Major Moreno affect in any way his ability to resist the influence exerted on him by another person?", stated, "I would say no. Major Moreno had not changed in his general make-up since I knew him in 1923".
Edward Weidner, Lieutenant Colonel, Medical Corps, United States Army, was associated with Major Moreno while he was stationed in Manila. In reply to the question, "Was Major Moreno cognizant of the nature of the acts that he performed or was he suffering from some form of mental derangement which prevented his understanding the nature of the daily acts he performed", he stated, "I think he was cognizant of both his acts and I think he knew and understood the acts that he performed".
In order to support the prayers for relief asserted by Marie Therese Moreno, we must conclude from the above recitation of facts that Major Moreno was either unduly influenced by Mrs. Bathurst, or the designation of Mrs. Bathurst as beneficiary under the policy of insurance involved herein is contrary to some rule of public policy.
The testimony offered does not support a charge of undue influence. We agree that Major Moreno's physical condition during the course of events leading up to his divorce from his wife was none too good. With reference to his mental condition he only evinced the perplexity and indecisiveness to be expected from one confronted with his problems. The question then is whether or not he was unduly influenced by Mrs. Bathurst. The testimony of those who observed Major Moreno does not indicate that he possessed the symptoms of one who would willingly submit to undue influence within its legal meaning. It only shows that he was not "normal" or that he was "distraught". It would be phenomenal for his condition to be otherwise.
There is a complete absence of testimony showing any dominating influence exerted by Mrs. Bathurst. So far as we know, she made only one inquiry about his insurance policies, and that inquiry was made subsequent to the change in beneficiary of the policy in suit, and actually reached him after his death. The only influence she possessed over him was the usual influence one would expect from a prospective bride. From that we cannot infer influence that extended to dominating proportions.
In behalf of Therese Marie Moreno there have been numerous cases cited which hold that a presumption of undue influence arises when there is a confidential relation between the donor and donee. Accordingly, she endeavors to persuade this court that the presumption is applicable here. We think, however, that in the application of this principle a distinction should be made between gifts inter vivos and testamentary transfers. With this distinction in mind the impertinency of these citations is established.The reason for this difference is that in the case of gifts inter vivos the donor presently divests himself irrevocably of possession of the subject of the gift, and, hence, to protect the donor there is a presumption of undue influence which the donee must disprove. In the case of testamentary transfers, and we think a change of beneficiary in an insurance policy is analogous, the disposition is ambulatory, that is, it is revocable until the death of the testator. In such case there is not so great a necessity for protecting the testator, because he does not presently divest himself of anything, and usually he has some time to collect his wits and overcome any domination exerted upon him. Hence, there is no presumption of undue influence in such case which must be disproved by the recipient of the transfer.
And the case of Brotherhood of Railroad Trainmen v. Van Etten, 90 N.J.Eq. 612, 110 A. 121, so holds. Therein, an insurance policy was originally payable to the wife of the insured. Thereafter, the insured became separated from his wife and made his sons beneficiaries. Still later the policy was made payable to his sister who cared for him in his last illness. Upon his death it stood in her name. During the time the insured lived with his sister he suffered from very severe heart trouble. The sons attacked the last transfer as having been obtained by fraud and undue influence. The court stated:
"This is not a case of a man who stripped himself by a deed of all his property. He retained, until the time of his death, six or seven weeks later, the right to change the beneficiary at any time.
"I find no evidence of fraud or undue influence.
"There is a presumption of undue influence where confidential relations exist, such as that of attorney and client, guardian and ward, etc., between parties to a gift inter vivos, probably also in case of a gift causa mortis, but not in the case of a testamentary gift; and I view this matter in the light of a testamentary disposition rather than a gift inter vivos." 90 N.J.Eq. 612, 614, 110 A. 121, 122.
We, therefore, conclude, that Mrs. Moreno has not established her allegation of undue influence.
With reference to the charge that the change in beneficiary is contrary to some rule of public policy we likewise hold that the charge is unfounded. We agree with the principle that the validity of an agreement conditioned upon the dissolution of the marital relation is limited, but we are not convinced of its applicability herein in that the change in beneficiary under the insurance policy was not conditioned upon the dissolution of the marital relation of Major and Mrs. Moreno.
It follows that the claim of Mrs. Moreno is unfounded, and should be dismissed.
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