31 Pa. Super. 435 | Pa. Super. Ct. | 1906
Opinion by
In 1899 Elmer E. Barner took a policy of life insurance in the Northwestern Mutual Life Insurance Company, in which the latter promised to pay the stipulated sum to the persons designated therein as beneficiaries, namely, his two minor children, Walter A. Barner and Marion A. Barner, “ jointly or to the survivor, subject to the right of the insured to change the beneficiary or beneficiaries as hereinafter provided.” The provision referred to, so far as material here, reads: “ This policy is issued with the express understanding that the insured, subject to the rights of any assignee, .... may change the beneficiaries at any time during the continuance of this policy by filing with the company a written request, accompanied by this policy, such'change to take effect upon the indorsement of the same on the policy by the company.”
Within thirty days after its execution a duplicate of this paper was delivered to, and receipt thereof acknowledged by, the company. But the paper was not accompanied by the policy, nor was any'ehange of beneficiary indorsed thereon, and it is worthy of notice in the construction of the paper that it was not stated therein that it was impossible to produce the policy for the purpose of having such indorsement made. But it is now alleged, and not denied, that at that time the policy was in the hands of the attorney above referred to, who declined and refused to surrender it, alleging that it had been assigned to him by the insured. By whom the demand upon him to surrender the policy was made, whether the insured or Lyter, does not appear.
Where the insured designates another person as beneficiary the right of the latter, as a rule, at once becomes vested so that it cannot be disturbed by assignment or will, or in any way without his consent, unless the right to make a new appointment is reserved by the terras of the policy itself, or by the regulations of the company subject to which the policy is issued, or by provisions of law: Richards on Insurance, sec. 86. This doctrine is supported by the great weight of authority : 2 May on Insurance, 4th ed., secs. 390, 391; Entwistle v. Travelers Ins. Co., 202 Pa. 141.
Allusion is made to the -Act of April 15, 1868, P. L. 103, which provides that a policy upon the life of a person, taken for the benefit of his wife or children or dependent relative, “shall be vested in such wife or children or other relative, full and clear from all elaims of the creditors of such person.” As was said in -Kulp v. March, 181 Pa. 627, this statute gives plausibility to the contention “ that the policy of our law favors such transactions, even where the rights of creditors may be affected; ” but we fully concur with the appellant’s counsel in the conclusion that where the right to change the beneficiary is reserved by the terms of the policy, there is nothing in the act of 1868 to prevent Mm from substituting a creditor for a dependent child as beneficiary. Whether or not the right to change the beneficiary would be affected by the fact that the premiums were paid by him is a question we are not called upon to consider. ■
As to the right to object to an attempted change of benefici
But it is to be borne in mind, that the burden of proving the intent of the insured to revoke the designation of his children as beneficiaries rested on the claimant; the company’s assumption of a neutral position cannot give the paper under which he claims the effect of a revocation of the designation unless it was so intended by the insured. That there are expressions in the paper which are consistent with, and, perhaps, tend to show such intention cannot be disputed, but they are also consistent with what the paper purports to be — an attempted assignment. It bears evidénce on its face that it was not drawn hastily, nor by one unskilled in such matters. It was evidently drawn with care, and by one who knew the technical meaning and effect of the words employed. The requisition of the policy as to change .of beneficiary is very simple, and it seems highly probable that some allusion would have been made to it, if that was the purpose intended to be accomplished by the paper. But none of its language purports to be a request to be filed with the company for such change; while great care is exhibited in expressing- the intent of the insured as to the former assignment, and to prevent its operation, the subject of change of beneficiary is not mentioned; the paper is not addressed to the company; nor does it affirmatively appear in the paper itself, or aliunde, that the insured intended it to be filed with the company;' nor is it distinctly alleged . that the duplicate was forwarded to the company by his subsequent direction. In conclusion, neither the paper itself; nor the action of the insured with reference thereto, exhibits a clear intent on his part to exercise the right reserved by the terms of the policy to have his creditor substituted, eo instanti, for his children as beneficiary, or to .do more than to transfer such right as he could bj' a bare assignment. And, in the absence of such intent, it is impossible to give an assignment of the policy,-in payment of or as collateral security for a pre-existing debt, the effect of a change of beneficiary in the mode provided by the policy, upon the ground that equity looks upon that as done which ought to be done. In strict law the right to the fund
■ Judgment affirmed.