Of date May 10, 1909, the Prudential Insurance Company of America issued its policy on the life of Nathan Walter Fisher, whereby, by a "rider," it promised, upon the death of Fisher, he having complied with the terms and conditions of the policy, to pay to Anna Pearl Fisher, his wife, the sum of $30 immediately upon receipt of proof of his death, and $30 thereafter on the first day of each month until 240 monthly installments shall have been made, and thereafter on the first day of each month as long as the beneficiary shall live, it being provided:
"If the beneficiary, Anna Pearl Fisher, shall predecease the insured or shall survive the insured, but die before the first two hundred and forty monthly installments payable according to the terms of the policy shall have been paid, the said two hundred and forty monthly installments or such of them as remain unpaid shall be paid, each as it becomes due, to Clyde S. Fisher, brother of the insured, trustee for Pearl Lucille Fisher, daughter of the insured, if said Pearl Lucille Fisher be living on the due date of such installment, otherwise to Maude S. Fisher, mother of the insured, if said Maude S. Fisher be living on the due date of such installment.
"It is specially understood that in the event of the death of the beneficiary, Anna Pearl Fisher, the installments payable under the policy shall not continue after 240 monthly installments shall have been paid."
Claiming that the trustee, Clyde S. Fisher, had collected the monthly installments which fell due after the death of the insured and original beneficiary, the wife, and had never paid any part of it over to Pearl Lucille Fisher, or to her guardian, or to any one for her, plaintiff, Pearl Lucille Fisher, a minor, through her guardian, Fannie Scammell, commenced her action in the circuit court of the city of St. Louis, against Clyde S. Fisher, Maude S. Fisher and the Prudential Insurance Company of America, the latter hereafter referred to as the Insurance Company. In her amended petition upon which the case went to trial, she avers that Anna Pearl Fisher, the wife, predeceased her husband or, at least, did not survive him long enough to acquire any interest in the money due under the policy, she and her husband dying practically at the same time. She further avers that Maude S. Fisher, the mother of the insured, at the time of the institution of this action was still living, and that the grandmother of plaintiff, Fannie Scammell, had been duly appointed and qualified as guardian of the person and estate of plaintiff Pearl Lucille Fisher by the Probate Court of the City of St. Louis. It is further averred that Clyde S. Fisher, in April, 1912, made proof of the death of Nathan Walter Fisher to the Insurance Company and, as trustee of Pearl Lucille Fisher, demanded payment to him of the amount due under the policy; that the Insurance Company paid the installments then due, and thereafter, and under the circumstances above stated, Clyde S. Fisher, on the first day of each succeeding month, beginning with the first day of May. 1912, had collected form the Insurance Company the monthly installments of $30 due under the policy, amounting in all to the sum of $1440, and that he intends in the future to collect the remaining installments as they become due; that he has possession and control of such fund, as trustee, and has refused and still refuses to pay the same over to plaintiff and will continue to withhold from her any sums he collectes in the future.
It is further avverred that Clyde S. Fisher is acting as such trustee without bond, refuses to give a bond, has resisted every effort of plaintiff to compel him to give bond for the honest and faithful management and control of the fund, although, as it is averred, he is insolvent or owns so little property that plaintiff would be unable by law to recover of him the amount due her; that the sole duty of Clyde S. Fisher, as trustee, is to collect and turn over to plaintiff's guardian the amount collected by him, but that, in violation of his duty, he wrongfully withholds the money from plaintiff and converts it to his own use. Further averring that plaintiff, Pearl Lucille Fisher, is a minor and sorely in need of funds for her care and maintenance, and that the trustee, Clyde S. Fisher, witholds the funds and proceeds of the policy from her, so that she is entirely dependent upon the charity and beneficence of friends and relatives, it is averred that Clyde S. Fisher denies the right of plaintiff to the fund, although, as it is averred, he acts for plaintiff in collecting it and would not be entitled to receive it unless it belonged to her. It is finally averred that Clyde S. Fisher and his family harbor ill feeling and ill-will against the guardian of plaintiff and the persons who are now caring for and rearing her, to such extent that his entire conduct in handling the fund is actuated and controlled by intense venom, hatred and ill feeling, making it impossible for plaintiff, through her guardian, to deal with Clyde S. Fisher in matters concerning the rights of plaintiff, and that for and on account of the matters and things stated above, Clyde S. Fisher is an unfit and improper person to act as trustee and has violated the duties of his office. Plaintiff prays the court that an accounting and settlement be had with and against defendants Clyde S. Fisher and the Insurance Company; that plaintiff have judgment against Clyde S. Fisher, trustee, for the amount collected by him, together with interest from the date when the same became due to plaintiff, and that he be removed as such trustee and that defendant,
Maude S. Fisher be adjudged to have no present interest in the fund or in any of the installments due and paid under the policy, and for such further and other relief as from the premises may be meet and proper, together with costs.
