Schlereth v. Neely

• Decision Date: 22 June 1926
• Docket Number: No. 19445.,19445.
• Citation: 285 S.W. 168
• Parties: SCHLERETH v. NEELY et al.
• Court: Missouri Court of Appeals

285 S.W. 168

SCHLERETH v. NEELY et al.

No. 19445.

St. Louis Court of Appeals. Missouri.

June 22, 1926.

Rehearing Denied July 8, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Anna Schlereth, administratrix of the estate of Henry Rohmann, deceased, against Lucille Neely and another. From a judgment of the circuit court, reversing a judgment of the probate court for plaintiff, she appeals. Reversed and remanded, with directions.

Earl H. C. Lurkins, of St. Louis, for appellant.

Max Sigoloff, of St. Louis, for respondents.

BENNICK, C.

This action was instituted in the probate court of the city of St. Louis by the filing by plaintiff of the following affidavit for the concealment of assets:

"Anna Schlereth, administratrix of the estate of Henry Rohmann, deceased, being duly sworn, upon her oath states that she has good cause to believe, and does believe, that Mrs. Lucille Neely and Christian Price, in the city of St. Louis, Mo., have wrongfully withheld and now have in their possession or under their control a certain life insurance policy in the John Hancock Mutual Life Insurance Company, being No. 4016725, together with the premium book thereof, which policy was issued upon the life of said Henry Rohmann, deceased; that Barbara Robmann, wife of said deceased, was the beneficiary thereof, but that she died more than two years prior to the death of insured; that under the provisions of said policy the proceeds thereof are an asset of this estate; and that this policy was issued at the instance of deceased, and not of the said Barbara Rohmann.

"Wherefore administratrix prays that the aforesaid Mrs. Lucille Neely and Christian Price may he cited and compelled to appear before this court and answer under oath such questions as may be propounded to them concerning the ownership, concealment, and possession of said policy and premium book."

Upon a hearing in the probate court, judgment was rendered ordering defendants to turn over the policy and premium book mentioned in the affidavit. An appeal was taken to the circuit court, wherein the judgment of the probate court was reversed. After an unavailing motion for a new trial, plaintiff has appealed.

The evidence disclosed that on June 24, 1893, Henry Rohmann made application to the John Hancock Mutual Life Insurance Company for a special industrial policy in the amount of $500, naming his wife, Emma, as beneficiary in the application, and reserving the right to change such beneficiary from time to time with the consent of the company. The policy was duly issued. Three children were born of the marriage, all of whom were living at the time of the trial. Some years later Emma died The insured then married Barbara, and, on September 9, 1908, made her the beneficiary under such policy. In his application naming Barbara as beneficiary, there was the following paragraph:

"The insured reserves the right, from time to time while this policy is in force, to change the beneficiary, subject to the consent of the company, by notice to the home office, upon the company's prescribed form, but the company may make payment to the executor or administrator of said insured or to any relative by blood or connection by marriage, or to any other person in the judgment of said company equitably entitled to the same by reason of having incurred expense in any way on the behalf of the insured for burial, or for any other purpose; and the receipt of any such person shall be conclusive evidence that payment has been properly made, and shall discharge the company from liability."

No children were born of this second marriage. The defendants, however, are children of Barbara by a former marriage. In 1911 Mr. and Mrs. Rohmann separated, and she took with her the policy and premium book. Thereafter the insured lived with relatives until he became insane, and was confined to the city sanitarium, where he died March 18, 1924. Barbara Rohmann had died in October, 1921.

The insured paid the premiums on the policy until the separation. Thereafter his wife, and, after her death, the defendants voluntarily paid the premiums until the death of the insured. After the change of beneficiary to Barbara Rohmann, the insured never designated another beneficiary, and the insurance company did not exercise the option granted it under the facility of payment clause.

Plaintiff, a sister of insured, was appointed administratrix of his estate. It appears that this policy is the only asset of the estate; that the undertaker's bill in the sum of $242 was allowed as a claim against the estate, but never paid; and that plaintiff demanded the surrender of the policy and premium book from defendants, but was refused,...