Wherry v. Latimer

Citations

• 103 Miss. 524
• 60 So. 563

Syllabus

<p>1. Equity. Defendants. Interest. Misjoinder of parties. Demurrer. Cancellation of instrument. Sufficiency of - proof. .Insurance. ■ Mutual benefit insurance. Change of beneficiary. Undue influ- ' ence.</p> <p>While the joinder of a party as defendant who has no interest in the controversy is improper, yet he is the only one who can take advantage by demurrer of such defect.</p> <p>2. Same.</p> <p>Where a party improperly made a party defendant joins in a general demurrer of his codefendants and the bill as a whole is good against either of the defendants the demurrer will be overruled.</p> <p>3. Cancellation op Instruments. Pleading. Sufficiency.</p> <p>The allegations of mental incapacity and undue influence charged in the bill in this case were sufflcient to require an answer on the part of the defendant.</p> <p>' 4. Mutual Benefit Insurance. . Rights of beneficiary.' Fraudulent charges.</p> <p>There Is no disability on the part of the original beneficiaries in certificates of a mutual benefit insurance company to maintain a suit to cancel new certificates to other beneficiaries on the ground of undue influence in obtaining same.</p> <p>5. Mutual Benefit Insurance. Right to change beneficiaries.</p> <p>The holder of a certificate of insurance in a mutual benefit insurance company, has the right to change the beneficiary named therein at pleasure.</p> <p>6. Contracts. Undue influence. Degree.</p> <p>Capacity to make a contract is implied until overthrown by . evidence,' and in order to cancel a contract on account of undue influence in its procurement it must be shown that the free agency of the maker was destroyed thereby.</p> <p>7. Same.</p> <p>Held, that under the facts as shown in this case the issuance of a new certificate of insurance changing the beneficiary was not obtained by such fraudulent, deceitful or corrupt conduct in the matter as to destroy the free agency of her father, the insured.</p> <p>ON SUGGESTION OF ERROR.</p> <p>1. Evidence. Presumption