Bowen v. Morgillo
| Decision Date | 25 July 1940 |
| Citation | 14 A.2d 724,127 Conn. 161 |
| Court | Connecticut Supreme Court |
| Parties | BOWEN et al. v. MORGILLO et al. |
Appeal from Superior Court, New Haven County; Edward J. Quinlan Judge.
Action by Harold J. Bowen, administrator of the estate of Antoinette DeLucia, and others, against Lucia Morgillo and others to have realty and personalty transferred to the administrator and for an accounting and damages. From judgment for plaintiffs, defendants appeal.
Error in part, and judgment set aside and case remanded, with direction.
William J. McKenna, Victor M. Gordon, and Arthur B O'Keefe, all of New Haven, for appellants.
Joseph B. Morse, of New Haven, for appellees.
Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.
The complaint in this case, brought by the administrator upon the estate of Antoinette DeLucia, deceased, contains the following allegations: The decedent owned certain real estate and also certain personal property including bank deposits and notes, certain of which were secured by mortgage. In December, 1936, she attempted to make a testamentary disposition of the property. She was at the time weak from illness and for a long time before had not been in full possession of her mental and physical powers. As a result of the undue influence of the defendants she was prevented from making a will and was induced to enter into an arrangement whereby all her property should be transferred and held in trust until her death and then distributed to her husband and children. She did transfer the property in accordance with this arrangement. The property is in the possession of the defendants but they have refused to distribute it in accordance with the instructions of the decedent and refused to account for the receipts therefrom. The relief asked was damages, a decree ordering that the real estate and personal property be transferred to the plaintiff as administrator, and an accounting. Subsequent to the bringing of the action, the decedent's husband and children other than the defendant Lucia Morgillo were joined as plaintiffs.
The trial court has found the following facts: The decedent, while ill and at times mentally incompetent, executed a will during one of her lucid periods, in which she gave her husband a life use of her real estate, appointing a son trustee, and gave her personal property to her children. The defendant Lucia with others of her children, having learned of the execution of the will, called the attorney who prepared it to the decedent's home; a stormy family quarrel resulted in which the children demanded the destruction of the will; and thereupon the attorney, without the knowledge or consent of the decedent, did destroy it. Thereafter, the defendant Lucia attempted to have the decedent make a new will but failed because the attorney she called upon to prepare it believed that the decedent was incompetent to execute it. The decedent's physical and mental condition continued to decline until her death. The defendant Lucia, in collusion with her husband, Andrew, and the decedent's husband, after telling the decedent of the destruction of the will, persuaded her to attempt a testamentary disposition of her property through the execution of deeds of her real estate and assignments of mortgages to Lucia and by the execution at the same time of similar deeds and assignments by Lucia to the decedent's husband. In order to induce the decedent to execute the instruments, Lucia and her husband assured her that if she recovered from her illness the property would be returned to her, that the deeds and assignments from her to Lucia would be recorded, but that her husband would keep the deeds and assignments made by Lucia to him without recording and if she recovered he would reconvey to her all the property transferred to him, but if she should die he would retain the real estate during his life and upon his death it would be distributed to the children, and that he would distribute the personal property among their children. The deeds and assignments from Lucia to the decedent's husband came into the possession of Lucia and she recorded them. On the same day he reconveyed the real estate and mortgages to her upon her assurance that she would act in his place with regard to the disposition of the property in the same manner as had been agreed upon previously with the decedent. The conveyances were absolute deeds of conveyance.
The decedent had a considerable sum of money on deposit in a bank in three separate accounts. A few days before she executed the will, two of these accounts were closed and the balances transferred to the third account, which was changed to one payable to the decedent and her husband and the survivor. This was done to enable him to withdraw what might be needed for her during her illness and to return the balance to her if she recovered or divide it equally with the children if she should die. The husband withdrew the entire deposit and later, shortly after the decedent's death, turned the money over to the defendant Andrew Morgillo, $1,200 to be used by him for her funeral expenses and $2,000 for safe-keeping. The decedent signed an order for the payment of another deposit to the defendant Lucia and she transferred this sum to an account in her own name. The defendant Lucia also took possession of a number of promissory notes which belonged to the decedent, and obtained her indorsements thereon.
The trial court further found that the intention of the decedent was to accomplish a testamentary disposition of the property mentioned in the finding in accordance with the provisions of the will which was destroyed; that she did not intend to make present gifts; and that both defendants participated in the attempt to thwart the purpose of the decedent to dispose of her property at her death by will. The court concluded that the transfers of property were invalid as attempted testamentary dispositions of it not in accordance with the law of this state, and that the defendants held the property as constructive trustees.
A comparison of the facts found by the trial court with the allegations of the complaint shows that in no essential respect was there a departure from the cause of action alleged. The complaint asserted a right to recover the property of the decedent from the defendants upon allegations the gist of which was that the decedent, desiring to dispose of her property by will, was induced to transfer it under an arrangement by which, in the event of her not recovering, it should be disposed of in accordance with her desires. The right asserted was not one to enforce any trust upon which the decedent had transferred the property, for, had it been, the right of action would have been in those who would benefit by the agreement for the disposition of the property if it were to be carried out. As we shall point out, it is not necessary to consider whether the defendants held the property under a constructive trust effective in law. It is, therefore, of no moment that the trial court failed to find that the defendants exercised undue influence or fraud or that there existed the circumstances ordinarily giving rise to such a trust which are set forth in Reynolds v. Reynolds, 121 Conn. 153, 159, 183 A. 394. The allegations of the complaint as to the property being transferred in trust and the conclusion of the trial court that the defendants held it upon a constructive trust may be disregarded. The argument of counsel is largely concerned with the question whether, by reason of the facts found, the defendants are charged with such a trust to which the law can give effect, but this is not the decisive factor in the situation.
Section 4876 of the General Statutes provides that ‘ no will or codicil shall be valid to pass any estate’ unless it be made and executed in accordance with certain requirements therein detailed. The provisions of this statute amount ‘ to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution, or never, so far as the act of the testator is concerned.’ Lane's Appeal, 57 Conn. 182, 187, 17 A. 926, 927,4 L.R.A. 45, 14 Am.St.Rep. 94. ...
To continue reading
Request your trial
-
Dalia v. Lawrence
...the terms of the instrument but to establish the underlying illegality of the transaction." (Citations omitted.) Bowen v. Morgillo, 127 Conn. 161, 167, 14 A.2d 724 (1940). The undisputed facts concerning the twenty-two years after the execution of the deed in 1968 prevent a finding that the......
-
Detroit Institute of Arts Founders Soc. v. Rose
...promises to perform did not constitute a will). Instead, a will creates an interest that arises at death, see Bowen v. Morgillo, 127 Conn. 161, 14 A.2d 724, 727 (1940), and must contain language indicating that a testamentary gift is intended. See 206 A.2d at 113. Under the Statute of Wills......
-
Dennen v. Searle
...in the manner of delivery of the instruments, as in cases such as Costello v. Costello, supra, 616, 73 A.2d 333, and Bowen v. Morgillo, 127 Conn. 161, 167, 14 A.2d 724. That an instrument is in the form of a deed, as this on the whole was, is some indication of the transferor's intention pr......
-
Connelly v. Federal Nat. Mortg. Ass'n
...Hatheway, 156 Conn. 175, 177, 239 A.2d 523 (1968); O'Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943); Bowen v. Morgillo, 127 Conn. 161, 168, 14 A.2d 724 (1940). Thus, the mortgagor's heirs or devisees own the equitable right of redemption with respect to property encumbered by ......