Reed v. Painter
| Citation | 31 S.W. 919,129 Mo. 674 |
| Parties | Reed et al., Plaintiffs and Defendants in Error, v. Painter, Administratrix |
| Decision Date | 02 July 1895 |
| Court | United States State Supreme Court of Missouri |
Error to Cape Girardeau Circuit Court. -- Hon. H. C. O'Bryan Judge.
Affirmed in part and reversed in part.
Wilson Cramer for Painter, administratrix, plaintiff in error.
(1) The insurance on the life of John H. Clark was procured by his wife, Caroline, and by the terms of the policy as well as under the provisions of section 15, chapter 115, General Statutes, 1865, the proceeds were payable to her. The heirs of the husband had no interest in the fund. G. S. 1865, p 464, sec. 15; 2 Wag. Stat. 1872, p. 936, sec. 15; 2 R. S 1879, sec. 5978; 2 R. S. 1889, sec. 5851; Baker v. Young, 47 Mo. 453. (2) Plaintiff's claim to an interest in the insurance money is based upon section 18, chapter 115, General Statutes of 1865. (3) This section was construed. Baker v. Young, 47 Mo. 453, supra. (4) The evidence was not sufficient to establish a resulting trust. Burdett v. May, 100 Mo. 13.
R. B. Oliver and R. G. Ranney for Clark et al., plaintiffs in error.
(1) The court erred in holding that plaintiffs Martha Holcomb and Thomas J. Clark were barred by the statute of limitations because they were not informed of their legal rights as respects the insurance fund until just prior to bringing this action. (2) Did the court err in finding only $ 1,659.15 for Amelia T. Reed, when the testimony disclosed the fact that the Fore note, which Painter collected and converted to his own use, was drawing ten per cent compound interest? (3) Did the court err in finding that the insurance on the life of John H. Clark was the property of the widow and children of said John H. Clark?
Oliver & Ranney for Reed et al., defendants in error.
(1) By the terms of the policy as well as by section 15, chapter 115, General Statutes, 1865, the proceeds were payable to her. That section provides: "And in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her, for her own use, free from the claims of the representatives of the husband, or any of his creditors." G. S. 1865, p. 464, sec. 15; 2 Wag. Stat. 1872, p. 936, sec. 15; 2 R.S. 1879, sec. 5978; 2 R. S. 1889, sec. 5854. See Baker v. Young, 47 Mo. 453. (2) There is no proof that any of the insurance money was undisposed or in any manner invested at the time of the death of Mrs. Caroline Painter (formerly Clark), which occurred April 2, 1884. (3) The evidence shows that part of this money, how much does not appear, was invested by Mrs. Clark in the "McNeely farm," which she and one Jesse Fore acquired for $ 3,950 by deed of July 23, 1869. On the twentieth day of November, 1869, she conveyed her interest in the land to her cotenant, Jesse Fore, for $ 1,975 and received from him on the same day a deed of trust to secure three notes for $ 1,225.40 each. There is not a word of evidence, however, to show for what these notes were given, nor whence the consideration came.
Oliver & Ranney, of counsel for Clark et al., defendants in error.
(1) This case comes within the spirit and letter of the statutes, and the conjunctive form of expression employed by the statute gives the children the same interest in the insurance that the wife has. No other construction can be given this section without changing the phraseology of the statute. This view of the law was taken by this court in Wanschaff v. Mas. Mut. Ben. Society of Ind., 41 Mo.App. 206. (2) The record shows that Painter got possession of the Fore note, which represented the insurance money, and collected it in 1878, three years after the passage of the married woman's act. See Session Acts, 1875, p. 61; Rodgers v. Bank, 69 Mo. 561; Broughton v. Brand, 94 Mo. 169.
Gantt, P. J. concurring.
