Kentucky Cent. Life Ins. Co. v. Vollenweider

• Decision Date: 03 November 1992
• Docket Number: No. WD,WD
• Citation: 844 S.W.2d 460
• Parties: KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Plaintiff, v. Sarah M. VOLLENWEIDER, Defendant/Appellant, Lia V. Franklin and Stanley K. Vollenweider, Defendants, Maurice J. Schwab, Defendant/Respondent. 45956.
• Court: Missouri Court of Appeals

Page 460

844 S.W.2d 460

KENTUCKY CENTRAL LIFE INSURANCE COMPANY, Plaintiff, v.Sarah M. VOLLENWEIDER, Defendant/AppellantLia V. Franklin and Stanley K. Vollenweider, DefendantsMaurice J. Schwab, Defendant/Respondent.

No. WD 45956.

Missouri Court of Appeals Western District.

Nov. 3, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 22, 1992.

Application to Transfer Denied Jan. 26, 1993.

Michael W. Manners, Independence, for appellant.

Gardiner Blaine Davis, Kansas City, for respondent.

Before FENNER, P.J., and TURNAGE and KENNEDY, JJ.

FENNER, Presiding Judge.

Appellant, Sarah M. Vollenweider, appeals the trial court's determination, by way of summary judgment, that respondent, Maurice J. Schwab, is entitled to the proceeds of an insurance policy issued by Kentucky Central Life Insurance Company(Kentucky Central) on the life of Robert K. Vollenweider.

In December of 1986, Dorothy Vollenweider applied to Kentucky Central for a life insurance policy on the life of her then husband, Robert Vollenweider.On February 1, 1987, Kentucky Central issued the policy in question here on the life of Robert Vollenweider.Dorothy Vollenweider was designated as the owner of the policy.Dorothy was also designated as the primary beneficiary of the policy with her estate being the contingent beneficiary.

The policy further provided in part as follows:

Before the insured's death, the Policyowner owns the Policy and is entitled to exercise all rights granted by the Policy....We will endorse the policy to reflect any change of ownership made during the insured's lifetime and of which we have notice.If the Policyholder dies before the insured, ownership passes to the executor or administrator of his or her estate unless provision was made for another person to become the Policyowner in that event.

Dorothy Vollenweider died on March 24, 1988.Prior to her death, Dorothy had executed a will which named Robert Vollenweider as the sole devisee and personal representative of her estate.Dorothy's will was not admitted to probate until March 16, 1990, which was after Robert Vollenweider's death on January 22, 1990.

Prior to his death, Robert Vollenweider executed a Kentucky Central WP-54A Request for Change Form on April 28, 1988.This form purportedly operated to change both the owner of the policy and the beneficiary of the policy to Robert's children, Lia Vollenweider Franklin and Stanley K. Vollenweider, in equal shares.Robert's request was approved by Kentucky Central on May 17, 1988.

Thereafter, on November 25, 1988, Robert was remarried to appellant, Sarah Vollenweider.After his marriage to Sarah, Robert obtained another WP-54A Request for Change Form.This second form purported to change the beneficiary of the policy to Sarah Vollenweider and the owner of the policy to Robert Vollenweider.This form was executed by Lia Franklin and Stanley Vollenweider and approved by Kentucky Central on December 20, 1988.

Robert Vollenweider died on January 22, 1990, and on January 29, 1990, Sarah Vollenweider executed a Kentucky Central death claim.When Kentucky Central received the death claim, it questioned ownership of the policy and ultimately filed its petition for interpleader which is the cause on appeal herein.In its interpleader action, Kentucky Central alleged that it was aware of claims to the policy by Stanley Vollenweider, Lia Franklin, appellantSarah Vollenweider and respondentMaurice J. Schwab, Personal Representative of Dorothy Vollenweider's estate.

Sarah Vollenweider filed an answer and counterclaim.Sarah alleged in her counterclaim that she was entitled to judgment against Kentucky Central regardless of the outcome of the interpleader action because it mislead Robert on how to go about changing ownership of the policy.Sarah Vollenweider and Maurice Schwab both filed motions for summary judgment.Sarah's motion was denied and Schwab's was sustained and designated as final for purpose of appeal.Disposition of Sarah's counterclaim was stayed pending this appeal.

On appeal, Sarah argues first that the trial court erred in granting Schwab summary judgment because ownership of the policy passed upon Dorothy Vollenweider's death to Robert Vollenweider as named personal representative in Dorothy Vollenweider's will regardless of the fact that her estate was not opened until after Robert's death.

In Missouri, naming someone as personal representative in a will does not make him a personal representative in fact upon the testator's death, but only gives the proposed personal representative the right to become the personal representative upon complying with the conditions required by law.In re Estate of Weinsaft, 647 S.W.2d 179, 181(Mo.App.1983)(citation omitted).The authority of a personal representative is derived not so much from the will, as from the appointment of the court, and compliance with the law.Id.(citation omitted) Until he has qualified under the law, the personal representative does not become the legal owner of the personal property of the decedent, and...