Smith v. Smith

• Decision Date: 05 June 1944
• Docket Number: No. 20468.,20468.
• Citation: 181 S.W.2d 793
• Parties: SMITH v. SMITH et al.
• Court: Missouri Court of Appeals

181 S.W.2d 793

SMITH v. SMITH et al.

No. 20468.

Kansas City Court of Appeals. Missouri.

June 5, 1944.

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 States 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 the defendant. From a judgment in favor of the individual defendant, the plaintiff appeals.

Judgment affirmed.

Walter A. Raymond, of Kansas City, for appellant.

Glen V. Graf, Roger S. Miller, Henry I. Eager, and Michaels, Blackmar, Newkirk, Eager & Swanson, all of Kansas City, for respondents.

CAVE, Judge.

The appellant, G. Blanchard Smith, filed two suits in the Circuit Court of Jackson County concerning three life insurance policies wherein he was the insured, and his then wife, Helen Gertrude Smith, was the beneficiary. Two of the policies were issued by The Atlas Life Insurance Company and the other by The Equitable Life Assurance Society of the United States. The suits were consolidated and tried as one, with separate judgments in each case, but identical findings and results. The cases have also been consolidated for submission in this court and agreed that the opinion and judgment in this case, No. 20468, shall be adopted and become the decision in case No. 20467, 181 S.W.2d 798, wherein the two policies issued by The Atlas Life Insurance Company are involved.

The pleadings and evidence are substantially the same in both cases and will be fully referred to herein to avoid the necessity of repeating in the other case.

The actions were brought by appellant, as plaintiff, for declaratory judgments as to the rights of the parties in the three life insurance policies. With reference to the two policies issued by The Atlas Life Insurance Company, plaintiff alleged that he took out one policy for $1,000 on May 12, 1923; on November 30, 1926, he took out the second policy for $10,000; and on December 1, 1931, he took out a $5,000 policy issued by The Equitable Life Assurance Society. In each of the three he was the insured and his wife, Helen Gertrude Smith, was the beneficiary. He alleged that in December, 1939, he requested said insurance companies to change the beneficiary in said policies; that his wife had obtained possession of said policies wrongfully and without plaintiff's consent and claims full title therein and refuses to surrender them to him; that the insurance companies refused to change the beneficiary or to issue duplicate policies; that plaintiff has the right to change the beneficiary in said policies. The prayer of each petition was that the court enter its judgment declaring the rights of the parties; determining plaintiff's right to change the beneficiary; determining Mrs. Smith's rights in the policies and ordering her to surrender them to plaintiff, and in lieu of delivery to declare the same null and void and to order the insurance companies to issue duplicates, ordering a change of beneficiary in accordance with plaintiff's desires and enjoining the wife from making further claim under said policies.

The insurance companies answered alleging lack of knowledge of many allegations in the petition and set up provisions of the policies that the beneficiary could be changed only by surrendering the policies to the company so the name of the beneficiary might be endorsed thereon; that plaintiff had failed to submit the policies for such endorsement of change of beneficiary and prayed that the parties be compelled to deposit the policies so that the change of beneficiary could be endorsed thereon.

Defendant, Helen Gertrude Smith, filed answer and cross petition in the nature of a bill in equity for specific performance alleging that plaintiff voluntarily gave and transferred to her the policies in question, but that he had failed to execute written assignments thereof; that she thereby became the equitable owner of said policies, and prayed that she be granted specific performance by requiring plaintiff to execute assignments to said policies or on his failure to execute such assignments that title be transferred by court decree; and that plaintiff be enjoined from executing or asserting any dominion over said policies.

The reply was in the form of a general denial. The findings and decrees in both cases were in favor of the individual defendant, Mrs. Smith, and against the plaintiff.

The evidence discloses that the plaintiff and defendant, Helen Gertrude Smith, were married in October, 1925, and that the policies were taken out as above mentioned. In January, 1939, they became estranged. During that month they entered into a property settlement, in writing, in which plaintiff agreed, in addition to other considerations, to pay Mrs. Smith $225 per month. The contract is not set out in the record and we do not know its full contents. However, about March 16, 1939, these parties mutually entered into a new contract or property settlement superseding the first, wherein the monthly support payment was to be $150 "or one-third of plaintiff's monthly income if that became less than the $150 per month." He also delivered to her certain securities and cash slightly in excess of $10,000, and certain furniture. The equities of that property settlement are not for our consideration. Both the plaintiff and defendant testified that during the negotiations for the settlement in January and for the modified or final settlement in March, the question of the three insurance policies was never mentioned or discussed.

Her claim to a gift of these policies is based on facts occurring after the execution of the second property settlement agreement. She testified that shortly after the second agreement she became ill and went to a hospital for a few days and that Mr. Smith visited her there daily and when she was ready to leave the hospital he took her to their former home where they discussed her financial needs. Concerning this she testified: "and after we got home, why, of course, I was nervous, and upset and some remark was made about finances and all I said, `Now, Blanchard, * * * I have to make arrangements to live on this $150', and he said, `Well, there is a doctor bill', and I said, `Well, I really think you should take care of that,' so he became rather perturbed. He says, `You always are worrying about finances,' and he sat down and made a list of what he had. * * And when he listed all this stuff it amounted to about $35,000 or $40,000, and he added this $16,000 insurance. Q. Now, what if anything did he say to you at that time regarding the insurance policies? A. He said, `You have nothing to worry about. * * * I will take care of you. * * * You need not worry about finances.' He said, `Look here,' and listed those, and he said, `I will give you these, * * * I will send them to you after you are settled.' Of course, I was unsettled. I was going to see my sister merely as a visit. Q. Were the policies around the room at that time? A. No, they were in the safe deposit box so far as I know. Q. You saw him put them in there? A. Yes. Q. Had you ever had access to that box? A. No; I never had." Two or three days afterwards she left to visit her sister in Columbus, Ohio. Her husband took her to the train. She remained there from the first part of April until September, 1939. According to her testimony she got possession of the three policies in this manner: "They were mailed to me, registered, return receipt requested, after I had been in Columbus, Ohio. They were sent to me in August, 1939, and it was just before Mr. Smith departed for California. They were mailed from the home address. It had that return address on it." Mention is made in the testimony of a letter that plaintiff's sister wrote to the wife, dated August 25, 1939. The letter is not in evidence, but Mrs. Smith testified, in answer to a question concerning it, "that was written to me, telling me about Blanchard having left the policies with her with instructions for her to mail them to me." She was then asked when she received the policies with reference to the date of the letter, August 25, 1939, and replied: "Well, I would say sometime in September, because I did not answer her letter right away to tell her what disposition to make and her husband wrote another letter asking me if they...