Fisher v. Fisher
| Decision Date | 06 January 1920 |
| Parties | PEARL LUCILLE FISHER, by her Guardian, FANNIE SCAMMEL, Appellant, v. CLYDE S. FISHER ET AL., Respondents |
| Court | Missouri Court of Appeals |
December 5, 1919, Argued and Submitted [Copyrighted Material Omitted]
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thos C. Hennings, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--Of date May 10, 1909, the Prudential Insurance Company of America issued its policy on the life of Nathan Walter Fisher, whereby, by a "rider," it promised, upon the death of Fisher, he having complied with the terms and conditions of the policy, to pay to Anna Pearl Fisher, his wife, the sum of $ 30 immediately upon receipt of proof of his death, and $ 30 thereafter on the first day of each month until 240 monthly installments shall have been made, and thereafter on the first day of each month as long as the beneficiary shall live, it being provided:
Claiming that the trustee, Clyde S. Fisher, had collected the monthly installments which fell due after the death of the insured and original beneficiary, the wife, and had never paid any part of it over to Pearl Lucille Fisher, or to her guardian, or to any one for her, plaintiff, Pearl Lucille Fisher, a minor, through her guardian, Fannie Scammell, commenced her action in the circuit court of the city of St. Louis, against Clyde S. Fisher, Maude S. Fisher and the Prudential Insurance Company of America, the latter hereafter referred to as the Insurance Company. In her amended petition upon which the case went to trial, she avers that Anna Pearl Fisher, the wife, predeceased her husband or, at least, did not survive him long enough to acquire any interest in the money due under the policy, she and her husband dying practically at the same time. She further avers that Maude S. Fisher, the mother of the insured, at the time of the institution of this action was still living, and that the grandmother of plaintiff, Fannie Scammell, had been duly appointed and qualified as guardian of the person and estate of plaintiff Pearl Lucille Fisher by the Probate Court of the City of St. Louis. It is further averred that Clyde S. Fisher, in April, 1912, made proof of the death of Nathan Walter Fisher to the Insurance Company and, as trustee of Pearl Lucille Fisher, demanded payment to him of the amount due under the policy; that the Insurance Company paid the installments then due, and thereafter, and under the circumstances above stated, Clyde S. Fisher, on the first day of each succeeding month, beginning with the first day of May. 1912, had collected form the Insurance Company the monthly installments of $ 30 due under the policy, amounting in all to the sum of $ 1440, and that he intends in the future to collect the remaining installments as they become due; that he has possession and control of such fund, as trustee, and has refused and still refuses to pay the same over to plaintiff and will continue to withhold from her any sums he collectes in the future. It is further averred that Clyde S. Fisher is acting as such trustee without bond, refuses to give a bond, has resisted every effort of plaintiff to compel him to give bond for the honest and faithful management and control of the fund, although, as it is averred, he is insolvent or owns so little property that plaintiff would be unable by law to recover of him the amount due her; that the sole duty of Clyde S. Fisher, as trustee, is to collect and turn over to plaintiff's guardian the amount collected by him, but that, in violation of his duty, he wrongfully withholds the money from plaintiff and converts it to his own use. Further averring that plaintiff, Pearl Lucille Fisher, is a minor and sorely in need of funds for her care and maintenance, and that the trustee, Clyde S. Fisher, withholds the funds and proceeds of the policy from her, so that she is entirely dependent upon the charity and beneficence of friends and relatives, it is averred that Clyde S. Fisher denies the right of plaintiff to the fund, although, as it is averred, he acts for plaintiff in collecting it and would not be entitled to receive it unless it belonged to her. It is finally averred that Clyde S. Fisher and his family harbor ill feeling and ill-will against the guardian of plaintiff and the persons who are now caring for and rearing her, to such extent that his entire conduct in handling the fund is actuated and controlled by intense venom, hatred and ill feeling, making it impossible for plaintiff, through her guardian, to deal with Clyde S. Fisher in matters concerning the rights of plaintiff, and that for and on account of the matters and things stated above, Clyde S. Fisher is an unfit and improper person to act as trustee and has violated the duties of his office. Plaintiff prays the court that an accounting and settlement be had with and against defendants Clyde S. Fisher and the Insurance Company; that plaintiff have judgment against Clyde S. Fisher, trustee, for the amount collected by him, together with interest from the date when the same became due to plaintiff, and that he be removed as such trustee and that defendant, Maude S. Fisher be adjudged to have no present interest in the fund or in any of the installments due and paid under the policy, and for such further and other relief as from the premises may be meet and proper, together with costs.
By his answer to this amended petition, defendant Clyde S. Fisher admits the minority of plaintiff and that Fannie Scammell is her guardian; that he is the paternal uncle of plaintiff and trustee as in the petition alleged; that defendant Maude S Fisher is the paternal grandmother of plaintiff and has a contingent interest in the insurance policy as alleged; that the Insurance Company is duly incorporated as in the petition alleged; that plaintiff's father, Nathan Walter Fisher, and her mother, Anna Pearl Fisher, both died on April 2, 1912; that on May 10, 1909, the Insurance Company insured the life of Nathan Walter Fisher on the terms alleged in the petition and agreed to make the payments as averred, attaching the rider to the policy which set out the interest of Pearl Lucille Fisher, as averred; that in April, 1912, defendant Clyde S. Fisher made proof of the death of Nathan Walter Fisher, demanding the payment of the amount due under the policy, as trustee, and that the Insurance Company has since paid to him, Clyde S. Fisher, as said trustee, the installments due under the policy, and that he, Clyde S. Fisher, intends to collect the remaining installments as they become due under the policy. He denies that the amount he collected was $ 30 a month but avers that because of a discrepancy in the age of the beneficiary, Anna Pearl Fisher, between that given to the Insurance Company when the policy was taken out and that given after the death of the beneficiary, the defendant insurance company found that Nathan Walter Fisher had not paid sufficient premiums on the policy by the sum of $ 5.22, which was deducted from the first $ 60 payable under the policy, and that thereafter he, Clyde S. Fisher, collected from the Insurance Company, upon proof of death, the first two installments on May 1, 1912, of $ 54.78, instead of $ 60, and thereafter the first of each month, beginning with June 1, 1912, and ending with March 1, 1916, $ 29.46, or a total of $ 1409.94, the difference between $ 30 a month and $ 29.46 a month, being occasioned by the mistake referred to above; that the last installments of $ 29.46 due under the policy on April 1, 1916, had not, at the time of filing the answer, which was done on April 17, 1916, been paid to him by the Insurance Company by reason of the institution and pendency of this suit. Further answering, defendant Clyde S. Fisher admits that he has possession and control of the fund as such trustee, collected as above stated, and that he has not, up to this time, paid over any of the fund to plaintiff's guardian but denies that he has determined on a fixed policy in the future of making no payments whatsoever out of the fund to the guardian. He admits that he is acting as trustee, without bond, and sets up proceedings instituted by plaintiff, requiring him to give bond; avers that that suit was vexatious; that he had filed an answer to it and had appeared in court for a hearing; that on the instance of plaintiff's attorney the hearing was passed, that attorney informing defendant that he expected to dismiss the petition but had not done so to date. Further answering, the defendant Clyde S. Fisher says that there is no good reason existing why he should be required to give bond as trustee; that his brother, the insured, knew of his financial condition when he appointed him trustee. He denies that he is insolvent and avers that he has a good and responsible position with a manufacturing company of St. Louis; that besides...
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