Cockrell v. Cockrell

CaehooN, J., delivered tbe opinion of tbe court. When this case was in this court before, Cockrell v. Cockrell, [390] 79 Miss., 569, we reversed a decree below which sustained a demurrer to the bill, and it is now here again, this time on appeal and cross appeal from final decree on the merits. The bontést is over the right to the proceeds of a policy of life insurance. Claude Cockrell, who' is a minor, charges in the bill that from 1893 to the date of his death, his father, William M. Cockrell, was the holder of a policy of insurance on his life in the sum of $1,000, in which policy Mary V. Cockrell, the mother of Claude, was beneficiary, and that she had the policy in possession and kept the premiums paid on it until the year 1900. That in 1899 his mother obtained a divorce from his father, after which she still retained possession of the policy until the spring of the year 1900, when her former husband, William M. Cockrell, persuaded her to give him possession of it, giving as his reason his wish to. have possession of it in order to have it changed so as to be made payable to Claude, who was the only child of the marriage, and that this was a mere fraudulent pretense, used to deceive Mary V. Cockrell, and in order to defraud her and Claude. That this fraudulent pretense induced her to part with the possession of the policy and to sign the release of her right as beneficary, which she did at the instance of William M. Cockrell, without reading the release, and under the belief that Claude’s name was in it, not thinking the man would perpetrate a fraud upon her and his own child. But that in fact, William M. Cockrell, in pursuance of his fraudulent purpose, had inserted his own name in the release and the policy as beneficiary instead of the child’s. That a few months thereafter, William M. Cockrell died, having attempted to bequeath the proceeds of the policy to his mother* Martha E. Cockrell, the appellee in this case, and that then, for the first time, did Mary V. Cockrell and her son Claude have any knowledge that William M. Cockrell had not car [391] ried out bis promise, but bad perpetrated tbis fraud upon Claude. The prayer of the bill is that the life insurance company, be required to pay the proceeds of the policy to Claude just as if William M. Cockrell bad carried out bis! agreement with Mary V. Cockrell, and just as if Claude’s name bad been inserted in the policy as beneficiary, as it should have been. Mrs. Martha E. Cockrell, the mother of William M. Cock-rell, in her answer denies that be fraudulently procured possession of the policy as charged, sets up her ownership of it and its proceeds in virtue of bis will specifically bequeathing it to her, and avers by way of cross bill that she was not a mere volunteer, but entitled, independently of the will, because of money she advanced him at various times, and that be bad “placed said policy in her bands and made bis will transferring said policy to her, said policy having been given over to her at the time said will was executed,” when she bad no knowledge of the pretended equitabe assignment. The court decreed that the change in the name of the beneficiary was a fraud, and that the proceeds of the policy should be paid to Claude, except the sum of $101.85, which is the aggregate of the several sums advanced by Mrs. Martha E. Cock-rell to William M. Cockrell, and that much of the proceeds was decreed to her on cross appeal. This latter part of the decree we decline to disturb on the facts. Whether the former part of it shall be affirmed or reversed, depends on the sole question whether Mrs. Martha E. Cockrell was a competent witness to establish the alleged equitable assignment made in {.he lifetime of William M. Cockrell. We concur with the chancellor in the opinion that she was a competent witness under § 1140 of the code and the numerous cases construing it. In the matter of any claim by Mrs. Martha E. Cockrell, the mother, under the will, to occupy the position of an innocent purchaser for value, we say, under the decision of the chancellor on the facts, that she is a mere volun [392] teer, as sbe was held to be, on tbe face of tbe bill in 79 Miss., 569. In relation to ber claim for money advanced by ber to ber son, sbe is in a different category on tbe evidence. Affirmed on appeal and cross-appeal at the costs of appellant.