Williams v. Davis

• Decision Date: 20 May 1930
• Citation: 27 S.W.2d 1064,224 Mo.App. 481
• Parties: NORA WILLIAMS, APPELLANT, v. WYLEY L. DAVIS, ADMINISTRATOR DE BONIS NON OF W. J. WILLIAMS, DECEASED, RESPONDENT. [*]
• Court: Missouri Court of Appeals

27 S.W.2d 1064

224 Mo.App. 481

NORA WILLIAMS, APPELLANT, v. WYLEY L. DAVIS, ADMINISTRATOR DE BONIS NON OF W. J. WILLIAMS, DECEASED, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

May 20, 1930

Appeal from the Circuit Court of Pemiscot County.--Hon. John E Duncan, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Von Mayes for appellant.

(1) The general rule is that the proceeds of a policy of insurance takes the place of property, in case of a loss after the death of the insured, and should be distributed as the insured property would have been distributed had no loss occurred. 16 A. L. 313; 4 (Supplement) R. C. L., sec. 535, p 966; 26 C. J., sec. 593, p. 444; Sauner v. Ins. Co., 41 Mo.App. 480; Millard v. Beaumont, 194 Mo.App. 69; Culbertson v. Cox, 29 Minn. 309. (2) The property allowed the widow by section 105, Revised Statutes 1919, is exempt from claims of her husband's creditors and upon the death of her husband she has a vested interest therein which is assignable or goes to her heirs. Griswold v. Mattix, 21 Mo.App. 282; Hastings v. Myers, 21 Mo. 519; Thompson v. Johnson, 160 S.W. 812. (3) The title of an administrator as to the proceeds of fire insurance, when loss occurs after the death of the insured is that of trustee. Sauner v. Ins. Co., 41 Mo.App. 480. In fact an administrator holds any personal property of the estate as trustee for the heirs and creditors. State v. Myers, 44 Mo. 361; Kelley's Probate Guide, sec. 172 p. 170.

McKay & Peal for respondent.

(1) The contract of insurance is one of indemnity only, and from its character as a contract of indemnity the result follows that it is a personal contract with the insured which does not run with the insured property unless expressly so stipulated. 26 C. J., pp. 17 and 18, sec. 1; Millard v. Beaumont, 194 Mo.App. 69; Key. v. Continental Ins. Co., 101 Mo.App. 344; Doggett v. Blanke, 70 Mo.App. 499; Jecko v. Ins. Co., 7 Mo.App. 308. (2) A fire insurance policy is not a contract to insure property against fire, but is one to insure the owner of property against loss by fire. Draper v. Ins. Co. 28 Del. 143; Amusement Syndicate Co. v. Ins. Co., 85 Kan. 616.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This cause was instituted in the Probate Court of Pemiscot county by Nora Williams filing the following petition on the 11th day of February, 1929, caption omitted:

"Now this day comes Nora Williams, widow of W. J. Williams, deceased, and represents and shows to the court that on the 9th day of February, 1928, her said husband, W. J. Williams, died intestate, and that immediately prior to his death she resided with her said deceased husband, in their home in Pemiscot county, Missouri, and at the time of the death of her said deceased husband he had fire insurance upon all the household, kitchen and table furniture, including beds, bedsteads and bedding, owned by him and used in their said home; that on the said 9th day of February, 1928, the said home of said deceased was destroyed by fire, together with said household, kitchen and table furniture, beds, bedsteads and bedding; that said deceased died prior to the destruction of said household, kitchen and table furniture, beds, bedsteads and bedding by fire, and thereafter the insurance company carrying said insurance upon said household, kitchen and table furniture, beds and bedsteads and bedding, paid to the administrator of the estate of said deceased, George Williams, the insurance money on said kitchen and table furniture, beds, bedsteads and bedding, exceeding the sum of $ 500; that the said administrator, George Williams, recently departed this life, and thereupon in due time one Wyley L. Davis, public administrator of said county, was duly appointed administrator de bonis non of the estate of her said deceased husband, who duly qualified as such and is now acting as same and has in his hands said insurance money; that by virtue of section 105, Revised Statutes 1919, this petitioner, as the widow of her said husband, upon his death, was entitled to keep as her absolute property all household, kitchen and table furniture, including beds, bedsteads and bedding, not to exceed the value of $ 500, and therefore she was the absolute owner of said household, kitchen and table furniture, beds, bedsteads and bedding to the extent aforesaid at the time the same were destroyed by fire as aforesaid, and, the said administrator de bonis non holds said insurance money to the extent of $ 500 as trustee for petitioner and to which, by reason of her absolute ownership of said household, kitchen and table furniture, beds, bedsteads and bedding, at the time same were destroyed by fire, as aforesaid, she is entitled, and the sum of $ 500 of said insurance money should be paid over to her.

"Wherefore, petitioner prays the court to order and direct Wyley L. Davis, administrator de bonis non of said estate, to pay over said sum to petitioner, as the widow of said deceased, W. J. Williams, and for such other orders in the premises as may be just and proper."

Thereafter, the probate court of that county, on February 15, 1929, after hearing the evidence, ordered the administrator to pay the petitioner $ 500 of the insurance money. The administrator appealed to the circuit court of that county, where on the 1st day of June, 1929, the cause was submitted to that court on an agreed statement of facts, and a judgment was rendered in favor of the defendant. Proper steps were taken by the plaintiff for an appeal to this court.

The agreed statement of facts upon which the judgment was rendered, is as follows:

"It is hereby agreed and stipulated between the parties to this proceeding, Nora Williams, the widow of W. J. Williams deceased, and Wyley L. Davis, administrator de bonis non, of said deceased, that the said W. J. Williams died intestate on the 9th day of February, 1928; that at the time and prior to his death said deceased resided with said Nora Williams as her husband in their home or dwelling house in Pemiscot county, Missouri; that prior to the death of said deceased he took out insurance against loss by fire upon the household, kitchen and table furniture, including beds bedsteads, and bedding, owned by him and used in their said home, and that on the said 9th day of February, 1928, after the death of said deceased, said household, kitchen and table furniture, including beds, bedsteads, and bedding, were destroyed by fire; that said insurance was payable to the deceased and in case of his death to his legal representative; that said insurance, to an amount in excess of $ 500 was collected by the legal representative of said deceased, which is now in the hands of the said Wyley L. Davis, as administrator de bonis non of said deceased; that at the time of the death of said deceased the Federal Land Bank of St. Louis, a corporation, held a mortgage on said dwelling house and the insurance policy covering said insurance on said household goods contained a clause attached thereto making said insurance payable to said mortgagee, the Federal Land Bank...