Lo Presti v. Manning

LAMBERSON, J.,

pro

tem.

The action is one to recover proceeds of life insurance policies in the sum of $5,000.

The second amended complaint sets forth two causes of action. In the first it is alleged that the plaintiff was the father of Marion Thomas Lo Prestí, who died on May 22, 1930, leaving a widow, the defendant Margaret M. Lo Prestí; that the defendant, Catherine C. Manning, is the mother of said Margaret M. Lo Prestí; that on the twenty-sixth day of May, 1930, said defendants received the sum of $5,000 from the Equitable Life Assurance Society of the United States, for the use and benefit of plaintiff, who has made demand for the payment of the same to himself, such demand being refused.

The second cause of action repeats the allegations of the first and then alleges in substance that the deceased entered

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the employ of the Howard Automobile Company, a corporation, in November, 1923, and thereupon became insured as an employee of said corporation under a form of group insurance; that appellant was named as the beneficiary in the policies or certificates of assurance, and it was agreed between decedent, his employer, and the Equitable Life Assurance Society, that said beneficiary, upon the death of the insured, would receive the sum of $5,000; that thereafter said certificates remained with and were held under the control of the Howard Automobile Company, and were effective only so long as decedent remained in the employ of said corporation, and at no time would the decedent ever have or receive manual possession of said certificates; that at and after the time of the issuance of certificates of assurance, Marion Thomas Lo Prestí, by parol gift, transferred and assigned all his right, title and interest in the certificates to plaintiff, who has ever since been the owner thereof; that in December, 1929, the insured became seriously ill and was removed to a hospital; then to the home of defendants, with whom he lived until his death. Then follow allegations of fraud and undue influence, practiced by defendants upon the insured during his illness, by which defendants induced and procured the insured to sign an “Assignment of Beneficiary”. Among other matters, the complaint alleges that the policies were at all times, prior to the transfer, in the custody and control of defendant Margaret M. Lo Prestí, and on April 4, 1930, she presented the certificates so assigned to the Assurance Society with intent to defraud plaintiff of his rights, and thereafter, on May 26, 1930, received the sum named in the certificates from said society; that had it not been for the false and fraudulent acts, conduct and representations of the defendants, who unduly influenced the mind of the decedent, the beneficiary would not have been changed, and such transfer of the beneficiary was without the consent of plaintiff.