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22-P-459 Appeals Court

JAMES B. LODIGIANI & another1 vs. NINA PARÉ.

No. 22-P-459.

Hampden. March 10, 2023. – August 22, 2023.

Present: Wolohojian, Shin, & Hodgens, JJ.

Real Property, Partition, Life estate, Remainder interests.

Probate Court, Partition proceedings, Judicial discretion, 

Attorney's fees. Practice, Civil, Attorney's fees. Waste.

Petition for partition filed in the Hampden Division of the 

Probate and Family Court Department on February 22, 2019. 

The case was heard by Claudine T. Wyner, J., and motions 

for reconsideration and for attorney's fees and costs were

considered by her.

Karen M. Lodigiani for the petitioners.

Jessica R. Sofio for the respondent.

SHIN, J. This is the petitioners' appeal from a decree 

entered in the Probate and Family Court ordering that the 

proceeds from a partition and sale of the subject property 

1 Anne A. Betramello, individually and as representative of 

the estate of Leonard C. Lodigiani.
2

(property) be divided equally among the parties. Prior to the 

partition, the parties, who are all siblings, owned remainder 

interests in the property subject to the life estate of their 

father, Leonard C. Lodigiani. While the life estate was still 

in existence, the respondent-remainderman Nina Paré caused 

damage to the property over the course of several years. The 

petitioners-remaindermen James B. Lodigiani and Anne A. 

Beltramello incurred costs to mitigate the damage, which they 

then sought to recoup from Nina2 in the underlying partition 

action.

The judge determined that James and Anne's claim for 

contribution from Nina was beyond the scope of the partition 

action, and so she could not consider it. This was because, the 

judge reasoned, Leonard had the duty as life tenant to preserve 

the property for the benefit of the remaindermen; thus, James 

and Anne's exclusive remedy was to bring an action for waste 

against Leonard's estate. We conclude that this was error 

because Nina had her own duty as a remainderman not to impair 

the rights and interests of her coremaindermen. It was 

therefore within the judge's authority to consider whether to 

account for the property damage caused by Nina when determining 

how to equitably divide the proceeds from the partition sale. 

2 As some of the parties share the same surname, we will 

refer to all parties hereafter by their first names.
3

Further concluding that additional explanation from the judge is 

needed as to her denial of the petitioners' motion for 

attorney's fees and costs, we vacate the decree in part, and the 

order denying the motion for attorney's fees and costs and 

remand.

Background. We summarize the judge's factual findings, 

supplemented by uncontested facts of record.3

On March 11, 2004, Leonard and his wife Helen deeded the 

property to James, Anne, and Nina as joint tenants with rights 

of survivorship, while reserving a life estate for themselves. 

The deed provided that Leonard and Helen had "the exclusive 

right to occupy the premises" during their lifetimes, along with

the obligation to pay "the cost of all insurance, maintenance, 

fees, charges and expenses relating to the premises" and "all 

taxes assessed or imposed with respect thereto, and all 

principal and interest on any mortgages thereon."

Following execution of the deed, Leonard and Helen lived 

together at the property with their fourth child John, who has 

developmental disabilities. After Helen died in 2007, Leonard 

continued to live at the property with John. In or about 2011, 

3 Several documents referred to in the petitioners' brief 

are not included in the record appendix, including the petition 

itself and the deed. We stress that it is an appellant's duty 

to produce an appendix containing all portions of the record 

relevant to the issues raised on appeal. See Mass. R. A. P. 

18 (a), as appearing in 481 Mass. 1637 (2019).
4

Nina moved into the property, where she assisted in caring for 

both Leonard and John.

Nina, who has a history of hoarding, continued that

behavior while living at the property. In or about July 2012,

James began sending e-mail messages to Nina, urging her to clean 

up and "not add to the mess." Despite his efforts, by 2014 the 

property was in very poor condition. Late that year James 

arranged and paid for a dumpster to be brought to the property 

for the purpose of cleaning up the clutter and trash that Nina 

had accumulated. Nina's behaviors persisted, however, leading 

the town's health department to issue several violation notices 

to Leonard in 2016 for violations of the State sanitary code.

In July 2017 James told Nina that she was no longer welcome 

to stay at the property and needed to remove her belongings. 

