96 So. 97 | Miss. | 1923
delivered the opinion of the court.'
One Thomas Hodges procured a policy of life insurance in the Lincoln Reserve Life Insurance Company for one thousand dollars, payable to Minnie Hodges, stated in his policy to be his wife, but who in fact was not such; Hodges having formerly married another woman who is also one of the litigants in this cause.
This policy of life insurance was dated June 11, 1919, and one of its paragraphs provided with reference to an assignment:
“Any assignment of this policy must be made in duplicate and one copy filed with the company at its home office. The company assumes no responsibility as to the validity of any assignment.”
It also provided: “In consideration of the application for this policy, a copy of which is hereto attached and made a part of this contract, agrees to pay one thousand dollars at the home office of the company in the city, of Birmingham, and state of Alabama, to Minnie Hodges, wife of the insured.) beneficiary (with the right on the part of the insured to change the beneficiary as hereinafter provided).”
In clause 6 of the policy, under the head of “Change of Beneficiary,” is the following provision:
“When a right of revocation has been reserved, or in case of the death of any beneficiary under either a revocable or irrevocable designation, the insured, if there be no existing assignment of the policy made as herein provided, may, while the policy is in force, designate a new beneficiary, with or without reserving right of revocation, by filing written notice thereof at the home office of the company accompanied by the policy for suitable indorsement thereon. Such change shall take effect when
On June 25,1921, Thomas Hodges, the insured, executed an assignment in favor of the Bank of Belzoni, and the provision in the policy of executing in duplicate such assignment was complied with, and the company retained the duplicate and returned the assignment of the bank. No indorsement of the change of beneficiary was made on the policy by the company, but the policy was delivered to the bank as collateral to the loan from the bank to Hodges. Thereafter the insured died while the policy was in force, and demand was made upon the insurance company by'the bank for the payment of the policy, which the company refused to pay, and suit was brought upon the policy in the circuit court and claim was filed by Minnie Hodges and Agnes Hodges separately. The company paid the money into court, and issue was made up by the bank and the wives of Hodges and the court gave a peremptory instruction for the claimants, Minnie Hodges and Agnes Hodges. It was agreed between the parties litigant that Agnes Hodges on June 11, 1919, was the. lawful wife of Thomas Hodges, the insured, and that she was duly appointed administratrix of his estate. It was further agreed that Minnie Hodges, the other claimant, on June 11, 1919, was living with Thomas Hodges as his wife and continued to so live with him as such until the day of his 'death, and had lived with him for several years prior thereto, and that said Thomas Hodges and Minnie Hodges went through ' the marriage ceremony together, and that Minnie Hodges was held out to the community in which they lived as the wife of Thomas Hodges, and that said Thomas Hodges recognized and treated her as such until the day of his death.
The question presented for decision is whether or not Thomas Hodges could make a valid assignment of the policy without the consent of the beneficiarv named therein and without having the policy sent to the office of the
We think that this question is settled in this state in favor of the validity of the assignment by the case of Lamar Life Insurance Co. v. Moody, 122 Miss. 99, 84 So. 135, in which case it is held that the insured may pledge the policy to the company for a loan without the consent of the beneficiary where it appears that the insured reserved the right to change the beneficiary; that the beneficiary, where there is a change authorized to be made by the insured, has no vested interest in the policy. The court in that case said:
“The authorities seem to be uniform that the insured may borrow money on the policy although payable to the wife and children; if the right to change the beneficiary is reserved, the insured may assign the policy at will in such cases” — citing authorities.
An examination of the authorities shows that this rule is in force in a minority of the states and that a majority of the states hold the contrary. . This court, however, adopted the view that the policy was assignable where the right to change the beneficiary was reserved as being the better and sounder rule. The provision in the policy that the change. of beneficiaries should take effect only from its indorsement on the policy by the company is for the protection of the company only, and it may waive the benefit of this provision as.it did do when it appeared in court and paid the'money into court and left the other parties to litigate over it.
It follows from what we have said above that the peremntory instruction in favor of the claimants was error, and that the request of the appellant for a peremptory instruction should have been granted.
The judgment will be reversed, and judgment rendered here for the appellant.
Reversed.