By his answer to this amended petition, defendant Clyde S. Fisher admits the minority of plaintiff and that Fannie Scammell is her guardian; that he is the paternal uncle of plaintiff and trustee as in the petition alleged; that defendant Maude S. Fisher is the paternal grandmother of plaintiff and has a contingent interest in the insurance policy as alleged; that the Insurance Company is duly incorporated as in the petition alleged; that plaintiff's father, Nathan Walter Fisher, and her mother, Anna Pearl Fisher, both died on April 2, 1912; that on May 10, 1909, the Insurance Company insured the life of Nathan Walter Fisher on the terms alleged in the petition and agreed to make the payments as averred, attaching the rider to the policy which set out the interest of Pearl Lucille Fisher, as averred; that in April, 1912, defendant Clyde S. Fisher made proof of the death of Nathan Walter Fisher, demanding the payment of the amount due under the policy, as trustee, and that the Insurance Company has since paid to him, Clyde S. Fisher, as said trustee, the installments due under the policy, and that he, Clyde S. Fisher, intends to collect the remainding installments as they become due under the policy. He denies that the amount he collected was $30 a month but avers that because of a discrepancy in the age of the beneficiary, Anna Pearl Fisher, between that given to the Insurance Company when the policy was taken out and that given after the death of the beneficiary, the defendant insurance company found that Nathan Walter Fisher had not paid sufficient premiums on the policy by the sum of $5.22, which was deducted from the first $60 payable under the policy, and that thereafter he, Clyde S. Fisher, collected from the Insurance Company, upon proof of death, the first two installments on May 1, 1912, of $54.78,
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Of date May 10, 1909, the Prudential Insurance Company of America issued its policy on the life of Nathan Walter Fisher, whereby, by a "rider," it promised, upon the death of Fisher, he having complied with the terms and conditions of the policy, to pay to Anna Pearl Fisher, his wife, the sum of $30 immediately upon receipt of proof of his death, and $30 thereafter on the first day of each month until 240 monthly installments shall have been made, and thereafter on the first day of each month as long as the beneficiary shall live, it being provided:
"If the beneficiary, Anna Pearl Fisher, shall predecease the insured or shall survive the insured, but die before the first two hundred and forty monthly installments payable according to the terms of the policy shall have been paid, the said two hundred and forty monthly installments or such of them as remain unpaid shall be paid, each as it becomes due, to Clyde S. Fisher, brother of the insured, trustee for Pearl Lucille Fisher, daughter of the insured, if said Pearl Lucille Fisher be living on the due date of such installment, otherwise to Maude S. Fisher, mother of the insured, if said Maude S. Fisher be living on the due date of such installment.
"It is specially understood that in the event of the death of the beneficiary, Anna Pearl Fisher, the installments payable under the policy shall not continue after 240 monthly installments shall have been paid."
Claiming that the trustee, Clyde S. Fisher, had collected the monthly installments which fell due after the death of the insured and original beneficiary, the wife, and had never paid any part of it over to Pearl Lucille Fisher, or to her guardian, or to any one for her, plaintiff, Pearl Lucille Fisher, a minor, through her guardian, Fannie Scammell, commenced her action in the circuit court of the city of St. Louis, against Clyde S. Fisher, Maude S. Fisher and the Prudential Insurance Company of America, the latter hereafter referred to as the Insurance Company. In her amended petition upon which the case went to trial, she avers that Anna Pearl Fisher, the wife, predeceased her husband or, at least, did not survive him long enough to acquire any interest in the money due under the policy, she and her husband dying practically at the same time. She further avers that Maude S. Fisher, the mother of the insured, at the time of the institution of this action was still living, and that the grandmother of plaintiff, Fannie Scammell, had been duly appointed and qualified as guardian of the person and estate of plaintiff Pearl Lucille Fisher by the Probate Court of the City of St. Louis. It is further averred that Clyde S. Fisher, in April, 1912, made proof of the death of Nathan Walter Fisher to the Insurance Company and, as trustee of Pearl Lucille Fisher, demanded payment to him of the amount due under the policy; that the Insurance Company paid the installments then due, and thereafter, and under the circumstances above stated, Clyde S. Fisher, on the first day of each succeeding month, beginning with the first day of May. 1912, had collected form the Insurance Company the monthly installments of $30 due under the policy, amounting in all to the sum of $1440, and that he intends in the future to collect the remaining installments as they become due; that he has possession and control of such fund, as trustee, and has refused and still refuses to pay the same over to plaintiff and will continue to withhold from her any sums he collectes in the future.
