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Giacobbi v. Anselmi

Decided: March 14, 1952.


Goldmann, J.s.c.


Plaintiff brings this action to set aside a deed dated April 17, 1943, and duly recorded in the Mercer County Clerk's Office five days later, conveying her home and the adjoining double lot at 441 Bert Avenue, Trenton, to her daughter, Leina Anselmi, and Leina's husband, the defendant August Anselmi. Leina died February 21, 1945; her husband married defendant Angelina Anselmi in April, 1947. The complaint, filed May 1, 1951, alleges that the consideration for the conveyance was the promise of Leina and August Anselmi to provide for the plaintiff for the rest of her life, and that the conveyance was made "without the benefit of independent advice to the plaintiff and solely as a result of undue influence practiced upon plaintiff" by the Anselmis.

By way of a second count the plaintiff further alleges that on or about December 1, 1950, the defendants paid off an existing mortgage lien on which there remained a balance of $2,200, and placed a new mortgage of $5,250, part of whose proceeds were used to install a heating system in the Bert Avenue house and the remainder appropriated to defendants' own purposes. She demands judgment on this count directing defendants to account for the proceeds of the new mortgage loan and for that portion of the proceeds not spent to improve the property.

An extended statement of the facts surrounding the conveyance and of the circumstances attending the Giacobbi-Anselmi family relationship before and after that event is necessary for the proper application of the legal principles involved.

The plaintiff was 75 years old at the time of the conveyance. The property covered by the deed was all she had, except for a few home furnishings. She and her husband Mose Giacobbi had acquired the property in 1924, paying $6,500 for the house and $1,000 for the adjoining double lot. Plaintiff has resided in the house ever since.

The Giacobbis had four children: Leina, who died in 1945; Sylvia, who died in 1939; Aspromante (referred to

throughout the testimony as "Oscar"), who is 51, married and has been living in a home of his own since 1935, and Frank, 42 years of age, married and established in his own home since 1936 or 1937. Leina and her husband, the defendant, went to live with her parents in 1918 and continued there for a number of years until they moved into a rented home of their own. In 1938 the Anselmis and their four children moved back into the Giacobbi home on Bert Avenue, then occupied by only the plaintiff, her husband Mose and her unmarried daughter Sylvia. Mose Giacobbi was unemployed. He had been receiving old age assistance from the Mercer County Welfare Board under a reimbursement agreement since November, 1935; these payments continued to the end of November, 1941, at which time $860 was due the county. Plaintiff received similar relief from December 1, 1938, to the end of November, 1941, and payments made to her under the reimbursement agreement totalled $435. Mercer County thus had a lien of $1,295 against the Giacobbi property, reduced to $1,265 by a payment of $30 made on account by son Aspromante in November, 1942, apparently to obtain a release of lien against certain lots that had been given him by his parents.

At the time the Anselmis moved in with the Giacobbis there was a Home Owners Loan Corporation reduction-type mortgage against the Bert Avenue property, executed by plaintiff and her husband in October, 1934, and in the principal sum of $3,586.03. Monthly payments of principal and interest were to be $28.35. Interest only was paid from May, 1935, through 1937; toward the end of 1937 $120 was paid toward interest then in arrears and a single payment made on principal. Regular installment payments of principal and interest were resumed in 1938, at about the time the Anselmis moved into the Giacobbi home. Taxes being in arrears, the property was twice sold for taxes; the Home Owners Loan Corporation made tax advances to clear off the tax certificates. Failure by the Giacobbis to pay installments of principal during the depression, and these advances

against taxes account for the fact that on April 17, 1943, when plaintiff conveyed the premises to the Anselmis, the HOLC mortgage had increased to $3,698.76. There was, in addition, the county's lien for $1,265. Total liens against the property were therefore in excess of $4,960.

Mose Giacobbi died April 13, 1942, and plaintiff, as the surviving tenant by the entirety, became the sole owner of the property in question. The general warranty deed she gave the Anselmis recited the usual consideration of "one dollar and other good and valuable considerations." The conveyance, however, was made subject to the HOLC mortgage encumbrance, stated to be in the sum of $3,586, which the grantees expressly assumed and agreed to pay and satisfy as part of the consideration. The Home Owners Loan Corporation carried this mortgage account in the names of Amedia and Leina Anselmi from 1943 through 1945, and after 1945 in the name of August Anselmi only. The mortgage was assigned to the Howard Savings Institution of Newark on May 5, 1950, when the principal had been reduced to $2,343.93. This mortgage was cancelled of record in February, 1951, after it had been replaced by a new mortgage in the increased amount of $5,250, executed by the defendants to the Howard Savings Institution.

