Gentile v. Gentile

• Decision Date: 20 April 1964
• Docket Number: No. 20480,20480
• Citation: 391 P.2d 463,154 Colo. 467
• Parties: Giovanni GENTILE, Juestina Gentile, Francesco Gentile, and Domenico Gentile, Plaintiffs in Error, v. Peter GENTILE, Administrator of the Estate of Vito Gentile, Deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 463

391 P.2d 463

154 Colo. 467

Giovanni GENTILE, Juestina Gentile, Francesco Gentile, and Domenico Gentile, Plaintiffs in Error, v. Peter GENTILE, Administrator of the Estate of Vito Gentile Deceased, Defendant in Error.

No. 20480.

Supreme Court of Colorado, En Banc.

April 20, 1964.

Joseph P. Constantine, Denver, for plaintiffs in error.

Preston & Altman, Pueblo, for defendant in error.

MOORE, Justice.

We will refer to plaintiffs in error by name or as nonresident heirs, and to defendant in error as Peter.

The judgment to which this writ of error is directed was entered in estate proceedings by the county court of Pueblo county. One Vito Gentile, a brother of Peter and the nonresident heirs, was adjudicated a mental incompetent in the county court of Pueblo county on May 22, 1941, and Peter was named conservator of his estate. On May 27, 1958, Vito Gentile died and Peter was named administrator of his estate. The only heirs at law of Vito Gentile were his brothers and sister, all of whom, except Peter, lived in Italy. June 7, 1958, Peter filed an inventory of assets of said estate showing real estate of the value of $7,200.00 and personal property valued at $7,185.39.

October 24, 1958, Peter Gentile filed a petition as follows:

'Comes now Peter Gentile and shows and represents to the Court:

'1. That the heirs of the above named decedent are Peter Gentile, Giovano Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile; that all of said heirs except your petitioner are residents of Italy; that petitioner's father died in 1903, and his mother died in 1940, in Italy, as the owners of certain property in Italy, which descended to and became the property of the same persons who are the heirs in this proceeding.

'2. That in 1954, your petitioner transferred his share of the property in Italy in consideration of and upon the specific understanding that when the above named decedent died that the brothers and sisters in Italy would transfer their respective shares in the above entitled estate to your petitioner.

'3. That your petitioner has made demand upon said brothers and sisters for transfer of their share in the above entitled estate but they have failed and refused and still fail and refuse to make such transfer.

'WHEREFORE, your petitioner prays that a hearing be had before this Court and that an order be entered transferring said interests to your petitioner in accordance with said agreement.'

On October 24, 1958, an affidavit for service by publication was filed, and on the same day an order of the court was entered as follows:

'This matter coming on to be heard and the Court being satisfied that the persons named in the Affidavit for Service by Publication are non-residents of the State of Colorado, and are persons who cannot be served by personal service in the State of Colorado.

'IT IS ORDERED That the Notice herein be published in The Colorado Tribune once a week during each of four successive calendar weeks, and that the Clerk of this Court shall mail a copy of said Notice and a copy of said Petition, postage prepaid, addressed to the persons named in said Affidavit for publication at the addresses there given and who shall make and file a certificate of mailing in accordance with the statute.

'Done in open Court this 24th day of October, 1958.

/s/ Hubert Glover

Judge.'

The notice actually published was as follows:

'Notice is hereby given that a hearing will be held upon the petition of Peter Gentile, for an order transferring the interests of all of the heirs in the above entitled estate to him before this Court on the 3rd day of December, 1958, at 10:00 o'clock A.M.

CHARLES MARTELLARO

Clerk of the County Court

By Charles Martellaro'

The petition of Peter Gentile was heard by the court on December 3, 1958. He testified, as did also one Vincent Massari, after which the trial court entered an order reading as follows:

'This matter coming on for hearing upon the petition of Peter Gentile, and the Court having heard the testimony of the witnesses produced in support of said petition, and being now fully satisfied that the petitioner, Peter Gentile, entered into a contract with Giovano Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile, by the terms of which Peter Gentile transferred all of his interest in the property of his mother and father who died in Italy to his brothers and sister in Italy, in exchange for their agreement to transfer to Peter Gentile all of their interests in the estate of Vito Gentile, now deceased, and the Court being further satisfied that the brothers and sister in Italy have not fulfilled their obligations to transfer their interest in the estate of Vito Gentile to Peter Gentile.

'IT IS ORDERED, ADJUDGED AND DECREED by the Court that all of the interests in the estate of Vito Gentile, deceased, of Giovano Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile, be and the same are hereby transferred to and ordered to be the sole property of Peter Gentile.

'IT IS FURTHER ORDERED that this order shall operate as a transfer and assignment from Giovano Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile to Peter Gentile of all the right, title and interest of Giovano Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile in and to their distributive shares of the estate of Vito Gentile, deceased.'

Peter filed his final report from which it appeared that after claims and expenses of administration were paid there remained a balance of $9,743.41 for distribution to himself under the above-quoted order of court. This final report was filed April 9, 1959.

June 8, 1961, the nonresident heirs filed a petition in which they prayed for the entry of an order:

'1. That said estate be re-opened.

'2. That the Order made and entered herein on December 3, 1958 whereby the distributive share of Giovanni Gentile, Juestina Todisco, Francesco Gentile and Dominico Gentile was transferred and assigned to Peter Gentile be vacated and set aside and held for naught.

'3. That the said Peter Gentile be ordered to account for all of the assets of the estate of Vito Gentile, Deceased, and more specifically the U.S. Savings Bonds in the approximate sum of $10,000.00.

'4. That the Final Report of Peter Gentile filed herein of his administration of the estate of Vito Gentile, Deceased, be vacated and set aside.

'5. That the Court make and enter herein an Order providing for the distribution of the balance of assets to these petitioners in accordance with the provisions of the statutes in such case made and provided.'

It was...