Blood v. Sovereign Camp Woodmen of World

140 Mo. App. 526 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts).— We have set out as well as we deemed necessary the testimony in the case and the proceedings, in it. It will be observed that it was a vigorously fought contest and that every point that the ingenuity of counsel could suggest has been advanced by the learned and able counsel for the interpleader. We are compelled, however, to hold that the position of the counsel is untenable. This was a proceeding in equity; beyond any controversy it was an interplea for a fund deposited in court, in which the interpleader ashed affirmative relief. [Lincoln Trust Co. v. Nathan, 175 Mo. 32 l. c., 41 and 42; Shaffer v. Retie, 191 Mo. 377, l. c. 388.] This case also disposes of the necessity or propriety of any consideration of the ruling of the trial judge in refusing all instructions asked. See also Bank v. Nichols, 202 Mo. 309, l. c. 219. The issues of fact involved in it were to be tried by the court, but it was within the power of the court to take the verdict of the jury for his guidance, and it then was within his power, as it is within ours, to. adopt or reject that verdict. [Waddington v. Lane, 202 Mo. 387, l. c., 416; Bick v. Williams, 181 Mo. 528, l. c. 529.] The learned member of the bar who tried this case, adopted as his finding that of the jury which he had caused to be empanelled and which, with him, heard all of the testimony in the case. That evidence, it must be admitted, is conflicting, but in a case of this kind, the onus was on the interpleader on every issue involved, and his counsel recognizing this, claimed and was granted the position of the party holding the affirmative. Has he sustained it? We think not. The testimony shows that the interpleader occupied a very close and confidential relationship to his brother in his last days. That brother was enfeebled in mind and body; he was in a condition in both these respects that rendered him peculiarly susceptible to the influence of another. The in-terpleader was constantly with him. Under the facts in evidence it is clear that in the brief period of his residence in California, Charles C. Blood changed the habits and affections and even ideas of a lifetime. He turned from his wife and adopted daughter to a comparative stranger, although a brother by blood, and not only practically committed his whole fortune and the well being of his wife and of his family to this brother, in the guise of a trust that made the trustee absolute and responsible to no one, remainder and reversion in Ira and a brother and sister, but assigned to Ira, as it is claimed, the $2,000 evidenced in this certificate more than twelve years before, and bad carried it through all these years for the benefit of plaintiff, who in his years of struggle and poverty stood by and was his faithful helpmate. This is the same person that he is now said to have referred to as “that woman,” and whom it is now pretended he repudiated in his last days, after having lived with her and introduced her and treated her as a respected and beloved wife, certainly since 1883, as shown by the undisputed testimony of every witness in the case. He had not, so far as disclosed by the testimony, lived in his birthplace in Massachusetts, where this brother, who was the beneficiary had resided, for many years. There is no evidence in the case to show that even the ordinary brotherly relations had been kept up between them in the interval. Yet this brother and another one and a sister appear at his bedside in the last months of his existence and in a strange land, and at once an utterly new element interposes between this man and his wife and the daughter, and they are driven from his home and his heart and the substance which the wife had contributed to the collection of diverted from them into the hands of this comparative stranger. It would require strong evidence on the part of the person claiming property under such circumstances to establish that claim, and we do not think that it has been done in this case. Under such a state of facts, we cannot believe that the act of Charles C. Blood in changing the beneficiary in this certificate, was the act of a sane man — of a man in possession of his faculties and in normal mental condition. This change, under the facts in evidence, speaks for itself as against its being the act of a man in possession of his faculties and acting without outside and improper influences.

Referring to the very many points of objection made bj the learned counsel for the interpleader at the trial and in their brief, counsel have strangly misconceived the law, when they argue with great persistency that the execution of the assignment or change in the beneficiary by Charles C. Blood should have been denied under oath. Charles C. Blood was not the one who was denying the execution of it. The statute (Revised Statutes 1899, sec. 746), only requires the party charged with the execution of a document to deny its execution under oath. That was not this case. We are somewhat surprised that as learned counsel should have fallen into such an error. Furthermore the answer to the interpleader which the plaintiff interposed did not contain inconsistent averments, the proof of one of which disproved the other. They were properly plead in the alternative, as provided by section 626, Revised Statutes 1899, and as allowed by that statute. We see no error in the trial judge overruling the motion to elect. Even if the motion to elect lay, that motion being interposed when the case was called for trial and after the answer had been on file for some length of time, came too late, as has been decided in case after case. There was no error in excluding Ira A. Blood as a witness. ' He is disqualified for all purposes of this case by section 4652, Revised Statutes 1899. Upon the whole record we agree with the finding of the jury and of the trial judge, which, while not binding on us, is always persuasive. [Vogeler v. Punch, 205 Mo. 558.] And we find no reversible error in the rulings at the trial. In our opinion, the finding and decree of the lower court is sustained by the evidence, and is for the right party and it is accordingly affirmed.

All concur.