Smith v. Smith
Decision Date | 14 January 1946 |
Docket Number | No. 20468.,20468. |
Citation | 192 S.W.2d 691 |
Parties | SMITH v. SMITH et al. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.
Suit by G. Blanchard Smith against Helen Gertrude Smith and the Equitable Life Assurance Society of the United State for a declaratory judgment as to the rights of the parties in a life insurance policy wherein the individual defendant filed a cross-petition in the nature of a bill in equity for specific performance of an agreement to assign the policy to her. The record of Kansas City Court of Appeals, 181 S.W.2d 793, affirming a judgment in favor of the individual defendant, quashed by Supreme Court, 353 Mo. 1073, 186 S.W.2d 443, and case again before Kansas City Court of Appeals, 181 S.W.2d 798, for conformity to Supreme Court opinion.
Judgment reversed and cause remanded.
Walter A. Raymond, of Kansas City, for appellant.
Glen V. Graf and Roger S. Miller, both of Kansas City, for Helen Gertrude Smith.
Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, for Equitable Life Assur. Soc. of United States.
BOYER, Commissioner.
This case presents a contest between plaintiff and his former wife, Helen Gertrude Smith, over the ownership of a life insurance policy issued on the life of plaintiff by the Equitable Life Assurance Society of the United States, hereafter referred to as the Equitable. The case was tried as in equity and the findings and the decree were in favor of the respondent, Helen Gertrude Smith.
Among the findings made by the court, it is recited that after the separation of plaintiff and his former wife the plaintiff did "pursuant to a settlement agreement or negotiations between them, give, assign and transfer to Helen Gertrude Smith the said policy and all interest therein and title thereto and all benefits thereof for a valuable consideration as her own separate property and effective as of that time; that he thereupon manually delivered the said policy to her and that it rightfully came into her possession and has since belonged to her." The court ordered and decreed that plaintiff's requests for change of beneficiary were void and that plaintiff should within twenty days execute an absolute assignment of the policy to Helen Gertrude Smith in the form used by the defendant insurer, and that he should execute an instrument directed to the insurer withdrawing his request to change the beneficiary in the policy, and that in event such instruments were not executed upon expiration of the time fixed they "shall each and all be deemed and considered to have been duly executed by the plaintiff by virtue of this decree"; and plaintiff was enjoined and restrained from interfering with the rights, ownership or possession of Helen Gertrude Smith in and to said policy and from making any further requests or demands whatsoever upon the defendant insurer in connection therewith. The petition of plaintiff was dismissed and all defendants were awarded costs against the plaintiff.
The ultimate question for decision here is whether or not the decree of the trial court should be sustained upon the pleadings and the evidence disclosed by the record.
Plaintiff filed a verified petition seeking relief under the Declaratory Judgment Act. Mo.R.S.A. § 1126 et seq. The petition alleges the issuance of a policy by the Equitable on the life of plaintiff for $5,000, dated December 1, 1931; that Helen Gertrude Smith was the beneficiary; that plaintiff has the right to change the beneficiary by written notice to the Equitable; that he has paid all premiums due on said policy; that plaintiff had requested a change of beneficiary according to the terms of the contract of insurance, which request the Equitable had refused. Plaintiff further states that said contract of insurance "was wrongfully and without his permission, removed and taken from his possession by the defendant, Helen Gertrude Smith; that at no time did he give, assign or turn over to her said contract of insurance, or any rights therein, but that the said Helen Gertrude Smith did, without his consent or approval, take said contract and withhold the possession of said contract from him"; that she has no right, title or interest therein, but that plaintiff is entitled to all rights and benefits thereunder and to the possession thereof. Specific and general relief was demanded in declaring the rights and obligations of all parties in interest to the possession and benefits of said contract of insurance, and to determine specifically plaintiff's right to change the beneficiary in said policy, and whether or not Helen Gertrude Smith had any right, title or interest therein; and to require her to deliver said policy, and that the Equitable be required to change the beneficiary as requested or to issue a duplicate policy and that said Helen Gertrude Smith be restrained from claiming any right, title or interest by virtue of said policy of insurance.
