Lorenzo v. Ottaviano

Pattison, J., delivered the opinion of the Court. This is an appeal from an order or decree of the Circuit Court of Baltimore City overruling a demurrer to a bill filed by Joseph J. Ottaviano against the appellant, Nicholas Lorenzo, also known as Nicola Lorenzo and Nick Lorenzo, and the Savings Bank of Baltimore and the Mayor and City Council of Baltimore. The bill alleges that Frank Ottaviano died in the year 1886, leaving surviving him his wife, Annie Ottaviano, and the plaintiff, a son, Joseph J. Ottaviano, who was then an infant about one year of age, as his only heirs at law and next of kin. That Frank Ottaviano, together with his wife, had, during his lifetime, conducted a fruit and vegetable busi ¹⁴⁰ ness in the City of Baltimore, and had “accumulated considerable cash money, as a result thereof,” which belonged to and was the property of the husband and father.

That upon the death of Frank Ottaviano, this property devolved upon his widow and his son, and thereafter the business was conducted under the control and direction of his widow until her marriage to Nicholas Lorenzo in 1889, when she was aided by her husband in the conduct and management of the business, which continued to prosper and “through the diligent efforts and business acumen of the said Annie Lorenzo,” considerable property and market stalls and cash money were accumulated, that the son attended the public schools, and before and after school hours and on holidays and vacations, he rendered such assistance as was possible, in the management of the business. That upon reaching the age of fourteen, he left school and thereafter for several years assisted his mother in the management of the business, when, at the age of twenty-two or twenty-three years, the entire business was turned over to his control, and his mother retired from active participation in its management and control. “That about the year 1915,” the mother was the owner of two properties, 1107 and 1111 Thompson Street, in the City of Baltimore, had large sums of money on deposit with the Savings Bank of Baltimore, and in addition thereto, she owned a number of market stalls in Bel Air Market. These properties, as alleged in the bill, were accumulated and acquired from the profits derived from the business conducted by the mother of the plaintiff and later assisted by the defendant Nicholas Lorenzo and the plaintiff, and still later conducted by the plaintiff himself alone. That the title to one of these said properties, though acquired by and with the income from the business, conducted as aforesaid, was held in the name of Nicholas Lorenzo, and the other in the name of him and his wife, as tenants by the entireties.

That a number of the market stalls, likewise acquired, were in the name of the defendant,' while others were in the names of him and ¹⁴¹ his wife. That the money on deposit with the defendant the Savings Bank of Baltimore was “in the name of Nicholas Lorenzo, in trust for self and Annie Lorenzo, joint owners, subject to the order of either, the balance at death of either, to belong to the survivor.” “That, in or about the said year (1915),” it was “definitely and mutally agreed by and between the said Nicholas Lorenzo and, Annie Lorenzo, that upon the death of either of them, the survivor would, by last will and testament, leave all of said property, business and assets to the plaintiff.” It is then alleged that the aforementioned agreement in italics was understood by both the husband and the wife “that all of the property, whether held in the individual name of Nicholas Lorenzo or in the joint names of the said Nicholas Lorenzo and Annie Lorenzo, consisting of the properties then owned by them, or the title to which they held, and any property subsequently acquired, should belong to and become the property of the plaintiff, the said Joseph J. Ottaviano, upon the death of the survivor of them.” That after this agreement, the plaintiff continued to control and manage the business and look after and attend to said property. That, “in furtherance of said agreement, the said Nicholas Lorenzo did, some time in or about the year 1915, sign, publish and declare his last will and testament, wherein, after making a few minor bequests of property, which was considered as belonging to him individually, he gave, devised and bequeathed all the rest and residue of his estate, of whatever nature and kind, to the plaintiff absolutely, with the proviso that if the plaintiff died without issue the property should be divided between the brothers of the said Nicholas Lorenzo, and his brother’s son.” That this will was delivered to Nicholas Lorenzo, in whose possession it has been ever since its execution. That on September 16th, 1982, Annie Lorenzo, the mother of the plaintiff, died intestate, leaving surviving ¹⁴² her the said Nicholas Lorenzo and her son, the plaintiff, as her only heirs at law and distributees.

At the time of her death, the bill alleges that there was on deposit with the Savings Bank of Baltimore in the joint names of the said Annie Lorenzo and Nicholas Lorenzo, subject to the trust form above referred to, the sum of approximately $20,000. In addition thereto, were three properties: (1) No. 715 Aisquith Street, a fee simple property, in the name of both Nicholas and Annie Lorenzo, acquired by deed dated November 28th, 1922, seven years after the alleged agreement and the execution of the alleged will of Nicholas Lorenzo; (2) the fee simple property No. 1107 Thompson Street, in the name of both Nicholas and Annie Lorenzo, the title to which was acquired by deed dated October 5th, 1917, two years after the alleged agreement and the execution of the alleged will of Nicholas Lorenzo; and (3) the leasehold property No. 1111 Thompson Street, in the name of Nicholas Lorenzo, the title to which was acquired by deed dated April 9th, 1907. Also nine market stalls in Bel Air Market, some of which were in the name of Nicholas Lorenzo alone, and others in the name of both him and his wife. It is then alleged that on or about November 13th, 1932, Nicholas Lorenzo, in contravention of the alleged agreement, devised to his blood relations the greater part of his estate, leaving the rest and residue, it being only a small part of his entire estate, to the plaintiff for the term of his natural life, and after his death to Antonio Lorenzo, a son of his brother, Saverio Lorenzo.

