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Petruccio v. Petruccio

Decided: December 9, 1985.


On appeal from Superior Court, Chancery Division, Mercer County.

Furman, Petrella and Ashbey. The opinion of the court was delivered by Petrella, J.A.D.


Defendant James R. Petruccio, Jr., the son of plaintiff Florence P. Petruccio, appeals from the judgment of the Chancery Division invalidating as an improvident gift a conveyance of plaintiff's home to her son. Plaintiff was ordered to return the $10,000 deposit that her son had given her, and defendant was ordered to vacate the premises upon return of the deposit and to turn over possession of the property to plaintiff. Defendant appeals, asserting that the deed is not voidable absent a dominant confidential relationship or exertion of undue influence. We affirm.

Most of the relevant facts occurred following the sudden death of plaintiff's husband, James R. Petruccio, Sr., on March 13, 1984. The residence in which plaintiff and her husband lived at 160 Glenview Drive, Lawrence Township, had been owned by them as tenants by the entirety. In his will, Petruccio, Sr. left all of his property to Florence Petruccio, his wife of 45 years. At the time of his death Florence was 66 years old. Just before Petruccio, Sr.'s death, defendant took up residence at the Glenview Drive house with his girl friend, Susan Tuscano. After the death of his father, defendant started discussions with his mother regarding conveyance of her residence to him. Plaintiff testified that during the 1 1/2 months after her husband's death, although she and her son had talked about transferring title to the home, and she was thinking about selling the house to him, she did not decide to nor did she say she would sell it to him until being presented with papers at his attorney's office on May 4, 1984. The trial judge found that defendant had orally promised that plaintiff would be permitted to reside in the premises during her lifetime.

Defendant testified that his mother had agreed to sell him the house and that he then immediately called his attorney and had him draw up the papers for the transfer. He brought his mother to the attorney's office that same day. Plaintiff conveyed the property to defendant on May 4, 1984 for $10,000 and an unsecured promissory note for $40,000, without interest and without a due date. Plaintiff valued the house at $100,000, while defendant estimated its value to be between $70,000 and $80,000.

Soon after the conveyance, defendant and his girl friend commenced moving plaintiff's belongings out of the house and began taking over the entire residence. Towards the end of July 1984, defendant and his girl friend informed plaintiff that they wanted her out of the house.

Plaintiff concluded that defendant was apparently angered that his father's will had not left the house to him. But even the deed between the parties which was set aside by the trial judge recited that plaintiff and her husband had owned the property as tenants by the entirety, and thus she would have been sole owner of the property without regard to any devise by way of a will.

When the transfer of title occurred on May 4, plaintiff was not represented by an attorney. Defendant's attorney testified that he did not explain to her that she was conveying substantially all of her assets, that this could be an improvident transfer, or that she should obtain independent legal advice. Defendant's attorney testified that he was aware that his transaction could possibly be invalidated under what he referred to as the "Improvident Gift Act," and he therefore prepared a letter dated May 4, 1984 which he had his client's mother (plaintiff) sign. That letter, which does not refer to the promissory note of the same date states:

To whom it may concern:

This letter is to certify that the transfer of my residence located at 160 Glenview Drive, Lawrence Township, Mercer County, New Jersey to my son James R. Petruccio, Jr. is done and made as a gift to him based upon mutual love, devotion and support to myself and his deceased father, James R. Petruccio, Sr.

This is also to indicate that this transfer is being made upon my own free will and not the result of any force, threat or coercion. The purchase price of $10,000.00 is based upon my agreement with my son to receive a cash payment towards my support and ...

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