Camperi v. Chiechi

Slightly less than six months after the will of Giro Camperi (referred to herein as Ciro), was admitted to probate and letters testamentary issued to one of his five surviving children, Mrs. Anna Chiechi (designated herein as Anna), a contest of the will was filed. The will had been executed on November 5, 1949, when Ciro was about 86 years old. His death occurred on September 22, 1950. The contestants are Joe and Anthony (Tony), sons of Ciro, Lucy (Lucia) Biondolillo, his other daughter, and Frieda Hanson and Colleen Camperi, the children of Ciro’s predeceased son John. The grounds of contest are unsoundness of mind, undue influence exercised on the part of Anna, and want of due execution.

Thereafter, all of those named as contestants, and joined by another of Ciro’s sons, Ross (Rosolino) Camperi, initiated an action (No. 604316 below) against Anna individually and as executrix to set aside a deed by which Ciro conveyed certain parcels of real property to Anna, to recover from Anna the proceeds derived from a warrant issued to Ciro by the county of Los Angeles in settlement of a condemnation proceeding, for an accounting of rents and profits allegedly collected by Anna from Ciro’s property, and to impress a trust on the above described real and personal property.

Both actions were consolidated for trial by the court sitting without a jury. The court denied the petition for revocation of probate and rendered judgment in Anna’s favor. In the companion case Anna likewise prevailed and judgment was rendered against plaintiffs therein. The appeals taken from both judgments are consolidated for purposes of review.

Ciro’s last will, a very brief and simple document, devised and bequeathed his estate as follows: To his children Joe and Lucy and his granddaughters Frieda Hanson and Colleen Camperi the sum of $1.00 each; the residue, in equal shares, to his remaining children, Anna, Ross and Anthony. Anna was named as executrix without bond.

The principal assignments of error are (1) that the findings of due execution of the will and absence of undue influence by Anna in procuring it are not supported by the evidence and are contrary thereto; (2) (a) that the inter vivos conveyance of real property from Ciro to Anna made at the time the will was signed was never effectuated by delivery of the deed; (b) that assuming delivery, the conveyance was made upon an oral trust and not as a gift; (c) that Anna

Background Facts

The record discloses that Ciro, who was of Sicilian origin, immigrated to the United States in about 1898, at which time he was 35 years old. He had been married abroad six years earlier to Frieda Biondolillo. Frieda died in 1932 and Ciro remained a widower until his death. Giro’s primary occupation was that of a railroad yard laborer for the Southern Pacific Company. He was so employed for almost 24 years until his retirement upon a pension in 1923. This monthly pension was originally $19.10 but was gradually increased to $24.10.

Ciro never attended school in Italy and had little, if any, formal education. His principal spoken tongue was the dialect of his native province, but he had sufficient mastery of the basic Italian language to converse with numerous friends who came from various parts of Italy. Although a resident of the United States for over 50 years, his ability to read and write English was fairly limited. However, he could read his name in English, he could identify the months of the year, was able to read his utility bills and could read various items advertised in newspaper sales and their selling prices. He knew the alphabet and was able to write his name in English, although near the end of his life he preferred to sign by a mark as it became increasingly difficult for him to write firmly and clearly. Ciro’s English vocabulary was anything but extensive, but he spoke English frequently and intelligibly, comprehended when spoken to in that language, and was capable of expressing himself satisfactorily enough therein for his ordinary communication requirements. He was able to meet the requirements for obtaining citizenship and became naturalized. A decade or so before his death he used to go alone to his attorney, Mr. Sisson, who spoke only English, to consult on legal matters. On other occasions, Anna interpreted or translated for him during legal conferences or medical visits.

