Cruciotti v. D'Anna

Markell, J., delivered the opinion of the Court. This is an appeal from a decree dismissing a bill to set aside deeds by plaintiff’s wife (now deceased) and by her grantee or to enforce an alleged agreement by the decedent to convey the property in question to herself and plaintiff as tenants by the entireties. On November 80, 1941, plaintiff, a widower, and Providenza D’Anna, a widow, were married. He was sixty and had three children; she was sixty-five and had fourteen children.

The license was issued on November 19, 1941. Plaintiff’s son testified that in August, 1941, he had a conversation with his father and Mrs. D’Anna, “that they were going to get married and if I liked the idea. I told them it was all right by me, because she seemed to be a very nice woman. * * *, she did not give me any date of the marriage because they had a little disturbance with the children and said it had been postponed until later.” On November 8, 1941, Mrs. D’Anna conveyed to Straw Man Inc. the leasehold property No. 124 W. Camden Street, (where she lived) and the grantee reconveyed it to Frank D’Anna (one of her sons) in trust for her for life, with power to her with the trustee’s consent to sell and reinvest the proceeds, and to the trustee upon her death to sell and distribute the proceeds among the fourteen children and the descenderás of deceased children per stirpes.. The wife died on February 16, 1951; controversy ensued immediately.

Plaintiff testified (without objection) that he found out “two years after the marriage”, that Mrs. D’Anna had conveyed the house to her children. However, he also testified, “After she buys her house for her children, I bought my house [No. 646 Dumbarton Avenue] for ⁴⁵⁹ my own children.” One of his wife’s brothers testified that plaintiff was present in his wife’s house when she executed the deed on November 8, 1941. He testified, on cross-examination, “Q. * * * you were at Camden Street in 1941, were you not, when the deed was signed, November 8, 1941? A. I don’t know when they were signed or not signed.

Q. Do you recall in November, 1941, when a lawyer came down to your wife’s place on Camden Street and that she signed a deed. A. I don’t remember. No lawyer came there.” This is denial of recollection of an inconclusive detail, not denial of knowledge of the execution of the deed. On February 1, 1943 the leasehold property No. 646 Dumbarton Avenue, bought by plaintiff for $4,250 ($3,750 cash and $500 on mortgage), was conveyed to plaintiff.

On June 1, 1944 he redeemed the $86 ground rent, and on April 30, 1947 by conveyances to and from Frank D’Anna and wife conveyed it to himself and wife as tenants by the entireties. After the wife’s death the trustee sold the Camden Street property to his son (or himself) for $11,200. Plaintiff contends that after learning of his ownership of No. 646 Dumbarton Avenue his wife agreed with him that if he would “put her name on- his property” she would put his name on hers, No. 124 West Camden Street, that in accordance with this agreement he did so convey his property but she had failed to convey hers. He testified, mostly without objection, “Q. How did you find out that your name was not on the property on Camden Street?

A. About three days after her death, I went to see Buccino [his lawyer] and he told me — Objected to —that my name was not on it.” Plaintiff contends (1) that the deeds of November 8, 1941 were executed in fraud of his marital rights and should be set aside and (2) that the wife’s agreement to “put his name on her