77 Mo. 38 | Mo. | 1882
The pleadings in this case were as follows: The petition states that on the 20th day of July, 1871, one William W. Walden was appointed, qualified and gave bond as the guardian and curator of appellant, who was and continued to be a minor until the 1st day of September, 1874; that said Walden gave bond as such guardian and curator in the sum of $1,200, with the condition that said Walden would faithfully discharge his duties as such guardian and curator; that the sureties on said bond were one John D. Sherman and the said Michael L. McGuire, deceased; that on the 21st day of October, 1873, said Walden, as such guardian and curator, made his first and only settlement in the probate court of Livingston county, by which it appeared that said Walden had of appellant’s estate the sum of $592.87 of the date of July 24th, 1872; that on the 15th day of March, 1873, the said Michael L. McGuire died, and the respondent William Mcllwrath was appointed and qualified as the administrator of said McGuire’s estate; that respondent took charge of said estate, and on the 29th day of April, 1874, he made his first annual settlement, on which settlement he charged himself as such administrator with $4,648 as the proceeds of a certain insurance policy on the life of his intestate. By said settlement respondent admitted that he had in his hands as
Respondent’s answer denies all knowledge or information sufficient to form a belief as to guardianship or curatorship of said Walden, or that he ever gave bond or made settlement; denies that he ever appeared in the said probate court, or ever secretly transacted any business, but alleges that all his conduct as administrator and all of his statements as such were open and fair, and that his final settlement and discharge as such administrator were made with and by said court and said court was fully advised of all the facts affecting the title-to said policy, and of all the acts and transactions of the respondent as such administrator ; that the said policy of insurance was effected by the said M. L. McGuire while he and Mary McGuire (his widow) were engaged to be married to each other, and that the object and purpose of said Michael in effecting such policy was, and he so stated to the said Mary during their engagement, to provide for her as his intended wife a suitable fund for her support and maintenance as his wife and widow in case she should survive him, said fund to be held by her for her sole and separate use; and respondent says that in pursuance of and in order to secure the accomplishment of his aforesaid object and purpose he did, immediately upon his marriage with said Mary, assign by delivery the said policy to her with the intent of investing her, to her sole and separate use, with the exclusive right and title thereto, and to all the proceeds and assets thereof; that on the death of said McGuire, she (Mary McGuire), the' widow, placed the said policy in the hands of the respondent for him to collect the proceeds of said policy, and th'at he received the said policy with the understanding and agreement between them, that as between her and respondent she was the owner of such policy and lawfully entitled to the proceeds thereof; that upon the aforesaid delivery to the said Mary by way of assignment thereof
The reply is a denial of each and every material allegation of new matter in the said answer contained.
It will be observed that the object of this suit is to set aside the final settlement of defendant as administrator of the estate of McGuire on the ground of fraud. Defendant was the administrator of McGuire, who was one of the sureties of William W. Walden, who was guardian and curator of plaintiff. The bond of the curator was dated July 20th, 1871. By the first and only annual settlement of said Walden made October 21st, 1873, it is shown that said curator was indebted to his ward in the sum of $592.87.
But we do not think that McUwrath made any mistake, either in law or fact, in taking the course and making the affidavit he did. It appears in evidence, and there is no controversy on the point, that said McGuire, just before he effected the said policy of insurance on his life, became engaged to be married to Mrs. McGuire, now his widow. After he was thus engaged, he told her he had effected a policy of insurance on his life for her special benefit, in contemplation of marriage. As before stated, this policy was effected December 9th, 1869, and was made payable to said McGuire, his executors, administrators or assigns. Said policy was to be paid December 9th, 1889, or at the death of the insured if he should die before that period. Immediately after the marriage occurred, which took place February 20th, 1870, the said McGuire delivered the policy of insurance to his then wife, saying to her that it was his intention, by delivering the policy to her, to invest her with the title to said policy, to her own sole, sep. arate and exclusive use; and with the sole right to the proceeds thereof, as a means of support in case of his death
At the utmost all the plainti.fi: could claim, under the rule announced in Pullis v. Robison, 73 Mo. 201, even if defendant’s final settlement be set aside for fraud, would be the amount of the policy produced by premiums paid by McGuire after he became insolvent.
These' remarks are of course based on the theory that the assignment of the policy as before stated, was a valid one in equity if not at law, and such assignment is to be treated as if the husband, instead of delivering to his wife, had caused the .policy to be issued directly to her, and in this light we feel inclined to regard it. Bliss on Life Ins., (2 Ed.) 544, and cases cited.
For these reasons we must affirm the judgment.