Chichizola v. Salarano, 53652

• Decision Date: 14 April 1969
• Docket Number: No. 2,No. 53652,53652,2
• Citation: 440 S.W.2d 452
• Parties: Beatrice CHICHIZOLA, Executrix of the Estate of Mary Zubiena, Deceased, Respondent, v. James B. SALARANO, Sr., Appellant
• Court: Missouri Supreme Court

Page 452

440 S.W.2d 452

Beatrice CHICHIZOLA, Executrix of the Estate of Mary Zubiena, Deceased, Respondent, v. James B. SALARANO, Sr., Appellant.

No. 53652.

Supreme Court of Missouri, Division No. 2.

April 14, 1969.

Albert A. Michenfelder, Jr., Ziercher, Tzinberg, Human & Michenfelder, for plaintiff-respondent.

Walter S. Berkman, Herman D. Olian and David G. Dempsey, Clayton, for defendant-appellant.

BARRETT, Commissioner.

This is an action by the executrix of the estate of Mary Zubiena to set aside the transfer, on March 27, 1964, of 294 shares of stock of American Telephone and Telegraph Company. The plaintiff executrix is Mrs. Zubiena's daughter, age 55, and the defendant James B. Salarano, Sr., is Mrs. Zubiena's brother. (Incidentally, in addition to the plaintiff daughter Mrs. Zubiena, an Italian immigrant, was survived by four living sisters, one a resident of Italy, and one brother, the appellant James.) Prior to March 27, 1964, the shares of stock were in the joint names of the plaintiff-daughter, Beatrice Chichizola, and her mother, and on that date the stock was transferred to the joint ownership of the defendant-appellant, Salarano and Mrs. Zubiena. The trial court canceled the transfer, found that appellant had no right or title in the stock and ordered its transfer to plaintiff executrix. The parties stipulated that the stock was of the value of over $40,000.00 on the date of transfer and while respondent's counsel makes the curious observation, 'we are in doubt as to jurisdiction,' he at the same time asks the court to take judicial notice that on the date of trial (the date of appeal is determinative) the 294 shares 'were worth well in excess of $15,000.00,' thus tacitly conceding that on the date of the appeal (January 26, 1968) jurisdiction of the cause was appropriately in this court and the respondent's motion to transfer the cause to the St. Louis Court of Appeals is denied. See Odom v. Langston, 351 Mo. 609, 173 S.W.2d 826, and compare Moretti v. Gustafson, Mo., 433 S.W.2d 809.

Mrs. Zubiena's husband died in 1955. In addition to the plaintiff, Beatrice Chichizola, whose husband is a dentist, the Zubienas had two other children, boys 12 and 14 when they were killed in 1919 when their father's automobile and a train collided. After her husband's death Mrs. Zubiena continued to live alone in the family home in Webster Groves. In 1962 she sold the home and moved into the Plaza Square Apartments where she continued to live until July 7, 1964, when she broke her hip and was confined in St. John's Mercy Hospital until August 5, 1964. Thereafter she was taken to St. John's Chronic Hospital and then to St. Ann's Home where she died on April 23, 1967.

It does not appear just how and when Mrs. Zubiena came into ownership of the A.T. & T. stock. In any event, shortly after the father's death in 1955 Mrs. Zubiena had the stock transferred into joint ownership with her daughter, Mrs. Chichizola. She also maintained a lock box at Mercantile Trust, in which the daughter was the 'alternate.' She kept the stock certificates in her lock box and after the sale of the house for $13,853.00 she kept two certificates of deposit, $10,000.00 and $2000.00, in the box. At the time of her death Mrs. Zubiena had a checking account of $468.21 and her household furniture and personal effects were valued at $200.00. The total of these items plus the value of the stock at approximately $40,000.00 comprised Mrs. Zubiena's total estate. After her husband's death her income consisted of her social security payments, the interest on the A.T. & T. stock and the interest on the certificates of deposit.

The plaintiff said of her father and mother, 'they adored each other; and you never saw such a loving couple.' In business matters Mrs. Zubiena relied entirely on her husband. In addition, her education extended only to the fourth grade, she read very little and did not attempt to write very much--usually had someone else fill out the checks she signed. After the father's death in 1955 the plaintiff stayed in her mother's home for a few days and thereafter went to see her several times a week and 'then it was once a week and like that.' During that time Mrs. Zubiena was able to look after herself and her affairs including the sale of her house. She could not drive an automobile and the plaintiff and others took her to church, shopping and wherever she desired to go. After she moved into the Plaza Square Apartments in November 1962 the plaintiff and members of her household as well as others continued to visit her, take her places and run her errands.

Mrs. Zubiena was 79 years old when she moved into the apartment. Then as before she rather frequently saw and was treated by Dr. Hammond. During this period, 1962 to 1964, she had an appendectomy from which she made a remarkably good recovery. On July 7, 1964, Mrs. good recovery. On July 7, 1964, Mrs. for this she was hospitalized until August 5 and never returned to her apartment. On May 28, 1965 she was declared incompetent, the plaintiff was appointed her guardian and the inventory of her estate, in the lauguage of appellant, 'reflected a claim to the stock.' As stated, she died at age 84 on April 23, 1967, and the plaintiff became the executrix of her estate, the inventory again 'reflected the claim to the stock.' This action to set aside the stock transfer was instituted on June 9, 1965, shortly after the plaintiff's guardianship.

In brief the immediate circumstances of the stock transfer were that very much to Mrs. Chichizola's surprise, on March 27, 1964, (Good Friday, a very important date to all these devout people) Mrs. Zubiena appeared at her home, 4347 Maryland, at first she thought alone. This is her description of the visit: 'Well, mother was at the door and I opened the door, greeted her, and she had a piece of paper. She says, 'Run upstairs, get your pencil and sign this.' And I said, 'Well, mom, come in.' So she stepped in the door and I took the paper and looked at it. And my husband then came and he says, 'Well, come on up, mom.' So she kept saying 'No.' Up until this time I thought she was alone, and then my husband helped her up the steps, got her up the steps; that was then when my uncle (the appellant) appeared and he came up. * * * So we have a chair there; mom sat down and she says, 'I want you to sign this.' So I said, 'What is it?' She says, 'Just sign it.' So I signed it. I read it and signed it. But before I signed it I said, 'Mom, what are you going to do? Sell this?' She says, 'Yes, I am going to sell it. '' And thus the plaintiff-daughter signed 'a separate stock power' that had been prepared by the 'security supervisor' of Southwestern Bell Telephone Company. Shortly thereafter the plaintiff learned that the stock had been transferred to the joint names of her mother and her uncle. She says, incidentally, that in October 1964 her mother asked, as did plaintiff, Mr. Salarano to return the stock and on each occasion he refused. It turned out (the present statement of facts is adapted from the appellant's brief) that when Mrs. Zubiena and her brother, the appellant, appeared at the transfer office of A.T. & T. the supervisor explained to them the status of the stock and the necessity of securing the plaintiff's 'stock power' before it could be transferred to their joint names. The appellant relies most heavily upon the testimony of this witness for their contention that Mrs. Zubiena was of sound mind on March 27, 1964.

It is not necessary to encumber this opinion with the great mass of factual detail adduced by the parties in support of their conflicting claims. Neither is it necessary to restate the general rules or to match and distinguish a series of cases. The appellant-uncle contends that the court erred in concluding that Mrs. Zubiena lacked...