Before SPARKS and KERNER, Circuit Judges, and HOLLY, District Judge.
The complaint in this case consisted of ten paragraphs but prior to the trial plaintiff dismissed as to nine of the paragraphs and went to trial on the tenth.
Ruby Mayfield, administratrix of the estate of Reuben Thomas, is the niece and only heir at law of said Reuben Thomas who resided near Bunceton, Missouri, and died there on October 11, 1940. Prior to his death he had taken out five annuity contracts with defendant each of which provided for an annuity to Reuben Thomas and the payment of the principal sum of the contract to designated beneficiaries after his death.
The first of these contracts dated April 15, 1935, in the principal sum of $4,000, the second dated April 15, 1935, in the principal sum of $12,000 and the third dated October 15, 1935, for $17,000 were made payable after the death of Reuben Thomas, to Charles L. Thomas, a second cousin, and Charles M Sheppard, a business associate.Later the beneficiary in these contracts was changed and they were made payable to Charles L. Thomas who was also the beneficiary in the other two contracts, one dated November 20, 1935, for $7,000 and the other dated April 15, 1937, for $5,000.
On April 16, 1940, Reuben Thomas withdrew $4,000 of the $12,000 invested in the contract of April 15, 1935, reducing the principal amount to $8,000.
After his death three riders were found with this contract. The first dated November 20, 1936, changed the beneficiary from Charles L. Thomas and Charles M. Sheppard to Charles L. Thomas. Another, dated April 15, 1940, changed the beneficiary from Charles L. Thomas to Ruby Mayfield, niece, and the third dated September 21, 1940, changed the beneficiary from Ruby Mayfield, niece, to the trustees of the New Lebanon Cemetery Association of Bunceton, Missouri, and Ruby Mayfield, $500 to be paid to the trustees of the New Lebanon Cemetery Association and the balance to Ruby Mayfield.
Defendant paid the principal sums of the contracts to the beneficiaries designated.
Plaintiff complains that the payment was wrongful and that she is entitled to recover from defendants the full amount of the principal sums of all of the contracts except the $500 assigned to the Lebanon Cemetery Association and certain sums withdrawn by Reuben Thomas in his lifetime.
She alleges as the basis for her claim that on or about April 15, 1940, decedent was at the home office of the defendant and that in the offices of certain of its executive officers and in the presence of Earl Holliday, its agent, and of said officers who are unknown to her Reuben Thomas executed a certain paper in the nature of a will, the terms of which directed the payment of the proceeds of said contracts to his estate, stating that they were assets of his estate for the benefit of Ruby Mayfield, his only heir; that he then and there with the knowledge of defendant gave said instrument to said Earl Holliday and stated it was to serve as a memorandum directing the disposal of proceeds of said contracts by defendant. The contents of the instrument, she avers, are unknown to her but she has good reason to believe and states the fact to be that the said Earl Holliday, desiring to divert said contract proceeds from said estate to his friend and confederate Charles L. Thomas, concealed and destroyed said instrument about the time of decedent's death and forged a substitute either by forging decedent's name on the substitute or by writing in the terms thereof over some actual signature of the decedent which he had previously obtained on the paper.
Plaintiff further alleges defendant either knew of the execution of said instrument at its home office or was chargeable with such knowledge, and defendant's course of dealing with decedent relative to said contracts was such that Holliday held said instrument as defendant's agent; that the foregoing acts and facts constituted a change of beneficiary from Charles L. Thomas to decedent's estate and that defendant thereby became obligated to pay to the estate instead of to Charles L. Thomas.
Plaintiff further charges in her complaint that Charles L. Thomas as between himself and the decedent was a mere trustee of the proceeds of said contracts, charged with the duty of receiving and holding the proceeds thereof for the benefit of the estate of the decedent and that defendant knew or was chargeable with knowledge of such trusteeship by reason of the facts heretofore set out; that it was notified of the fact that said Charles L. Thomas was entitled to said money only as a trustee and not otherwise, but notwithstanding such notification it paid said monies to said Charles L. Thomas.
There is a further charge in the complaint that Holliday conspired with Charles L. Thomas to divert the proceeds of said contracts from the estate of the decedent to said Charles L. Thomas personally, that defendant is chargeable with knowledge of the conspiracy and through its payments of the proceeds of said contracts to Charles L. Thomas after the notice above mentioned it enabled the conspirators to defraud the estate.
Defendant entered a general denial of the charge of wrong doing on its part and lack of knowledge of the act of ...