It is further avverred that Clyde S. Fisher is acting as such trustee without bond, refuses to give a bond, has resisted every effort of plaintiff to compel him to give bond for the honest and faithful management and control of the fund, although, as it is averred, he is insolvent or owns so little property that plaintiff would be unable by law to recover of him the amount due her; that the sole duty of Clyde S. Fisher, as trustee, is to collect and turn over to plaintiff's guardian the amount collected by him, but that, in violation of his duty, he wrongfully withholds the money from plaintiff and converts it to his own use. Further averring that plaintiff, Pearl Lucille Fisher, is a minor and sorely in need of funds for her care and maintenance, and that the trustee, Clyde S. Fisher, witholds the funds and proceeds of the policy from her, so that she is entirely dependent upon the charity and beneficence of friends and relatives, it is averred that Clyde S. Fisher denies the right of plaintiff to the fund, although, as it is averred, he acts for plaintiff in collecting it and would not be entitled to receive it unless it belonged to her. It is finally averred that Clyde S. Fisher and his family harbor ill feeling and ill-will against the guardian of plaintiff and the persons who are now caring for and rearing her, to such extent that his entire conduct in handling the fund is actuated and controlled by intense venom, hatred and ill feeling, making it impossible for plaintiff, through her guardian, to deal with Clyde S. Fisher in matters concerning the rights of plaintiff, and that for and on account of the matters and things stated above, Clyde S. Fisher is an unfit and improper person to act as trustee and has violated the duties of his office. Plaintiff prays the court that an accounting and settlement be had with and against defendants Clyde S. Fisher and the Insurance Company; that plaintiff have judgment against Clyde S. Fisher, trustee, for the amount collected by him, together with interest from the date when the same became due to plaintiff, and that he be removed as such trustee and that defendant,
Maude S. Fisher be adjudged to have no present interest in the fund or in any of the installments due and paid under the policy, and for such further and other relief as from the premises may be meet and proper, together with costs.
By his answer to this amended petition, defendant Clyde S. Fisher admits the minority of plaintiff and that Fannie Scammell is her guardian; that he is the paternal uncle of plaintiff and trustee as in the petition alleged; that defendant Maude S. Fisher is the paternal grandmother of plaintiff and has a contingent interest in the insurance policy as alleged; that the Insurance Company is duly incorporated as in the petition alleged; that plaintiff's father, Nathan Walter Fisher, and her mother, Anna Pearl Fisher, both died on April 2, 1912; that on May 10, 1909, the Insurance Company insured the life of Nathan Walter Fisher on the terms alleged in the petition and agreed to make the payments as averred, attaching the rider to the policy which set out the interest of Pearl Lucille Fisher, as averred; that in April, 1912, defendant Clyde S. Fisher made proof of the death of Nathan Walter Fisher, demanding the payment of the amount due under the policy, as trustee, and that the Insurance Company has since paid to him, Clyde S. Fisher, as said trustee, the installments due under the policy, and that he, Clyde S. Fisher, intends to collect the remainding installments as they become due under the policy. He denies that the amount he collected was $30 a month but avers that because of a discrepancy in the age of the beneficiary, Anna Pearl Fisher, between that given to the Insurance Company when the policy was taken out and that given after the death of the beneficiary, the defendant insurance company found that Nathan Walter Fisher had not paid sufficient premiums on the policy by the sum of $5.22, which was deducted from the first $60 payable under the policy, and that thereafter he, Clyde S. Fisher, collected from the Insurance Company, upon proof of death, the first two installments on May 1, 1912, of $54.78,
instead of $60, and thereafter the first of each month, beginning with June 1, 1912, and ending with March 1, 1916, $29.46, or a total of $1409.94, the difference between $30 a month and $29.46 a month, being occasioned by the mistake referred to above; that the last installments of $29.46 due under the policy on April 1, 1916, had not, at the time of filing the answer, which was done on April 17, 1916, been paid to him by the Insurance Company by reason of the institution and pendency of this suit. Further answering, defendant Clyde S. Fisher admits that he has possession and control of the fund as such trustee, collected as above stated, and that he has not, up to this time, paid over any of the fund to plaintiff's guardian but denies that he has determined on a fixed policy in the future of making no payments whatsoever out of the fund to the guardian. He admits that he is acting as trustee, without bound, and sets up proceedings instituted by plaintiff, requiring him to give bond; avers that that suit was vexatious; that he had filed an answer to it and had appeared in court for a hearing; that on the instance of plaintiff's attorney the hearing was passed, that attorney informing defendant that he expected to dismiss the petition but had not done so to date. Further answering, the defendant Clyde S. Fisher says that there is no good reason existing why he should be required to give bond as trustee; that his brother, the insured, knew of his financial condition when he appointed him trustee. He denies that he is insolvent and avers that he has a good and responsible position with a manufacturing company of St. Louis; that besides his salary he owns, over and above household goods, personal property in the sum and value of three or four thousand dollars, and also owns an interest in a piece of real estate in the city of St. Louis and is in better financial condition to-day than when he was appointed as trustee. He further denies that his sole duty under the policy is to collect and turn over to plaintiff's guardian the amounts collected; denies that he is violating his duties; that he is wrongfully
