Smaldone v. De Vivo

278 A.D. 616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1951
• Status: Published

Opinions

Memorandum by the Court. Appeal from a judgment of the Supreme Court, Saratoga County.

Defendant Pasquale De Vivo was the husband of Maria F. De Vivo, now deceased. On October 14, 1947, there was presented to the wife’s bank a draft dated four days before and purported to bear the wife’s signature by an X mark witnessed by the husband and his lawyer, for $12,562.50 payable to the husband. The draft was paid. The action by the wife’s executors for the recovery of this money was tried by both sides on the issue of the wife’s mental competency at the time the draft was executed and resulted in a verdict for the executors. There is competent medical proof of the mental incapacity of the wife at the time in issue.

Besides this, the judicial proceedings instituted by the husband before he obtained the money are a concession on his part of continuing mental incapacity of the wife so strongly binding on him as to be conclusive, and certainly strong enough to justify a disaffirmance by the wife’s executors of financial transactions between the husband and the wife to the wife’s disadvantage.

On May 17, 1947, five months before he obtained the money, the husband verified a petition for the commitment of the wife to a hospital for the insane, but the order of commitment was not executed. The next month he verified another petition (June 26,1947) to have his wife declared mentaUy incompetent. This proceeding was tried September 4th, and the jury disagreed. The proceeding was discontinued by stipulation September 30th.

On October 16th, two days after the husband obtained the money from the wife’s bank account, she was taken to a nursing home, and two days later the husband “ consented ” to the removal of his wife to a hospital for the insane. Five days later (October 25th) the husband through his attorney caused to be filed a petition and order of commitment of the wife to a hospital for the insane.

Thus for a long period before he obtained the money the husband had taken the position before a court that the wife was mentally incompetent by maintaining a proceeding based on his petition; and immediately after the money was transferred the husband consented to her commitment for mental illness and caused to be filed an order for this purpose.. Only momentarily did she seem competent enough to the husband to transfer her money to him. The husband argues that the money in the wife’s bank account had been given her by him. There is no competent proof in the record of this; but if there were the husband would not be at liberty to get the money back by this kind of a transaction. The court properly excluded proof of a personal transaction between deceased and the husband’s lawyer, then a codefendant. The proof was offered generally and was not limited to the case of the appellant alone. Even if generally admissible it concerned itself with whether the wife signed the draft. Assuming she signed it, her executors could disaffirm for her incompetency.

Judgment affirmed, with costs.