McRee v. Russell

• Decision Date: 07 March 1940
• Docket Number: 8 Div. 915.
• Citation: 194 So. 827,239 Ala. 343
• Parties: MCREE v. RUSSELL ET AL.
• Court: Alabama Supreme Court

194 So. 827

239 Ala. 343

MCREE v. RUSSELL ET AL.

8 Div. 915.

Supreme Court of Alabama

March 7, 1940

Rehearing Denied April 4, 1940.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Bill by Lurline Russell McRee against Lucile Russell, the Protective Life Insurance Company and others, contesting change in beneficiary of policies of life insurance, wherein Lucile Russell filed a cross-bill to enforce her right as substituted beneficiary, and the Protective Life Insurance Company interpleaded. From a decree for the cross-complainant, the original complainant and the cross-respondents to the cross-bill appeal.

Affirmed.

Wert &amp Hutson and S. A. Lynne, all of Decatur, for appellants.

Harris & Harris and Chas. H. Eyster, all of Decatur, for appellee Lucile Russell.

GARDNER Justice.

Dr James T. Russell was a practicing physician, residing at Woodland Mills in the eastern section of Morgan County Alabama, where he enjoyed a large and lucrative rural practice. He was held in high regard as a physician of ability by the members of his profession with whom he came in contact. It is quite evident he was a man of fine Christian character, positive in business matters and of "firm will." He accumulated a small estate, and educated those of his children (seven in number) who would accept the advantages: two of his sons (Olney and Howard) being now well launched in their profession as physicians, one at Birmingham and the other in New Orleans, and in whose success he took just pride. His son William has for sometime been an inmate of Bryce Hospital in Tuscaloosa. His daughter Lurline, in whose name this suit was instituted, married McRee of Decatur. Tom and Hammond remained longer at the family home and are either farming or engaged in some business.

When three or four years of age the daughter Lucile, now thirty-seven years of age and single, sustained an injury in which the hip bone was broken. She is a cripple, using crutches, and does not remember walking. She has been for several years employed as a teacher, much of the time in Decatur, several miles distant from Woodland Mills.

In March 1936, Dr. Russell died, leaving a will executed in April 1933, which was unsuccessfully contested by Lurline McRee on the grounds of mental incapacity and undue influence. McRee v. Russell, 236 Ala. 506, 183 So. 399.

In July 1929, Dr. Russell, then fifty-eight years of age, and in good health, procured two insurance policies in the Protective Life Insurance Company, one for $5,000 and the other in the sum of $10,000. The named beneficiaries were his seven children, share and share alike; but each policy reserved to the insured the right to change the beneficiary. It is the exercise of this right which forms the basis of this litigation. On April 23, 1932, he executed a request for a change of beneficiary in the $5,000 policy, naming his daughter Lucile as sole beneficiary. The request was executed in duplicate, with both copies forwarded to the insurance company, one of which the company attached to the policy and returned to Dr. Russell and the other was retained in the files. It was witnessed by P. W. Williams, agency director for the Protective Life Insurance Company in north Alabama, and who had been with that company for a long number of years. On November 26, 1932, a like request was executed for the $10,000 policy, which was witnessed by Kelly, a lawyer, and Houston, a druggist at Hartselle, Alabama.

This bill was filed by Lurline McRee, attacking these changes, the other children being made parties defendant, including of course Lucile. The Protective Life Insurance Company was also made party defendant, interpleaded, paid the money into court, and was discharged. There was much pleading, but the issues were plain and uncomplicated in any manner.

For convenience, we think it well enough, in referring to the children, other than Lucile and the unfortunate William, to call them complainants, though lacking in strict accuracy.

In the latter part of 1929, or the early part of 1930, Dr. Russell was ill with influenza, and thereafter was not as strong as previously. Complainants insist that as early as 1930 a tremor of his right hand became noticeable to some extent, which increased with time. This was a symptom of what is known as Parkinson's disease. A sedative, known as hyoscine, was prescribed and used to steady his nerves and arrest the tremor of his hands.

There are two grounds of assault on the requests for changes in the beneficiary in these policies which are common to both--mental incapacity and undue influence on the part of the daughter Lucile. Upon this latter ground (undue influence), it may be observed, that though the authorities appear to be rather sharply divided (45 Corpus Juris 198; 105 A.L.R. 957), yet this Court is committed to the view that the beneficiary in cases of this character cannot attack a change of beneficiary by the insured upon the ground of fraud or undue influence, upon the theory that such beneficiary has an interest that is a mere expectancy which cannot become vested until fixed by the death of the insured. Barnett v. Boyd, 224 Ala. 309, 140 So. 375; Taylor v. Southern Bank & Trust Co., 227 Ala. 565, 151 So. 357; Slaughter v. Grand Lodge, 192 Ala. 301, 68 So. 367; Summers v. Summers, 218 Ala. 420, 118 So. 912; Metropolitan Life Ins. Co. v. Bramlett, 224 Ala. 473, 140 So. 752.

Under these authorities, therefore, the matter of undue influence is laid out of view, and the authorities cited by appellant (among them Vol. 2, Black on Rescissions, section 248; Bennett v. Bennett, 65 Neb. 432, 91 N.W. 409, 96 N.W. 994; Meyer v. Fishburn, 65 Neb. 626, 91 N.W. 534, and Holland v. Barnes, 53 Ala. 83, 25 Am.Rep. 595) must be held as here inapt.

It is, however, the generally accepted rule that if at the time he attempted to change the beneficiary, the insured was mentally incompetent, such attempted change is ineffective (105 A.L.R. 951), and the original beneficiary has such a substantial interest as would justify an action to prevent or annul such a change. Barnett v. Boyd, supra; Metropolitan Life Ins. Co. v. Bramlett, supra.

The issue of fact, therefore, common to both requests for change of beneficiary, is that of mental capacity on the part of the insured, Dr. Russell, to execute them. Upon that issue much testimony was taken, and as a result a rather voluminous record, consisting of six separate volumes, is here presented. The evidence has been read with much care with no detail escaping notice, and it has been considered in connection with the books of account kept by Dr. Russell, here for our inspection. Anything like a comprehensive and detail discussion of this evidence is not considered practicable, and would extend this opinion to undue length. Indeed, in cases resting upon mere issues of fact for determination, it has been the policy of this Court, especially since the passage of the Act of 1915, not to enter into an analysis or discussion of the evidence in detail (Acts 1915, page 594; section 10336, Michie's Code; Harris v. Bowles, 208 Ala. 545, 94 So. 757; Williams v. Ellington, 233 Ala. 638, 172 So. 903), nor would it serve any useful purpose here. The parties to this litigation, therefore, must rest content with a very general observation and statement of our conclusion.

Perhaps the strongest proof to establish mental incapacity of Dr. Russell comes from his two sons, who are physicians. They insist that Parkinson's disease is a disease of the brain, which weakens and dulls the intellect, such condition being accentuated by the use of hyoscine; and that Dr. Russell during all of 1932 was of unsound mind and incapable of transacting any business. The other three children, Tom, Hammond and Lurline, add their evidence in full corroboration of their father's unsoundness of mind.

All of this proof must of course be weighed in the light of the interest of these witnesses in the outcome of the case, and in the light of the intensity of feeling among them against their sister Lucile, whose actions to them, it is apparent appear selfish...