Manti v. Gunari

• Decision Date: 17 March 1970
• Citation: 5 Cal.App.3d 442,85 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: Leonardo MANTI, Heir at Law, Legatee of Constructive Trust and Executor of the Will of Pietro Manti, Plaintiff and Respondent, v. Dominic GUNARI, Defendant and Appellant. Civ. 26286.

Page 366

85 Cal.Rptr. 366

5 Cal.App.3d 442

Leonardo MANTI, Heir at Law, Legatee of Constructive Trust and Executor of the Will of Pietro Manti, Plaintiff and Respondent, v. Dominic GUNARI, Defendant and Appellant.

Civ. 26286.

Court of Appeal, First District, Division 2, California.

March 17, 1970.

J. Elwood Andresen, Boulder Creek, for defendant and appellant.

Harold I. Miller, Stockton, for plaintiff and respondent.

DAVID, ^* Associate Justice Pro Tem.

This is an appeal from a judgment declaring appellant Dominic Gunari has no right, title or interest to a $20,000 bank account, maintained in the name of 'MANTI, Pietro or GURNARI, Dominic,' at the time of the death of Manti. The respondent, successful in the court below, is Leonardo Manti, admitted to be the surviving nephew of Manti and sole beneficiary under a 1953 will.

The complaint was headed, 'Complaint for Declaration of Constructive Trust in Property Obtained Through Fraud, Mistake and Undue Influence.' The appellant's surname throughout this proceeding has been written Gunari, and no claim is made that he is not the Dominic Gurnari named in the bank records.

The first 'cause of action' alleged that deceased, Pietro Manti, age 84, was illiterate; that during the last six years of his life by reason of age, infirmity and alcoholism, his mental faculties were so impaired he was easily influenced by defendant Dominic Gunari, a young man about age 40, who served Manti as his confidential agent the last four years of life.

That within those four years, Manti had a large sum of money, about $18,000, on deposit in the Diamond Branch of the Bank of America, Oakland.

That during said four-year period Manti had a strange attachment for Gunari, induced by unnatural flattery and attentions given Manti by Gunari, to the extent he kept constant company with Gunari, exclusive of his relatives (plaintiff was the only one) and his old friends; and consulted Gunari constantly about his business affairs; and taking advantage of his trust and confidence in Gunari, Gunari did influence deceased's mind and actions and thereby procured deceased to make Gunari a joint tenant of deceased's bank account, having the right to withdraw monies therefrom for any purpose at any time without any further action whatsoever on the part of the deceased, and on deceased's death having sole right to said bank account; that at the time defendant was made a joint tenant deceased was wholly under the influence of defendant, ill, infirm, nearly blind and under the influence of alcohol.

The purported 'second cause of action' is repetitive, it being further alleged that prior to decedent's death Gunari represented to Manti that he would help him in his business affairs, and that a joint bank account would serve such purpose, allowing Gunari to deposit and withdraw money for Manti; and as a result of such representations, Manti made Gunari a joint tenant of the bank account with right of survivorship; that Manti was unaware of the rights conferred by joint tenancy in said bank account and relied on defendant's fraudulent representations; and had he known of the true facts he would not have created such joint tenancy.

Again a repetitive third count added that the transfer of funds into a joint tenancy account was instituted and consummated by mistake and had deceased known of the true effect of his signature, he would not have signed.

The fourth purported 'cause of action' alleged that Manti allowed Gunari's name to be placed on the signature card to allow Gunari to deposit and withdraw money for the deceased Manti; that he never intended to create a joint bank account with said defendant and did not create a joint bank account.

The fifth cause adds that defendant refuses to make an accounting. As to all counts, the prayer is, that it be declared Gunari holds the funds constructively in trust for plaintiff. ¹

The answer was by way of general denial; except that it was admitted that the plaintiff is an heir at law of Pietro Manti, and sole beneficiary under a will dated July 12, 1953; that Pietro Manti was of advanced age, that defendant is a young man about forty years of age; and admitted Pietro Manti made defendant a joint tenant of deceased's bank account.

Where this is contested, the burden of proof is initially upon the plaintiff, not the defendant, contrary to the assumption of the trial court. (Cf. Estate of Morcel (1912) 162 Cal. 188, 121 P. 733.) The evidence did not show any action of Gunari to procure the joint account. Hence, the burden did not shift to him. (Cf. Estate of Lingenfelter (1952) 38 Cal.2d 571, 586, 241 P.2d 990.)

