Blasi v. Blasi

• Decision Date: 22 March 1932
• Court: Connecticut Supreme Court
• Parties: DI BLASI v. DI BLASI et al.

159 A. 477

114 Conn. 539

DI BLASI v. DI BLASI et al.

Supreme Court of Errors of Connecticut.

March 22, 1932

Appeal from Superior Court, New Haven County; Alfred E. Baldwin Arthur F. Ells, Isaac Wolfe, and Frederick M. Peasley Judges.

Action by J. Warren Upson, administrator upon the estate of Francesca Di Blasi, appointed in place of Salvatore Di Blasi against Frank Di Blasi and others, to recover real property and the rents and profits thereof, claimed to belong to the estate of his decedent. The case was tried to the court. From a judgment for plaintiff, defendants appeal.

No error.

Charles S. Hamilton, of New Haven, for appellants.

James E. McKnight and Richardson Bronson, both of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

BANKS J.

The plaintiff is administrator upon the estate of Francesca Di Blasi, having been appointed as such in the place of Salvatore Di Blasi, the original plaintiff in this action. The complaint alleged that on July 19, 1921, Francesca Di Blasi gave a certain power of attorney to the defendant Frank Di Blasi: that she was the owner of certain real estate on Griggs street in Waterbury; that she died on January 30, 1924, and that on February 16, 1926, Frank Di Blasi, purporting to act as her agent under the power of attorney, transferred the Griggs street property without consideration to his wife, the defendant Anna Di Blasi: that the transfer was made with knowledge on the part of both defendants that he had no authority to make it, and with intent to cheat and defraud the estate of Francesca Di Blasi; and that the property was necessary assets of her estate for the payment of debts and administration expenses. In a third defense in their answer, the defendants alleged that Salvatore and Francesca Di Blasi, who were husband and wife, and their two sons, Frank and Carmelo, were partners in business under the firm name of Salvatore Di Blasi & Sons, that they had an agreement among themselves that Frank was to be the owner, and have the title to, the Griggs street property, and that the power of attorney was given him by Francesca for the purpose of carrying out that agreement, and ultimately vesting in him the title to that property.

These allegations were repeated in a fourth defense, coupled with the further allegation that by virtue of such agreement Frank became entitled to an interest in the property, and that in connection with such agreement the power of attorney constituted an authority coupled with an interest in the premises in his favor which was not affected by the death of Francesca. The allegations of the third defense were again repeated in a counterclaim in which it was asked to have the affairs of the partnership wound up and its assets distributed. In response to plaintiff's motion for a more specific statement, the defendants alleged that the agreement set out in the third defense was in writing only in so far as expressed in the power of attorney. The plaintiff filed identical demurrers to the third and fourth defenses and the counterclaim upon the ground that it appeared that the agreement alleged therein was one for the transfer of the title to real estate, and was not in writing, and that the power of attorney was not a memorandum of the terms of such agreement. These demurrers were sustained (Baldwin, J.), and the defendants filed an amendment to the third defense alleging an agreement by Francesca Di Blasi to transfer the property to Frank, that the power of attorney was executed by her with the intention of conveying title to him, and that they both understood that it would have that effect, to which the plaintiff again demurred on the ground that it appeared that the agreement to transfer the property was not in writing, and the demurrer was sustained (Ells, J.).

The defendants then filed a further pleading labelled " Amended Counterclaim," in which the allegations of the third and fourth defenses as to the partnership, and the agreement for the transfer of this property, were repeated, with a further allegation that the title to this property was taken in the name of Francesca under an agreement that it was to be held by her for Salvatore, Frank, and Carmelo until the partnership should be dissolved and a division of the partnership assets made. The plaintiff again demurred to this pleading on the ground that the agreement for the transfer of the property to Frank was not in writing, and on the further ground that the settlement of the affairs of a partnership, one of whose members was not a party to this action, could not be had in this action, and this demurrer was sustained (Wolfe, J.).

The defense of the statute of frauds may be raised upon demurrer when it appears from the pleadings that it will be impossible for a party alleging an agreement required by the statute to be in writing to offer any competent evidence of the existence of the necessary memorandum, and in such case the pleading making such allegation will be held insufficient upon demurrer. Jacobson v. Hendricks, 83 Conn. 120 75 A. 85. Concededly the power of attorney executed by Francesca Di Blasi, which authorized Frank Di Blasi to " execute necessary documents to convey any property which I may be possessed of," was revoked by her death, unless it granted a power coupled with an interest. Mansfield v. Mansfield, 6 Conn. 559, 16 Am.Dec. 76; Organized Charities Ass'n v. Mansfield, 82 Conn. 504, 74 A. 781, 135 Am.St.Rep. 283. It is alleged in the fourth defense and the amended counterclaim that the power of attorney, in connection with the alleged oral agreement that the property was to be transferred to Frank, constituted an authority coupled with an interest in the property which was not affected by the death of Francesca prior to the conveyance of the property by virtue of the power of attorney. The power of attorney itself does not purport to convey any interest in the property to Frank. It is clear that Frank's claimed interest in the property arises, if at...