Spicer v. New York Life Ins. Co.

• Decision Date: 21 December 1942
• Citation: 167 S.W.2d 457,237 Mo.App. 725
• Parties: Howard L. Spicer et al., Respondents, v. New York Life Insurance Company, a Corporation et al., Defendants. Edward J. McDonald, Appellant
• Court: Missouri Court of Appeals

167 S.W.2d 457

237 Mo.App. 725

Howard L. Spicer et al., Respondents, v. New York Life Insurance Company, a Corporation et al., Defendants. Edward J. McDonald, Appellant

Court of Appeals of Missouri, Springfield District

December 21, 1942

Rehearing Denied January 13, 1943.

Appeal from the Circuit Court of Jasper County, Division No. Two Hon. Wilbur J. Owen, Judge.

Affirmed.

Edward J. Houlihan for appellant.

(1) The court erred in entering judgment in favor of plaintiffs as by the terms of the trust agreements the proceeds of the insurance policies and interest paid by the New York Life Insurance Company to itself, as trustee, vested in Mary E Spicer upon the death of Charles B. Spicer, subject to payment by the trustee at the rate of $ 100 per month, and upon her death the trust terminated, and the balance in the hands of said trustee was payable to her estate, and thereafter payable to defendant Edward J. McDonald, as her sole heir and distributee. (a) The policy and the trust agreement constitute the contract of insurance between Charles Spicer and the insurance company; the Certificate of Trust is no part of this contract, as it was issued after the death of Charles Spicer. The contract of insurance should be construed by the same rules of construction as are applicable to wills or other contracts. The language of the policy designating the beneficiary is to be treated as of testamentary character. Fisher v. Fisher, 217 S.W. 485; 37 C. J. 410; Lamberton v. Bogart, 46 Minn. 409; Atkins v. Atkins, 70 Vt. 566. (b) As the contract of insurance is construed by the same rules as are applicable to wills, then the clause in the trust agreement reading, "In the event of the death of said beneficiary, etc", should be construed as a predeceasing clause, that is, as though it read, "In the event Mary E. Spicer, predeceases me, then I give to my executors, administrators, and assigns." Stevenson v. Stearns, 29 S.W.2d 116; Northcutt v. McAllister, 249 S.W. 398; Dameron v. Lanyon, 138 S.W. 1. (2) The court erred in entering judgment for the full amount in favor of plaintiffs, as in no event were plaintiffs entitled to more than half of the amount for which judgment was rendered. (a) Where the beneficiary in a policy is designated by the insured as his "executors, administrators or assigns," that means his estate. Loos v. John Hancock Ins. Co., 41 Mo. 538; Sherman v. Howes, 38 R. I. 176; Magee v. Hattiesburg Bank, 98 So. 541; Phoenix Mutual Life Ins. Co. v. Apper, 75 Conn. 295; Allen v. Allen, 88 N.J.Eq. 575; Bartlett v. Goodrich, 153 N.Y. 421; 37 C. J. 565, sec. 322. (b) The fact that plaintiffs are legatees or distributees under will of Charles Spicer does not substitute them as beneficiaries in the policies of insurance which are payable to the executors, administrators or assigns of the deceased. Magee v. Hattiesburg Bank, supra. (c) Mary Spicer renounced the will of her husband and elected to take under Section 325, R. S. 1929. She was entitled to one-half of his estate, subject to debts, election or no election. Nies v. Stone, 117 S.W.2d 407; Brown v. Tucker, 135 Mo.App. 598; Sparks v. Dorrel, 151 Mo.App. 173; Martin v. City of St. Joseph, 117 S.W. 94. (d) The Mississippi Valley Trust Company, as surviving executor, was in charge of the estate of Charles Spicer after Mary Spicer's death, and did not file the final receipts and obtain its discharge until ten days thereafter. Its final settlement and discharge are held for naught if it failed to perform its duty in collecting assets of the estate of Charles Spicer. State v. Stolte, 1 S.W.2d 209; Rawlings v. Rawlings, 58 S.W.2d 735; State v. Holtcamp, 181 S.W. 1007. (e) Plaintiffs could not become assignees by reason of the will of Charles Spicer, as legatees under a will and heirs at law are not assignees. 5 C. J. 840. An assignment imports a transfer from one existing party to another existing party. 5 C. J. 840. As the will speaks only after the death of the testator, the transfer then is not between existing parties. (3) The court erred in holding and finding that plaintiffs are the residuary devisees under the will of Charles Spicer, and that, by reason of the will, they are the assignees of Charles Spicer and entitled to the unexpended balance of said trust fund heretofore paid into court by the insurance company, and that defendant McDonald is not entitled to any part of the balance of said trust fund because when Mary Spicer died her estate was entitled to the unexpended balance in said trust fund, or not less than one-half thereof, and defendant McDonald was entitled to same. That plaintiffs are legatees under the will of Charles Spicer does not substitute them as beneficiaries in the policies of insurance payable to the executors, administrators and assigns of deceased. Where the beneficiary in a policy is designated by the insured as his "executors, administrators or assigns," that means his estate. Loos v. John Hancock Ins. Co., supra; Sherman v. Howes, supra; Magee v. Hattiesburg Bank, supra; Phoenix Mutual Life Ins. Co. v. Apper, supra; Allen v. Allen, supra; Bartlett v. Goodrich, supra; 37 C. J. 565. (4) The court erred in holding and finding that plaintiffs recover of defendant McDonald the sum of $ 425 paid attorneys for the insurance company out of the fund paid into court in the interpleader suit, and court costs, as defendant was entitled to judgment for the full amount of the fund, or not less than one-half thereof. (5) The court erred in holding and finding there was an estoppel on the part of Mary Spicer in this case. There was no estoppel so far as Mary Spicer was concerned, as she did nothing to cause plaintiffs to change their position, or cause them injury; she made no representations nor did she conceal any facts; her conduct, acts or language did not change plaintiffs' position for the worse. They had no rights until she died, and when she died they promptly made their claim. Foster v. Modern Woodmen, 138 S.W.2d 18; Roth v. Hoffman, 111 S.W.2d 988; Waugh v. Williams, 119 S.W.2d 223; Wilkenson v. Lieberman, 37 S.W.2d 533; Gnekow v. Met. Life Ins. Co., 108 S.W.2d 62; Brown v. Brown, 146 S.W.2d 553. (6) The petition in this case does not state facts sufficient to constitute a cause of action for a declaratory judgment in favor of plaintiffs, as it will be noted on reading the petition that it is based solely on the theory that the trust certificate was issued prior to the death of Charles Spicer, whereas it was issued after his death and was not an agreement entered into between Charles Spicer and the insurance company.

