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Lotta v. Lotta

OPINION FILED SEPTEMBER 23, 1955.

CRISTOFOLA LOTTA ET AL., APPELLEES,

v.

RUSSELL P. LOTTA ET AL., APPELLANTS.



APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

This is an appeal from a decree entered by the chancellor of the circuit court of Winnebago County, which established a resulting trust as to a certain parcel of land situated in Harlem Township, Stephenson County. The decree, in substance, declares that defendant-appellant Agata Lotta holds said real estate as trustee for the benefit of plaintiffs-appellees, two of her sons. Jurisdiction of this court is based upon the fact that a freehold interest is directly involved.

It appears that the plaintiffs are sons of defendant Agata Lotta and her deceased husband, Vito Lotta. The other defendants are the brothers and a sister of plaintiffs, with the exception of Allen Lotta, a minor, who is the nephew of plaintiffs. The original complaint alleges that plaintiffs were the beneficial owners of three certain parcels of real estate purchased with their money but held in the name of their mother, at direction of plaintiffs, for their benefit. The original complaint also alleged that all of said real estate was subject to a life interest therein of the mother. The third parcel of real estate was omitted and abandoned in the amended complaint of plaintiffs, and the chancellor denied relief as to the second parcel by reason of laches of the plaintiffs. No appeal has been taken to this court concerning the second parcel.

The plaintiffs' evidence, offered to substantiate the allegations of their amended complaint, consisted of the testimony of the plaintiffs, Cristofolo Lotta and Erasmus Lotta. This testimony was objected to by defendants who also moved the court to strike all the evidence of the plaintiffs on the ground that it was in violation of section 2 of the Evidence Act. (Ill. Rev. Stat. 1953, chap. 51, par. 2.) The objections of defendants were overruled and motion denied and the testimony was permitted to stand.

The chief contention of defendants here is based upon the lower court's ruling in allowing plaintiffs' testimony over their objection that it violated section 2 of the Evidence Act. Other points urged concern the sufficiency of the evidence to sustain the decree; the theory of a gift of the real estate from plaintiffs to defendant Agata Lotta; laches of plaintiffs before seeking equitable relief and the erroneous admission of other evidence by the court.

Section 2 of the Evidence Act provides:

"No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any habitual drunkard, or person who is mentally ill or mentally deficient, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely:

"First — In any such action, suit or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person, or after the ward, heir, legatee or devisee shall have attained his or her majority.

"Second — When, in such action, suit or proceeding, any agent of any deceased person shall, in behalf of any person or persons suing or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction.

"Third — Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.

"Fourth — Where, in any such action, suit or proceeding, any witness, not a party to the record, or not a party in interest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest, occurring before the death and in the absence of such deceased person, such adverse party or party in interest may also testify as to the same admission or conversation.

"Fifth — When, in any such action, suit or proceeding, the deposition of such deceased person shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person, and not excluded for irrelevancy or incompetency."

It is the contention of plaintiffs that this statute does not apply; that the decree is amply supported by competent evidence, that no gift of either money or real estate was made by plaintiffs to their mother and that plaintiffs' action was not barred by laches.

It appears from the record that plaintiffs began working at an early age and bringing earnings to the home, where the money was kept in a trunk that the mother had brought with her from Italy. Plaintiffs had been engaged in various types of employment and for several years brought all of their income to their mother. About 1928 or 1929 the father, Vito, became ill, and at the request of plaintiffs ceased his employment and stayed home. From time to time money was taken from the trunk and used by the mother for family purposes and some of the money was given to plaintiffs for use by them in various business enterprises. No written accounting of the money was kept. During the years in question the plaintiffs were the only members of the family gainfully employed. The mother kept no savings or checking accounts and had no independent source of income. The real estate in question was purchased with funds taken from the trunk and title was taken in the name of the mother. The owners of the ...


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