When Nina did not oblige, James told her in early 2018 that he 

and Anne "as majority owners of the house" needed to prepare the 

property for sale and that Nina needed to leave. In May 2018 

Leonard moved himself and John out of the property.

In or about December 2018, Leonard obtained a no-trespass 

order against Nina. Thereafter, James, Anne, and their families 

worked to clean up the property. The clean-up process took 

approximately one year and required a series of dumpsters at a 

cost of over $6,000, which James paid.
5

Meanwhile, in February 2019, James, Anne, and Leonard filed 

a joint petition for partition, naming Nina as respondent. The 

petition requested that Leonard be allowed to surrender his life 

estate and that the property be sold and the proceeds 

distributed in proportions that included compensating the 

petitioners for the costs they incurred to mitigate the damage 

caused by Nina. The judge issued an interlocutory decree 

ordering partition by sale and appointed a commissioner, who 

closed the sale of the property on January 27, 2020.4 Leonard 

died the next day.5 

The case proceeded to a bench trial on the issue of how the 

sale proceeds should be divided among the parties. From the 

evidence the judge found it "clear that [Nina] was the cause of 

the waste, trash accumulation and debris in and around the 

property." The judge further found that James and Anne

"incurred significant expense and spent considerable time to 

essentially clean up their sister's mess." Nonetheless, the 

judge concluded that Leonard, not Nina, was the appropriate 

person from whom to seek reimbursement because Leonard, as the

4 The commissioner's report is not included in the appendix, 

and there is no other document in the appendix showing the 

amount of proceeds received from the sale.

5 Anne was later substituted for Leonard as personal 

representative of his estate.
6

life tenant, had the exclusive right to possession at all 

relevant times, and so was "the sole person [with] the duty to 

preserve and protect the property for the benefit of the 

parties." Based on this reasoning, the judge concluded that

James and Anne's claim for contribution was beyond the scope of 

the partition action and instead had to be raised through an 

action for waste against Leonard's estate.

The petitioners moved for reconsideration under Mass. R. 

Civ. P. 59 (e), 365 Mass. 827 (1974), and separately moved for 

attorney's fees and costs under G. L. c. 241, § 22. The judge 

summarily denied both motions. She then issued a final decree

ordering that the sale proceeds be divided equally among the 

parties, after deducting the commissioner's expenses and 

charges.

Discussion. 1. Equitable division. The overall objective 

of a judge in a partition proceeding is to make a "just and 

equitable" division "according to the respective rights of the 

parties." Batchelder v. Munroe, 335 Mass. 216, 218 (1957). See

Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007)

("purpose of partition proceedings is to balance the rights and

equities of the parties concerning the property at issue").

Although there is a "presumption that partitioned property

should be equally divided," the presumption can be rebutted if a

party "show[s] that his [or her] beneficial interest is
7

different from that indicated by the record title" (quotation

and citation omitted). Canepari v. Pascale, 78 Mass. App. Ct.

840, 844 (2011). A judge making a division therefore has the

discretion to depart from the presumption if warranted by the

circumstances bearing on the equities and the parties' rights,

including any prior financial contributions made by a party to

preserve the common estate. See Sanborn v. Johns, 19 Mass. App. 

Ct. 721, 724 (1985); Stylianopoulos v. Stylianopoulos, 17 Mass. 

App. Ct. 64, 69-70 (1983).

It is evident from the judge's decision here, however, that 

she believed she lacked the discretion to credit James and Anne

for the costs they incurred in cleaning up the property, even 

though Nina was the cause of its poor condition. The judge took 

this view based on a conclusion of law: that a remainderman 

like Nina cannot be held responsible for any property damage 

that occurred during a prior life tenancy because it is the life 

tenant who has the right to possession and the corresponding

duty to preserve the property for the remaindermen. From this

premise the judge further concluded that the party responsible 

for the damage was Leonard -- who, the judge found, could have 

obtained a no-trespass order against Nina sooner than he did --

and so the exclusive vehicle through which James and Anne could 

seek to recoup their costs was an action for waste against 

Leonard's estate.
8

We think the judge viewed the scope of her discretion too 

narrowly. It is true, as a general matter, that a life tenant 

has the "duty to preserve the estate for the benefit of the 

remaindermen" and can be held liable to the remaindermen in an 

action for waste for property damage occurring during the 

tenancy. Matteson v. Walsh, 79 Mass. App. Ct. 402, 406 (2011). 

