Perry E. Bove's Executor v. Marie H. Bove Et Als

• Court: Vermont Supreme Court
• Writing for the Court: SHERBURNE
• Citation: Perry E. Bove's Executor v. Marie H. Bove Et Als, 70 A.2d 562, 116 Vt. 76 (Vt. 1950)
• Decision Date: 03 January 1950
• Docket Number: 1001.
• Parties: PERRY E. BOVE'S EXECUTOR v. MARIE H. BOVE ET ALS

70 A.2d 562

116 Vt. 76

PERRY E. BOVE'S EXECUTOR v. MARIE H. BOVE ET ALS

No. 1001

Supreme Court of Vermont

January 3, 1950

November 1949.

BILL IN CHANCERY to determine title to and rights in certain premises. After a hearing findings of fact were made and a decree was entered defining title and rights. In Chancery Rutland County, Adams, Chancellor.

Decree reversed, and cause remanded for further proceedings not inconsistent with the views herein expressed with directions that the injunction restraining Marie Bove from prosecuting her ejectment suit against Angelo J. Spero, Louis Ricci and Antonetta Ricci and the Colonial Beverage Co. of Vermont, Inc. be forthwith dissolved.

Lawrence & O'Brien for defendant Marie H. Bove.

Bloomer & Bloomer for defendants Louis and Antonetta Ricci.

Bove, Billado & Dick for defendants Amelia B. Beardsley, Viola B. Welch, Peter Bove, Harmond Bove, Aurelio Bove and Elmerine B. Bove.

Vernon J. Loveland for plaintiff individually and as executor of Perry E. Bove's Estate.

Present: SHERBURNE, C. J., JEFFORDS, CLEARY and BLACKMER, JJ.,and CHASE, Supr. J.

OPINION

SHERBURNE

The findings of fact show the following: Perry E. Bove died testate on July 7, 1944. He left surviving him his widow, defendant Marie H. Bove, his mother, Antonetta Ricci, and his step-father, Louis Ricci, both defendants herein, and six brothers and sisters, one of whom was named Elmerine, hereinafter called the intervenors, who with the Riccis take remainder interests under Perry's will. The will nominated Philip B. Billings as executor, and Angelo J. Spero as substitute executor. Billings was commissioned as executor by the Probate Court, and served as such until he resigned on July 29, 1948. On May 14, 1948, Spero was appointed by the Probate Court to act in conjunction with Billings, and has acted as sole executor since the resignation of Billings.

In 1914 Louis Ricci acquired a piece of land about 10 rods square located on the north-west corner of West and Pine streets in the City of Rutland. In 1937 there was a garage on the corner, now known as the Goodrich building, and two tenement houses thereon. Perry Bove was at that time conducting a beer distributing and soda bottling business, and was renting one-half of the garage and a small office. During that year the tenement houses were torn down, and a large warehouse, especially equipped for Perry's business, was erected thereon at a cost of $ 20,000 to Perry. After the erection of this building Perry conducted his business there until his decease, and the representatives of his estate have continued the business since then. It is at No. 7 Pine Street. On or about July 22, 1937, Louis Ricci and Perry Bove duly executed and acknowledged an instrument called therein a "Lease", which so far as here material reads as follows:--

"That for the consideration hereinafter set forth and reserved, he, the said Louis Ricci hath and by these presents doth hereby demise and lease unto the said Perry Bove certain premises, lying and being in the City of Rutland, in the County of Rutland and described as follows:--

"The storage house property heretofore used and occupied by said Lessee for the operation of his wholesale license together with the new ware house property which is fifty (50) feet in breadth and ninety (90) feet in length recently erected on said premises, all of which is described as follows: * * *

"To have and to hold the aforesaid Premises, with all the privileges and appurtenances thereof to the said Perry Bove, his Executors, administrators and assigns, from the first day of August, A. D. 1937, for and during such a period of time as said Lessee shall desire said tenancy to continue and shall pay unto said Lessor the rental hereinafter specified and hereby agreed to herein and shall faithfully perform all other conditions herein set forth; and this lease shall not terminate until such a time as said Lessee gives and delivers unto said Lessor a three (3) month's written notice setting forth his desire to terminate same, whereupon at the end of said three (3) months written notice then and in that event this lease shall thereupon terminate.

"In Consideration Whereof, the said Perry Bove doth hereby agree to use and manage said premises in a good husbandlike manner, and will pay to the said Louis Ricci, his Executors, Administrators or assigns, as RENT, the monthly sum of two hundred fifty (250) dollars, during the natural life of said Louis Ricci and his wife, Antionneta Ricci, or the survivor of them, but after the decease of both aforesaid parties, then in the event that said lease is not then terminated, it is hereby agreed that the monthly rental of said premises shall thereupon and thereafter be reduced to the annual rental of one thousand (1,000) dollars.

