Farina v. Madden

• Decision Date: 16 April 1942
• Docket Number: No. 37601.,37601.
• Citation: 163 S.W.2d 82
• Parties: FARINA v. MADDEN et al.
• Court: Missouri Supreme Court

163 S.W.2d 82

FARINA v. MADDEN et al.

No. 37601.

Supreme Court of Missouri, Division No. 1.

April 16, 1942.

Rehearing Denied June 3, 1942.

Appeal from St. Louis Circuit Court, Division No. 3; Eugene L. Padberg, Judge.

Suit by Joseph Farina against Thomas R. Madden, administrator of the estate of Frank Doredo, deceased, and others for specific performance of oral agreement of deceased to make plaintiff sole beneficiary of deceased's estate. From judgment for plaintiff, defendants appeal.

Reversed.

Hay & Flanagan, Claudio Delitala, and Vincent D. Gallo, all of St. Louis, for appellants.

Joseph J. Tomasso, William Cole Seaton, and Norman Begeman, all of St. Louis, for respondent.

DALTON, Commissioner.

Action in equity for specific performance of an alleged oral agreement of one Frank Doredo to make plaintiff the sole beneficiary of his estate in consideration of plaintiff aiding the said Doredo in his business affairs and becoming a companion to him. The trial court found for plaintiff and awarded to plaintiff (subject to claims of creditors and the expenses of administration) the entire estate of Frank Doredo, deceased, consisting of real and personal property, appraised at more than $43,000. Defendants have appealed.

Frank Doredo died intestate in the city of St. Louis on May 5, 1937, leaving no lineal descendants, but only collateral heirs. These heirs and the public administrator of the city of St. Louis, who, under orders of the probate court, was in charge of all of deceased's real and personal estate, are appellants. Doredo was born in Italy, but left there at any early age and for many years resided in St. Louis. He was over 60 years of age at the time of his death. His wife, Mary Doredo, died in 1936. According to a petition filed by respondent and others to establish heirship to Doredo's estate, Doredo left no children or their descendants, father, mother, brother nor sister, nor their descendants, wife nor any paternal or maternal kindred, capable of inheriting his estate and the whole estate descended to the kindred of his wife. Sec. 308, R.S.1939, Mo.R.S.A. § 308. Respondent was Doredo's wife's nephew and claimed a 1/40 interest in the estate by inheritance.

After the death of his wife, Doredo for the most part lived alone, although from time to time different people worked about the home. For a few weeks in 1936, respondent and his wife lived there. Doredo was a member of St. Charles Baromeo Parish and attended church regularly. He was a trustee and director of the Italian Orphans Home and a member of an Italian Fraternal Society and of the Alter Society of his church. He had a lock box in the Boatmen's Bank. The Scott Realty Company made investments and collected rents for him. A document under which Doredo and his wife held their property by the entirety was prepared and executed in the Scott Realty Company's office. During the last few years of his life Doredo was not employed and did not work. According to one of the witnesses, he had a bad foot and walked with a stick. He had his good days and bad, but was not confined to his bed. He could not read English and could not speak it well. Some witnesses said he spoke "broken English," and that his neighbors read his mail to him.

Respondent was born in this country, but was of "Italian extraction." He was married and had been for about fourteen years. He had no children. For fourteen years he had been employed as a chauffeur by the Kroger Grocery and Baking Company. He did long distance hauling and was away from home almost every other night. He ordinarily went out on trips on Sundays, Tuesdays and Thursdays and would return the following day. He would be off from Friday afternoon until Sunday.

The evidence concerning the contract consisted of alleged statements of Doredo to various persons. According to respondent's wife, in the summer of 1934 in the presence of Mr. and Mrs. Kauffman, respondent and herself, Doredo stated that "Joe was always good to him" and he was going to "make a will and leave him what he had." At other times Doredo said, "`Uncle is really going to take care of Joe,' and things like that." "Joe is a good boy, I'm going to take care of Joe." "He was very fond of Joe." "He would always bring it up, the same thing, that he is going to take care of Joe and make a will and so forth and so on and Joe was the only one that ever did anything for him." "He would say that every day" when witness was staying out there. Sometimes the statements were made in respondent's presence, but those made to Mrs. Farina were reported to her husband.

