Leopold v. Leopold

• Citation: 552 S.W.2d 276
• Decision Date: 02 May 1977
• Docket Number: No. KCD,KCD
• Parties: Frederick W. LEOPOLD et al., Plaintiffs-Appellants, v. Harold R. LEOPOLD, Defendant, and M.F.A. Mutual Insurance Company, Defendant-Respondent. 28080.
• Court: Court of Appeal of Missouri (US)

Page 276

552 S.W.2d 276

Frederick W. LEOPOLD et al., Plaintiffs-Appellants, v. Harold R. LEOPOLD, Defendant and M.F.A. Mutual Insurance Company, Defendant-Respondent.

No. KCD 28080.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 8, 1977.

Robert B. Langworthy, J. Michael Vaughan, Kansas City, for plaintiffs-appellants.

Thomas A. Sweeny, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for defendant-respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

Action on fire insurance policy. Trial court found for insurer. Plaintiffs appeal.

On January 28, 1964, Eva I. Look died. She was the owner of a residence located at 4063 Warwick Boulevard, Kansas City, Missouri. Her will was admitted to probate. Harold R. Leopold, the sole legatee under the will, was appointed Executor of the Estate of Eva I. Look on February 6, 1964.

On February 6, 1964, M.F.A. Mutual Insurance Company issued its fire and extended coverage policy applicable to 4063 Warwick for a period of one year from 2:00 P.M. February 6, 1964 through February 6, 1965. The named insured was "Harold R. Leopold, Executor of the Estate of Eva I. Look." The policy insured "the insured named in the declarations and legal representatives." The policy was renewed for a one-year period beginning February 6, 1965.

On February 19, 1964, William Normandie, Frederick W. Leopold and Alice Smith instituted a will contest, contesting the purported will of Eva I. Look. Ms. Smith subsequently died. The first two named contestants and the executors of the estate of Ms. Smith are plaintiffs in this suit.

On March 6, 1964, the Jackson County Probate Court, pursuant to the will contest, suspended Harold R. Leopold as Executor of the Estate of Eva I. Look and appointed Traders National Bank, also a plaintiff in this action, as Administrator Pendente Lite of the Look estate.

On December 28, 1965, a settlement of the will contest was reached by which Harold R. Leopold and his wife agreed that Frederick W. Leopold, William Normandie and Alice Marie Smith were to receive title to the Warwick Boulevard residence.

On February 5, 1966, the property suffered fire damage in the amount of $5,125.00. Notice of loss was given M.F.A., but it refused to pay the loss.

A quitclaim deed to the property was executed by Harold R. Leopold and wife to Frederick Leopold, William Normandie and Alice Marie Smith.

Frederick Leopold, Normandie, the Executors of the Estate of Ms. Smith, and Traders National Bank, Administrator Pendente Lite of the Estate of Eva I. Look, filed suit against M.F.A and Harold R. Leopold. Harold R. Leopold subsequently died without filing an answer to the petition.

The claim against M.F.A. was submitted on stipulated facts and the trial court found for defendants. Plaintiffs appeal.

The issue on the appeal is whether or not the appellants are entitled to the benefit of the policy issued to Harold R. Leopold, Executor, and "legal representatives," and, alternatively, whether Harold R. Leopold, Executor, had an insurable interest in its property at the time of the loss. Appellants assert that they do because the "legal representatives" included the Administrator Pendente Lite. Respondent M.F.A. asserts that plaintiffs had no insurable interest in the property at the time of the issuance of the policy and they were not parties to the contract of insurance and that Harold R. Leopold, Executor, had no insurable interest at the time of the loss.

Appellants first contend that the policy covering Leopold, Executor, "and legal representatives" continued to cover the Administrator Pendente Lite after the removal of Leopold as Executor.

M.F.A. does not question that Leopold as Executor of the Estate of Eva I. Look had an insurable interest in the property involved. See Estes v. Great American Ins. Co. of New York, 112 S.W.2d 153, 156-157(7, 8)(9) (Mo.App.1938). The question in this case is what, if any, meaning is to be given to the phrase "legal representatives" in the construction of the policy provision extending coverage to the named insured and "legal representatives."

"The term 'legal representative' has no fixed meaning in the law and does not have the same signification in every case, since its import varies according to the circumstances of its use." Sterns v. M.F.A. Mutual Insurance Company, 401 S.W.2d 510, 517(3) (Mo.App.1966). The primary meaning of the term in an insurance policy is executor or administrator (Dyer v. Standard Fire Ins. Co. of New Jersey, 227 S.W.2d 520, 521(1)(2) (Mo.App.1950)), but the term as there found may also have a secondary meaning "which includes anyone who succeeds to the rights of another * * *." 44 Am.Jur.2d Insurance, § 1754, p. 665 (1969); Sterns v. M.F.A. Mutual Insurance Company, supra. See Schonwald v. Sun Insurance Office, Limited, 276 F.Supp. 775 (W.D.Okl.1967); Commercial Standard Insurance Company v. Herrin, 515 S.W.2d 163 (Tex.Civ.App.1974); Loomis v. Vernon Mutual Fire Ins. Co., 14 Wisc.2d 470, 111 N.W.2d 443, 444-445(3) (1961).

When, as in this case, the named insured is described in his representative capacity, the term "legal representatives" has no effective meaning if it is to be limited to the primary definition of executor or administrator, as respondent suggests it should be. The personal representative of the named executor would not have succeeded to the decedent's representative capacity. Had Harold Leopold died while he was still executor of the estate of Ms. Look, Leopold's personal representative would not thereby have become executor of Ms. Look's estate. In re Parker's Trust Estate, 228 Mo.App. 400, 67 S.W.2d 114, 119-120(6, 7) (1934). In a case such as this, if the term is to be given any effect, its secondary meaning should be applied, the representative who succeeds to the...