140 So. 375 | Ala. | 1932
The proceedings as to the interpleader appear to conform to our statute (section 10386, Code 1923), and the regularity thereof is not here questioned. McDonald v. McDonald,
Defendant relied upon a change of beneficiary by the issuance of a certificate in her favor subsequent to that of plaintiff. It is not pretended the association would have authority to change the beneficiary without the assent of the insured, and in this particular *312 case requirement was expressly made that such purpose on the part of the insured be evidenced by request in writing upon application blank furnished by the order. And the testimony of the secretary was to the effect that the issuance of the certificate was predicated alone on such written request.
As to the certificate issued, upon which defendant relies, it appears that defendant's aunt visited the office of the association on three occasions before its issuance; on the first, bearing a letter with insured's name, but not his signature, according to the secretary's testimony. On the second, she brought one of the blank forms of the order for application of change of beneficiary not filled out but with insured's name thereto. As it then stood, the application meant nothing, and, on the third occasion, she brought the same application with defendant's name therein as sole beneficiary. It therefore appears that in fact, after signing, the application had been materially altered, and the question arises, Was the application so altered with the consent of the insured? Under such proof, the burden would be upon the defendant to offer explanation. Section 7717, Code 1923; Whitewater Lbr. Co. v. Langford,
While the authorities appear to be divided upon the question (45 Corpus Juris, 198), yet this court is committed to the view that the beneficiary in cases of this character cannot attack a change of beneficiary by the insured on the ground of fraud or undue influence, upon the theory that such beneficiary has an interest that is a mere expectancy which cannot become vested until fixed by death of the insured. Summers v. Summers,
The case of Grand Lodge v. Frank,
Plaintiff sought to show mental incapacity, but the proof went no further than to disclose assured as drinking heavily about the time the application is supposed to have been signed. The proof did not measure up to the requirements of the law in this regard as demonstrated by the holding in Snead v. Scott,
We have above stated the holding of our cases that undue influence cannot be shown to annul the change. But the question of assured's request or consent for a change was one for the jury's consideration under the evidence offered by the plaintiff. While the charge given was in form the affirmative charge with hypothesis; yet the language of the court made it in effect a charge directing a verdict. This was error, and, in any event, the evidence sufficed for adverse inferences as to whether or not assured had in fact authorized or requested the change in the beneficiary. Under the proof offered that was a jury question, and it was error to give the affirmative charge. Massey v. Pentecost,
For the error indicated, let the judgment be reversed.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.