Despite his linguistic deficiencies, Ciro was able to main

For much of the time after he was widowed and his children married, Giro lived mostly by himself. Anna lived across the street from him. For about three years prior to 1947, Giro had his meals and slept in Anna’s home, but passed the daytime hours in his own home. For three months in 1947 he stayed with Anthony. From 1947 until his death in 1950, he lived in his own home. During the last years of his life, Anna took care of him, prepared his meals, brought them to his house, washed, ironed and cleaned for him, and nursed him during illness. One witness testified that decedent told him in 1950 that “if it wouldn’t have been for [Anna], . . . nobody would help him, nobody would come around to see him.” Ciro spent much of his declining days at church, sometimes going four or five times a day. Anna seems to have been the mainstay in Giro’s later life and he reposed great trust in her. At his request she collected the rents from his properties and made out receipts for the tenants. When he asked her to, she withdrew funds for him from a bank account in their joint names in which Ciro’s money only was deposited. Ciro himself never withdrew money from the account and Anna only when requested by her father. Upon his request, she cashed his pension cheeks and gave him the money. Giro often provided her with money for the purpose of paying his bills in the latter years of his life.

The Joint Bank Account

The record shows that from at least as early as 1927, Giro, his wife Frieda, and Anna together had a single bank account (No. 9482) with the California bank. On October 7, 1929, Ciro, Frieda and Anna executed an agreement to hold the above account in joint tenancy. Although Frieda died

In July of 1948, Anna was a party to an escrow with the California Bank relative to property she was purchasing. She told Giro about her deal and he told her she could use the funds from the joint account for the transaction. Thereupon Anna withdrew $1,625 from the account, bought a cashier's check and deposited it in escrow. On the same day, she reimbursed her father in full from cash which she had in her home. Her father placed the money in an envelope and took it home with him.

The Role of Attorney Sisson

An understanding of the relationship between John Sisson, Anna’s attorney of record herein, and Ciro and Anna is of significance in the resolution of this case. The first contact Sisson had with the decedent’s family occurred in 1932, when Giro’s wife died and probate of her estate was necessary. Ciro employed Sisson for this purpose upon recommendation of an officer of the California Bank. In the same year, Ciro visited Sisson alone at his office and engaged him to draw the first of four wills. In 1943, when his son John

The Execution of the Will and Deeds Sometime prior to November 5, 1949, Giro informed Anna that he wished to change his will and asked her to telephone Sisson. Giro stated he was going to leave one dollar apiece to Joe and Lucy and Frieda and Colleen. He also told her he intended to deed two pieces of property to her “with the understanding that I was to meet his obligations, and if he needed money, or anything, it should come from there, and whatever was left, that he wanted me to have it.” She testified he intended to deed property to Ross with the same understanding.

After the will was read, Ciro was asked whether he wished those present to act as witnesses. He said he did. Whereupon Ciro placed his mark on the will and Mr. and Mrs. Sisson and Mrs. Cardillo signed in the presence of each other. A copy of the will was left with Ciro. The witnesses testified that Ciro was of sound mind and was acting of his own free will.

As soon as the will was signed and witnessed the same parties, still the only ones in the room, turned their attention to the deeds. One deed contained a grant of two parcels of real property to Anna. The other was a grant of property to Ross. The procedure adopted with respect to the will was followed, Sisson reading in English and Mrs. Cardillo explaining his statements in Italian. As the property described in the respective deeds was referred to, Mrs. Sisson testified Ciro pointed in the direction of the location of the property. As he made his mark on the deed to Anna, she testified Ciro stated he wanted Anna to have the property because “she take good care of me. Good Anna take good care.” In connection with the deed to Ross, Ciro stated, “That’s for Ross, my son Ross. He been sick. ’ ’ Mrs. Cardillo also testified that Ciro stated, “The house on 19th [Avenue] for Ross.” She testified Ciro said, with respect to the deed to Anna, “Okay, I want to give it to her and I did what I please. ... In case I need it, I know my daughter give it to me. What I have got left, everything, that’s hers.” After Ciro had affixed his marks to the deeds and the witnesses had signed, Ciro handed them to Sisson saying, “You take. You take . . . Put them in the book. ’ ’ Ciro paid Sisson in cash for drawing the will and the deeds and obtained a receipt therefor.

