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DAMIANI v. LOBASCO (03/19/51)

March 19, 1951

DAMIANI
v.
LOBASCO, APPELLANT



Appeal, No. 287, Jan. T., 1950, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1949, No. 6069, in case of Antonio Damiani v. Frank Lobasco et ux. Decree reversed.

COUNSEL

Rames J. Bucci, with him Bucci & Bucci, for appellants.

Martin G. Stein, with him William S. Stein, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 367 Pa. Page 2]

OPINION BY MR. JUSTICE CHIDSEY

Antonio Damiani, appellee, filed this bill in equity against Anna Lobasco, trustee under an inter vivos deed of trust executed by him, to compel her and Frank Lobasco, her husband, appellants, to execute a deed of conveyance to Patrick and Lena Damiani, his wife,

[ 367 Pa. Page 3]

    contending that the settlor had reserved unto himself a power to direct the trustee to convey to such person or persons as he should request and designate. An answer was filed which, in effect, denied that settlor possessed a power of revocation, but instead, asserted a right in the trustee to determine whether a conveyance should be executed. After hearing, the Chancellor filed his adjudication and granted the relief sought. This appeal is from the decree of the court en banc dismissing exceptions to the adjudication.

The Chancellor made the following findings of fact. Antonio Damiani is 80 years of age, a widower, and father of Anna Lobasco. He can neither read nor write the English language.On June 24, 1943, Antonio conveyed the premises situate at 1316 Moore Street, Philadelphia, to Anna Damiani, now Anna Lobasco, his daughter. The deed of conveyance establishing the trust, conferred upon Antonio the right to use the property, to occupy it, or to rent it, to receive the rents, issues and profits, and, in addition, Antonio was to pay all taxes, water rents, and other charges assessed against the property, during the full term of his natural life. Upon the death of Antonio, Anna was to hold the property for her own use in fee, subject to the payment of sums of money to her brothers and sisters, namely, $1,200 to Patrick Damiani, $300 to Rose Damiani, $300 to Lucy Damiani, $300 to Margaret Damiani, and $300 to Frank Damiani. The deed contained the following provision: "... that it shall and may be lawful for the said Anna Damiani, at the request and with the consent of the said Antonio Damiani (testified by his joining in and becoming a party to the deed therefor) at any time during the lifetime of the said Antonio Damiani, to grant, sell and convey the said premises, free, clear and discharged of the said trusts."

[ 367 Pa. Page 4]

No consideration was in fact paid, although a consideration of $3,600 was stated in the deed. Prior and subsequent to the conveyance, Antonio continued to reside in the premises. On September 1, 1943, Anna and her husband and their minor daughter moved into the property, pursuant to an oral agreement with Antonio, whereby, in consideration of their use and occupancy, they agreed to keep the premises in good order and repair, pay all taxes and water bills and other charges assessed against the property, provide the father with one meal a day, and furnish facilities for him to cook other meals. The father reserved the use of one room.

The parties continued thus to live together until December 10, 1949. On November 8, 1949, Antonio entered into an agreement with Patrick Damiani and Lena, his wife, to sell the premises to them for the sum of $5,000 and requested Anna to execute, acknowledge, and deliver a deed for the premises to them. This she refused to do. The Chancellor, on the basis of the foregoing facts, concluded that the deed of June 24, 1943, was testamentary in character and, therefore, revocable at will by the settlor; that the said deed contained an express reservation to Antonio of the right to revoke; that the right of revocation had been duly and properly exercised; and, that Patrick, Rose, Margaret, Lucy, and Frank Damiani acquired no vested rights by virtue of the deed of June 24, 1943. A decree nisi was entered, directing Anna and her husband to execute, acknowledge, and deliver a fee simple deed, joined in by Antonio, conveying the premises to Patrick and Lena ...


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