Leary v. Leary, 2745

• Decision Date: 22 June 1960
• Docket Number: No. 2745,2745
• Citation: 161 A.2d 812,91 R.I. 175
• Parties: Peter W. LEARY v. Thelma LEARY. Eq.
• Court: Rhode Island Supreme Court

Page 812

161 A.2d 812

91 R.I. 175

Peter W. LEARY v. Thelma LEARY.

Eq. No. 2745.

Supreme Court of Rhode Island.

June 22, 1960.

Maurice L. Dannin, Gabriel D. Russo, James S. O'Brien, Jr., Newport, William C. Waring, Jr., Providence, for complainant.

Paul F. Murray, Newport, for respondent.

PAOLINO, Justice.

This bill in equity was brought by a son against his mother. The bill prays that she be ordered to convey to him his alleged share in certain real estate as an heir-at-law of his father, Michael T. Leary, who died intestate on April 5, 1937, and that she account to him for his share of the rental income of such real estate and the proceeds from the sale of certain portions of the property disposed of by her. After a hearing in the superior court on bill, answer and proof, a decree was entered denying and dismissing the bill. The cause is before us on the complainant's appeal from such decree.

The following facts are not disputed. At the time of his death Michael T. Leary owned four parcels of real estate in the city of Newport. He left a widow, respondent herein, two children, John and Frances, both over twenty-one years of age, and two other children, Peter, complainant herein, and Paul, both minors. The mother was appointed administratrix of her husband's estate and guardian of her minor sons. The administration of the decedent's estate is not in issue. The only property involved is the real estate which under the intestate laws of this state descended to his children.

At the time of his father's death complainant was nearly sixteen years of age. On August 30, 1937 the probate court appointed respondent guardian of the person and property of the complainant and the other minor son. The petition for respondent's appointment as complainant's guardian was signed by complainant. Thereafter, on October 18, 1937, for the purpose of better investment, respondent, as guardian, was granted permission by the probate court to sell complainant's interest in the real estate for not less than $5,000 subject to encumbrances and her right of dower. At the time of the father's death the real estate, which was encumbered by mortgages and unpaid taxes, had a total valuation for tax purpose of $46,100.

After obtaining such permission from the probate court the respondent, on January 8, 1938, conveyed complainant's interest in the real estate to her son John and her daughter Frances for an alleged consideration of $5,000. On April 2, 1938 John and Frances, for an alleged consideration of $5,000, transferred the real estate to respondent individually. This deed conveyed to her not only the interest of Peter and Paul which she, as guardian, had previously conveyed to John and Frances, but also the interest of the two older children. She thus acquired full title to all her children's interest in her husband's real estate. Neither of these deeds contained documentary stamps and it appears that no money was actually involved in the conveyances.

In 1941 respondent conveyed certain premises to her son John and his wife, in 1942 certain other premises to her daughter Frances and her husband, and in 1948 certain real estate to her son Paul and his wife. In addition to these transfers she sold some of the real estate to persons outside the family and still holds some of it in her own name.

The complainant lived with his mother until June 16, 1942 when he entered the military service of the United States where he remained until his discharge on October 31, 1945. He attained his twenty-first birthday on July 16, 1942. While he was stationed in Florida and shortly after he reached his majority he received a communication which he was asked to sign and return. This was a guardian's discharge releasing his mother from all claims which he might have against her as guardian. On August 4, 1942 he signed the release in the presence of an officer. The release recited that he had adjusted and settled with his mother her accounts as guardian and that he had received from her all the balance of his estate in her hands. This method of settling a guardian's account is provided for in General Laws 1956, § 33-17-1, par. 3, subpar. Fourth, and, if otherwise proper, is admittedly lawful. Probate Court v. Higgins, 58 R.I. 58, 63, 191 A. 260.

After his discharge from the army in October 1945 complainant returned to his mother's home where he continued to live until March 1946 when he married. Sometime in 1947 he moved to a house owned by his mother where he had continued to live with his wife and children without paying rent.

Although there is no express allegation of fraud in the bill, it does contain allegations which in effect charge respondent with actual fraud in procuring the guardian's discharge and release from complainant. He alleged in the bill that his mother often told him he had no interest in the estate or property of his father; that from the time of his father's death of August 1949 when the instant bill was filed he received no part of his share in his father's estate; that he did not know, and his mother never told him, the value of his share or that he had any interest therein; that he trusted his mother and relied on her representations; and that he was under the impression that all of the real estate left by his father belonged to his mother.

The complainant testified that he signed the guardian's release without reading it and without knowing the full effect of such action. But he did not testify that any misrepresentation had been made by his mother prior to the time he signed such release. He admitted that his mother helped him financially both before and after he entered the military service; that he lived with her after his discharge from the army without paying for room and board; and that after his marriage he lived in his mother's property without paying rent. He stated that sometime before he signed the instant bill in August 1949 he found out that he was entitled to a one-quarter interest in his father's real estate; that he could not say exactly when he learned of this; and that approximately six months before filing the bill he talked to his mother about his interest and she told him he never had any such interest. He testified that he did not learn that his mother had filed a petition to sell his interest in the real estate until shortly before the instant bill was filed.

The respondent's daughter Frances was called by complainant as a witness and her testimony corroborated that of complainant in some respects. She testified that she found out about her share in 1942; that she got the house she lived in for signing off her share; and that she never found out what her share was. She admitted that she and her mother have not spoken to each other since 1942.

The respondent filed an answer wherein she denied that complainant did not know the effect of his execution of the guardlian's discharge and release. She further averred that the release was signed voluntarily by complainant without any misrepresentation or influence having been exerted on him. The answer alleged further that complainant was guilty of laches.

At the hearing respondent testified that the guardian's discharge had been sent to complainant by her attorney, who has since deceased, and that it was returned to him by complainant; that her attorney had told her about the share of the children; that on his advice she got quitclaim deeds from the children in order to obtain title to the real estate in her own name; that the two minor children had to be taken care of; that she sent complainant money while he was in the service; that she helped him financially after his discharge and marriage; that she paid for his clothing and grocery bills; and that she continued to help him financially until May or June 1949 when she stopped because she had to have money for herself.

She also testified that although he was working during most of said periods of time he did not contribute any money for rent or the maintenance of the property; that she did not have to provide for or support the other children after they were married; that she was on friendly terms with complainant in July 1949; and that the instant bill was filed two or three months after she stopped giving him money.

Two letters sent by complainant to his mother in 1943 are in evidence as respondent's exhibits. The first letter begins with the following sentence: 'I am sorry to have to keep asking for money. I got everything that was coming.' In the second letter appears the following sentence: 'By the way last July when I was in Miami I signed a paper. Didn't it give you complete control over everything I own or had claim to?' Both letters indicate love and affection on the part of complainant towards his mother. The complainant admitted that he wrote to his mother and wired for money while he was in the service, and he has not seriously disputed her testimony relative to the help she gave him financially after his discharge from the army.

The trial justice filed a decision in which, after carefully reviewing the pleadings, he analyzed the evidence before him in great detail and passed on the weight thereof and the credibility of the principal witnesses. He concluded from the evidence pertaining to the various transactions involving the conveyances of the real estate in question that the plan was to get the whole title in the mother's name and that this plan was impliedly agreed upon and acquiesced in by complainant.

The trial justice characterized complainant as a young man of more than average intelligence. He expressly stated that he seriously lacked the veracity one would expect from a person seeking equity to right an alleged wrong. Furthermore he did not give credibility to complainant's testimony that he did not know what he was doing when he signed the petition for guardianship in 1937 or the release in 1942. Neither did he believe his testimony that he did not know and...