Marston v. Kuhland

McFARLAND, J.

This is an appeal by plaintiff from a judgment in favor of defendant.

Plaintiff is the sister of the defendant, and the two are children of William Kuhland, now deceased. In his lifetime, and on or about February 18, 1892, the said William Kuhland procured several life insurance policies on his life to be issued and made payable to the son, Louis W., defendant herein. They were made payable to defendant, however, with the understanding that upon the death of the father defendant was to collect the amounts due on the policies and pay a certain named part thereof to the plaintiff herein, a certain part to a couple of grandchildren of the insured, and to retain the balance for himself; and on February 18, 1892, said father, William, and the son, defendant herein, executed a written instrument, in which the duties of defendant with respect to the policies, as above stated, were fully declared. Afterwards, on November 1, 1895, the father and son executed in writing a modification of said written instrument of February 18, 1892, in which the father recited that he had “made certain advances in money to my daughter, Mary Marston,” and directed that five hundred dollars of the insurance money directed to be paid her by the first instrument should be paid to the defendant herein on condition that he should place a suitable monument on the grave of two deceased daughters. William Kuhland died on or about December 5, 1895. Thereafter the defendant collected the amounts due on said policies, and paid to plaintiff the part thereof given to her under the instrument of February, 1892, less the said five hundred dollars directed by said modification, and he erected the monuments mentioned therein, which cost about five hundred dollars. Upon the payment of said money to plaintiff, she, on June 3, 1897, executed

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to defendant the following instrument in writing: “Received from L. W. Kuhland, in full of all demands, all moneys due me on account of life insurance policies of my father, William Kuhland”; and plaintiff testified that at the time she executed that instrument her brother said, “Now you and I are released in this and our business is ended.” Nothing more was done by either party touching the matter of the insurance money until seven years afterwards, when plaintiff brought this action to recover the five hundred dollars and interest, upon the theory that the original instrument of 1892 could not be legally modified without the written consent of plaintiff as beneficiary therein. She avers in her complaint that she did not discover the facts of the execution of said instrument of 1892, and its modifications, until within a short time, less than three years, before the commencement of this action. The court found, however,-—and upon sufficient evidence to sustain the finding—that plaintiff “was present when said direction was given for said modification being made in writing and consented to such modification and alteration relating to the amount of money to be paid her from said funds. ’ ’ The court also found that “it is not true that plaintiff never discovered the true facts in this case until on or about the first day of September, 1903; but immediately after the death of said William Kuhland, to wit: On or about the fifth day of December, 1895, defendant informed plaintiff, and plaintiff has ever since had full knowledge of all the facts and circumstances in connection with this trust.”