De Angelis v. Palladino

• Decision Date: 08 May 1945
• Citation: 318 Mass. 251,61 N.E.2d 117
• Parties: DE ANGELIS v. PALLADINO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 251

61 N.E.2d 117

DE ANGELIS

v.PALLADINO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 8, 1945.

Suit by Joseph De Angelis, administrator of the estate of Frank Repucha, deceased, against Carmine Palladino and another for an injunction for an accounting and for further relief. From the decree, the plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Williams, Judge.

Before FIELD, C. J., and DOLAN, RONAN, WILKINS, and SPALDING, JJ.

M. E. Gallagher, Jr., of Boston, and A. J. Kirwan, of Medford, for plaintiff.

J. Schneider, of Boston, for defendant Palladino.

DOLAN, Justice.

By this bill the plaintiff, alleging that he is the administrator of the estate of Frank Repucha, deceased intestate, seeks to have the defendants Palladino and Michael E. Basile enjoined from conveying or in any way dealing with certain real estate formerly standing in the name of the intestate, an accounting of all moneys derived therefrom by them, and such further relief as the court may order. The case was referred to a master, who reported thereon, and comes before us on the plaintiff's appeal from the final decree entered by the judge for the payment of a certain sum of money by Palladino to the plaintiff, the plaintiff now contending that a decree should have been entered rescinding the contract under which the conveyance by the intestate to Palladino was made and ordering the reconveyance of the real estate by the defendants upon equitable terms.

At the outset we point out of our own motion (see O'Donnell v. Commissioner of Corporations and Taxation, 317 Mass. 664, 668, 60 N.E.2d 11) that, in so far as a reconveyance of the real estate is sought by the bill, the suit cannot be maintained by the plaintiff in his capacity as administrator of the estate of the intestate. See Pevey v. McGrath, 243 Mass. 451, 453, 137 N.E. 589, and cases cited; Hooker v. Porter, 271 Mass. 441, 446, 171 N.E. 713;Nunes v. Rogers, 307 Mass. 438, 441, 30 N.E.2d 259. While the master has found that the plaintiff is one of the heirs at law of the intestate, any question of amendment to the bill in this respect need not be considered since, as will appear below, a case is not presented calling for a reconveyance.

Material facts found by the master may be summed up as follows: At some time prior to November 7, 1938, the intestate had been the owner of a frame dwelling consisting of three tenements of three rooms each. The property was subject to a co-operative bank mortgage on which $400 was unpaid and on which there were unpaid real estate taxes of about $200. A bill amounting to $150 for shingles used on the dwelling was also unpaid. The intestate had become feeble and unemployed. A neighbor, Mrs. Zupkofska, had been furnishing meals to him at her home and he became indebted to her for money advances, as security for which he conveyed the real estate in question to her. The defendant Palladino was a contractor under whose patronage the intestate had come to this country and for whom he had worked, at first steadily, later sporadically. Learning of the conveyance to Mrs. Zupkofska, Palladino, who had lent the intestate $700 in 1932 upon which interest amounting to $175 had accrued, advised the intestate to procure a reconveyance of the property. An attorney was employed, a bill in equity was brought for reconveyance, and a settlement was reached on November 4, 1938, by the terms of which Mrs. Zupkofska reconveyed the premises to the intestate upon the payment of $150 to her. Palladino furnished the funds for that payment, and also paid a fee of $75 to the attorney who represented the intestate. On the same day the intestate went to his attorney's office where an agreement was drawn in the following form: ‘I, Carmine Palladino, in consideration of having this day conveyed to me by Frank Repucha the premises situated at No. 18 Dacia Street, Roxbury, do hereby agree that said Frank Repucha is to have free of rent and any other expense the tenament [sic] located on the first floor of No. 18 Dacia Street; it is also agreed that I am to provide for and care for the said Frank Repucha during times of illness, sickness, or need and in addition thereto I am to pay to him the sum of Three Dollars and Fifty Cents (3.50) per week for the rest of his natural life.’ The attorney gave a copy of the agreement to the intestate, suggesting that he show it to an attorney or friend. The intestate was willing to convey the property to Palladino without any agreement in writing, stating that ‘they were like brothers, that he wanted * * * Palladino protected and that he wanted protection for himself as long as he lived.’ An appointment was made for the following Monday, November 7, and on that day the intestate executed and delivered to Palladino a quitclaim deed of the premises, and the latter signed and acknowledged the agreement set forth above. Palladino paid the intestate $3.50 weekly and also furnished him with some articles of food until August 16, 1939, when the public welfare department began to make payments of $5 a week to the intestate. The payments were later made at the rate of $4 a week and continued until the death of the intestate on August 10, 1941. Palladino did not disclose to the welfare department that he was under an obligation to pay the intestate $3.50 weekly during his life. In the meantime (on January 12, 1939) Palladino had conveyed the premises in question to his son-in-law, the defendant Basile, who paid no consideration therefor. The intestate carried an industrial insurance policy, and, being about to discontinue it, talked with Palladino and had the policy made payable to him. Palladino paid the weekly premium of 50 cents, and at the death of the intestate collected $325.35 from the insurance company, all of which he expended for the funeral expenses of the intestate. The master further found (paragraph 11) as follows: ‘I find that on taking over the real estate * * *...