Stewart v. Gwynn

On Petition for Rehearing.

Comstock, J.

4. Upon petition for rehearing, in behalf of appellant, it is insisted that the court erred in holding that when, by the terms of a policy, it appears that mere delivery will not give any ’ right as against a beneficiary named therein, the presumptions which arise from bare possession are rebutted. The ease of Richardson v. Moffitt-West Drug Co. (1902), 92 Mo. App. 515, 69 S. W. 398, is in some of its features analogous to the ease at bar. In the case mentioned, the life policy of plaintiff’s intestate, payable to his administrator, was in the possession of and paid to the defendant at the death of the insured. A *326demand was made of defendant for the money paid defendant on the policy. No evidence was offered to show that the-policy had been assigned, or the nature of the defendant’s claim to it or its proceeds. The opinion is lengthy, and cites numerous decisions. In the course of the opinion it is said: “The salient fact in the case is that the policy of insurance bears no assignment on it, in writing, to the defendant and no assignment or pledge, either verbal or written, was shown; nor does anything appear in regard to the defendant’s right to the proceeds, except the inference which may be drawn from its having the policy in its possession, or such further inference -as may be deduced from the allegations of the petition. * * * Wherefore it is said that, as the proceeds of the policy were paid to the defendant who held the instrument, it must be presumed defendant was the assignee thereof. Does the legal presumption about the usual eourse of business being followed in all transactions until the contrary is shown, authorize any such deduction in this case, as the respondent endeavors to draw from it? We think not, and that the presumption upon which the respondent relies is wholly inapplicable here, because it is met and countervailed by the positive legal rule or presumption that a person once shown to have had the title and ownership of personal property, or choses in action, is presumed to continue the owner thereof until an alienation of the property is shown, and the party relying upon the fact of such alienation must prove it.”

The opinion refers to Vastine v. Wilding (1869), 45 Mo. 89, 100 Am. Dec. 347. Yastine was a public administrator in charge of the estate of Berger, deceased, who had in his lifetime deposited a sum of money in the United States Saving Institution of St. Louis, and received a certificate of deposit from said institution. The certificate of deposit was found among the papers of Lewis Chrisner, by his administratrix, after the death of Berger, and said administratrix *327turned it over to Wilding for collection. There was no testimony tending to throw any light as to how it got among Chrisner’s papers, or into his possession, or as to the ownership of it, except what appeared on its face. Vastine demanded possession of it as the property of Berger’s estate, but Wilding' refused the demand, claiming to hold it as the property of Chrisner’s estate, and then Vastine brought suit for it. In the opinion the court say: “The certificate itself establishes beyond controversy the fact that Berger was its original owner; that he deposited the fund, and as evidence of his title, took a certificate of deposit payable to his own order. His title thus acquired must be presumed to continue until a divestment of it is shown, and a mere manual delivery of the paper without indorsement, and unaccompanied with evidence of a consideration paid would not of itself pass title.” Further on it is said: “There is nothing but the naked, unexplained possession to justify the pretensions of the Chrisner estate to ownership. If the fact of once having been the owner of personal chattels raises the presumption of a continued title, as in Magee v. Scott [1851], 9 Cush. 148, how decisive should that presumption be in a case like the present, when the paper in dispute points out and designates -the plaintiff’s intestate as being the true owner, and having upon it no mark or sign suggestive of a change of title. ’ ’ Besides the foregoing, the opinion cites and discusses numerous eases, and holds that the custody of the insurance policy raised no presumption that the defendant owned it and was entitled to collect and retain the money due op it at the death of the insured.

Eliminating all the conclusions found in the case at bar— (appellant does not attempt to bring up evidence) — the only interest of appellant shown in the policy in suit is that dependent upon its naked possession at the time of the death of the insured. As, by the terms of the policy, mere delivery gave no right as against the beneficiaries, namely, the ex-*328eeutors, administrators or assigns, it devolved upon appellant to show some right or title therein beyond that arising from bare possession.

Petition for rehearing overruled.