Skelly v. the MacCabees

*339 BRADLEY, J. This is a suit by the beneficiary to recover on a fraternal insurance policy in the sum of *340 $1000. Trial was had before the court without a jury aud plaintiff obtained judgment as prayed and defendant appealed. The petition is in the usual form. The answer pleads payment of $500, under provisions of the policy, to insured’s guardian. A reply challenges the legality of this payment. The policy was issued to R. S. Shelly December 11, 1913, and his sister, plaintiff herein, was named as the beneficiary. Insured married in 1920, but made no change of beneficiary in the policy. The policy, so far as pertinent, provided: ‘If, by reason of accident, sickness or disease the member shall become totally and permanently disabled from performing or directing any kind of labor or business ... he shall be entitled to receive in one sum the one-half of this certificate. ’’ September 20, 1922, insured was adjudged insane by the probate court of Jasper county, and his wife Beatrice Shelly was appointed as his guardian. Previous to the inquisition in the probate court insured had been committed to the asylum at Nevada, Mo., and was there at the time of the probate court proceedings. After insured was adjudged insane and the appointment of a guardian for him defendant under the provision of the policy quoted paid to said guardian the sum of $500, and the money so paid was expended for the benefit of insured and his family. Insured died in the asylum April 26, 1923. Plaintiff contends that the judgment in the probate court adjudging insured to be insane is void because of a lack of service upon the insured. Sections 444 et seq., Revised Statutes 1919, prescribe the procedure for a sanity inquisition in the probate court. Notice of the proceedings was served upon insured in the asylum at Nevada by a nurse. The notice required by section 446 is jurisdictional,, and corresponds to the summons in ordinary actions. [State ex rel. v. Duncan, 195 Mo. App. 541, loc. cit. 551, 193 S. W. 950; State ex rel. v. *341 Robinson, 270 Mo. 212, loc. cit. 229, 192 S. W. 1001; Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206; Crow v. Myersieck, 88 Mo. 411.] The service of the notice provided for by section 446 must be by the sheriff or other proper officer of the court. It is only after a party is in court that service of notice may be made by a private individual as provided in section 1217, Revised Statutes 1919. [State ex rel. v. Robinson, supra.] Insured was not present at the hearing in the probate court, but the court appointed an attorney to represent him. This, however, could not take the place of service and there is no such contention. There can be no escape from the conclusion that the judgment of the probate court adjudging insured to be insane is absolutely void and without effect because of failure to serve notice upon insured as required by law. Said judgment, being wholly void for want of jurisdiction, is subject to collateral attack. [Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206; Bank v. Shanklin, 174 Mo. App. 639, 161 S. W. 341; Kellogg v. Moore, 271 Mo. 189, loc. cit. 192, 196 S. W. 15; Russell v. Grant, 122 Mo. 161, 26 S. W. 958; Givens v. Harlow, 251 Mo. 231, 158 S. W. 355; Howell v. Sherwood, 213 Mo. 565, 112 S. W. 50; 23 Cyc. 170; 34 C. J. 528, sec. 834.] Since the sanity inquisition judgment was void it follows, of course, that the appointment of the guardian was also void. Defendant does not seriously contend that there is any life in the probate proceedings adjudging insured to be insane and appointing a guardian for him. The contention, however, is urged that Beatrice Skelly was at least, a de facto guardian, sometimes called quasi- guardian and guardian de son tort, and that since she received the $500 from defendant as such de facto guardian, and having expended said money for insured and his family, plaintiff, the beneficiary, cannot complain. As between insured and Beatrice Skelly, the de facto guardian, the relation of trustee and cestui que trust was created by virtue of the void probate proceedings, and *342 her action there under. [Zeideman v. Molasky, 118 Mo. App. 106, 94 S. W. 754; Stetina v. Bergestein, 204 Mo. App. 366; 221 S. W. 420; Bank v. Shanklin, 174 Mo. App. 639, 161 S. W. 341; Johnson v. Smith, 27 Mo. 591.] This principle has long been observed in this State, hut such cannot affect the rights of plaintiff as she was not a party to the guardianship proceedings and was in no manner connected therewith. It is true that plaintiff as the beneficiary had no vested interest in the policy sued on prior to insured’s death, Section 6403, Revised Statutes 1919, but upon the death of the insured plaintiff’s theretofore contingent interest in the policy became vested and certain. Defendant seeks to lessen plaintiff’s rights by the interposition, of the void sanity inquisition and guardianship and its payment of $500 upon the faith of the validity of those proceedings. We do not think that the defense based on the void sanity inquisition is tenable. Defendant in its brief mentions estoppel. Such defense is not pleaded, and there are no facts in the record which would support a judgment defeating plaintiff’s claim on the theory that she is estopped. The judgment should be affirmed and it is so or dered. Cox, P. J., and Bailey, J., concur.