After the Sissons left, Anna did not see the deeds. Her father told her that they were going to be recorded. The first sight of the deeds Anna had was when they reached her through the mail after having been recorded five days after execution. There was a notation on her deed, in Mr. Sisson’s handwriting, that it was to be mailed to her after recording. After having executed the above conveyances, Ciro still owned the house in which he resided, real estate which was the subject of a condemnation suit, hidden cash in the amount of several thousand dollars, and a small joint tenancy bank account.

The Condemnation Suit Proceeds

In September, 1950, about 10 months after the execution of the will and deeds last described, Giro was bedridden by what was to prove his mortal illness. The condemnation proceedings against property belonging to Giro, Anna and Anthony had been pending since March, 1949, and negotiations for a settlement were being handled by Sisson. When the county offered a sum satisfactory to Giro, he caused Anna to write Sisson signifying his acceptance, in August of 1950. Sisson personally delivered the three county warrants issued in settlement of the suits—one to Giro in the amount of $8,875.79, one to Anthony for $2,247.77, and a third to Anna. Giro’s warrant was delivered to him on September 15, 1950, while he was ill in bed, one week before he died. Giro was expecting this money, and was so pleased at its arrival that he sat up in bed to endorse the warrant the next day. Present on this occasion were Anna, Ross, Mrs. Cardillo and one Jose Roman. Giro's hand shook as he was making his mark, so Anna laid her hand on top of his to steady it while he signed it himself. Mrs. Cardillo and Roman witnessed his signature, the former testifying Giro was clearly aware that he was endorsing the condemnation check and that he was mentally sound. Giro then handed the warrant to Anna and told her to deposit it in the bank, adding: “If I live I will use it and if I do not it is yours, God bless you. ’ ’ Mrs. Cardillo phrased Giro’s instruction as follows: “Put in bank,

Giro’s Competency

Although appellant's brief refers to testimony concerning Ciro’s senility and emphasizes that while Giro was returning alone from a trip to Louisiana about three years before his death he got off the train n/confusion about 50 miles from Los Angeles, no serious or specific challenge is made of the finding that Ciro was mentally competent. Nor could such claim be legitimately advanced. Where unsoundness of mind is a ground of will contest, it is presumed that the testator was competent to' execute the will and the burden rests on the contestant to prove affirmatively and by a preponderance of the evidence that the testator was of unsound mind at the time he executed the instrument. (Estate of Perkins, 195 Cal. 699 , 703 [ 235 P. 45 ]; Estate of Lingenfelter, 38 Cal.2d 571 [ 241 P.2d 990 ].) Both Mrs. Sisson and Mrs. Cardillo testified that Giro was of sound mind on November 5, 1949, the very time the will and the deeds were executed. This testimony indicated the rational behavior of decedent, showed that he was in possession of his faculties, and that he knew the extent of his property, its location, and the natural objects of his bounty. Such testimony of lay witnesses as to the mental condition of the testator at or about the time of. the execution of the will, when accepted by the court, gives substantial support to the finding of competency. (Estate of White, 128 Cal.App.2d 659 , 668 [ 276 P.2d 11 ].) A testator is of sound and disposing mind if, at the time of making his will, he has sufficient mental capacity to understand the nature of his testamentary act, to understand and recollect the nature and situation of his property, and to remember and understand his relations to the natural objects of his bounty whose interests are affected by the will. (Estate of Lingenfelter, supra, p. 582.) The record is replete with evidence that Giro was fully cognizant of these factors.

Due Execution op the Will

In view of Ciro’s limited knowledge of the English language, it is argued that the evidence failed to show due execution of the will or that Ciro had knowledge of its contents. The record thoroughly refutes this contention.

