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FIORE v. FIORE. (11/14/61)

November 14, 1961

FIORE, APPELLANT,
v.
FIORE.



Appeal, No. 173, March T., 1961, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 3699, in case of Joseph Fiore v. Antoinetta Fiore. Decree reversed.

COUNSEL

William L. Jacob, with him William L. Jacob, Jr., for appellant.

Edward L. Flaherty, Jr., with him Gregor F. Meyer, and Meyer and Flaherty, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Eagen

[ 405 Pa. Page 304]

OPINION BY MR. JUSTICE EAGEN.

John Fiore, deceased,*fn1 during his lifetime executed a deed to his wife, Antoinetta Fiore, the defendant herein, conveying his interest in lands in Allegheny County. The plaintiff, a son, instituted this action in equity to obtain judicial nullification of the deed. The

[ 405 Pa. Page 305]

    chancellor entered an adjudication dismissing the complaint. Exceptions thereto were dismissed by the court en banc, and from the final decree in favor of the defendant, plaintiff appeals.

The deed in question was prepared by an attorney under the direction of the grantor. It was executed, witnessed and acknowledged on September 25, 1940. It was not recorded until November 27, 1957, long after the death of the grantor which occurred on September 3, 1942.

The chancellor, whose findings were confirmed by the court en banc, found as a fact that the deed was delivered by the grantor to the attorney who prepared the deed for the purpose of recording, and that at the time of said delivery the attorney was an agent for the grantee. Such a finding of fact is controlling on appeal, if supported by adequate evidence: Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960). The chancellor further concluded that legal delivery to the grantee had taken place and a valid title passed to the defendant. Conclusions of law are always subject to our review on appeal and also, after giving full weight to the facts found in the court below, we have the further right to make our own inferences and deductions therefrom: Pronzato v. Guerrina, 400 Pa. 521, 163 A.2d 297 (1960).

We have examined the record carefully. It is not convincing that the attorney who prepared the deed was acting as the agent of the grantee at the time the deed was placed in his hands. More importantly, vital facts are missing necessary to establish that a legal delivery of the deed to the grantee was effected.

In order to validate defendant's claim to the ownership of the property involved there are two indispensable requisites: (1) a donative intent upon the part of the grantor, i.e., an intent to make a gift to the grantee ...


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