.
And to the extent it's common law,
isn't there a place for,
equity here by the land court judge?
-: I don't believe so.
I believe really, it's a question of law,
in its essence.
It's really the law involving a joint tenancy.
Certainly, when in court and probate court can exercise
equitable powers in say the distribution or allocation
of funds or division of property.
But in its essence, this is a question of law.
What does a joint tendency mean?
Joint tendency means the survivor inherits the interest
owned by the other joint tenants.
-: Okay. Are there any other questions?
We'll turn to attorney Mckenzie.
-: Thank you.
-: Thank you, Madame chief.
Fellow members of the court,
my name is Denzil McKenzie,
and with me this morning,
my colleague Colin Creager,
and also Ms. Freda Battle,
the personal representative of the decedent Charles Dunn,
should be tuning in also.
We are very pleased that the court has seen fit
to intervene and to bring some clarity
to this somewhat thorny area of property law,
which is largely out of the view
of many practitioners engaged in the property law practice.
-: Sorry, McKenzie,
can I stop you and just ask
why isn't attorney Walsh right here?
That since the transaction didn't go through,
generally, a joint tenancy means that
there's a right of survivorship
and the person who had the joint tenancy now has all of it,
now that the joint tenant has passed.
-: I'll tell you why, your honor,
if the court were to follow the path invite
that attorney Walsh has invited court to go on,
the court would be renouncing, lots of property law.
For example, it would simply overturn Tobin and McCarthy.
Tobin and McCarthy said the deal is done.
Once you have signed it, you have accepted the offer,
the deal is done.
And what attorney Walsh is inviting is that not withstanding
Tobin and McCarthy,
the buyers are they disappointed?
Buyers should go ahead and sue.
Go ahead and sue the surviving joint tenant.
What that means your honor is,
is just exactly what everyone runs away from,
which is inviting additional traffic to the courts.
It's inviting a certain amount
of uncertainty to the business.
The law runs best on certainty, not uncertainty,
This is not a case of going the casino
where you're going to spin the roulette table
or go in the direction of uncertainty.
This society works off certainty.
And what my brother has invited
and what he is suggesting is that
not withstanding the fact that an offer has been made,
not withstanding that an offer has been accepted.
But there is this open-ended situation
that can set in at any time.
And that open-ended situation can serve to hurt everyone.
I'd like to suggest, your honor,
the statute that we're looking at,
goes all the way back in time,
all the way back to the 1600s.
The last update that we had was done in 1917.
And prior to that update,
that update has remained in place since 1970.
It has not been amended.
It has been going on and the entire society has been
operating off this very stable and very predictable
and somewhat elegant statute.
Now, what my brother is suggesting is that the statute
is intended solely for the benefit of the joint tenants.
But here's the situation,
the very first sentence of the statute says that
if the plaintiff or the petitioner files
naming a joint tenant who has died,
the legislator said too bad,
joint tenant has died,
and you did not find out why that is.
And we're going to simply say that,
that joint tenant will share and will share equitable,
in the proceeds from the partition.
Then it goes on in the second sentence that speaks-
-: Cousel, can I ask you a question about that?
Or ask you to clarify that.
Are you saying that if I own property as a joint tenancy
and I file and my joint tenant dies,
then I can file a petition for partition
and the heirs of my joint tenant now get something?
-: No, your honor, that is not what I'm saying.
I'm saying the legislature- Wendlandt: Good, I'm glad.
(laughs) I didn't think so.
-: The legislature is saying that
if you were careless enough,
not to know that your joint tenant has died,
and you come into court for a partition,
we are going to treat it as though he or she is alive.
And we're going to pass on his or her share
to the heirs of the deceased joint tenant.
That's the first sentence of the statute.
-: Yeah, that seems exactly what, yeah,
that's what I was concerned you're saying.
You're saying you can revive the interests
of a dead joint tenant by being careless
and filing a petition for partition?
-: You know, I would not say revive,
I would say preserve.
-: But upon death, normally,
the right of survivorship kicks in
so that if I own property as a joint tenant,
and my joint tenant,
regardless of whether I know it or not,
dies, I own it in full.
-: No, your honor.
I'm saying that if you filed a petition on file,
naming a joint tenant who has died,
and the death is discovered during the proceeding,
the legislature say that for purposes of that proceeding,
the deceased joint owner
will take.
And the third sentence says that in that instance,
the court can decide whether the taking will be passed on
to the personal representative of the decedent.
And if there are no personal representative will wait,
and if they wait and there's nothing comes,
it goes through section 34,
which is the abandoned property provisions that is written
into general laws, chapter 241.
So, the legislature was very thoughtful in the 1917 act,
which is one we're working with.
Very thoughtful in addressing many of these concerns.
Where the problem seems to have stepped in here
is the situation that the courts have struggled with.
The courts have been struggling for many years
on the question of,
when does the joint tenancy
in a partitioned proceeding gets broken.
And we have seen over and over,
in 1958, Minnehan against Minnehan said that
it happens but we don't know where,
and we don't have to address it.
In 1973, Wilder.