At the time of her conveyance in April, 1943, plaintiff was in good physical and mental condition, except for a diabetic condition which required medical attention and a special diet. She was active about the house and garden, interested in what was going on about her and in world affairs generally, alert, bright and of good memory. She got along very well with daughter Leina and her family; the household was an harmonious one, without family friction or tension. Plaintiff testified that Leina and her family ran their affairs and she ran hers. When questions arose involving the family as a whole or some special problem troubled her, she would consult Leina. All the testimony pointed to the fact that plaintiff looked to Leina for advice and guidance; Leina was the head of the household. In plaintiff's words, Leina knew

better what to do because she spoke English. Leina paid the bills and attended generally to the family affairs. Although the mother constantly consulted Leina, there is nothing in the evidence to show that Leina ever dictated what she was to do, or forced her to act against her own will. In fact, whatever testimony there was on this aspect of the family situation, was to the contrary.

Plaintiff's two sons, Aspromante and Frank, visited their mother regularly. Their custom was to give the mother small sums or food. It would appear that after 1945, when Leina died, they gave her $5 a week on a fairly regular basis and Aspromante brought her vegetables or a chicken from his place in the suburbs.

The defendant son-in-law took up the mortgage payments from the time he moved into the Bert Avenue home in 1938. After his wife Leina died there was a family-fund arrangement with weekly contributions of $20 each from the defendant and his daughters Doris (now Ferriola) and Florence (now Nagy). Mortgage payments, fuel, repairs, and the Anselmi family's food and other household necessities were paid out of this fund. This arrangement continued until defendant remarried and moved into his own home in 1948. After he left his daughters managed the household and met its needs. Mortgage payments were met with his funds or out of money paid by one daughter or the other as a variety of "rent." Leina took care of her mother's needs while she lived; after Leina's death in 1945 plaintiff received no direct help from her son-in-law. She had her own quarters and the run of the house, but she attended her own personal wants and the two sons supplied whatever funds she needed for special foods, insulin and medical attention. At no time did she request help of the defendant or his daughters. In short, she led a satisfied, somewhat independent existence. The sons apparently were also satisfied with the household arrangement and made no demand upon defendant that he pay in whole or in part for plaintiff's personal needs. There is nothing to indicate that they even suggested such a course

to him. Defendant took care of the upkeep and repair of the house, fuel, mortgage payments (as indicated) and, as long as he lived at Bert Avenue, for his share of the food.

The idea of conveying the property to Leina was first suggested by plaintiff herself in April, 1941. As plaintiff relates it, her son Aspromante had built a house in which there was a room set aside and ready for her, but she told Leina that this would not be convenient because of her need for medical treatments. Instead, she proposed that she would give Leina the house and Leina would, in return, take care of her as long as she lived. Plaintiff testified several times that it was she who proposed the conveyance and not Leina, and that defendant was not present during their conversations. Finally, she had Leina get in touch with Joseph R. Petrino, a local realtor in the Italian community, and he eventually came out to Bert Avenue. Plaintiff spoke to him in the presence of Leina and said that she was going to convey the property to the Anselmis on condition that they would take care of her. Petrino asked her if she knew what she was doing -- the house would not be hers any more. She said she did. Plaintiff alleges that Petrino offered no further advice, but left and in a few days came back and had her sign the deed. She says that she fully understood what she did; Petrino explained in Italian that she was conveying the house to Leina and August on condition that they take care of her, and this was also made clear to the grantees. She claims that although Petrino told her that she could leave her property to Leina and her husband, there was no mention made of a will. Nothing was said about including a clause in the deed expressly providing for the promised support and maintenance, nor of a clause reserving to plaintiff the right to revoke the conveyance. Plaintiff further testified that there was no explanation made of what would happen should Leina die. Plaintiff at no time requested the services of a lawyer, nor was the need for such services mentioned.

Petrino testified that he had known plaintiff for many years. In March, 1943, Leina Anselmi met him and said that

plaintiff wanted to see him. He called at the house; Leina was present and the conversation was in Italian. Plaintiff told Petrino she wanted to convey the property to her daughter and son-in-law and inquired if her sons could interfere. He told her they could not and then asked, in turn, if what she was doing was her own act or whether someone was trying to get her to do it. She said that she herself wanted to do it, explaining that she had no income whatsoever and could not meet the carrying charges of the house. It was Petrino's opinion that it would be best for her to give the property to Leina and her husband jointly. It was possible to leave the property to them by will, but Petrino said that he could not prepare such an instrument. He advised plaintiff that if there were a conveyance there should be a separate agreement that plaintiff could remain in the house for life.

Petrino went on to testify that he prepared the deed and an agreement whereby the Anselmis were to support the plaintiff for life. He took these instruments to the Bert Avenue home, where he met plaintiff, Leina and her husband. They conversed in Italian and Petrino explained to plaintiff that if she signed the deed she would have no more to do with the property. He again inquired if Leina or her husband had compelled plaintiff to make the conveyance and was assured that they had not. Petrino claims that he then produced a support agreement, explained it, and that the three of them signed.

The complaint, as already noted, alleges an oral agreement to support as consideration for the conveyance, and the answer denies such agreement. The pretrial order states that the defendant August Anselmi claims the consideration for the conveyance was love and affection and the assumption of the mortgage, and that insofar as he knows or recollects, no promise was made to support the plaintiff for life. However, he stood ready and willing to support her upon request. The only testimony as to a written support ...

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