Detra v. Bartoletti

• Decision Date: 06 November 1967
• Docket Number: No. 11240,11240
• Citation: 150 Mont. 210,433 P.2d 485
• Parties: Angelina DETRA, also known as Angie Detra, Josephine Jerman, formerly known as Josephine Svaldi, sometimes known as Josephine Savoldi, and Marcella Mirabella, Plaintiffs and Appellants, v. Edward A. BARTOLETTI, Louis Bartoletti, and Edward A. Bartoletti, as administrator of the Estate of Eddie Bartoletti, Deceased, Defendants and Respondents.
• Court: Montana Supreme Court

Page 485

433 P.2d 485

150 Mont. 210

Angelina DETRA, also known as Angie Detra, Josephine Jerman formerly known as Josephine Svaldi, sometimes known as Josephine Savoldi, and Marcella Mirabella, Plaintiffs and Appellants, v. Edward A. BARTOLETTI, Louis Bartoletti, and Edward A Bartoletti, as administrator of the Estate of Eddie Bartoletti, Deceased, Defendants and Respondents.

No. 11240.

Supreme Court of Montana.

Submitted Sept. 12, 1967.

Decided Nov. 6, 1967.

Holland and Holland, and Leonard J. Haxby, David Holland (argued), Butte, for appellants.

Corette, Smith, Dean and Robischon, Kendrick Smith (argued), Butte, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal from a judgment entered on a verdict for the defendants in an action brought in the District Court of Silver Bow County to recover money and personal property allegedly belonging to the estate of Eddie Bartoletti, deceased. The action was brought by the sisters of the decedent against Louis Bartoletti, the brother of the decedent, and Dr. Edward A. Bartoletti, the son of Louis Bartoletti, in his individual capacity and as administrator of the estate.

Eddie Bartoletti died in 1963. He had never married. Louis Bartoletti and Eddie Bartoletti had been engaged in various business together for approximately 33 years in and around Butte, Montana, and Las Vegas, Nevada. In their business no record was ever kept of the amount each took out of the business, they each just took what they needed. The decedent could neither read nor write English, although he could write his name.

The last business of the two brothers was the Acoma Lounge, Inc., in Butte, Montana. Each brother originally had a one-third interest in the corporation. The remaining one-third was owned by James Troglia. After the death of Eddie Bartoletti, Louis Bartoletti produced the certificates covering the shares of Eddie Bartoletti in the Acoma Lounge, Inc., stock on which the assignments had been executed by Eddie Bartoletti to Louis Bartoletti. Louis Bartoletti testified that in October of 1960 his brother Eddie, the decedent, in the kitchen of a house located at 3500 Wilson Street in Butte, Montana, at a time when he and the decedent were alone in the kitchen, the decedent handed him a will and the Acoma Lounge stock and that the decedent then stated: 'This is yours, remember this. Everything is yours if something happens to me. And he handed me the stock and said this is yours, if anything happens I want you to have everything.' This stock was not included in the estate of the decedent.

The will that Louis Bartoletti mentioned as being given to him devised Eddie's real property to Louis, and divided the residue of the estate into four equal parts, one-fourth to Louis and one-fourth to each of three sisters. This disposition would not support the alleged conversation between decedent and his brother Louis as before related.

Evidence was introduced to show that after this alleged gift the decedent remained a director of the corporation; that he actually worked in the business of the corporation after the alleged gift; and that decedent and his brother Louis purchased the Acoma Hotel at sometime previous to April of 1961 under a contract and on April 17, 1961, the brothers paid off the seller's equity in the contract, amounting to the sum of $24,873.83. Louis Bartoletti testified that he told no one of the alleged gift except James Troglia, until after the death of Eddie. Troglia denied that he ever told him about it or that he ever heard anything about it until after the death of decedent.

From this recitation it is apparent that the alleged gift of the Acoma corporate stock rests entirely upon the unnsupported testimony of the donee, Louis. Contra to this is the undisputed continued business activity of the deceased Eddie. More will be said about this later in the discussion of the issues.

While the decedent knew nothing about the stock market, his nephew, Dr. Bartoletti, helped him with some investments in the stock market. Although he did not have a power of attorney to handle the transactions of his uncle, Dr. Bartoletti had complete discretion to buy and sell his uncle's stock. Eddie Bartoletti had signed some stock certificates in blank and given them to his nephew, Dr. Bartoletti, to facilitate sales.

