Wherry v. Latimer

• Decision Date: 13 January 1913
• Docket Number: 15,488
• Citation: 60 So. 563,103 Miss. 524
• Court: Mississippi Supreme Court
• Parties: WHERRY v. LATIMER ET AL

60 So. 563

103 Miss. 524

WHERRY v. LATIMER ET AL

No. 15,488

Supreme Court of Mississippi

January 13, 1913

APPEAL fro the chancery court of Holmes county, HON. J. F. MCCOOL Chancellor.

Suit by Mrs. Norma W. Latimer and others. From a decree for complainants, defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded. Suggestion overruled.

H. H Elmore, attorney for appellant.

Booth &amp Pepper, attorneys for appellee.

No briefs of counsel on either side found in the record.

AMIS, Special Judge. COOK, J., takes no part in the decision of this case.

OPINION

AMIS, Special Judge

This is an appeal from the chancery court of Holmes county. The appellants were defendants in the court below, and the appellees were complainants there. The admitted facts giving rise to the controversy are these:

In the year 1896 Mr. Samuel Wherry, a citizen of Holmes county, being a member of the Woodmen of the World, and also of the Knights and Ladies of Honor, both mutual benefit insurance orders, applied for and obtained the issuance to him of a beneficiary certificate by each of said orders, payable, in the event of his death while a member in good standing, to all his children, by name, jointly. The certificates were for the sum of two thousand dollars each, and were issued subject to the provisions of the by-laws of the respective orders, which required, among other things, the payment by the member of certain stipulated monthly dues, or assessments, in order to keep the certificate continuously in force, and also reserved to the member the right to change the beneficiary or beneficiaries therein named at pleasure. The certificates remained in full force and effect until the 12th day of March, 1908, when Mr. Wherry surrendered them to the respective orders issuing them, and requested in writing, in the manner required by their respective by-laws, the issuance of new certificates in lieu thereof, payable solely to his daughter, M. J. Wherry. The new certificates were accordingly issued, payable to his daughter, M. J. Wherry, who is otherwise known as Miss Mollie Wherry, the real defendant in the court below. Subsequently on the 28th day of June, 1908, Mr. Wherry, while a member of both orders in good standing, died testate, and G. C. Reed qualified as administrator cum testamento annexo.

On the 27th day of July, 1908, before the payment of the amount due on either of said certificates, Mrs. Norma Latimer, Mrs. Evy Wherry Saxon, Mrs. Cornelia Murphy, Mrs. Ethlyn Jeffers, and G. C. Reed, administrator cum testamento annexo, filed their bill of complaint in the chancery court of Holmes county against Miss Mollie Wherry, Mrs. L. C. Wherry, Edgar Wherry, the Woodmen of the World, and the Knights and Ladies of Honor, seeking, in effect, the cancellation of the two new certificates, the restoration of the status quo by re-establishing the original certificates, the rendition of a judgment for the sum of two thousand dollars against each of said insurance orders, in favor of the beneficiaries named in said original certificates, and a decree declaring Miss Mollie Wherry a trustee of all moneys collected by her on account of said certificates, in excess of her aliquot part thereof, for the benefit of her brother and sisters. The complainants, with the exception of G. C. Reed, administrator, together with the defendants, Miss Mollie Wherry and Edgar Wherry, were all the beneficiaries named in the original certificate except John Wherry, who had died on the 7th day of April, 1908, intestate, unmarried, and without issue. Mrs. L. C. Wherry was the surviving widow of the decedent.

In addition to the foregoing uncontroverted facts, the complainants alleged in their bill, as grounds for relief, "that the said Samuel Wherry, for a space of two or three years prior to the date of his death, was a confirmed invalid, and was forced to undergo many severe, serious, painful, and dangerous operations, in the vain hope of recovering from the effects of chronic diseases and of prolonging his life; that during the last two years of his life he suffered constant physical pain and mental anguish, and was not capable either physically or mentally to transact any matter of business of any kind or character, . . . and sought relief from his physical pain and mental suffering by the constant use of opiates, and became so addicted to the use thereof that he no longer had sufficient will and mental power to resist the habit of seeking relief from pain and suffering by the use of opiates; that during the last two years of his life, in consequence of said physical and mental pain and suffering and the use of opiates, he became a mental and physical wreck, incapable of contracting and being contracted with, nor could he understand nor grasp the meaning or purport of any such contract, but became, as it were, a mere child in the hands of others, and would comply with requests made of him without understanding the meaning or the result thereof; that while the said Samuel Wherry was in this deplorable and pitiable physical and mental condition he was induced and persuaded by the said Miss Mollie Wherry . . . to attempt to change the beneficiaries in said insurance policies . . . and have herself made sole beneficiary therein . . . at a time when her said father was incapable of grasping or understanding the meaning and effect of said attempted change of beneficiaries.

The Knights and Ladies of Honor answer the bill by paying the amount of its certificate into the hands of the clerk of the court, and the Woodmen of the World answered by averring its willingness to pay the amount of its certificate to whomsoever the court might direct. Edgar Wherry made default, and a decree pro confesso was entered against him. Miss Mollie Wherry and Mrs. L. C. Wherry jointly demurred on the grounds of want of equity in the bill, lack of jurisdiction of the court, and the misjoinder of Mrs. L. C. Wherry as a party defendant. The demurrer being overruled, they answered the bill, denying all the material allegations thereof. Testimony was taken, the cause submitted, and a final decree was rendered in favor of the complainants.

While it is clear that Mrs. L. C. Wherry had no interest in the controversy, and was therefore improperly joined as a party defendant, yet she was the only person who could take advantage of the defect by demurrer. Hopson v. Harrell, 56 Miss. 202. If she had demurred separately, her demurrer should have been sustained. But since she joined in the general demurrer of her codefendant, then if the bill, as a whole, was good as against either of them, it was properly overruled. Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Graves v. Hull, 27 Miss. 419. We think that the allegations of mental incapacity and undue influence charged in the bill were sufficient to require an answer on the part of Miss Mollie Wherry. Hines v. Potts, 56 Miss. 346; Fitzgerald v. Reed, 9 S. & M. 94; Bates v. Hyman, 28 So. 567; Ricketts v. Jolliff, 62 Miss. 440; Simonton v. Bacon, 49 Miss. 582. We are also of the opinion that there was no disability on the part of the complainants, as beneficiaries in the original certificates, to maintain the suit on the ground stated in the bill of complaint. 29 Cyc. 124, and cases there cited. Hence it follows that the demurrer was properly overruled.

The more serious question, and the one that has given us the greatest concern, is whether or not the testimony sustains the allegations of the bill, touching the mental incapacity of Mr. Wherry and the undue influence exercised over him by his daughter Mollie at the time of making the change of beneficiary complained of. It is clear from the record in this cause, as well as the adjudications of this court, that Mr. Wherry had the right at any time to change the beneficiary in these certificates, and that no one could complain on account of it. Carson v. Bank, 75 Miss. 167, 22 So. 1, 37 L. R. A. 559, 67 Am. St. Rep. 596. Hence the only questions for determination are whether or not, at the time of making the change, he was mentally capable of knowing and understanding the effect of his act, and also whether, in case he was so mentally capable, the act was induced by the undue and corrupt influence of his daughter Mollie Wherry.

In the case of Simonton v. Bacon, reported in 49 Miss. at page 582, the complainant, Bacon, as guardian of one Hughes, sought the cancellation of a certain deed of conveyance theretofore executed by Hughes, on the ground of mental incapacity and undue influence, and Justice SIMRALL in delivering the...