Burton v. Ott
| Decision Date | 04 December 1928 |
| Citation | 226 Ky. 647 |
| Parties | Burton v. Ott. |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error. — In action against beneficiary under life insurance policy, on ground that change of beneficiary from plaintiff to defendant was obtained by fraud, undue influence, and as result of insured's mental incompetence, defendant cannot complain of ruling whereby, near close of trial, all evidence thereafter offered was excluded, except as to mental capacity and undue influence, where defendant did not offer any other evidence, nor have any other to offer.
3. Interpleader. — Where change of beneficiary in life insurance policy was alleged to have resulted from undue influence and mental incapacity of insured, question is for jury, if there is any evidence.
4. Interpleader. — Evidence that insured named his niece as beneficiary in January, and in April named his stepdaughter, without anything to explain change of mind, except that he had gone to stepdaughter's residence, together with evidence as to his old age and deplorable physical condition from disease that affects the mind, held sufficient to take case to jury on questions of mental incapacity and undue influence.
Appeal from Warren Circuit Court.
RODES & HARLIN and CHARLES DRAKE for appellant.
DAFOE & MYERS, SAMUEL S. BLITZ and STOUT & HERDMAN for appellee.
Affirming.
Thomas Havey had a policy of life insurance for $1,000, payable to his wife, who died in December, 1926. After this, on January 11, 1927, he changed the beneficiary, and made his niece, Margaret C. Ott, the beneficiary of the policy. On April 2, 1927, he changed the beneficiary again, and made his stepdaughter, Lula Burton, the beneficiary of the policy. On January 23, 1928, he having died a few months before, Mrs. Ott brought this suit against Mrs. Burton and the insurance company, alleging in her petition that the defendant Lula Burton, who was no blood relation of the insured, by fraud and undue influence and for the purpose of depriving the plaintiff of the insurance, did induce Havey to revoke the name of the plaintiff as beneficiary and substitute defendant's name as such, and "that said revocation and substitution was done by fraud, undue influence and when said Havey was mentally incompetent, and was a fraud on plaintiff and her rights." The insurance company paid the money into court; the issues were made up and on final hearing the jury found for the plaintiff. The defendant appeals.
The facts shown by the proof are briefly these: Havey had no use of his hands. He could walk, but he could not feed himself; he could not dress himself or undress himself, or attend the calls of nature without help. He and his wife, who was the mother of Mrs. Burton, had no children. Mrs. Ott was his nearest relative. From the time she was four years old, she was raised by him and called him "daddy." When his wife was taken sick, Mrs. Ott left her home and for some weeks devoted her whole time to taking care of the two old people. Mrs. Burton also rendered some assistance, but did not stay there as much as Mrs. Ott, or do the work that she did. After Mrs. Havey's death, according to the proof for Mrs. Ott, Mrs. Burton said she had no room for Mr. Havey at her house and could not take him. Mrs. Ott then took him to her home, and while living there, on January 11th, he named her as beneficiary in the life insurance policy. Mrs. Burton denies that she refused to take him to her house. According to the proof for Mrs. Ott, some weeks later Mrs. Burton's son came up and said to Havey that his mother wished to see him. He then went to her house and did not return. Shortly afterwards the son came back and got his bed. According to the proof of the Burton family, he said when he got there that he had been turned out and had no home, and was crying. But according to the proof for Mrs. Ott nothing of this sort had occurred, and he went simply because Mrs. Burton sent for him. He stayed at Mrs. Burton's from this time until he died, but every day he would go up to see Mrs. Ott, and spent a large part of his time there. She fed him, shaved him, and attended to all the other calls that a man in his condition required while at her house. While living at Mrs. Burton's house, he made her the beneficiary of the policy.
As to the condition of his mind the plaintiff introduced witnesses who stated these facts: For more than a year before he died his mind seemed to be getting bad. He just gradually got worse. He would sit and talk to the walls and look around and act silly. He was rather like all old men are; he would talk one way a while, and then maybe he would get clear off the conversation, and go to talking about something else. The disease he had affects the spinal cord, which runs to the brain. There was very little impairment of the leg muscles. The disease is severely liable to affect the mentality. He was depleted quite a lot physically. The nervous system was involved. He was 70-odd years old. He would cry and talk about outside things. Sometimes he would work his mouth, and not pay any attention to what any one was saying to him. His memory was bad.
On the other hand, the proof for Mrs. Burton was, by a number of witnesses, that his mind was perfectly good and entirely unimpaired. As to undue influence, one witness makes this statement:
"Well, I was sitting there and Mr. Havey came in and Mrs. Ott said to him, `Pappy, they are telling around here that I run you off;' and she says `Did I?' and he says, `No, sir; you didn't, Lula got me to tell this;' he says, `and if I didn't she would raise the devil with me.'"
Another witness says this:
Another witness says this:
"I heard him say, on Monday before he died on Wednesday, that Mrs. Burton and son would be glad whenever he was dead, so they could get what he had to leave."
The home that he and his wife lived in was deeded to his wife. While living at Mrs. Ott's he employed a lawyer and instituted a suit to sell this property to pay her burial expenses and some other...
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