Blinn v. Dame

207 Mass. 159 | Mass. | 1911

Sheldon, J.

This policy was issued by the insurance company to Warren S. Dame; the contract of insurance was made entirely between him and the company; the general interest, ownership and right of property in the beneficial stipulations of the policy were vested in him; and before the enactment of St. 1894, c. 225, now contained in St. 1907, c. 576, § 73, any action to recover the amount of the policy must have been brought in his name or in that of his personal representative. Wright v. Vermont Life Ins. Co. 164 Mass. 302. See Brown v. Greenfield Life Association, 172 Mass. 498; Millard v. Brayton, 177 Mass. 533; Bailey v. Wood, 202 Mass. 562.

The policy was issued however after the St. of 1894, c. 225, had taken effect; and under the provisions of St. 1907, c. 576, § 73, already cited, the limitations made in the policy of its proceeds for the benefit of the children of the insured, who are the plaintiffs in the second suit, are valid and must be enforced in their behalf. If an appointment or settlement has been made upon them by a stipulation in the policy that the amount thereof shall be paid to them, that establishes their right, and their right, once established and brought into being as a vested right, is not to be- taken away from them, except as this result shall be found to have been contemplated and provided for by the terms of the appointment itself. We must ascertain therefore the true construction of this policy as to the disposition of the amount insured, that is, the construction, considering all the terms of the policy, of the promise contained, therein. By that promise the company, reciting that it insures the life of Warren S. Dame, undertakes to pay the sum of $10,000 to him, “the insured, his executors, administrators or assigns,” on the tenth day of July, 1918, or if he “ should die before that time, then to make said payment to Irving L. Dame and Mildred F. Dame,” his children, “ if they survive the insured (with power-to the insured to surrender this policy to said company at any time), otherwise to the insured’s executors, administrators or assigns.” The policy was assignable by the insured; and it contained a statement of what the expected surrender value, or the amount to be paid by the company to the insured or his assigns on his surrender of the policy, would be at the end of the successive years of the proposed insurance.

It thus appears that the elder Dame, the insured, had several valuable rights in the policy; and it is difficult to see why his assignment of the policy would not carry with it all his valuable rights, unless we find some restriction in the language of the policy.

1. If he lived until July 10, 1918, he would be entitled to receive the sum of $10,000.

2. If he died before that time, that sum would be payable to his personal representatives and would go to increase the amount of his estate unless his children survived him.

3. At any time during the term of the proposed insurance he could surrender the policy and receive for his own benefit the amount of the then existing surrender value.

The right of his children was to receive the amount of the policy if he did not live until the appointed time and if they survived him and he had not in his lifetime surrendered the policy. If this right is regarded as contingent, it would not come into existence at all if the father should at any earlier time exercise his absolute right to surrender the policy; if their right was a vested one, it would be completely divested by their father’s exercise of his right. Their right, in the opinion of the majority of the court, was strictly subordinate to the prior and superior right of their father. It was so made by the very language which created it. Either it was not to arise at all if the paramount right of their father should be exercised, or it would be completely divested by the exercise of his paramount right to surrender the policy. Whether their interest was vested or contingent, they could have no part of the proceeds of the policy if their father lived until its maturity, or if they did not survive him, or if he had at any earlier time surrendered the policy. Unless these three contingencies concurred in their favor, either their right never would vest, or it would be completely divested and cut off by the very terms of the conditional limitations in their favor. We do not deem it material to determine whether their right was vested or contingent; for as we have seen, the result would be the same in either event. There is no question here of the attempted revocation of a trust. Such cases as Stone v. Hackett, 12 Gray, 227, and Kelley v. Stone, 185 Mass. 288, and those cases in which an absolute interest was given to beneficiaries of life insurance policies, have no bearing. We are to construe the language of the policy and to determine what rights it gives to the children. The statute which has been referred to protects these rights when ascertained, but it has no operation to increase or extend them.

