272 S.W. 1089 | Mo. Ct. App. | 1925
The petition is in the usual form. The answer pleads payment of $500, under provisions of the policy, to insured's guardian. A reply challenges the legality of this payment.
The policy was issued to R.S. Skelly December 11, 1913, and his sister, plaintiff herein, was named as the beneficiary. Insured married in 1920, but made no change of beneficiary in the policy. The policy, so far as pertinent, provided: "If, by reason of accident, sickness or disease the member shall become totally and permanently disabled from performing or directing any kind of labor or business . . . he shall be entitled to receive in one sum the one-half of this certificate."
September 20, 1922, insured was adjudged insane by the probate court of Jasper county, and his wife Beatrice Skelly was appointed as his guardian. Previous to the inquisition in the probate court insured had been committed to the asylum at Nevada, Mo., and was there at the time of the probate court proceedings. After insured was adjudged insane and the appointment of a guardian for him defendant under the provision of the policy quoted paid to said guardian the sum of $500, and the money so paid was expended for the benefit of insured and his family. Insured died in the asylum April 26, 1923.
Plaintiff contends that the judgment in the probate court adjudging insured to be insane is void because of a lack of service upon the insured. Sections 444 et seq., Revised Statutes 1919, prescribe the procedure for a sanity inquisition in the probate court. Notice of the proceedings was served upon insured in the asylum at Nevada by a nurse. The notice required by section 446 is jurisdictional, and corresponds to the summons in ordinary actions. [State ex rel. v. Duncan,
Defendant does not seriously contend that there is any life in the probate proceedings adjudging insured to be insane and appointing a guardian for him. The contention, however, is urged that Beatrice Skelly was at least, a de facto guardian, sometimes called quasi-guardian and guardian de son tort, and that since she received the $500 from defendant as such defacto guardian, and having expended said money for insured and his family, plaintiff, the beneficiary, cannot complain. As between insured and Beatrice Skelly, the de facto guardian, the relation of trustee and cestui que trust was created by virtue of the void probate proceedings, and *342
her action there under. [Zeideman v. Molasky,
The judgment should be affirmed and it is so ordered. Cox,P.J., and Bailey, J., concur.