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BRUNO v. BRUNO (07/17/61)

July 17, 1961

BRUNO
v.
BRUNO, APPELLANT.



Appeal, No. 10, Jan. T., 1962, from decree of Court of Common Pleas of Chester County, No. 1346-1958, in equity, in case of Louie Bruno v. Anthony J. Bruno et al. Decree reversed.

COUNSEL

Robert W. Lentz, with him Reilly, Fogwell & Lentz, for appellants.

C. Richard Morton, with him Cadmus & Morton, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 404 Pa. Page 503]

OPINION BY MR. JUSTICE BOK.

This case involves the broken promise by a son and his wife to support the son's aged father in return for his deeding them his real estate. The case has a novel turn in that there was also money passed in the deal.

The court below held that the deed was not induced by fraud or undue influence, that the confidential relationship between the parties had not been violated, but that there had been a partial failure of consideration warranting a recission of the deal and a reconveyance of the property because the defendants did not furnish adequate support and care. The defendants appealed.

The family appears to have been short on education but long on temperament. The court below has found as fact that after two or three months of living together

[ 404 Pa. Page 504]

    the parties began to disagree and quarrel: the wife defendant stopped shaving the plaintiff, she and her husband once pushed and slapped him, his room was cold, his social security and pension checks were at times withheld, he was not given a home in any spiritual sense of the word. Since both sides were awkward and confused in their testimony, and at times incoherent, such a case is usually one for the lower court to solve, except as we have every right and even the duty, under Noonan Estate, 361 Pa. 26 (1949), 63 A.2d 80, to look afresh at the evidence and the law applied to it.

Ordinarily a deed otherwise valid cannot be impugned by total or partial failure of consideration, but support cases form an exception to this rule: Shook v. Bergstrasser, 356 Pa. 167 (1947), 51 A.2d 681.

Where there is a confidential relationship, as here, the burden shifts to the grantee of the property to show full performance of the contract of care: Borys v. Halko, 124 Pa. Superior Ct. 418 (1936), 188 A. 539; Payne v. Winters, 366 Pa. 299 (1951), 77 A.2d 407. ...


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