Henry Warten for respondents.

Smith, J. Blair, P. J., and Fulbright, J., concur.

OPINION

The petition in the above-entitled cause was filed in the office of the Clerk of the Circuit Court of Jasper County, at Joplin on May 9, 1941. Summons was duly issued returnable to the September Term, 1941, of said court. This cause was entitled Howard L. Spicer, Delphine Spicer and Florence Denny, plaintiffs, v. New York Life Insurance Company, a corporation, Mississippi Valley Trust Company, a corporation, T. R. Madden, Public Administrator of the City of St. Louis, and Administrator of the Estate of Mary E. Spicer, Laura S. Brown, Eugene Meyer, Ferdinand Wesley Meyer, Robert Emmett Meyer, Francis X. Meyer, and Mrs. James A. Kyle, defendants. The last six defendants were thereafter made party plaintiffs, and Edward J. McDonald was granted leave to intervene as a party defendant.

The pleadings are lengthy and we do not set them out since no complaint is made about them.

This is an appeal from a declaratory judgment of the Jasper County Circuit Court adjudging and declaring that respondents are the sole and only persons entitled to the balance of a trust fund remaining in the hands of the New York Life Insurance Company upon the death of Charles B. Spicer's widow, Mary E. Spicer.

Respondents are, respectively, the brother, sisters and children of a deceased sister of Charles B. Spicer, and are the persons designated in his last will as his legatees. Appellant Edward J. McDonald is the brother of Mary E. Spicer, and is her sole heir and distributee.

The case was submitted to the trial court upon an agreed statement of facts. This statement is long, but we quote it as follows:

"It is hereby stipulated and agreed that the following facts are and shall be, admitted for the purpose of, and on, the trial of this action, saving, however, all just exceptions as to their admissibility in evidence:

"1. That on December 13, 1923, the defendant, New York Life Insurance Company, issued its policy of life insurance No. 8617731, in the sum of Five Thousand Dollars ($ 5000.00), on the life of the Charles B. Spicer, and delivered the same to said Charles B. Spicer in the State of Missouri. A photostatic copy of said policy is hereto attached, made a part hereof and marked Exhibit A.

"2. That on January 15, 1924, the defendant, New York Life Insurance Company, issued its policy of life insurance No. 8617732, in the sum of Five Thousand Dollars ($ 5000.00), on the life of the said Charles B. Spicer, and delivered the same to said Charles B. Spicer in the State of Missouri. This policy is identical with Exhibit A, except that the beneficiary is Mary E. Spicer, wife of the insured; and it is dated January 15, 1924.

"3. That on May 13, 1924, the defendant, New York Life Insurance Company, and said Charles B. Spicer entered into a trust agreement covering the proceeds of said policy No. 8617731. A photostatic copy of said trust agreement is hereto attached, made a part hereof and marked Exhibit B.

"4. That on April 17, 1924, the defendant, New York Life Insurance Company, and said Charles B. Spicer entered into a trust agreement covering the proceeds...