Brovelli v. Brovelli

DRAPER, P. J.

The gift deed relied upon by defendant-appellant in this quiet title action is wholly in English. Nonetheless, the ease turns largely upon the meaning of an Italian word. Plaintiffs-respondents are the with the will annexed of the estate of the deceased grantor and the sole beneficiary of that will.

Plaintiffs are the children of defendant and his first wife,

[18]

who died before any of the events here involved. The first wife was a niece of Giuseppe Monteggia. Monteggia spoke very little English. In 1952, when he was in his middle seventies, he told defendant that he “wanted to leave everything” to him and asked defendant to have a

“procura”

made. Defendant and his second wife testified that

“procura”

means gift deed, while an interpreter testified that the word means power of attorney. At defendant’s direction, his attorney, who never talked to Monteggia, prepared a deed of gift transferring to defendant the real property here in issue, as well as all personal property of Monteggia, including bank accounts. It is conceded that no transfer of any personal property was intended. Defendant returned to Monteggia’s home, and took him to a notary public. The notary read the deed to Monteggia, but the reading was in English, rather than in Italian, the language principally spoken by Monteggia. The latter then signed the deed, his signature was acknowledged, and he handed the deed to defendant, with instructions to record it after Monteggia’s death.

Monteggia continued to live alone in the house on the deeded land until his death in 1959. Throughout that period, he paid all taxes, worked the land, harvested the crops, and took the profits. In 1957, he executed a will leaving all his property to plaintiff Bowers, the daughter of his niece.

In a detailed memorandum, the trial court concluded that

“procura”

means power of attorney; that Monteggia may well have entertained the view that such a power was an expedient way of having defendant “take care of things” after Monteggia's death; that delivery of the deed was not unconditional; that the actions of both grantor and grantee after execution of the deed were inconsistent with the theory of a present transfer of title; and that the real intention was that the purported transfer operate by way of testamentary disposition.