withholding the money from plaintiff, or that he converts it to his own use, and denies that he is an unfit and improper person to act as trustee, or that he is violating the duties of his office. He further avers, and for a defense to the action alleges, that he has a right, under the terms of the policy, to exercise his best discretion in the expenditure of the fund for the interest of the ward; that he is her uncle and has as much interest, if not more in her welfare than has her guardian, Fannie Scammell; that his highest concern in the management of the trust fund is to see that the expenses against it are kept down and that his ward may receive as large an amount as possible under the policy when the fund shall be turned over to her in the future; that he had been appointed guardian of the ward by the Probate Court on April 3, 1912; that on April 8, 1912, on the petition of Fannie Scammell his appointment was revoked and she appointed in his place on June 25, 1912, the court holding that the grandmother had a better legal right and not that this defendant was an unfit person; that in making application for appointment as guardian Mrs. Scammell and her daughter and son testified, under oath, and held out expectation that the ward would be supported and maintained and educated out of the funds of Fannie Scammell or of her daughter or son and that Mrs. Scammell, if appointed guardian, would not use the property of the ward for that purpose; that nevertheless since her appointment as guardian Mrs. Scammell had obtained an allowance of $15 a month for the education, support and maintenance of the ward, dating that back to the beginning of her appointment; that the first settlement filed by Mrs. Scammell in the Probate Court shows that the guardian had received the sum of $800 belonging to her ward and that that sum is entirely exhausted by allowances to the guardian and expenses of administration, and that the object and purpose of Fannie Scammell in bringing the proceeding herein and in trying to get defendant removed as trustee is to get
herself appointed as trustee in order that she may get possession and control of the trust fund and expend the same in allowance to herself as she has expended the estate of her ward heretofore; that he, defendant Clyde S. Fisher, if given the care and custody of the ward, offers and promises that he will educate, support and maintain her without charge and will save up her entire interest in the trust estate for her use and benefit in the future when she may have no one to take care of her; that he is a married man and has a home and is willing and able to take good care of his ward. He denies any ill feeling or ill-will against the guardian of plaintiff or her family, but avers that Mrs. Fannie Scammell and her family harbor ill feeling and bitterness and hostility toward himself and his mother in this: that although Mrs. Scammell had been furnished by him with a complete accounting on May 20, 1913, of the funds received by him as trustee under the insurance policy, she had brought a vexatious proceeding in the Probate Court charging him with concealment of assets, which latter, on hearing, was dismissed by the Probate Court, and that Mrs. Scammell and her family, by slights and insulting conduct had prevented defendant and his mother from calling upon or seeing her ward; that on petition to the Probate Court and on hearing of evidence, the Probate Court granted defendant's prayer for the separate custody of the ward and had brought this action and also that to have him give bond. Further answering and as a defense, Clyde S. Fisher files an itemized account or statement of the receipts by him as trustee, showing a total of $1409.94, and that the only expenditures paid out on the account by him is the sum of $25 paid as attorney's fee by him, caused by Mrs. Scammell proceeding against him for the discovery of assets.
The defendant Insurance Company filed an answer, admitting the policy and that proof of the death of Nathan Walter Fisher had been filed with it by Clyde S. Fisher; that upon the filing of the proof of death Clyde
S. Fisher demanded of defendant payment of the amount due under the policy, as trustee for plaintiff; that he collected from the defendant insurance company the sum of $30, on proof of the death of the insured, and $30 on the first day of each succeeding month, beginning with the first day of May, 1912; denies all knowledge and interest as to the other averments in the petition and avers that it is without interest in the controversy existing between plaintiff on the one hand and the defendant Clyde S. Fisher and Maude S. Fisher on the other.
Maude S. Fisher filed her answer, averring she is the paternal grandmother of the plaintiff and contingent beneficiary named in the policy, and that she claims some interest in the fund due and payable under the policy, contingent on the death of Pearl Lucille Fisher, but denies all other allegations in the petition.
There was a reply filed to the new matter set up in the answer of defendant Clyde S. Fisher.
At a trial before the court the bill was dismissed and plaintiff, filing a motion for new trial and excepting to that being overruled, has duly appealed.