Fendler v. Roy, No. 30387.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFerguson
Citation58 S.W.2d 459
PartiesESTHER FENDLER, Appellant, v. JOSEPHINE ROY.
Docket NumberNo. 30387.
Decision Date31 December 1932
58 S.W.2d 459
ESTHER FENDLER, Appellant,
v.
JOSEPHINE ROY.
No. 30387.
Supreme Court of Missouri.
Division One, December 31, 1932.

Appeal from Circuit Court of City of St. Louis.Hon. Julius R. Nolte, Judge.

[58 S.W.2d 460]

REVERSED AND REMANDED (with directions).

Wurdeman, Slevens & Hoester for appellant.

(1) A change of beneficiary, to be given effect, must have been made understandingly, and if it be shown that there was fraud or undue influence, or lack of mental capacity on the part of the insured at the time the said change was undertaken, the attempted change will be inoperative and void. 7 Cooley's Briefs on Insurance (2 Ed.) p. 6467; Sovereign Camp, etc., Woodmen of World v. Broadwell, 114 Mo. App. 471; Turner v. Turner, 195 S.W. 326; Carson v. Owens, 100 Ga. 142; Supreme Council, Catholic Benev. Assn. v. Murphy, 65 N.Y. Eq. 60; Smith v. Harman, 59 N.Y. Supp. 1044; Owenby v. Supreme Knights of Kona, 101 Tenn. 16; Goyt v. Natl. Council, etc., 178 Ill. App. 377; Supreme Council, etc., v. McKnight, 238 Ill. 349. The voidable conveyance of an insane grantor may be avoided by him by his restoration to reason or by his guardian or committee for him while he remains insane, and after his death it may be avoided by his personal representative or his heirs or privies in blood. Insanity once admitted or proven to exist is presumed to continue to exist, and if a recovery or a lucid interval is alleged to have occurred, the burden of proof of such allegation is on the party making it. 22 Cyc. 115; Rickets v. Golliff, 62 Miss. 440. Proofs of lucid intervals relied upon must be as strong and demonstrative as would have been required to show insanity, and must go to the state and habit of the mind — not merely to an accidental conversation or behaviorism at a particular time or occasion. Rickets v. Golliff, supra. (2) The State Appellate Court in the United States recognizes the long established rule that habitual drunkenness is a form of insanity. 19 C.J. 795. The continued and excess use of alcoholic liquors affects the mind, and if continued for a sufficient length of time eventually destroys it entirely. Holton v. Cochran, 208 Mo. 411. Intoxication so deep as to take away the agreeing mind — in other words to disqualify the mind from comprehending the subject of the contract and its nature and probable consequences — impairs such a contract if made while it lasts. Wright v. Waller, 127 Ala. 537, 54 L.R.A. 440; Fowler v. Fowler, 2 S.W. (2d) 710. (3) The change of beneficiary transferring the greater portion of the estate of Michael Fendler from his wife, the mother of his two infant children, to his sister, respondent herein, was such an unnatural, unequal, unjust and inequitable disposition of his estate that very slight evidence will be sufficient to warrant the conclusion of insanity or undue influence. Muller v. Hospital, 5 Mo. App. 390; Hughes v. Rader, 82 S.W. 32; Gott v. Dennis, 296 Mo. 66.

Jones, Hocker, Sullivan & Gladney and James C. Jones, Jr., for respondent.

(1) The overwhelming weight of the evidence shows that insured was sober and of sound mind on September 1, 1927, when he changed the beneficiary of these policies. (2) The most that can be claimed on appellant's behalf is that when under the influence of intoxicating liquor insured was temporarily insane. One who is only temporarily insane is presumed to be sane at the time of the act or transaction which is sought to be avoided unless the contrary is shown. Richardson v. Smart, 65 Mo. App. 14; Richardson v. Smart, 152 Mo. 623; Gardner v. Gardner, 22 Wend. 526; McAllister v. Security Benefit Life, 261 S.W. 343; Wright v. Fisher, 65 Mich. 275, 32 N.W. 605; Eyestone v. Eyestone, 229 Pac. 518. (3) In equity cases this court will defer to the findings of the chancellor unless such findings are against the great weight of the credible evidence. Fifer v. McCarty, 243 Mo. 42; Williams v. Williams, 259 Mo. 242.