On the twenty-seventh day of September, 1867, Caroline Clark obtained from the New York Life Insurance Company a policy of insurance on the life of her then husband, John H. Clark, for the sum of $ 5,000 to be paid to her or her legal representatives in case of his death. The policy contained the following provisions: "And the said company do hereby promise and agree to and with the said assured, his executors, administrators and assigns, well and truly to pay, or cause to be paid, the said sum assured, to the said C. Clark or her legal representatives, within sixty days after due notice and proof of interest (if assigned or held as security), and the death of said assured." John H. Clark died April 4, 1869, leaving his widow, and the following named children, born of his marriage with said Caroline, viz.: Amelia T., then the wife of Carey R. Reed, Martha, Henry and Thomas Clark. On the sixth day of July, 1869, the widow received on said policy the sum of $ 4,884.97.
In July, 1869, Mrs. Clark purchased with a part of the proceeds received from said policy of insurance a farm for which she paid $ 3,600. She and three of her children lived on the farm until 1870, when she sold it to one Jesse Fore for the sum of $ 3,670, taking his notes for the purchase money secured by a deed of trust on the farm. She then returned to the city of Cape Girardeau, where she had formerly lived, and on the sixteenth day of September, 1881, intermarried with said John Painter. She died April 2, 1884, and on the twelfth day of April, 1890, this suit was brought by her heirs to recover from Painter four fifths of the insurance which they claim belonged to them, and which had been fraudulently converted by said Painter. Defendant died after the suit was begun and it was revived against his administratrix.
There was evidence tending to show that after his marriage with Mrs. Clark, Painter took possession of the Fore notes given for the purchase money for the farm, and that he subsequently collected them.
The court below held that all of the plaintiffs except Amelia T. Reed, who was under coverture at the time her right of action accrued, were barred by the statute of limitations; dismissed the suit as to them, and rendered final judgment against them for costs, and rendered judgment in favor of Amelia T. and Cary R. Reed for $ 1,659.15. The parties against whom judgment was rendered filed their motions for new trial which were overruled. Defendant then sued out a writ of error from this court as to the judgment against her in favor of Amelia T. and Cary R. Reed and the other plaintiffs sued out a writ of error from this court as to the judgment dismissing their petition, and for costs.
The contention of the administratrix is that by the terms of the policy as well as under the provisions of section 15 of chapter 115, General Statutes, 1865, the death loss was payable to Mrs. Clark on the death of her husband, and that the heirs of her husband had no interest in the fund. Said section 15 reads as follows:
"It shall be lawful for any married woman, by herself, and in her name, or in the name of any third person, with his assent as her trustee, to cause to be insured, for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, and for her own use, free from the claims of the representatives of her husband, or any of his creditors; but such exemptions shall not apply when the amount of premium annually paid shall exceed $ 300."
Section 18, chapter 115, General Statutes, 1865, is as follows:
"Any policy of insurance heretofore or hereafter made by any insurance company on the life of any person, expressed to be for the benefit of any married woman, whether the same be effected by herself or by her husband, or by any third person in her behalf, shall inure to her separate use and benefit, and that of her children, if any, independently of her husband and of his creditors and representatives, and also independently of such third person effecting the same in her behalf, his creditors and representatives; and a trustee may be appointed by the circuit court for the county in which such married woman resides, to hold and manage the interest of any married woman in any such policy, or the proceeds thereof."
It will be observed that section 15, supra, has application alone in case the policy is taken out for the sole use of the wife, and not where it is taken out simply for her benefit. The policy under consideration was not for the sole use of Mrs. Clark, but did provide that in case of the death of her husband the amount of the policy should be paid to her within sixty days after due notice of the death of the assured. The purpose of section 15 was to make the amount received on such a policy the separate property of the wife, and as provided by its express terms "for her own use, free from the claims of the representatives of her husband or of any of his creditors." As the policy in this case did not provide that it was for the sole use of Mrs. Clark, it comes within the provisions of section 18, and must be held to have inured, as provided by the last named section, to the separate use and benefit of Mrs. Clark and her children, jointly.
As was said by Sherwood, C. J., in State to the use of Wolff v. Berning, 74 Mo. 87: "For whatsoever the law annexes as the incident of a contract, whether granting a privilege or announcing a prohibition, is as much part and parcel thereof as though written therein or indorsed thereon." See, also, Wanschaff v. Benefit Soc. 41 Mo.App. 206. Governed by the law as thus announced, ...
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