Forester v. Bellville

• Decision Date: 09 July 1974
• Docket Number: No. 35222,35222
• Citation: 513 S.W.2d 726
• Parties: Sharon Kay FORESTER, Respondent-Plaintiff, v. Dorothy R. BELLVILLE, Appellant-Defendant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 726

513 S.W.2d 726

Sharon Kay FORESTER, Respondent-Plaintiff, v. Dorothy R. BELLVILLE, Appellant-Defendant.

No. 35222.

Missouri Court of Appeals, St. Louis District, Division Two.

July 9, 1974.

Motion for Rehearing or Transfer Denied Sept. 11, 1974.

Aubuchon & Lavin, Jesse E. Bishop, St. Louis, for appellant-defendant.

Michael J. Yatkeman, Clayton, for Northwestern Mutual Life Ins. Co.

Louis Gilden, St. Louis, for respondent-plaintiff Sharon Kay Forester.

SMITH, Presiding Judge.

Defendant Bellville appeals from that portion of a judgment in an interpleader suit that decreed plaintiff Forester to be the lawful beneficiary of a life insurance policy on the life of Melvyn Forester. The judgment also denied to plaintiff any interest in another policy and although not specifically saying so thereby confirmed defendant Bellville's interest as the named beneficiary. ¹ Melvyn Forester was the son of defendant Bellville and the husband of plaintiff. Defendant Northwestern Mutual Life Insurance Company was discharged after its interplea and deposit of the insurance proceeds into Court. ²

Two policies of insurance were issued by Northwestern upon the life of Melvyn Forester, each for $5,000 face amount with a double indemnity provision for accidental death. The first policy was issued October 23, 1969. The second was issued January 9, 1970 and it is this policy to which the appeal relates. Each policy listed the 'Direct beneficiary' as 'Dorothy R. Bellville, Mother of the Insured.' Melvyn Forester was shot and killed on November 18, 1971 while a customer in a restaurant in St. Louis County during the course of a holdup. He was not involved in the holdup and Northwestern has conceded throughout that the accidental death benefit is applicable. Plaintiff and Melvyn began dating in September or October of 1969. They announced their engagement in December 1969, were married in March 1970, and had a child in November 1970.

Plaintiff did not appeal the Court's finding that she had no interest in the policy issued in October 1969. She premises her right to recovery of the proceeds of the second policy upon two grounds: (1) contract and (2) trust.

The contract theory arises from the fact that on the same day that Mr. Manewal, Northwestern's agent, sold the second policy to Forester, he also sold a policy to plaintiff in which the designated beneficiary was Forester, 'finance.' Subsequent to the marriage plaintiff had the policy changed to reflect her married name and changed the description of the beneficiary from 'fiance' to 'husband.' The only other evidence of a contract between Forester and plaintiff concerning the policies was the testimony of plaintiff to which a proper and continuing objection involving the Dead Man's Statute ³ was made. The 'contract' upon which plaintiff sought recovery was between herself and Forester, who is dead. The Dead Man's Statute applies and neither we nor the trial court can consider plaintiff's testimony of an oral agreement between herself and Forester. Ables v. Ackley, 133 Mo.App. 594, 113 S.W. 698 (1908); Kerr v. Prudential Ins. Co., 238 Mo.App. 972, 194 S.W.2d 706 (1946). There is no competent evidence of a contract.

The general rule in Missouri is that 'every person has an insurable interest in his own life and . . . he may insure it for the benefit of any person whom he sees fit to name as beneficiary.' Walker v. General American Life Ins. Co., 141 S.W.2d 785 (Mo.1940) (4); Service Life Ins. Co. v. Davis, 466 S.W.2d 190 (Mo.App.1971).

Plaintiff asserts that she is entitled to the proceeds of the second issued policy on the basis that Forester created an express trust in the proceeds for her benefit or alternatively that equity requires the imposition of a constructive trust for her benefit. The trial court made findings of fact and conclusions of law in determining that plaintiff was entitled to the proceeds of the second policy. Accepting, as we must, the determinations of credibility by the trial court, we treat as true the testimony which supports the Court's findings of fact, while retaining the authority to arrive at our own findings based upon that testimony.

The estate of decedent consisted only of a $200 automobile. After the marriage of plaintiff and decedent, the Northwestern agent talked to Forester about changing the beneficiary on his policies to his wife. Deceased told the agent 'Mom will take care of that.' No change was ever made. Premiums were paid from the joint account of plaintiff and Forester. Plaintiff was aware at least ten months before decedent's death that defendant was the named beneficiary. There was no evidence that defendant was aware that she was the designated beneficiary until after her son's death, and she denied she was so aware. In June 1971, in the presence of plaintiff, Forester told plaintiff's parents that if 'anything ever happened to him he had $10,000 worth of insurance that would take care of Sharon (plaintiff) and the baby.' Plaintiff's mother remembered decedent jokingly indicating that 'Sharon would be a rich widow, he had taken care of that.' The mother '. . . thought he felt confident he had everything taken care of.' Following Forester's death and at about the time of the funeral, plaintiff, defendant, plaintiff's parents and another person were together. Plaintiff and her parents indicated that upon plaintiff telling defendant that she (defendant) was the beneficiary of the policies, defendant replied: '. . . don't worry, I will sign them over' or 'there would not be any problem, she would sign it over to her.' Defendant denied she was even aware of the existence of the policies prior to being advised by plaintiff after Forester's death. There was some evidence, never developed, that Forester had three policies on his life, one apparently taken out after the two in dispute. Defendant presented evidence that Forester had discussed his insurance with a friend and that Forester said his mother was the beneficiary of the two policies he had at that time. There was no testimony by plaintiff as to whether there was any other insurance on Forester's life of which she was beneficiary, although she did say there were no assets in his estate except the automobile.

An express trust in personalty may be created and proved by parol evidence through 'express declarations and also by surrounding circumstances.' Prudential Insurance Co. of America v. Gatewood, 317 S.W.2d 382 (Mo.1958). The intention of the creator of the trust is the paramount question, but the evidence of the trust must be clear and explicit leaving no room for a reasonable doubt that a trust was intended. Murry v. King, 153 Mo.App. 710, 135 S.W. 107 (1911). The words of the settlor must express a declaration and grant by him of an estate or interest to create a valid parol trust. Bank of Perryville v. Kutz, 276 S.W.2d 593 (Mo.App.1955). No particular words are required to establish a trust but the intent to create one 'must be clearly expressed by words or conduct or both' and the evidence must be so cogent, clear and convincing as to dispel any doubt in the Court's mind. Gardner v. Bernard, 401 S.W.2d 415 (Mo.1966).

Accepting as true the evidence adduced by plaintiff we are unable to find it sufficient to support an express trust. There is no evidence at all that Forester ever declared the insurance proceeds to be in trust. There is no evidence when the trust was created, what constituted its res, or what enforceable duties were imposed. See Gardner v. Bernard, supra, (6--8). Decedent's statement to the agent 'Mom will take care of that' is not a clear expression and grant of a definite beneficial estate or interest to his wife. It is at most ambiguous. Nor can we conclude that the conversation with plaintiff's parents establishes the requisite intention to...