On May 2, 1941, defendant, Helen Gertrude Smith, filed her first amended answer and cross-petition in the nature of a bill in equity for specific performance, in which answer she admits the issuance of the policy as alleged and denies all other allegations. Further answering, she alleges the relationship of husband and wife between her and the plaintiff, "and that approximately two years ago the plaintiff herein deserted and abandoned and refused to support this defendant and that shortly thereafter, the plaintiff, G. Blanchard Smith, did on or about the date aforesaid write a letter to the defendant and enclose in the said letter the above described policy of insurance, asserting and stating in the aforementioned letter that he was giving and transferring all interest in the said policy of insurance to this defendant Helen Gertrude Smith, and did thereby voluntarily and wilfully and of his own volition, give and transfer unto this defendant the policy of insurance herein described." It was also alleged that plaintiff, so long as he was able, was to maintain and pay the premiums on the policy as they became due, and that he did surrender all privileges, rights and powers to change or in any way alter the beneficiary of said policy, and that plaintiff constituted the defendant an irrevocable beneficiary to all rights, powers, properties and privileges existing under the terms of the policy. It is further stated that this defendant notified the Equitable of the gift and transfer of the policy to her and that plaintiff had agreed to maintain the premiums thereon.
It is further alleged that plaintiff wilfully, intentionally and wrongfully has failed, refused and declined to execute the prescribed deed of assignment divesting all interest which he may have had in said policy of insurance as required by the Equitable, and has failed, declined and neglected to complete and consummate the transfer of all legal interest which he possessed in the aforementioned policy of insurance; that she is the equitable holder of all interest in the policy; that she has no adequate remedy at law; that she has physical possession of the policy by the voluntary act of plaintiff, and to permit plaintiff to exercise any domination whatsoever over the policy would constitute irreparable damage to her. The prayer of the cross-bill was for specific performance compelling plaintiff to complete the transfer and to execute such prescribed and necessary deeds of assignment as required by the Equitable so as to place the legal as well as equitable title in her, and upon his failure so to do that title be transferred by court decree, and that plaintiff be enjoined from exercising or attempting to exercise in any way whatsoever any right or domination over the policy.
Plaintiff's reply was a general denial.
The separate answer of the Equitable admits the issuance of the policy upon the life of plaintiff and that Helen G. Smith was the beneficiary, and alleges certain provisions of the policy to the effect that no assignment could be binding upon it unless in writing and until filed at its Home Office; that in the absence of a written assignment plaintiff had the right to change the beneficiary by written notice duly filed at its Home Office, but that said change should take effect only upon the endorsement of the policy by the Equitable; that this defendant was informed by counsel for Helen Gertrude Smith that the insured "had deposited the policy with her as a partial settlement for alimony maintenance, etc., had divested himself of any and all rights and privileges in the said policy, had forfeited his rights to loans thereon, and had surrendered his privilege to change the beneficiary"; that this defendant requested that if any agreement had been executed as such that it be furnished with a certified copy of such agreement; that plaintiff had requested a change of beneficiary and that this defendant informed him that it must be furnished with the policy so that it might place the endorsement thereon, and also informed him of the communication it had received from counsel for Mrs. Smith, and also asked him for a copy of any agreement made between the parties, if any; that it had also received notice from Mrs. Smith, stating that the policy in question was given to her in August, 1939, by the plaintiff in a separation settlement with the understanding that she would take care of future premiums; that the policy had not been delivered to this defendant for any endorsement of change of beneficiary and that such was necessary if a change was to be made; that adverse and conflicting claims had been made upon the defendant which it is not in position to determine and disavows any interest in said controversy except for its own protection, and prayed the court to determine the rights of the parties; and that if a change of beneficiary should be made that the policy be required to be produced for endorsement in accordance with its terms; and for such other orders...
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