A will drawn in accordance with the intentions of the testator and executed in due form of law is valid even though written in a language not understood by the testator where it is shown he had full and accurate knowledge of its contents. (In re Zych’s Will, 251 Wis. 108 [ 28 N.W.2d 316 , 318] (testatrix spoke only Polish, did not speak or understand English); In re Calo’s Estate, 1 Ill.2d 376 [ 115 N.E.2d 778 ] (testatrix of Italian descent, spoke some English, was blind at time will was executed, and signed by a mark); Quaratiello v. Di Biasi, 43 R.I. 325 [ 112 A. 215 , 216] (interpreter used to convey contents of will to Italian testator); In re Carmello’s Estate, 289 Pa. 554 [ 137 A. 734 ] (Italian testator with limited knowledge of English, signed by mark); Hauer v. Hauer, 44 S.D. 375 [ 184 N.W. 1 ]; (German testatrix neither spoke nor understood English); In re Dybalski’s Will, 199 App.Div. 677 [ 191 N.Y.S. 809 ] (testatrix spoke and read only Polish); In re Knutson’s Estate, 144 Minn. Ill [ 174 N.W. 617 , 619] ; Page on Wills (3d ed.) § 156, p. 315.) This rule, virtually universally followed, gives realistic consideration to the manner in which persons living .in this country who are not conversant with our language would be expected to transact business of this nature. However, the case at bar represents a far less extreme application of the rule than the cases cited. Ciro often communicated in English, had previously executed three wills, and had on occasion discussed legal problems alone with Sisson. He alone gave Sisson instructions regarding the will, which were simple enough: payment of debts, appointment of an executrix, bequeathing of one dollar each to four persons, and division of the residue in equal shares among three children. There is no reason to believe Ciro could not express such ideas in the English at his command. Mr. Sisson identified the will admitted to probate as the one read to Ciro at the time of

Appellants also contend that Giro made no declaration that the document was his will and that he made no request to the subscribing witnesses to sign. This claim misconstrues the record and indicates that appellants misunderstand the law. After Anna left the room, Giro stated to all present, “Now we fix the will.” After the will was read, Sisson asked: “Do you declare this to be your last will and testament?” Ciro nodded and answered, “Yes. Si.” He also responded affirmatively to Sisson’s question: “Do you wish us to sign as witnesses?” This evidence was sufficient to constitute a publication of the will and a request to sign on Ciro’s part. (Estate of Keizur, 64 Cal.App.2d 117 , 120 [ 148 P.2d 116 ]; Estate of Offill, 96 Cal.App. 640 , 646 [ 274 P. 623 ].) A testator need follow no particular form with respect to the request for attestation or the declaration that the instrument is his will and an express declaration and request are unnecessary if such are sufficiently indicated to the witnesses by the testator’s conduct and actions. (Estate of La Mont. 39 Cal.2d 566 , 569 [ 248 P.2d 1 ]; Estate of Johnson, 152 Cal. 778 , 780 [ 93 P. 1015 ]; Estate of Cullberg, 169 Cal. 365 , 368-369 [ 146 P. 888 ] ; Estate of Gray, 89 Cal.App.2d 478 , 484-485 [ 201 P.2d 392 ].) Under the circumstances appellants’ argument that there was no translation of Sisson’s questions as to whether the document was Ciro’s will and whether he wished the witnesses to attest thereto, is mere quibbling. There was no need for such translation, as shown by Ciro’s responsive affirmation to simple questions.

No Undue Influence by Anna

The undue influence which justifies the setting aside of a will must be such as deprives the testator of his free agency, destroys the freedom of his purpose, and renders the testamentary instrument an expression of the will of another rather than his own; and it must operate at the time the will is made. (Estate of Arnold, 16 Cal.2d 573 , 577 [ 107 P.2d 25 ]; Estate of Higgins, 156 Cal. 257 , 262 [ 104 P. 6 ]; Estate

While appellants have liberally sprinkled their brief with the narration of circumstances which might have supported a finding of undue influence, there is ample evidentiary support, even assuming a confidential relation, for the finding of no undue influence operating on the testamentary act and displacing the testator’s free will. The record shows that Anna called Mr. Sisson at Giro’s request when he announced he wanted to change his will, and that Giro and Sisson were closeted alone when Giro gave his attorney his instructions.