-: I'm sorry, Mr. McKenzie didn't Minnehan say that
actually the filing of the petition
doesn't impact the joint tenancy?
-: That is correct, your honor,
the mere filing of the petition,
nothing happens with the filing.
And Wilder goes on to say that if you make a mistake,
if the court makes a mistake in the characterization,
and you do not correct the mistake
in the form of an appeal from that mistake,
then the petitioner is stuck with the mistake,
changing a joint tenancy to a tenancy in common.
By way of illustration, your honor,
you file the petition,
the petitioner files the petition.
The court then has an initial
status conference.
And at that status conference,
the court, with the parties,
the court will determine whether or not there's a dispute as
to the character of ownership,
such as where there might be a tenancy in the entirety
that does not belong under the statute.
In this case,
the court had this very proceeding
and during the proceeding, on September 14,
paRdon me, September 4,
the parties conceded that this was a joint tenancy,
cause there's no dispute about it
and there's no appeal taken from it.
The second interlocutory order took place in December,
when the court issued a warrant,
and that warrant is this specific and legal authorization
appointing the commissioner
to conduct the petition proceeding.
No appeal was taken from that either,
both parties were satisfied going forward.
Now granted Mr. Dunn was 94, I believe,
and was expected that he would make it through to the end.
It did not happen.
But before that, in January an offer was made.
The offer was made. The offer was accepted.
There were no dispute about the offer
or anything of the sort.
And both parties went about their business,
trying to hammer out the details
of the purchase and sale agreement.
But I'd like to note, your honor,
that Tobin and McCarthy downgraded the value
of the purchase and sale agreement.
So, the P&S in this instance are an all of the instances
and in order to preserve that,
you've got to preserve it in the offer.
That was not preserved in the offer that says that
there are some rights that will have to be enshrined in the
purchase and sale agreement in order for the offer,
not to be binding.
-: Attorney McKenzie, can I ask you,
would it be possible,
or what would happen if the rule was that the petition,
so your petitioner dies,
your petitioner, who wants to partition, has died.
If it were said that,
well, it's all still a joint tenancy
because nothing severed it,
but, the potential buyers can bring an action for specific
performance against the joint tenants.
Would there be any legal ground they could use for that?
-: Yes, your honor, because there's a contract,
according to Tobin and McCarthy.
There's a contract to be enforced,
and that contract can be enforced.
So, the party was injured by maybe the change of heart
and the part of the surviving joint tenant.
My brother has also conceded.
But what should happen is that
the contract can and should be enforced
by seeking enforcement action
against the surviving joint tenants.
Not only is that wasteful, your honor,
but that also brings a level of uncertainty to the process
that will spook everyone who gets involved
in a petition proceedings.
As it stands right now,
we've got to caution all the parties in there about some of
the bumps in the road that could pop up,
that would stand in the way of the proceeding
coming to conclusion.
To introduce a somewhat unwieldy one,
to say that one party can come in and change his mind,
and if you want to buy this property,
be prepared to spend another 20 or $30,000 to litigate that.
That's usually not factored into the sale process.
Now granted everyone plans
as Judge Long pointed out in the case of Zia Denzi,
that there's a great deal of expenses involved,
and he noted that in footnote number six.
All the expenses that are involved
in partitioning the property.
And he did find however,
that in that instance where he had a three-party
joint tenancy,
that when one fell out, all the happens is that there is
a second round at which there are only two parties.
There were successorship that took place
within the partition process.
Now that's an excellent decision, except for one thing,
Judge Long did not spend any time with section 26.
And it's a nice, short, elegant,
and understandable opinion,
but he did not address section 26.
Section 26 is not the demon that everyone tried to make
it out to be.
Section 26 is well thought out
and well thought of by the legislature.
It has been on the books and it's been going continuously
without much hitches since 1917.
Now granted, we've had a series of cases
that have raised the precedent
as to when does the joint tenancy gets disrupted.
And that's what brings us here.
We believe that Judge Foster was very careful,
very thoughtful,
and very intelligently went about in saying
that because of external laws involving property
and the sale of properties,
then this ball must stop rolling down the hill.
And it happens when the commissioner has been appointed
and the commissioner has accepted an offer.
And all of that remains were some minor details
in tying things together.
And if death took place,
the legislature can't claim the death.
None of us can say for certain,
we'll be here today or tomorrow.
But the legislature did speak specifically about
the possibilities of death.
And it did so in the very first sentence of section 26
and goes on to say more about it in the second sentence
and finally in the third sentence.
We believe the statute is a rather wholesome,
intelligent, and a very well thought out statute.
And in fact, the legislature has not seen fit
to interfere with it since 1917.
And anyone in the bar or this court
felt uncomfortable about it,
normally, this court would send a signal
to the legislature,
saying this is the problem
that you need to correct and address.
That has not happened.
And the bar has not gone here.
-: The right of survivorship and it is when the commissioner
entered into or accepted the offer to purchase,
that's your position?
-: My position is, that's correct, your honor.
My position is that the land court was correct,
and the land court should be upheld,
because it was well thought out and very intelligent
and very predictable.
And that is what we rely on in the law.