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16-P-282                                               Appeals Court

           DEAVEN A. SKYE    vs.   LISA A. HESSION & others. 1


                              No. 16-P-282.

         Worcester.       November 18, 2016. - April 28, 2017.

               Present:     Vuono, Kinder, & Lemire, JJ.


Deed, Condition, Construction. Real Property, Conveyance, Deed,
     Life estate, Remainder interests. Power of
     Appointment. Devise and Legacy, Power of appointment,
     Remainder interests. Will, Power of appointment.



     Complaint filed in the Worcester Division of the Probate
and Family Court Department on December 21, 2010.

     The case was heard by Lucille A. DiLeo, J.


     Robert P. Ford for the plaintiff.
     Francis X. Small for the defendants.


     VUONO, J.    This appeal concerns the validity of a provision

in a quitclaim deed that reserved to the grantor, Margaret A.

Hession, a special power of appointment over her home (the

property).    Margaret executed such a deed in which she granted

     1
         Ronald G. Stewart and Melanie J. Hession.
                                                                     2


the property, in equal shares, to her three daughters and son-

in-law:   the plaintiff, Deaven A. Skye; her sisters, Melanie J.

Hession and Lisa A. Hession, and Lisa's husband, Ronald G.

Stewart. 2,3   Margaret later exercised the special power of

appointment to reduce Skye's interest in the property to the

advantage of the others.    Upon Margaret's death, Skye brought an

action seeking a declaration that the deed's special power of

appointment was invalid.    A judge of the Probate and Family

Court upheld the validity of the reservation, and this appeal

ensued.   For the reasons set forth, we affirm.

     Background.    The following facts are not in dispute.     In

late 2005, Margaret was seventy-seven years old and in declining

health.   Concerned about her potential need for long-term

medical care, she sought legal assistance to plan her estate to

protect her home from certain "spend-down" or lien provisions of

MassHealth, the Massachusetts Medicaid program.    In some

situations, MassHealth considers assets transferred during a

"look-back" period for disqualification purposes, and the period

was soon to be enlarged from three years to five.    See 130 Code

Mass. Regs. § 520.019(B) (2006) (look-back period thirty-six


     2
       To avoid confusion, we use first names for Margaret, Lisa,
and Melanie, who share the same surname.
     3
       Specifically, the deed granted an undivided one-third
interest to Lisa and Stewart, and an undivided two-thirds
interest to Skye and Melanie.
                                                                   3


months for transfers prior to February 8, 2006; look-back period

sixty months for transfers on or after February 8, 2006).     As

part of a strategy to avoid or to minimize the impact of this

change, Margaret executed the deed on January 2, 2006,

transferring the property to Skye, Melanie, Lisa, and Stewart.

The deed reserved to Margaret a life estate and a special power

of appointment, exercisable by deed or by will, that would

permit Margaret to appoint the property to any person except

herself, her creditors, her estate, or her estate's creditors.

The relevant provision of the deed states:

     "The Grantor also reserves the power to appoint, in whole
     or in part, the property herein conveyed to any person or
     persons in such proportions, outright or upon such trusts,
     terms, and conditions as the Grantor may specify by deed
     recorded at the appropriate registry of deeds, or by will
     or codicil thereto making express reference to this power.
     The Grantor may not appoint the said property to the
     Grantor, the Grantor's creditors, the Grantor's estate or
     the creditors of the Grantor's estate."

     On October 8, 2008, Margaret executed a last will and

testament.   At that time, Margaret had decided that her

daughters should take her estate in unequal shares and,

consistent with this intent, she included in the will an

exercise of the special power of appointment, reducing Skye's

interest in the property from one-third to five percent.

     Margaret died on March 17, 2009.   Lisa, acting in her

capacity as executrix of the estate presented the will for

probate on April 6, 2009.   Skye filed an objection to the
                                                                     4


probate of the will and then filed a complaint in equity seeking

a declaratory judgment that the deed's reservation of

appointment was void ab initio.   For hearing purposes only, the

equity action was consolidated with the will contest and another

matter not relevant here.   A trial was held in April, 2014,

which resulted in a judgment against Skye upholding the

reservation of appointment in the deed as valid. 4   Subsequently,

the judge ordered the dismissal of Skye's objections and the

admission of the will to probate.   Skye has appealed.

     Discussion.    The dispute in this case concerns the

interpretation of Margaret's deed, and specifically, the

validity of a reservation of a power of appointment.     The

interpretation of a deed presents a question of law, which we

review de novo.    See World Species List -- Natural Features

Registry Inst. v. Reading, 75 Mass. App. Ct. 302, 305 (2009).

     "Deeds should be 'construed as to give effect to the intent

of the parties, unless inconsistent with some law or repugnant

to the terms of the grant.'"    Commercial Wharf E. Condominium

     4
       The judge wrote, "After hearing all the credible evidence,
it is the opinion of this Court that the reservation of
appointment in the deed from Margaret A. Hession to Lisa A.
Hession and Ronald G. Stewart as tenants by the entirety, having
an undivided one-third interest as tenants in common; and Deaven
A. Skye and Melanie J. Hession, as joint tenants, together
having an undivided two-thirds interest as tenants in common in
the Quitclaim Deed for the real estate located at 199 Hopedale
Street, Hopedale, MA recorded at the Worcester District Registry
of Deeds Book 38262, Page 60 recorded on January 24, 2006 is a
valid reservation."
                                                                   5


Assn. v. Waterfront Parking Corp., 407 Mass. 123, 131 (1990)

(Commercial Wharf), quoting from Harrison v. Marcus, 396 Mass.