See Fay v. Brewer, 20 Pick. 203, 204 (1825). The Legislature 

long ago enacted G. L. c. 242, § 1, which provides that "[i]f a 

tenant in dower, by the curtesy, for life or for years commits 

or suffers waste on the land so held, the person having the next 

immediate estate of inheritance may have an action of waste 

against such tenant to recover the place wasted and the amount 

of the damage." Persons "holding vested remainders after . . . 

[a] life estate" are among those persons "having the next 

immediate estate of inheritance" under G. L. c. 242, § 1. 

Thayer v. Shorey, 287 Mass. 76, 79 (1934). See G. L. c. 242, 

§ 2 ("A person having . . . a remainder or reversion in fee 

simple or fee tail after an intervening life estate . . . may 

have an action of tort in the nature of waste to recover the 

amount of the damage against the tenants named in the preceding 

section"). An action for waste can also be brought against a

tenant's estate "for waste committed or suffered in the tenant's 

lifetime." G. L. c. 242, § 3.
9

The concept of waste embodies the principle that a tenant 

has the "obligation to treat the premises in such manner that no 

harm be done to them and that the estate may revert to those 

having an underlying interest undeteriorated by any wilful or 

negligent act." Delano v. Smith, 206 Mass. 365, 370 (1910). 

Waste is defined as "an unreasonable or improper use, abuse, 

mismanagement, or omission of duty touching real estate by one 

rightfully in possession which results in its substantial 

injury." Id. It can take two forms -- voluntary, resulting 

from the tenant's intentional conduct, and permissive, resulting 

from neglect or omission. See Gade v. National Creamery Co., 

324 Mass. 515, 516-517 (1949); Chalmers v. Smith, 152 Mass. 561, 

564 (1891); Matteson, 79 Mass. App. Ct. at 406-407.

While there are few cases in Massachusetts addressing when

a life tenant can be held liable to a remainderman for acts 

committed by others, we need not reach that question, nor need 

we decide specifically whether the judge was correct to conclude 

that Leonard's delay in obtaining a no-trespass order against 

Nina would be actionable as permissive waste against his estate.

The only question we must decide is whether the judge, when 

apportioning the proceeds from the partition sale, had the 

discretion to take into account damage to the property caused by 

Nina while the life tenancy was in existence. We conclude that 

she did. Our conclusion is buttressed by long recognized 
10

exceptions to the general principle that a life tenant is 

responsible to a remainderman for injuries to the estate; these 

include exceptions for injuries caused by "the acts of God," by 

"public enemies," and, as pertinent here, by "the reversioner 

himself."6 Willey v. Laraway, 64 Vt. 559, 561 (1892). Accord 

Rogers v. Atlantic, G. & P. Co., 213 N.Y. 246, 249 (1915). This 

last exception reflects the commonsense notion that remaindermen

(or reversioners) who injure the premises by their own acts

cannot then hold the life tenant liable for the damage.

Because Nina is therefore responsible for the damage to the 

property that she herself caused, we see no bar to James and 

Anne's asserting a claim to account for that damage in a 

partition action. Although the parties did not have possessory 

interests while Leonard was still living, they had vested future 

ownership interests arising from a common source of title. See 

Thayer, 287 Mass. at 78-79. Nina had the duty as a remainderman 

6 Although some of the cases we cite involve reversionary 

interests, the rationale of those cases applies equally to

remainder interests. Both types of interests are future 

interests in property that arise after termination of the prior 

estate, but differ as to who is receiving the interest. In 

particular, a reversion is "a future interest in land arising by 

operation of law whenever an estate owner grants to another a 

particular estate, such as a life estate or a term of years, but 

does not dispose of the entire interest" and "occurs 

automatically upon termination of the prior estate, as when a 

life tenant dies." Black's Law Dictionary 1578 (11th ed. 2019). 

