Tamagno v. Bruno

STURTEVANT, J. Antonio Tamagno died September 29, 1932, leaving a purported will. October 17, 1932, the will was admitted to probate. On January 24, 1933, Natale Tamagno and others filed a petition to revoke the probate of the purported will. The defendant answered and after trial the court made findings in favor of the defendant and from the decree entered thereon Natale Tamagno and the other petitioners have appealed.

In their brief the petitioners set forth numerous points. However, those points are but different methods of presenting the contention which in their reply brief they state as the. sole question involved on this appeal — the sufficiency of the evidence introduced by the respondent. The respondent in answer concedes such to be the case. We will therefore address ourselves directly to that point.

In the shortest form the contention is this: In 1926 George W. Bruno was appointed guardian of Antonio Tamagno. He qualified and continued to act until the death of Tamagno. While defendant was acting as guardian, the decedent made his will on the twenty-fourth day of September, 1932, in favor of him, the said George W. Bruno. Relying on these facts the petitioners assert that the burden rested on George W. Bruno to assume the burden of proof [71]and establish tbe fact that no undue influence was exercised on tbe testator. This the petitioners assert Bruno did not do. In reply Bruno asserts that he did. establish the fact and that the trial court found it in his favor and that said finding is conclusive on appeal.

For many years prior to 1926 the decedent had been a resident of Oakland. During the same time both George W. Bruno and his father had been residents of the same place. Tamagno at the time of his death was about seventy-five years of age. He was a native of Italy but had come to this country and engaged in the occupation of gardening. The record does not disclose that he ever married, but at one time he had brothers and sisters at Busala, Italy. For fifteen or twenty years before his death Tamagno had not received any communications from any of his kith or kin residing in Italy. He owned a lot on which was a small building in which he resided. A short time before August 10, 1926, a woman called at his residence and while on the premises suffered some injury for which she commenced an action claiming damages in the sum of $15,000. With the summons in his possession he called at the Fugazi Bank, of which George W. Bruno was manager, and discussed with the officers of the bank the fact that he had been sued. In that conversation he vigorously asserted that he had not caused the plaintiff any injury, that he was innocent of wrong, and if the plaintiff wanted his property she could take it and he would commence all over again. Mr. Bruno and others thereupon commenced to interest themselves in the affairs of Tamagno. The result was that after a hearing before the late Joseph S. Koford sitting as a probate judge, George W. Bruno was appointed guardian of Antonio Tamagno. Thereafter it transpired that the incompetent had on deposit in different banks $6,679 and that he also owned the real estate above mentioned. After the guardian was appointed the incompetent proceeded to do some gardening from which he received small amounts of compensation and did not make many withdrawals. However, when he appeared and asked for moneys they were paid to him at once.