424, 429 (1985).   The parties agree that Margaret's intent was

two-fold:   first, she sought to divest herself of any interest

in the property except for her life estate 5 to avoid or to

minimize the anticipated changes to MassHealth look-back

regulations; second, she sought to retain the ability to alter

who would ultimately take the property upon her death. 6   The deed

was drafted to achieve both purposes.   It conveyed the property

to the parties, thereby divesting Margaret of a fee simple

absolute but, in the course of doing so, it reserved to Margaret

a life estate and a special power of appointment, i.e., a power

to transfer or to dispose of property no longer owned by her.

See Matter of the Estate of Rosen, 86 Mass. App. Ct. 793, 799

(2014).

     We acknowledge the existence of some apparent tension

between the grant of the remainder interests and the reservation

of the power.   The former granted the parties a present



     5
       A power of appointment is not, in itself, a legal interest
in property. See Matter of the Estate of Rosen, 86 Mass. App.
Ct. 793, 799 (2014). See also Davis v. Scavone, 149 Me. 189,
192 (1953); Munger v. Munger, 298 S.W. 470, 473-474 (Tex. App.
1927).
     6
       We express no view on the effect of the reserved power of
appointment on Margaret's strategy of avoiding MassHealth look-
back period regulations.
                                                                    6


ownership interest, 7 but the latter permitted Margaret to

effectively terminate or alter those interests by exercise of

the special power of appointment.   Skye argues that the

reservation of the power is void because the provisions of the

deed are not merely in tension, but irreconcilably repugnant to

one another.

     Though our primary objective is to give meaning to a

grantor's intent, see Commercial Wharf, supra, we are unable to

do so where the intent contravenes law or is repugnant to the

terms of the grant.   See Bass River Sav. Bank v. Nickerson, 303

Mass. 332, 334 (1939); Harrison, 396 Mass. at 429; Commercial

Wharf, supra.   Repugnancy may exist not only between a party's

intent and the terms of the grant, but within the instrument

itself:   where two provisions in a deed are irreconcilably

repugnant to one another, "one or the other must

yield."   Proprietors of Canal Bridge v. Methodist Religious Soc.

in Cambridge, 13 Met. 335, 352 (1847).   Thus, where a deed

grants property subject to two conditions, and fulfillment of

either condition would necessarily result in breach of the

other, the conditions are repugnant to one another and one of


     7
       The remaindermen received a present conditional ownership
interest notwithstanding that their right to present possession
was postponed until the termination of the prior estate. See
Dodge v. Bennett, 215 Mass. 545, 546-547 (1913); Restatement
(Third) of Property: Wills and Other Donative Transfers § 25.1
& comment a (2011).
                                                                      7


them must fail.    Id. at 351-352.   Similarly, where a grant is

followed by a subsequent term that would "restrain or diminish

what is expressly granted," that subsequent term is

void.    Cutler v. Tufts, 3 Pick. 272, 278 (1825).   However,

application of this doctrine is to be avoided if possible:      if

"both parts of a deed may well stand together consistently with

the rules of law, they shall be construed to have that effect,

rather than be held repugnant."      Corbin v. Healy, 20 Pick. 514,

515 (1838).

       In this case, the grant of the remainder interests and the

reservation of the power are not repugnant to one another

because the remainder interests granted were not in the nature

of fees simple absolute.    Had the deed merely reserved to

Margaret a life estate, this, of course, would have been the

case.    Here, the additional reservation of the power of

appointment resulted in a grant of a lesser estate.     "[U]nder

common law, a property owner has the right to impose limitations

or conditions on an estate that is conveyed to another, such

that the conveyance is not one of fee simple absolute."     Queler

v. Skowron, 438 Mass. 304, 310 (2002), citing Gray v. Blanchard,

8 Pick. 284, 288-290 (1829).    This is precisely what Margaret

did.    She did not convey the entirety of the remainder and,

subsequently, attempt to claim a power of appointment over an

already-conveyed interest.    Rather, the interests, as conveyed,
                                                                      8


were circumscribed by the reserved power of appointment. 8   The

remainder interests were therefore in the nature of fees simple

defeasible. 9

     Conclusion.     Because of the reservation of the life estate,

the deed conveyed not present possessory estates but rather

remainder interests; and, because of the reservation of the

power, the remainder interests were defined, in part, by this

limitation, and they were in the nature of fees simple

defeasible.     The reservation of the power of appointment may

stand consistently with the other provisions of the deed, and

the probate judge properly gave effect to that provision and to

Margaret's intent. 10

                                      Judgment affirmed.

     8
       It is irrelevant that the instrument first conveyed the
property, then reserved the life estate, and then reserved the
power. We do not blindly adhere to a formalistic requirement
that Margaret first convey to herself the life estate and power
and, only after, in a final paragraph, convey the remainder
interests. It is sufficient that the three terms -- the grant,
the reservation of the life estate, and the reservation of the
power -- occurred in the same instrument. See Queler, supra at
313 (developers submitting land to condominium statute, but
wishing also to retain interest, need not first file separate
instrument reserving interest; such interest may be reserved in
same master deed instrument used to submit land to statute).
     9
       We decline to address the more esoteric question of the
precise type of defeasible fee, i.e., whether the remainders
were in the nature of fees simple determinable or fees simple
subject to a condition subsequent. See generally Queler, supra
at 310.
     10
          We deny the parties' requests for appellate attorney's
fees.
