Lombardi v. Tranchina

129 Cal.App.2d 778 (1954) STEPHEN LOMBARDI et al., Appellants,

v.

LORETTA TRANCHINA, as Executrix, etc., et al., Respondents.

Civ. No. 16182. California Court of Appeals. First Dist., Div. One.

Dec. 27, 1954. Ferrari & Ferrari for Appellants.

James L. Minnis, Jr. and Cosgriff, Carr, McClellan & Ingersoll for Respondents.

WOOD (Fred B.), J.

Question: Does the evidence support the finding that Candida Lombardi (mother of the plaintiffs) owned the real property in suit at the time of her death and that neither Candida nor the defendants (the executrix of her will and the devisees of the property) at any time held the property in trust for the plaintiffs?

Plaintiffs Stephen and August Lombardi conveyed this property to Candida in August, 1943. In support of their claim that Candida, in consideration of the transfer, orally agreed to hold it in trust for them, Stephen testified: The property was purchased in 1924 with money he and his brother August had saved, but was taken in the name of the mother because August was not yet of age and could not borrow money; that his father, Sebastian, paid off the purchase money loan with rentals received from the property; by 1933 the parents were in financial difficulties owing to the depression, so, the property belonging to him and his brother, he took it up with them, telling them he wanted it because "it belonged to us," and the parents conveyed it by deed to him and his brother, and "it stayed in our name for about 10 years." After the father's death (in January, 1941) the mother told the boys she wanted the property back in her name. It dragged along for quite a while and then she started putting "pressure" on them. Stephen said to her, "the property belongs to us" and she replied, "well, turn it over to me, and then when the proper time comes, I will see that you get what you have coming." She was going to use the income as long as she had the property and then she was going to [780] turn the property back to the boys later on. And so they deeded it to her. Stephen's is the only testimony to this conversation, for there was no third person present and Candida is no longer living. After they deeded the property to Candida, Stephen saw her from time to time but had no further discussions in regard to the agreement he testified to. They never discussed it again. He frankly conceded that from the acquisition of the property in 1924 Sebastian managed the property, collecting the rents, paying taxes and making improvements, until his death in 1941, and that thereafter until her death in 1951 Candida exercised like sole dominion over it.