Spero v. Bove

• Decision Date: 03 January 1950
• Docket Number: No. 1001,1001
• Citation: 116 Vt. 76,70 A.2d 562
• Court: Vermont Supreme Court
• Parties: SPERO v. BOVE et al.

Page 562

70 A.2d 562

116 Vt. 76

SPERO v. BOVE et al.

No. 1001.

Supreme Court of Vermont.

Jan. 3, 1950.

Vernon J. Loveland, Rutland, for Angelo J. Spero individually and as executor.

Lawrence & O'Brien, Rutland, for defendant Marie Bove.

Bloomer & Bloomer, Rutland, for defendants L. and A. Ricci.

Bove, Billado & Dick, Rutland, for defendants Beardsley and others.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and BLACKMER, JJ., and CHASE, Superior Judge.

SHERBURNE, Chief Justice.

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, Antionnetta 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 anything therein to the contrary thereof notwithstanding.'

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 ___ by of _____, 19

'Louis Ricci

Antonetta Ricci'

'(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 from Louis and Antonetta to him, Perry, and to Perry's wife of the property located at 7 Pine Street. At the time he informed Jones that the title to the land on which the warehouse was built was still in the names of Louis Ricci and wife. He told Jones he wanted the deed made before he went overseas and that he had erected a plant on the land at a cost of $20,000.00. Jones was to prepare the deed, and have it signed. Jones later went to the premises and paced off the size of the land to be conveyed and described in the deed. He saw Elmerine in the office at the plant at that time and told her what he was there for. He later prepared the deed and took it to the home of Louis and Antonetta. He told them he had a deed prepared at Perry's request and explained it to them and that it was a deed from them to Perry and his wife. They,...