A remainder is "[a] future interest arising in a third person

. . . who is intended to take after the natural termination of 

the preceding estate." Id. at 1545.
11

not to impair the ownership interests of her coremaindermen 

James and Anne. See Wilson v. Linder, 21 Idaho 576, 584 (1912)

("joint remaindermen in expectancy" have "duty and obligation of 

protecting the common title the same as if they were 

cotenants"); Givens v. Givens, 387 S.W.2d 851, 853 (Ky. Ct. App. 

1965) ("As in the case of joint tenants or tenants in common, 

public policy dictates that a remainderman shall not impair the 

title or interests of his coremaindermen"); Ransom v. Bebernitz, 

172 Vt. 423, 432 (2001) ("co-remaindermen have a fiduciary 

relationship to each other that no one of them may impair the 

rights or interests of his co-remaindermen"). The judge thus 

had the discretion to consider James and Anne's claim for 

contribution from Nina in deciding what would be a just and

equitable division of the proceeds from the partition sale. See 

Lowe v. Adams, 77 N.M. 111, 117 (1966) ("in every jurisdiction 

where the action for partition has been considered as one 

calling for equitable interposition and relief, it has been 

uniformly held that an improving cotenant, who has in good faith 

enhanced the value of the common remainder estate, should be 

reimbursed for the value of such improvements upon a sale in 

partition, and the fact that such improvements were made by a 

tenant in common in reversion, during the previous life estate, 
12

is not a bar to such contribution by the coremaindermen upon the 

death of the life tenant").7 

We express no view on whether James and Anne are entitled 

to contribution. Although Nina argues that the judge could have 

in her discretion divided the sale proceeds equally, even taking 

into account the clean-up costs incurred by James and Anne, that 

issue is not properly before us. It must be decided by the 

judge on remand.

2. Attorney's fees and costs. As mentioned, the 

petitioners brought their motion for attorney's fees and costs 

pursuant to G. L. c. 241, § 22, which states in relevant part:

"The reasonable expenses and charges of partition 

proceedings, including examination of title and preparation 

of plan ordered by the court under section seventeen, and 

the fees of counsel, of the commissioners, and of all 

agents, guardians and other persons appointed to represent 

interests in accordance with section nine, shall be 

determined by the court, and in case of sale paid by the 

commissioners out of the proceeds. . . ."

This statute "furnishes an exception to the general American 

rule that each party to litigation is responsible for its own 

expenses." Aiello v. Aiello, 63 Mass. App. Ct. 914, 915 (2005). 

See Gonzalez, 68 Mass. App. Ct. at 788-789. Its purpose "is to 

7 See also Smith v. Smith, 133 Ga. 170, 174 (1909) 

(improvements made by remainderman during life estate "would be 

taken into consideration in making the partition . . . after the 

termination of the life-estate"); Dalgarno v. Baum, 182 Va. 806, 

808 (1944) ("in a suit for partition instituted after the death 

of the life tenant," remainderman entitled to compensation from 

coremaindermen for improvements made during life estate).
13

apportion the expenses incurred to achieve the common benefit 

from partition of shared property among the parties receiving 

that benefit." Aiello, supra at 916. 

Here, we are unable to determine whether the judge acted 

within her discretion in denying the petitioners' motion because 

she did not give reasons for her decision. We must therefore

vacate the order and remand the issue for further consideration. 

For purposes of remand, we note that, contrary to the suggestion 

in the petitioners' motion and their brief, G. L. c. 241, § 22, 

does not automatically entitle them to contribution toward all 

of their fees and costs; the statute applies only to those 

expenses incurred to achieve a common benefit for the parties. 

See Gonzalez, 68 Mass. App. Ct. at 789. Some of the expenses 

sought by the petitioners related to tasks such as preparing the 

petition, but a large portion related to trial preparation, the 

trial itself, and posttrial motions. The question of which of 

these expenses achieved a common benefit for the parties is for

the judge to decide in the first instance on remand. See 

Aiello, 63 Mass. App. Ct. at 916.

Conclusion. So much of the decree as relates to the 

distribution of the sale proceeds among the parties is vacated; 

the decree is otherwise affirmed. The order denying the 

petitioners' motion for attorney's fees and costs is also 

vacated. The matter is remanded for further proceedings 
14

consistent with this opinion. Nina's request for appellate 

attorney's fees and costs is denied.

So ordered.