Securing an attorney designated by the testator at his request to draw a will does not constitute participation. (Estate of Hull, 63 Cal.App.2d 135 ,142, 143 [ 146 P.2d 242 ].)

“ The fact that the will was prepared from directions given by the testator to his attorney when no one else was present is very strong evidence that it was the testator’s voluntary act. (Estate of Unger, 188 Cal. 714 [ 206 P. 1003 ] ; 26 Cal.Jur. 728.) ” (Estate of Fraser, 75 Cal.App.2d 99 , 104 [ 170 P.2d 704 ].) Furthermore, Anna was not even present when the will was executed, and the time, place and arrangements for witnesses were effected by Giro himself. Additionally, the witnesses testified that at the time of the execution of the will Giro was alert, of sound mind and aware of precisely what he was doing. Far from being at variance with decedent’s testamentary intentions, as appellants claim, the will was exactly in accord with Giro’s intention as expressed to Anna, and corroborated by his expressions of approval as he heard the provisions read. The record is utterly barren of any evidence that Anna importuned Giro or otherwise exerted any pressure on him either to make a will or to make one in favor of only three of the children.

Deed Passed Title to Anna

As has been recounted, immediately following execution of the will, Giro signed two deeds conveying real property to Anna and to Ross. The deeds were prepared by Sisson following a private consultation with Ciro, and were executed, outside of Anna’s presence, after being read to Giro in English and Italian. Appellants urge that the deed to Anna should be voided because she has failed to overcome the presumption of undue influence emanating from her confidential relationship to Ciro. This argument is without merit in the

Appellants lay considerable emphasis on the fact that Giro allegedly had no independent legal advice, apparently assuming that where a confidential relationship is present the absence of independent legal advice establishes fraud as a matter of law. But such is not the law. The rule is correctly stated in O’Neill v. Dennis, 109 Cal.App.2d 210 , 214 [ 240 P.2d 376 ] : “Lack of independent advice by the grantor is not of and in itself a ground for vitiating a deed under such circumstances [a confidential relationship] as we have here presented, but is a fact to be weighed by the trial court in determining whether the grantor acted voluntarily and with a complete understanding of the transaction. (Brown v. Canadian Industrial Alcohol Co., 209 Cal. 596 [ 289 P. 613 ] ; Laherty v. Connell, supra [ 64 Cal.App.2d 355 ( 148 P.2d 895 )]; Azevedo v. Leavitt, supra.)” However, it is not amiss to observe that contrary to appellants’ observation, Sisson was qualified to give Giro legal advice though he was representing Anna in the condemnation suit. The facts show that Giro first employed him in his own condemnation proceeding, whereupon Anna likewise engaged him. Previously Sisson had done no work for Anna except for income tax service, while he had drawn three wills for Giro and probated his wife’s estate. He had also represented Anthony. In short, he was the lawyer for various members of the family and there is not the slightest intimation in the record that he consciously promoted the interests of one against another, or that he did anything but carry out Giro’s wishes in the matters here in dispute.

Appellants contend that the deed was never delivered to Anna because Sisson was not specifically instructed to deliver

It is also argued that assuming a valid conveyance, the court erred in not finding that Anna held the property in trust for Ciro. Appellants quote testimony by Anna that Ciro told her he was going to convey the property to her

