18 So. 2d 465 | Ala. | 1944
This appeal challenges the decree of the Probate Court of Etowah County touching the allowance to the widow under the statute in the assignment of dower and for distribution.
The case presents a single issue, viz: In a case where a husband carried insurance on his life with the wife named as beneficiary in the policies, and which policies reserved to the insured the right to change beneficiary at will, are the proceeds of the insurance policies collected by the widow after the death of the husband, chargeable to her as a part of her *594 separate estate under the provisions of Sections 42 and 43, Tit. 34, Code 1940?
The statute in question, §§ 42 and 43, Tit. 34, Code 1940, excluding a wife either wholly or in part from her dower, where she owns a statutory separate estate at the time of her husband's death, is in derogation of the common law, which highly favored the wife's dower right, classifying its protection with that of life and liberty. It must, for this reason, be strictly construed, and can have no operation except in the particular case designated, where the wife actually survives her husband, and an estimation is sought to be made of her perfect right of dower. It can have no application to the valuation of her inchoate right or dower. Gordon, Rankin Co. v. Tweedy,
The interests of the named beneficiary in a policy of insurance providing for a change of beneficiary at the will of the insured is a mere expectancy. The right of a named beneficiary, no change having been made in fact or legal effect, becomes a fixed, vested and legal interest, at the death of the insured. Phillips v. Phillips,
The agreement of counsel as to the insurance is in the following words:
"It is further agreed that said C. Baxter Barfoot carried two policies of insurance on his life with the National Life and Accident Insurance Company of the face value of $7500.00 with Bess Gray Barfoot named as beneficiary in each policy. The right to change beneficiary was reserved by the insured in each of said policies. The said Bess Gray Barfoot was the beneficiary on the date of death and has now collected on said insurance policies the amount of $7500.00.
"This agreement is entered into for the purpose of determining the separate estate of the widow Bess Gray Barfoot within the meaning of Sections 42 and 43 of Title 34, Code of Alabama 1940, and the parties hereto respectfully request the Court to ascertain and determine the value of said separate estate."
Thus the question for decision is directly raised by the pleadings and the agreement of counsel. We have examined the records in Beck v. Karr,
In Drake v. Stone et al.,
Thus the Drake case touched a policy of insurance in which no clause for change of beneficiary was reserved to the husband taking the insurance.
Appellants rely upon Williams v. Williams,
In Boutwell v. Drinkard,
The wife's dower remains inchoate until the death of the husband. Until that event the instant insurance policy constituted a mere expectancy. The death of the husband vested the interest of the wife in the insurance policy under its terms, and the failure of change of beneficiary. The wife's dower interest comes to her at the husband's death under the statute. The right of dower, descent and distribution, and the accrual of the insurance contract (beneficiary not having been changed by the husband in life) become vested and fixed in the wife at the moment the husband died.
It results that appellee, not having any vested interest in the policy of insurance in question until the death of the husband, should not be deprived of the benefits of the policy of insurance, and the insurance money is not chargeable to her as a part of her statutory allowance.
It results that the decree rendered by the probate court is free from error and should be affirmed. It is so ordered.
Affirmed.
GARDNER, C. J., and BROWN, FOSTER, LIVINGSTON, and STAKELY, JJ., concur.