According to Carl Tinsman, who collected rents and supervised property for the Scott Realty Company, Doredo told him he had instructed Mr. Scott (since deceased) to draw up his will. Doredo inquired as to whether the will had been drawn and stated "that he had intended to do something * * * for a nephew who had served him for so many years," and had "taken considerable interest in his affairs * * * served well * * * a good many times * * * in helping out in different things, such as driving him around and advising him about certain things."

According to Carmi Farina, respondent's brother, Doredo was in his place (a tavern) on several occasions and "he always spoke about willing his property to Joseph Farina." "`I am going to give all of my property to Joseph Farina' he would say `for the good deeds.'" This was after the death of Mrs. Doredo. Prior to the death of Doredo's wife, and for quite a few years, when Doredo talked of making a will, "he would always tell * * * about taking care of all the nephews and nieces." After the death of his wife and after Joseph Farina had moved in with him, Doredo "always told Joe he would take care of him." "He would sometimes tell me (witness) he was going to will his property to him." He said: "I will take care of Joe here, because he has been very kind to me." "I will take care of Joe, I will fix it up."

According to David Bean, the operator of a confectionary and tavern, Doredo introduced respondent to him and afterwards said: "Well, Dave, I have no one, no people, I have no family." "This is a fine boy, I like him very much; he is always with me and he helps me out. He comes out to see me, and the rest of them simply don't care for me. We are always out together; he is always doing something for me, and I'll take care of him."

According to Anna Pfeifer, a neighbor for thirteen years and an employee in Doredo's home for ten months, Doredo said many times that Rose Balsano (his wife's sister) and Joseph Farina were the ones "who helped him out, and `whenever I want anything I can call on them, I know that, * * * I won't forget Rose and Joe, (Joseph Farina, my nephew) and I will make it all right with them.'"

According to Edward Kauffman, Doredo said to him with reference to respondent, "he won't have to work any more, * * * Joe always takes care of me whenever I would be here, anytime I would want him he would be at home." The last statement was made in the presence of witness and his wife and of respondent and his wife. Doredo also said "Joseph was a good boy and he was going to take care of him." Bertha Kauffman, wife of the preceding witness, said Doredo on said occasion, "talked about Joe being good to him, and he said something (about) giving him some money or leaving him some money or something or other like that. * * * He gave them (apparently respondent and his wife) a slap on the back and said that he was going to take care of them."

Joseph Tomasso, respondent's attorney, said he saw Doredo in an automobile down town with respondent near witness' office in the fall of 1936; that witness was called to the automobile and Doredo told him that he had "promised to leave Joseph Farina his estate, his property, and he said he was coming down" and wanted a will written. Prior to that time the witness said: "He wanted me to make a will and he wanted me to leave all his property to Joseph Farina, as he told me he had promised it to Joe and he wanted to come down and see me and leave everything to Joe, that's what he expected me to do and when I saw him, * * * maybe a month later with Joe, * * * he said he was coming over to the office and he wanted me to make a will for him." Witness was a first cousin of respondent's wife and had filed a claim for respondent (based upon the alleged contract) against Doredo's estate and had a contingent fee contract in the present case.

This was substantially all of the evidence which respondent contends established the contract whereby Doredo "agreed to make plaintiff the sole beneficiary by will of his estate, in consideration of plaintiff aiding him in his business affairs and becoming a companion to him." The petition, however, further alleged that "in acceptance of and reliance upon the promise" of Doredo, respondent did many things for Doredo, as set out in the petition.

The evidence concerning the services rendered by respondent was as follows: According to respondent's wife, "Mr. Doredo would frequently call us and ask Joe to come out and take him places and help him transact different little business things. * * * He did that over a period of ten years prior to 1937. * * *" "In that ten year period Joe would see Mr. Doredo probably every other day." "Well, sometimes he (Doredo) would call twice a week and sometimes just once a week, but we always were in the habit of riding out there * * * about three or four times a week." Respondent would take Doredo to the bank, to Scott's, to respondent's father's place, to "Joe's brother's," to the Orphans Home, to church and to picnics, and to Father Spigardi's. Respondent furnished the automobile and bought the gasoline. Doredo never bought anything.

Carl Tinsman saw respondent with Doredo at the Scott Realty Company office several times. Carmi Farina saw respondent and Doredo at his place of business many times. They came in ...