Borchers v. Barckers
| Decision Date | 02 November 1909 |
| Citation | 122 S.W. 357,143 Mo.App. 72 |
| Parties | JOHN BORCHERS, JR., Administrator, etc., Respondent, v. HENRY M. BARCKERS, Appellant |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
REVERSED AND REMANDED.
John Borchers died January 11, 1905, leaving as his children and heirs John Borchers, Jr., Ernest Borchers, Henry N. or "Nick" Barckers, defendant, and his two married daughters, Sivia Strotjost and Katherine Hobusch. Defendant has changed the spelling of his name to Barckers. He is commonly called "Nick" by his relatives and acquaintances. A policy of insurance in the Mutual Reserve Association was issued to John Borchers, Sr., on his life July 10, 1900. After he fell sick, to-wit, January 4, 1905 he assigned his interest in the policy to his son Nick Barckers, dying, as said, a week later and intestate. His son John was appointed administrator of the estate and both he and Nick claimed the proceeds of the policy, John as administrator and Nick as assignee. By agreement of the rival claimants the liability of the company was settled for $ 600, this sum was paid to a trust company to be held until the disposition of it was determined by suit, and John Borchers, administrator, filed the petition in the present suit setting out the issuance of the policy, the death of his father intestate, his appointment as administrator, the settlement of the liability of the company for $ 600, that defendant claimed to be assignee of the policy by an assignment and transfer made on January 4, 1905, while plaintiff claimed it as administrator of the estate, denied the right of Nick Barckers under the assignment, and prayed that the trust company be ordered to pay the fund to plaintiff. Henry Barckers answered, admitting the formal averments of the petition regarding the issuance of the policy, etc., then alleged the deceased had, on January 4, 1905, executed and delivered to defendant the following documents:
(Seal) "Notary Public."
The answer further averred that by virtue of said assignment or change of beneficiary, he was entitled to the proceeds of the policy and plaintiff had no right or title of any kind or nature. The trust company, which was made a party to the suit, filed an answer admitting it held the fund to be paid to the party found to be entitled by the decree. In reply plaintiff denied John Borchers, deceased, on January 4, 1905, made, executed or delivered to defendant the assignment or change of beneficiary set out in the answer, and denied further that by virtue of said assignment or change of beneficiary, or in any other manner, defendant was entitled to the proceeds of the policy. Further averred that by the terms of the policy, no valid assignment could be made unless the association consented to it and the association had not consented to the one in question. Further averred that at the time deceased signed his name to the assignment or change of beneficiary, if in fact he ever did, he was "not of legal capacity to sign such document and therefore the said pretended assignment or change of beneficiary is not the act or deed of the said John Borchers, deceased." Further averred that if the deceased signed said pretended assignment or change of beneficiary, he did so through the undue and improper influence of said Henry M. Barckers and without consideration; wherefore the pretended assignment or change of beneficiary, if signed by said deceased, was not his act or deed.
After the evidence had been heard and instructions passed upon, the cause was submitted to a jury which returned a verdict in favor of plaintiff, and judgment having been entered accordingly, this appeal was prosecuted. The court left the case to the jury on the ground plaintiff was entitled to recover if the execution of the assignment was induced by undue influence exercised over the mind of the deceased Henry Borchers by his son Nick, or any other person for him. The instructions for plaintiff in substance told the jury as follows: Though they might believe from the evidence at the time of the execution of the so-called assignment of the policy deceased was of sound mind and memory and of sufficient mental capacity to execute said assignment, yet if they further found and believed from the evidence that at the time of the execution of said writing the mind of deceased was, from disease, age, decrepitude, bodily or mental attack, or other cause or causes, subject to the dominion and control of defendant, and that defendant or any person for him, unduly exercised such dominion, power or influence over the mind and will of deceased when he executed said assignment so as to destroy his free will and knowledge in the disposition of his property, so that such disposition was not his free will and desire, then the verdict should be for plaintiff. A second instruction for plaintiff defined the words "undue influence" as used in the instructions to mean any influence which restrained, controlled, directed, diverted or coerced the will or overcame the mind and judgment, and directed the jury to give a verdict for plaintiff if they believed from the evidence Henry N. Barckers, or any other person or persons in his behalf, by persuasion or other device or machination, controlled, directed, restrained or coerced the will, or confused the mind of John Borchers, deceased, or confused or overcame his power of judgment of the true relation between himself and those who were the natural objects of his bounty, in the execution of the paper or writing read in evidence as and for his assignment of said policy, so that said instrument does not express the will and desire of said assignor in the disposition of his property. The jury were further told to take into consideration the mental and physical condition of deceased at the time of executing the instrument, all the circumstances attending the execution, the instrument itself and its provisions, in determining whether undue influence was used to procure its execution. The court held consent of the company was not material to the controversy between the parties to this suit, refused to declare the signature to an instrument made by the mark of a person, instead of writing his full name, was as valid in law as if the person had written his name, and refused further to instruct there was no evidence to prove deceased was not of legal capacity to sign the assignment at the time he signed, or that he did so through the undue or improper influence of defendant.
It is necessary to state the substance of the testimony. It will be observed the assignment or direction for change of beneficiary purports to have been acknowledged before H. A Loevy, notary public, on January 4, 1905. Mr. Loevy testified that the morning of said day, defendant had called at his office and asked him to come out during the day to take the acknowledgment. He went, taking his notarial seal, met defendant at a transfer point on the street railway, accompanied him to the place where deceased was, found the latter sick in bed and his physician, Dr. Martin, there. He (Loevy) took the policy, wrote out the assignment or application to change the beneficiary, the deceased got out of bed, walked to a table in the room and made his mark in two places. The table was not very far from the bed. After doing this deceased handed the policy to his son Nick. The deceased seemed to be ill with a cold and was coughing; said his son Nick had been kind to him and he wanted to leave the policy to said son. It should be stated deceased and defendant at that time were living in a two-story barn a short distance from where John Borchers lived. They had been living in the barn for about a year and two other sons, or at least one other, had lived there also. Deceased took his meals at his son John's and defendant prepared his own meals at the barn. Deceased was a dairyman and until about two weeks before he died, had attended to his dairy business, caring for milk, delivering it and the like. Mrs. Strotjost gave a great deal of testimony, most of which was immaterial, relating to the character of defendant and tending to prove, as plaintiff's counsel said, he was a "black sheep," of idle habits, had gotten into trouble with his wife, or wives, and had called on his father to pay money for him. She said another son of deceased had died a month or so before and her father was deeply affected by this loss and never was the same afterwards; that...
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