In August 1963, while the decedent was in the hospital following a second operation for a brain tumor, Dr. Bartoletti, while visiting him in the hospital, told the decedent that there were a lot of medical bills and that he was going to sell the stock to pay these bills. At that time he had the decedent sign some shares with an 'X' for the decedent had lost the power to write, was paralyzed in the right side and had lost the power of speech. Dr. Bartoletti testified that the decedent could make himself understood by nodding his head and by squeezing the Doctor's hand. Hospital records indicated that the decedent was given heavy sedation during the entire month of August of 1963.

Dr. Bartoletti sold the stock, some of which had been signed in blank and some with an 'X'. The proceeds of the stock, $4,449.45, he then turned over to his father Louis Bartoletti.

Approximately two weeks later Dr. Bartoletti filed a petition to have the decedent declared an incompetent, but Eddie Bartoletti died before the petition was acted upon.

After Eddie Bartoletti's death Louis Bartoletti submitted a claim against the estate for medical expenses he claimed to have paid for the decedent. This claim was approved by the administrator of the estate, Dr. Bartoletti, and the amount was paid to Louis Bartoletti. It does not appear that any credit was given for or that any portion of the proceeds of the sale of stock went to pay any medical bills of the decedent.

Decedent received $118 per month from disability coverage under Social Security but Louis Bartoletti did not recall when his brother started to draw such payments. There also was mention of Blue Cross and Blue Shield payments but no definite amounts were provided.

This suit was brought to recover the one-third stock interest in the Acoma Lounge, Inc., and the proceeds of the sale of stock for the estate of Eddie Bartoletti. The defendants contend that the transfers to Louis Bartoletti were gifts. The jury found for the defendants.

The appellants claim basically two issues on this appeal.

The first contended issue is that the court should not have given the following instruction to the jury, to-wit: 'You are instructed that where there is a transfer between persons having a close blood relationship, or near relatives, such a transfer is presumed to be a gift.'

The second is that the defendant did not prove that the transfers were gifts with clear, convincing, strong and satisfactory evidence.

As suggested heretofore, as to the Acoma Lounge stock, without the donee's testimony as to the assignment of the stock certificates, no evidence was produced as to the gift. Necessarily then, the instruction complained of in issue number one, that a presumption of a gift arose, was most important.

Then too, issues number one and two became interwoven because the burden of proof shifted if such a presumption of gift arose.

As to the first contention the presumption of gifts between close relatives was first adopted by this court in the case of Clary v. Fleming, 60 Mont. 246, 198 P. 546 (1921). It has subsequently been applied in many Montana cases. Bast v. Bast, 68 Mont. 69, 217 P. 345 (1923); McQuay v. McQuay, 81 Mont. 311, 263 P. 683 (1928); Roman v. Albert, 81 Mont. 393, 264 P. 115 (1928); Humbird v. Arnet, 99 Mont. 499, 44 P.2d 756 (1935); McLaughlin v. Corcoran, 104 Mont. 590, 69 P.2d 597 (1937); Bingham v. National Bank of Montana, 105 Mont. 159, 72 P.2d 90 (1937); Lewis v. Lewis, 109 Mont. 42, 94 P.2d 211 (1939); Lewis v. Bowman, 113 Mont. 68, 121 P.2d 162 (1942); Emery v. Emery, 122 Mont. 201, 200 P.2d 251 (1948); In re Kuhr's Estate, 123 Mont. 593, 220 P.2d 83 (1950); Marans v. Newland, 141 Mont. 32, 374 P.2d 721 (1962).

It should be noted before we proceed further that at its inception in Montana, the presumption was more restrictive than the court's instruction stated.

Clary v. Fleming, supra, dealt with a situation where a husband paid certain sums of money to purchse a lot; that no consideration was paid by the wife; that the deed was issued to the wife under an agreement that the wife would convey the lot to the husband at any time upon his request. The husband and wife were later divorced, the wife died, and the action was brought by her administrator to eject the former husband from the lot. The defendant relied upon section 4538, Revised Codes of 1907, now section 86-103, R.C.M.1947, which reads: 'When a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such...