The bill then alleges that the plaintiff “is entitled to have the said Nicholas Lorenzo specifically and particularly perform said agreement by signing, sealing, publishing and declaring as his last will and testament, a will in manner and form and in conformity with the agreement made and entered into between the said Annie Lorenzo and Nicholas Lorenzo in or about the year 1915, as and for his last will and testament”; and that “the said Nicholas Lorenzo should be enjoined from selling, conveying, etc., the aforesaid property, belonging to the mother of ¹⁴³ the plaintiff* * * and also “that he (the plaintiff) is entitled to have the said attempted last will and testament of Nicholas Lorenzo, dated November 13th, 1932 * * * annulled and set aside.” The bill concludes with the following prayers: First, That Nicholas Lorenzo be “ordered and directed to answer the bill of complaint under oath and to make full discovery to the plaintiff of and respecting the last will and testament signed, sealed, published and declared by him in or about the year 1915.” Second, That Nicholas Lorenzo be “ordered and directed to specifically perform the agreement made and entered into between the said defendant and Annie Lorenzo by the due and proper execution of his last will and testament, in accordance with said agreement; and whereby all of the property referred to in said bill of complaint shall pass to and become the property of the plaintiff.” Third, That Nicholas Lorenzo be “restrained and enjoined from selling, transferring, etc. any of the property, market stalls or money herein mentioned and referred to, and that the defendant, the Savings Bank of Baltimore be restrained and enjoined from allowing said Nicholas Lorenzo to withdraw any of the funds on deposit with that bank, and that the Mayor and City Council of Baltimore be enjoined and restrained from allowing” him “to transfer any of the licenses for market stalls on the books of said municipal corporation;” Fourth, That the said last will and testament of Nicholas Lorenzo, dated November 18th, 1932, be annulled and set aside. The alleged agreement was an oral agreement, not reduced to writing, by which the defendant, Nicholas Lorenzo, was to devise unto the plaintiff, Joseph J. Ottaviano, the appellant, all his real and personal property; and the proceeding herein was instituted for the specific performance of that agreement. As was said by this court, speaking through Chief Judge Boyd, in White v. Winchester, 124 Md. 522 , 92 A. ¹⁴⁴ 1057, 1058, quoting approvingly from an article on specific performance in 36 Cyc. 735, written by John Norton Pomeroy, Jr.: “An agreement to make a certain disposition of property by a will is one which, strictly speaking, is not capable of a specific execution, yet it is within the jurisdiction of a court of equity to do what is equivalent to a specific performance of such an agreement. Such a contract is enforced after the death of the promisor by fastening a trust on the property in the hands of heirs, devisees, and personal representatives and others holding the property with notice of the contract or as volunteers.” See Gordon v. Spellman, 145 Ga. 682 , 89 S. E. 749 ; Mundorff v. Kilbourn, 4 Md. 459; Wilks v. Burns, 60 Md. 64 ; Hamilton v. Thirston, 93 Md. 213 , 48 A. 709 ; White v. Winchester, 124 Md. 524 , 92 A. 1057 ; Soho v. Wimbrough, 145 Md. 498 , 125 A. 767 ; Whitridge v. Parkhurst, 20 Md. 62 ; Scott v. Marden, 153 Md. 1 , 137 A. 518 .

As stated in Bolman v. Overall, 80 Ala. 451 , 2 So. 624 , 626; “The principle upon which courts of equity undertake to enforce the execution of such agreements is referable to its jurisdiction over the subject of specific performance. It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy ; for this can be done only in the life-time of the testator, and no breach of the agreement can be assured so long as he lives. And, after his death, he is no longer capable of doing the thing agreed by him to be done.” “There can be no doubt but that a person can make a valid agreement (binding himself legally) to make a particular disposition of his property by last will and testament. The law permits a man to dispose of his own property at his pleasure; and no good reason can be assigned why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by conveyance, to be made at some specified future period, or upon the happening of some future event.

It may be unwise for a man (in this ¹⁴⁵ way) to embarrass himself as to the final disposition of his property; but he is the disposer by law of his own fortune, and the sole and best judge as to the manner and time of disposing of it. A court of equity will decree the specific performance of such an agreement, upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction.” See note 60 Am. Rep. 111; Warden v. Hinds, 90 C. C. A. 449 , 163 Fed. 201, 206 , 25 L. R. A. (N. S.) 536.

In the last-cited case, it was said: “There is authority for the position that in some instances under an agreement to bequeath property the person to whom the bequest is to be made may in the lifetime of the proposed testator, in order to prevent the loss of the property through extravagance or other misconduct of the latter, file a bill quia timet on the equity side of the docket to have such testator declared a trustee to the extent of the claim.” See 36 Cyc. 738; Warden v. Hinds, supra; Gordon v. Spellman, supra; Chantland v. Sherman (1910) 148 Iowa, 352 , 125 N. W. 871 ; Van Dyne v. Vreeland, 11 N. J. Eq. 370, affirmed in Van Dyne v. Vreeland, 12 N. J. Eq. 142; Wold v. Wold (1917) 138 Minn. 409 , 165 N.