Opinion
Argued February 9th, 1933
Decided March 28th, 1933.
ACTION claiming the return of an insurance policy and the surrender and cancellation of its assignment to the defendant, brought to the Superior Court in New Haven County, where a demurrer to the complaint was sustained, Dickenson, J., a motion to strike out the substitute complaint was granted, Foster, J., and the plaintiffs having failed to plead further, judgment for the defendant was entered upon the pleadings, from which the plaintiffs appealed. No error.
Lewis J. Somers, for the appellants (plaintiffs).
Denis T. O'Brien, Jr., and Robert M. Dowling, appeared for the appellee (defendant) but, at the direction of the court, did not argue the cause.
The plaintiffs bring this action as executrices of the estate of Herman C. Oefinger, who died July 27th, 1932. The gist of the complaint is that in 1926 the deceased had taken out a policy of life insurance in which he had named his wife as beneficiary, and after her death had substituted the plaintiffs, his daughters and only heirs at law, and that the defendant by the exercise of undue influence upon the deceased and by promises and importunities had induced him to substitute her as beneficiary in place of the plaintiffs, and to surrender the policy to her. The complaint sought the return of the policy and an injunction restraining the defendant from collecting the sums due upon it and damages. To the complaint the defendant filed a demurrer, one ground of which was that it did not appear that the plaintiffs as executrices of the deceased had any interest in the policy or in the proceeds of it. The trial court sustained the demurrer and thereafter the plaintiffs filed a substitute complaint, which on motion the trial court struck from the file. The errors assigned are the sustaining of the demurrer to the original complaint and the action of the court in striking the substitute complaint from the file. As far as the first ruling is concerned, it is sufficient to point out that nowhere in the complaint were there allegations showing that the estate of the deceased would in any event be entitled to the proceeds of the policy, so that the plaintiffs as executrices do not appear to have any interest in the matter. The substitute complaint contained no allegations which would in any way obviate this defect, and no good purpose would have been served by leaving it in the file.