The findings that plaintiff is the nephew of Pietro Manti and his sole relative residing in the United States, and that he is the sole beneficiary under the will of Pietro Manti dated July 12, 1953, fail to support plaintiff's right to maintain this action. Only the duly qualified executor or administrator may being an action for recovery of personalty. (Hall v. Alexander (1937) 18 Cal.App.2d 660, 663, 64 P.2d 767; Rogers v. Bank of America (1956) 140 Cal.App.2d 228, 232, 294 P.2d 959.) Plaintiff alleged such capacity, but no admission was made nor proof offered on the point.

This was a savings account, not a commercial account for day to day transactions. The pertinent provision of the signature card (which constitutes the contract) is: 'Undersigned further agrees that all funds now on deposit or which hereafter may be placed on deposit of said account shall be the property of the undersigned as

INDIVIDUAL

TRUSTEE (See Beneficiary Identification attached, if applicable)

JOINT TENANTS who may withdraw funds upon number of signatures indicated below except in the event of conflicting demands of the undersigned * * *

'Number of signatures required to withdraw funds _ _ * * *

1. (Signed) Pietro Manti

Signature

2. (Signed) Dominic Gurnari

Signature'

On the obverse the legend appears:

'SIGNATURE CARD: INDIVIDUAL, TRUSTEE OR JOINT TENANCY.'

Under the language of Civil Code, section 683, 'A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, Or by transfer from a sole owner to himself and others * * *.' (Emphasis added.)

The finding by the trial court that the interest was created in the disjunctive is not supported by the evidence. This was of material prejudice to appellant since the use of the word 'or' does not create a joint tenancy. (Cooke v. Tsipouroglou (1963) 59 Cal.2d 660, 664, 31 Cal.Rptr. 60, 381 P.2d 940; cf. Denigan v. San Francisco Sav. Union (1899) 127 Cal. 142, 147, 59 P. 390, where 'payable to either' was held insufficient without any other declaration of the depositor as to joint tenancy or survivorship.)

The trial court found that the signature card produced by the bank did not state the monies are payable to the survivor, and that no bank document altered the form of the account thereafter; that the account was opened on the form to permit Mr. Gunari to make deposits and withdrawals for Mr. Manti, made necessary by Mr. Manti's declining health, making visits to the bank a great physical hardship; the source of all money in the account was Pietro Manti; all monies withdrawn were for the use and benefit of Manti and defendant (Mr. Gunari) has not withdrawn any money from the account since Mr. Manti's death in April 1966; and that approximately $20,000 is in the account.

From these evidentiary findings, the court concluded as a matter of law that the monies in the account were the separate property of Pietro Manti at the time of his death, and defendant had no right, title or interest in the account after Manti's death, and that a constructive trust may be declared in the monies in said account for the benefit of the estate of Pietro Manti. Judgment was entered accordingly.

Appellant tendered, and the court refused, a special finding relative to the allegations of paragraph II of the first count, carried by reference into the Fourth. These asserted that by reason of his age, physical condition and alcoholism Pietro Manti was easily influenced by a person in whom he had confidence and that during the last four years before and up to decedent's death Gunari had served as deceased's confidential agent. Appellant was entitled to a finding under the evidence that the bank account was not the product of any such undue influence.

Motion was duly made to vacate the judgment, and to enter a judgment for defendant'; and in the alternative, to grant a new trial, both of which were denied.

We have concluded that the defendant Gunari was entitled to judgment.

The basic difficulty is, that the findings only state evidentiary facts, all of which are consistent with ownership of the funds by Gunari, and consistent with his testimony, which was neither disputed on the one hand nor found to be untrue on the other. As to the circumstances on opening the account on Christmas Eve 1963, the testimony was: 'MR. ANDRESEN: Q. Mr. Gunari, at the time that this account was opened, how did you happen to go to the bank on that occasion? A. Well, sir, it was like another day, Mr. Manti asked me to take him to the bank. He had some business. So I drove him down and picked him up at his home, drove him down to the bank. We went to the bank. Q. Did you accompany him into the bank? A. Yes, sir. Q. And what happened when you got into the bank? A. He looked around to see the manager, and he was not present. Q. And who did he talk to at the bank at that time? A. Mr. Sanford, who was in the area of the manager's space. Q. And what did he say to Mr. Sanford at the time that that account was opened? A. Well, he said, 'I want to put this boy's name on my bank account,' he said, 'because pretty soon I'm going to die and I want to give him the money.''

An objection this was self-serving was withdrawn, and that it was...