FERGUSON, C.


Upon his application, two life insurance policies, each for $5000, were issued by the Metropolitan Life Insurance Company, on April 3, 1925, to Michael Fendler, in which his wife, Esther Fendler, was named as beneficiary. By the terms of the policies the right was reserved to the insured, Michael Fendler, to change the beneficiary. On September 1, 1927, the insured changed the beneficiary naming his sister Josephine Roy as beneficiary. Fendler died February 26, 1929. Shortly after the death of her husband the widow, Esther Fendler, the original beneficiary named in the two policies, brought this suit in the Circuit Court of St. Louis County against the Metropolitan Life Insurance Company and Josephine F. Roy. The petition alleges the issuance of the policies, the change of beneficiary therein from plaintiff to Josephine Roy and that at the time such change in beneficiary was made by the insured he was of unsound mind. Plaintiff asks judgment against the Insurance Company for the amount of the policies with interest thereon, that Josephine Roy be required "to surrender up and deliver" the policies to plaintiff and be "permanently enjoined and restrained from collecting or attempting to collect any funds due under" the policies. The Insurance Company filed an answer in the nature of a bill of interpleader alleging the conflicting claims of plaintiff and defendant Josephine Roy to the proceeds of the policies. By stipulation the parties agreed that the answer of the Insurance Company was a proper bill of interpleader and accordingly the proceeds of the policies were paid into court and the plaintiff and Josephine Roy were ordered to interplead for the fund. Plaintiff's petition was considered as her interplea. The answer of Josephine Roy asserted that as the beneficiary named therein she was entitled to receive the proceeds of the policies. The sole question to which the evidence was directed was, whether the insured was sane or insane at the time he made the change of beneficiary. The chancellor's decree and judgment was for defendant, Josephine Roy, and that she was entitled "to the proceeds of the insurance policies." From that judgment plaintiff appealed.

Appellant contends that the finding and decree of the chancellor is against the weight of the evidence; that the evidence does not warrant and sustain the decree and that under the evidence and the law applicable thereto the decree should be for plaintiff. The record is lengthy, composed, as it is, of the testimony of the numerous witnesses together with hospital records and certain court proceedings, records and files but we shall undertake to fairly summarize the evidence.

The plaintiff was married to Michael Fendler on December 8, 1920. At the time he was engaged in the garage and automobile sales business with his father but about a year after the marriage Michael Fendler withdrew from the partnership with his father. A suitable building was purchased on Lemay Ferry Road in St. Louis County, title thereto being vested in the husband and wife jointly and a garage and automobile sales agency was established. The business seems to have been conducted by the husband and wife jointly. She did the office work, kept the books and accounts, sold accessories and merchandise and occasionally sold automobiles. The family resided in a living apartment which was a part of and at the rear of the same premises. Two children were born of the marriage, a boy born November 29, 1921, and a girl born June 16, 1924. The garage and sales business was prosperous and lucrative. Michael Fendler was a capable, energetic and successful business man of temperate habits, devoted to the welfare of his wife and children. In April 1925, he made application to the Metropolitan Life Insurance Company for life insurance and the two policies in controversy, aggregating $10,000, were issued. Sometime in 1925 he began to drink intoxicating liquor, mostly of the variety known as moonshine whiskey, to excess and was frequently intoxicated. During 1926 the periods of intoxication became more and more frequent and in 1927 he had become so addicted to the excessive use of intoxicating liquor that according to the testimony of plaintiff's witnesses he was drunk a greater part of the time. One result of his repeated and prolonged drunkenness during 1926 and 1927 was neglect of his garage and sales business which slumped until it was apparently no longer profitable and the automobile sales agency contract was cancelled. When intoxicated he was often violent, boisterous, reckless and abusive. Fendler's conduct at such times is depicted by the plaintiff and neighbors, friends and employees testifying as witnesses for plaintiff. He would curse his wife and children, speak to them and refer to them in the vilest of language and epithets, strike and assault his wife, drive her and the children from the home at late hours of night and on one occasion followed her as she fled, late at night, from his drunken fury and threats and knocked her down