Under this state of affairs, the elder Dame made his assignment to the predecessors of the plaintiffs in the first action, hereinafter called the plaintiffs. The language of that instrument is broad and sweeping. It passes all his “ estate, property and effects, real, personal and mixed, of whatever name and nature, legal and equitable, . . . also all claims, debts, choses in action, owing to him, whether now or hereafter payable, and all evidences thereof ; also any and all other property, real or personal, of or belonging to him, of whatever description and wheresoever the same may be, . . . except such property as is exempt from being taken on execution by law.” This exception does not cover property which could not be taken on a writ of execution at common law; it manifestly refers only to the statutory exemptians stated in R. L. c. 177, § 34. The instrument, we are satisfied, was intended to convey, and does convey, to the assignees all the property and property rights of the assignor which the creditors could have reached for the satisfaction of their demands by any process, legal or equitable.

We do not doubt that the right of the assignor under this policy to receive the amount thereof on July 10, 1918, if he shall then be living, and his right to have the same amount paid to his personal representative upon his earlier decease if his children shall not survive him, would have been available to his creditors and would have passed under the assignment, Anthracite Ins. Co. v. Sears, 109 Mass. 383. Lord v. Harte, 118 Mass. 271. Brigham v. Home Life Ins. Co. 131 Mass. 319. Pierce v. Charter Oak Ins. Co. 138 Mass. 151. Haskell v. Equitable Assurance Society, 181 Mass. 341. Alexander v. McPeck, 189 Mass. 34. Biggert v. Straub, 193 Mass. 77. It seems equally plain that he may not now, as against his assignees, surrender the policy and take the amount of the surrender value for his own benefit. As against the insurance company no doubt he has that right. But it is a right secured to him by his contract with the company, and is a valuable right of property available to his creditors. See the cases last above cited. It is a chose in action which was in existence at the time of the assignment and passed by its terms.

What we have said is also in our opinion decisive upon the only remaining question in the case. His right of surrender was a valuable property right, vested in him by the language of the policy. It constituted an integral part of the value to him or his estate of the policy itself. That pecuniary value would be very much less either to himself or to any one to whom he might transfer his property rights if this unqualified and paramount right of surrender were not secured to him. There was here an agreement on the part of the company to pay the surrender value to him upon his surrender; this was a contract right given to him by the policy, which materially increased its value to him. This was not merely a right to surrender under the third article or the third clause of the eighth article of the provisions attached to the policy. Under the parenthetical clause contained in the promise of the company he had the right to surrender the policy at any time and to receive its surrender value. Moreover this clause was made a part of the conditional limitation or appointment in favor of his children, apparently for the very purpose of saving to him the absolute ownership and control of the policy. The children’s right was made subject to his unrestricted right of surrender. This was a valuable property right incident to his general right under the policy such as would pass with an assignment of the latter. It now must be held, in the opinion of the majority of the court, that it did pass, with the policy itself, under the general language of the assignment.

We have found no case which seems to us to be quite decisive upon the point raised here, though in some cases the question decided, and in others the reasoning of the courts, approaches it more or less closely. The decisions are not uniform ; but the general trend of authority is in favor of our view. See Atlantic Mutual Life Ins. Co. v. Cannon, 179 Mass. 291; Travelers’ Ins. Co. v. Healey, 25 App. Div. (N. Y.) 53, affirmed in 164 N. Y. 607; In re Steele, 98 Fed. Rep. 78; In re Diack, 100 Fed. Rep. 770; In re Boardman, 103 Fed. Rep. 783; In re Slingluff, 106 Fed. Rep. 154; In re Welling, 113 Fed. Rep. 189; In re White, 174 Fed. Rep. 333; In re Hettling, 175 Fed. Rep. 65; Townsend v. Townsend, 127 Ky. 230.

It follows that under his covenant of further assurance it is the duty of Warren S. Dame now to execute in favor of the plaintiffs any written surrender that may be necessary to enable them to collect the surrender value of the policy in question, and the duty of the insurance company upon receiving a proper surrender of the policy to pay such surrender value to the plaintiffs and in the first case a decree must be entered for the plaintiffs substantially as prayed for. The bill in the second case must be dismissed.

So ordered.