Estate of Capolino

ADAMS, P. J.

Joseph Capolino died in Merced County, November 22, 1945, whereupon Helen Capolino, representing herself as the surviving wife of decedent, was appointed administratrix of his estate, on December 3,1945. On May 16th, Helen Capolino filed an inventory and appraisement showing the assets of the estate to be of the approximate value of $50,000. In July, 1946, Hilda Matthews, daughter of Joseph Capolino by his prior marriage, filed in the estate proceedings a will executed by decedent in August, 1930, which named his said daughter as principal beneficiary. Helen Capolino then filed her first account and report as administratrix, together with her resignation. Hilda Matthews filed objections to the inventory and to the account and report of the administratrix, claiming that Helen Capolino held in her own name property which should be included in the estate of Joseph Capolino. Prior to a hearing on said objections Helen Capolino died,

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her son, Arthur Miller, was appointed administrator of her estate, and the administration of the estate of Joseph Capolino was turned over to the public administrator. Hearings on the objections of Hilda Matthews were had on April 18, 1947, and April 30, 1948, Arthur Miller appearing in opposition to said objections. The trial court decided that the property standing in the name of Helen Capolino was her separate property, that no constructive or resulting trust in any of same had been established therein, and that none of it should be included in the estate of Joseph Capolino. Findings of fact and conclusions of law were filed and a decree entered approving, allowing and settling the account of Helen Capolino. A motion for a new trial, which was based in part on insufficiency of the evidence, was denied, and this appeal followed.

The findings recite the following facts. Joseph Capolino and Helen Miller met in New York City prior to 1928. Both were then married to other persons, but they secured divorces in that year and began living together, though they never married. Helen had substantial business and property interests of her own which included a one-half interest in the Boma Cheese Company, shares of stock and life insurance. Joseph and Helen engaged in business ° enterprises in New York, the capital for which was largely furnished by Helen. In 1935, the two came to Merced where they organized the Capolino Food Products Company, then the Bipon Canning Corporation, and, in 1940, the Capolino Pacldng Corporation, the capital, approximately $63,000, being supplied in large part by Helen from her separate funds. All the shares of stock of the latter two corporations were issued to Helen. The two parties kept their respective funds in separate bank accounts. In 1940, the Capolino Corporation borrowed $37,500 from Amerigo Vitelli, and about $7,500 from Gus Sclafani, such loans being negotiated by Joseph, but ultimately repaid by the corporation. In 1939, the Bipon Canning Corporation borrowed $17,391.33 from Domenico D ’Angiola, Helen negotiating the loan, which was repaid by the Capolino Packing Corporation. In 1941, the Capolino Packing Corporation borrowed $50,000 from D’Angiola, said loan also being negotiated by Joseph but paid by the Capolino Packing Corporation. In 1940, the Capolino Packing Corporation owed the American Can Company $33,000 in part payment of which debt the Can Company took Joseph’s note for $25,000, the remainder being paid in cash by the Capolino Packing Corpo