58 S.W.2d 461

upon the sidewalk whereupon a neighbor interposed and compelled him to desist, for that time, from the assault. Numerous times he broke the furniture in the home, smashed the windows in drunken glee or anger, as may have been his mood of the moment, and overturned the dining table when same was prepared for the family meal. On several separate occasions he became violently enraged and broke the windows of the garage, smashed the glass in the doors, windows and windshields of both new and used automobiles in the sales room of the garage and with a heavy hammer dented and damaged new automobiles which were exhibited for sale in the sales room. He would drive an automobile from the garage, abandon it some distance away, either walk back or return by taxicab and drive another automobile from the garage and abandon it in the same manner, and repeat this performance until he would have several automobiles abandoned at distant places which his employees...

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20 practice notes
  • Willis v. Willis, No. 7332
    • United States
    • Missouri Court of Appeals
    • December 28, 1954
    ...approaching this question, it should be borne in mind that the legal presumption that every person is sane [Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)] obtains until......
  • Forbis v. Forbis, No. 7337
    • United States
    • Court of Appeal of Missouri (US)
    • January 8, 1955
    ...222 Mo. 74, 120 S.W. 1167, 1174(4)]; that every person is presumed to be sane until the contrary is shown [Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)]; that the burd......
  • Flynn v. Union Nat. Bank of Springfield, No. 8220
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1964
    ...Mo., 292 S.W.2d 300, 303; Gaugh v. Webster, Mo., 297 S.W.2d 444; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459; Schoenhoff v. Haering, supra; Smith v. Fitzjohn, supra. 6 Wright v. Stevens, Mo., 246 S.W.2d 817; In re Nelson's Estate, Mo.App., 185 S.W.......
  • Strohm v. Boden, No. 41068.
    • United States
    • Missouri Supreme Court
    • July 11, 1949
    ...enter the judgment the chancellor should have rendered. Liflander v. Bobbitt (Mo.), 111 S.W. 2d 72, 75[3]; Fendler v. Roy, 331 Mo. 1083, 58 S.W. 2d 459, 465[8]; Conrath v. Houchin, 226 Mo. App. 261, 34 S.W. 2d 190, 191[6]; Binnion v. Clark (May 9, 1949), 359 Mo. 202, 221 S.W. 2d 214. The co......
  • Request a trial to view additional results
20 cases
  • Willis v. Willis, No. 7332
    • United States
    • Missouri Court of Appeals
    • December 28, 1954
    ...approaching this question, it should be borne in mind that the legal presumption that every person is sane [Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)] obtains until......
  • Forbis v. Forbis, No. 7337
    • United States
    • Court of Appeal of Missouri (US)
    • January 8, 1955
    ...222 Mo. 74, 120 S.W. 1167, 1174(4)]; that every person is presumed to be sane until the contrary is shown [Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)]; that the burd......
  • Flynn v. Union Nat. Bank of Springfield, No. 8220
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1964
    ...Mo., 292 S.W.2d 300, 303; Gaugh v. Webster, Mo., 297 S.W.2d 444; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459; Schoenhoff v. Haering, supra; Smith v. Fitzjohn, supra. 6 Wright v. Stevens, Mo., 246 S.W.2d 817; In re Nelson's Estate, Mo.App., 185 S.W.......
  • Strohm v. Boden, No. 41068.
    • United States
    • Missouri Supreme Court
    • July 11, 1949
    ...enter the judgment the chancellor should have rendered. Liflander v. Bobbitt (Mo.), 111 S.W. 2d 72, 75[3]; Fendler v. Roy, 331 Mo. 1083, 58 S.W. 2d 459, 465[8]; Conrath v. Houchin, 226 Mo. App. 261, 34 S.W. 2d 190, 191[6]; Binnion v. Clark (May 9, 1949), 359 Mo. 202, 221 S.W. 2d 214. The co......
  • Request a trial to view additional results

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