Appeal, No. 274, Jan. T., 1959, from decree of Court of Common Pleas No. 5 of Philadelphia County, June T., 1955, No. 11532, in case of Frances E. Pronzato, executrix under the will of Isabella M. Guerrina, deceased v. Joseph F. Guerrina. Decree reversed; reargument refused August 1, 1960.
Laurence H. Eldredge, with him Francis X. Diebold, for appellant.
William Brodsky, with him Clarence M. Freedman, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and McBRIDE, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
Isabella M. Guerrina (decedent) owned certain real estate located at 6902 Chew Street, Philadelphia, which, on January 17, 1953, she conveyed to Gorgas Corporation, a corporation owned solely by her son, Joseph F. Guerrina (appellant). At the time of this conveyance, decedent reserved to herself a ground rent*fn1 in the amount of $8,000 payable in the following manner: annual interest of $400 payable quarterly, $100 annual amortization of principal payable quarterly and the principal balance to be paid at the end of a ten year term.
On February 18, 1953, the decedent assigned in writing this ground rent*fn2 to appellant in his individual capacity.
This assignment, absolute on its face, recited a nominal consideration of One ($1.00) dollar. This assignment remained, unrecorded, in the possession of Attorney Christy, who had prepared it,*fn3 until decedent's death on December 22, 1954.
Approximately eleven months before decedent's death - on January 13, 1954 - Attorney Christy wrote a letter to Josephine Perrong, a daughter of decedent, in which letter, after referring to various steps leading up to the execution of the written assignment and offering to show her the assignment, he stated, inter alia: "Said assignment has been delivered to me in escrow under the following conditions: If at any time during the life of your mother she should personally need any of the principal or reserved ground rent, then the same shall be paid her to the extent that she may personally need it, otherwise upon her death she has instructed me to deliver the assignment to Joseph F. Guerrina".
Approximately nine months after decedent's death, the appellee, - decedent's personal representative -, instituted an equity action in Court of Common Pleas No. 5 of Philadelphia County against appellant to cancel the ground rent assignment. Appellee's theory was that, when decedent executed this assignment, she had a contemporaneous oral agreement with appellant that the ground rent would be assigned to him only upon the consideration that he, the appellant, would for the rest of decedent's natural life ...