Anna Entitled To Joint Account

Appellants argue that Anna has failed to overcome the presumption of undue influence with respect to the opening of the joint tenancy account and assert there is no showing that Giro appreciated its legal significance. This argument is tenable only by appellants’ persistent discounting of facts and inferences which dispel the presumption and by their tenacious emphasis on implications favorable to their claim. However, the evidence shows that Giro, his wife, and Anna were joint tenants of a bank account as early as 1927. When the new account was opened in 1942, in favor of Giro and Anna, it was Giro who suggested to a bank officer that he wanted Anna as a joint tenant. Anna did not participate in the transaction except to the extent of driving her father to the bank at his request to secure several cashier’s cheeks. The deposit of the funds in the bank in the first instance was done upon the advice of a bank officer. From these circumstances, it is clear that Anna did not procure the opening of the joint account. That Giro fully comprehended the legal incidents of a joint tenancy account appears from his statement to Anna when he directed her to deposit his condemnation warrant in the bank: “If I live I will use it and if I do not it is yours, God bless you. ’ ’ The inference is plainly deducible that Giro recognized that his death would transfer title to the funds to Anna by operation of law.

Appellants urge that Anna should be charged with $1,625 drawn from the bank account in 1948 for her personal use. Anna testified she withdrew no funds except at the request, or with the permission, of her father. She explained her withdrawal of the above sum as occasioned by her involvement in a real estate escrow. With Giro’s permission she withdrew the money and bought a cashier’s check which she deposited in escrow. She reimbursed her father with money she had at home. The trial court, whose function it was to evaluate the testimony, believed Anna’s account of the transaction. It was not inherently improbable, as appellants contend. It is further borne out by the fact that when he died Giro had several thousand dollars hidden in his home.

Proceeds of County Warrant

Appellants urge that the court erred in not rendering judgment against Anna for the proceeds of the county war

Parol Evidence Improperly Excluded

As beneficiary of Ciro’s life insurance, Anna collected $750 from the insurer. The court found that it was not true that “the object or purpose of said life insurance was ... to provide for payment of burial and funeral expenses of Ciro Camperi. ’ ’ During the trial the court sustained an objection to the introduction of oral evidence by appellants regarding an understanding under which these proceeds were payable to Anna. Appellants’ offer to prove that Anna agreed to receive these proceeds in trust and to use them to pay Ciro’s funeral and burial expenses was refused, the learned trial judge stating: “If you have a written contract, you certainly can’t change it by oral terms and an implied agreement. If she was the beneficiary, that’s it.” This was error. It is well settled that trusts in personalty may be created orally and may be established by parol evidence. (Chard v. O’Connell, 7 Cal.2d 663 , 665 [ 62 P.2d 369 ] ; Lefrooth v. Prentice, 202 Cal. 215 , 227 [ 259 P. 947 ]; Silvey v. Bodgdon, 52 Cal. 363 , 368; Anno. 102 A.L.R. 588 .) The Silvey case, supra, is directly pertinent. There, defendant and the insured, her father, agreed orally that if the father procured insurance on his life, made payable to defendant, she would hold the proceeds in trust for the benefit of the other minor children. Defendant collected the amount of the

It follows that it was prejudicial error to refuse to admit testimony germane to the issue of the character of Anna’s title to the insurance funds, whether upon a trust or as an outright beneficiary.

It would entail a fruitless prolongation of this opinion to discuss other items of evidence which create either a conflict in the testimony or resolve themselves into a matter of credibility of witnesses. An example of this is appellants’ frequent reiteration that Mrs. Cardillo testified she was a loyal friend of Anna, with the implication that her testimony should be discounted. However, she also testified she was a devoted friend of Ciro, and her reliability as a witness was in no substantial wise impaired. Be that as it may, it was for the trial court to appraise Mrs. Cardillo’s testimony and evaluate the weight to be accorded it, and in this as well as in other disputed areas, we may not arrogate to ourselves the fact finding functions of the trial judge.

The judgment in Case No. 604316 below (No. 20321 on appeal) is reversed with directions to retry only the issue of the beneficial ownership of the proceeds of Giro’s life insurance policy; in all other respects this judgment is affirmed.

The judgment in case No. 310950 below (No. 20322 on appeal) denying revocation of the probate of the will is affirmed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing was denied August 11, 1955, and appellants’ petition for a hearing by the Supreme Court was denied September 15, 1955.