"And Whereas, said Perry Bove has paid out the sum of twenty thousand (20,000) dollars in the erection of the new warehouse situated on the east side of said premises bordering Pine Street, so-called, and whereas, said Louis Ricci is indebted to said Perry Bove in the amount of twenty thousand (20,000) dollars in consideration for the money therein invested by said Perry Bove in the building and erection of said warehouse on said premises as aforesaid, it is hereby agreed that said rent of one thousand (1,000) dollars annually to accrue after the decease of said Louis Ricci and Antoinette Ricci or the survivor of them shall be applied to the payment of said twenty thousand (20,000) dollars, and after said payment to said Perry Bove of said twenty thousand (20,000) dollars, in rent as aforesaid, then all rent thereafter shall be paid to the estate of said Louis Ricci, at the rate of one thousand (1,000) dollars Annually during the life of this lease.

"And at the expiration of said lease, the said Perry Bove will deliver up the possession of said premises to the said Louis Ricci, his heirs and assigns, without let or hindrance, in as good condition as they now are, ordinary wear and accident excepted.

And, in case said premises should be destroyed by fire or other unavoidable casualty, before the expiration of this lease, this lease shall thereby terminate.

"Provided, Always, That if it should so happen. That the said Lessee shall at any time fail to perform any of the stipulations of this agreement on his part to be done and performed, then and in that case it shall be lawful for the said lessor, his heirs and assigns forthwith to re--enter and repossess the premises hereby demised [Editors note: Remainder of paragraph omitted.]

This was duly recorded in the land records. On July 23, 1937, Louis Ricci and Perry Bove duly executed and acknowledged another instrument, giving Perry an option to purchase the above property after the death of Louis and his wife for the sum of $ 5000, less rentals paid after their decease. On September 23, 1937, through the medium of a third party deeds were executed purporting to vest title to Louis's real estate on Pine and West streets in Louis and his wife, and the deeds were duly recorded.

Perry Bove entered the service of the United States in World War II on April 2, 1942. At or prior to this date Louis Ricci and his wife executed and acknowledged a warranty deed of the warehouse property to Perry. This deed and the acknowledgment were undated. It will be hereafter referred to as the undated deed. Findings 17, 18, 19 and 20, so far as here material read as follows:--

"17. About the time this deed was executed Perry and Louis had a talk and Perry told Louis, in substance, that if he, Louis would give him a deed of the premises where the warehouse was located it would save going through probate court, and if Louis and Perry's mother, Antonetta, passed away, he, Perry, could use it and get it recorded.

"18. On April 2, 1942, when Perry entered the service Louis and Antonetta signed the following papers:

The undersigned hereby acknowledge that all rent due to date under lease of the premises at 7 Pine Street from Louis Ricci and Antoinette Ricci, lessors to Perry E. Bove, Lessee, dated July 22, 1937, is paid in full.

Dated this 2nd day of April, 1942, Louis Ricci, Antonetta Rici.'

(Plaintiff's Exhibit 7)

The undersigned hereby acknowledge that all rent due to date under lease of the premises at 7 Pine Street, from Louis Ricci and Antoinette Ricci, lessors to Perry E. Bove, lessee, dated July 22, 1937, is paid in full.

Dated this /m /m day of/m /m /m /m, 19 Louis Ricci Antonetta Rici.' (Plaintiff's Exhibit 8)

Perry requested Louis to give him said papers and at that time said something to Louis about owing so much rent and asked what could be done about it. After plaintiff's exhibits 7 and 8 were signed Louis gave them to Perry. Louis had such confidence in Perry that he would sign anything that Perry asked him to sign.

"19. During the latter part of April, 1942, Marie H. Bove saw the undated deed * * * and the releases, plaintiff's exhibits 7 and 8 in Perry's safety deposit box in the bank, to which box she had a key. About that time Perry told her if anything happened to him to go to Ernest H. O'Brien and have the date inserted in the undated deed and undated release as of the day previous to his, Perry's decease. Marie never took them to O'Brien * * * Marie learned of the lease from Louis to Perry * * * from Perry and he told her about it when he gave her the instructions about having the date inserted in the undated deed and undated release. Billings was told about the undated deed in January, 1945, at a conference between Marie, Mr. Lawrence and Billings.

"20. Perry went to the office of George F. Jones, Esq., an attorney in Rutland, in May 1943, when he, Perry, was home on a furlough and asked him to make a deed...