Pometti v. Laraia

BURROUGHS, J.,

pro

tem.

Henrietta Pometti was the mother of five children at the time of her marriage to Francesco Pometti in 1891. Of this second marriage there were five children, and these ten children were raised as one family. Considerable property, or at least numerous separate pieces or parcels of real estate were accumulated during the years that elapsed between their marriage and the death of Mrs. Pometti in 1923.

This is an action to quiet title to certain pieces of real estate in the city of Los Angeles. The action is brought by (Francesco) Frank Pometti and the five children of Mrs. Pometti’s former marriage are named as defendants. The complaint was filed April 27, 1928.

Certain undisputed facts are as follows: In December, 1915, Frank Pometti executed to his wife, Henrietta Pometti, a deed of gift of the two pieces of property involved in this action. April 27, 1922, Henrietta Pometti redeeded this same property to her husband, Frank Pometti. On the twenty-ninth day of April, 1922, Frank Pometti made his will, and at the same time, and in the same place, Henrietta Pometti made her last will and testament. The wills were nearly identical, the husband giving all to the wife during her lifetime, and at her death to be distributed among the ten children in certain portions. In the same manner the

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wife gave to her husband for life, “all my interest into the community and separate property, both real and personal, of every kind, . . . the remainder of said property to vest at his death as follows:” (Then follows the same distribution that is made in the will of Prank Pometti.) The two properties affected by this action were to be distributed to the children of the first marriage, the defendants and appellants herein. Henrietta Pometti died in July, 1923. Her will was duly admitted to probate.

Prank Pometti, the plaintiff and respondent, was the executor of his wife’s will. In the final account and petition for distribution signed and verified by said Prank Pometti, he states: “That all of the said property mentioned in said will is community property and was purchased by the said petitioner, Frank Pometti, after marriage.” In the prayer of said petition the petitioner asks: “That a decree be made for the distribution of said estate, and that all of the said estate be distributed to your petitioner herein. ’ ’