Johnson v. Fraccacreta
| Decision Date | 17 June 1977 |
| Docket Number | No. 76-754,76-754 |
| Citation | 348 So.2d 570 |
| Parties | William A. JOHNSON, as Administrator Ad Litem for the Estate of Carmella Fraccacreta, Appellant, v. Delores FRACCACRETA, Paolo Fraccacreta, a/k/a Paul Fraccacreta, Neal Watson, Frank Fraccacreta, and Louise Watt, jointly and severally, Appellees. |
| Court | Florida District Court of Appeals |
Johnson, Ackerman & Bakst, P. A., and Larry Klein, West Palm Beach, for appellant.
Guy C. Hill, West Palm Beach, for appellee, Delores Fraccacreta.
This appeal is concerned with the validity of a conveyance made pursuant to a power of attorney.
The administrator ad litem of the Estate of Carmella Fraccacreta, appellant, contends that the power of attorney issued by the decedent appointing her daughter Delores, appellee, as attorney in fact, did not authorize a conveyance by Delores of Carmella's property to Carmella and Paolo, husband of the decedent. Appellant contends that the conveyance constituted a gift of the subject property contrary to the general powers contained in the power of attorney.
The salient facts reflect that decedent owned the subject real property during her lifetime and executed a power of attorney appointing Delores as her attorney in fact. The power of attorney gave Delores the power to:
"Bargain, sell, release, convey and mortgage lands . . . upon such terms and conditions, and under such covenants, as she shall think fit and also for me and in my name as my act and deed to sign, sell, execute and deliver and acknowledge such deeds . . .".
As attorney in fact, Delores executed a warranty deed conveying Carmella's property to Paolo and Carmella, husband and wife, as tenants by the entireties. Carmella died several months after the execution of the power of attorney and the conveyance. 1
The appellant contends that a general power of attorney does not authorize the agent to make a gift of the principal's property. Although it appears that there is no Florida case law directly on point, the general rule announced in other jurisdictions is set forth in 73 A.L.R. 884:
"A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal." (Emphasis added).
See also Miyuki Okihara v. Clark, 71 S.Ct. 319 (D.Haw.1947); Fujino v. Clark, 71 F.Supp. 1 (D.Haw.1947), aff'd. 172 F.2d 384, 9 Cir., cert. den. 337 U.S. 937, 69 S.Ct. 1512, 93 L.Ed. 1743; Manna v. Pirozzi, 44 N.J.Super. 227, 130 A.2d 55 (1957); Shields v. Shields, 200 Cal.App.2d 99, 19 Cal.Rptr. 129 (1962); Bertelsen v. Bertelsen, 49 Cal.App.2d 479, 122 P.2d 130 (1942); Thompson v. Thompson, 190 Ga. 264, 9 S.E.2d 80 (1940).
The fact that some of the aforementioned cases are concerned with conveyance to a party other than the principal does not in our opinion alter the application of the rule to the instant situation. The subject property was owned by Carmella at the time the power of attorney and deed were executed, so that the conveyance by Delores to Carmella and Paolo was a gift to Paolo of a portion of Carmella's property by virtue of the creation of an estate by entireties with the right of survivorship. In Shields, supra, the California Fourth District Court of Appeal stated:
"A power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift or without a substantial consideration (citations omitted); and a conveyance without the scope of the...
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