*1 Harris v. Brewer 2d 390 W. 5-3585 May Opinion 31, 1965. Delivered appellant. Hall, L. for Harold Virgil TV. Moncrief, Roach and John Moncrief appellee. an inter- This is Associate Justice. Johnson, Jim proper party pleader receive action determine the proceeds of certain life insuranc (Brewer) Brewer, Appellant Harris some 4, 1963, March after on deceased, were divorced (Appellant years marriage. later restored twelve to Harris.) Approved name, maiden use of her incorporated decree was settle- into the final January purport- 10, 1963, executed ment complete ing all their ’be a length rights. agreement at off various set detailed money personalty property, to each parcels óf real appel- provision parties, in which contained quitclaim appellant (concurrently with decedent’s lant stock) *2 of certain any valuable “transferred and released Casualty and all Company in” interest decedent’s Life & Insurance Equitable Company and Southern Insurance policies, life insurance and went to state after on this un- conditional right transfer that decedent would designate beneficiaries and exclude her if he so desired. September Brewer died on 7,1963. brother, His
appellee appointed Claude Brewer, was administrator of in estate Arkansas Probate Court. The two in- life policies among surance papers. were decedent’s The beneficiary, named “Nina Mae Brewer —Wife’’ was un- changed. Equitable 24,1964,
On June Southern Life Insurance Company complaint interpleader filed in Arkansas against appellant appellee. Court The complaint alleged at Brewer’s there death was in parties force a life insurance for $10,000,that both proceeds, defendant claimed the inter- therefore pleaded proceeds by to be held the clerk of court until parties the court should determine which of the en- was August Casualty titled thereto. On 7, 1964, Life & In- Company surance of Tennessee filed a similar inter- suit pleading By stipulation $2,020.30. these cases were con- solidated trial.
In the decree of November 27, 1964, the chancellor payment proceeds appellee ordered administra- companies tor, and relieved the insurance further liability. companies longer par- The being insurance no appeal ties, this is between the adverse claimants. appellant
For reversal contends the trial court erred awarding proceeds to decedent’s beneficiary, appellant. estate instead of to the named (1) are confronted with We two theories: decedent change appel- didn’t because he wanted beneficiary, (2) conversely, lant to be the that he didn’t the named because he assumed already had effec- tively done so. sup- jurisdictions in from other are cited cases We directly being
port none theories, there of either of the di- a similar case However, in Arkansas. on all fours principle rectly point Smith, 228 Roman v. property settlement in which the 314 W. 2d provided cash $40,000 that the wife should receive fully savings $1,800. worth bonds except paid performed the wife in cash was $1,780 delivering $1,800 in After the divorce bonds. lieu (which cashing on died without the bonds husband payable ex-wife). This to the death their face that the ex-wife: held court *3 property get all under
“received that she was part approved agreement at settlement which was least part by get a Court, now she seeks and appellants’ property of that which set aside to the solely neglected or cash the bonds decedent because he during his lifetime have them in his name alone reissued Treasury pursuant Regulations. a construc- to the Such Treasury Regulations by supported tion of the is not certainly is.contrary principles authorities, of equity dealing.” and fair practice property State, in this the law and Under by approval agreements, especially a after
settlement chancery — — binding and final are considered court, compro parties. Settlements and between the contracts historically by upon with favor looked been mises upon agreed parties having a met and The the courts. merged prior all in the settlement. claims settlement, Downing, 198 Ark. 946. 405, rke v. S. W. 2d Bu preamble agreement at bar states in the the case again at the that the was intended close complete “a constitute full settlement to of all sented and did be rights.” repre The decedent was not by proceedings ap in the divorce and the counsel legal duty pellant’s under no ethical then counsel was or advisibility changing about to advise decedent beneficiary policies. Concededly, on the the con named tract was appellant by appellant’s attorney
prepared divorce by bound the rule that contract therefore is against party preparing construed it. U strict.lv to be jurisdiction well Further, it is insur settled this that may changed by upon ance beneficiaries be will, based theory expression by will the designation is later the in sured than the the time the 1026, 105 made at Olds, was issued. Pedron v. Eichelkamp 70; W. 2d Carl, S. v. 193 Ark.
was executed after the
in these Applying the law to the facts in case, it clear this appellant pro- is foreclosed to claim interest or specifically from the ceeds released to decedent. she transferred and Affirmed.
McFaddin, concurs; J., Smith, Robinson, Ward and JJ., dissent. (concurring). McFaddin, Associate Justice,
Ed. F. in the dissented case of Roman v. 228 Ark. Majority 314 W. 2d holding 225; but under the Roman holding v. and under the unanimous *4 Mabbitt Wilker son, v. 220 247 W. 2d the of the decree Court the case now before us affirmed; must be I and so vote. I give
However, have that concluded we should now notice to the Bench and Bar that we will re-examine our presented former when a cases ease like this one is next myself, hereby give to For I us. such I think notice. the weight authority, certainly of and the better reasoned contrary holding cases, are to our in Mabbitt v. Wilker supra, supra. son and Roman v. Some of the cases stating I which consider as better the rule are these: Pru (Calif.), dential Ins. Co. v. Broadhurst 321 P. 75; 2d (Calif.), v. Shaw Board 241P. 2d 635; Pendleton v. Great (Okla.), Southern P. 273 1007; John Hancock v.Co. Soluri (U.S.D.C. N.Y.), Supp. 134 F. 86; Kaska, Parrish v. Kurgan
F. 2d (Ill.), 451; and v. Prudential 2d N. E.
620. change having right insured, the to
The fact that the any beneficiary, or to take so, not elect to do the steps did regard, that the insured in that me to believe leads beneficiary remain to allow the of decided exactly purpose tois written. The of this concurrence as question give I that intended to re-examine notice again a member of anew ever arise while am should the Court. (dissenting). George J., Rose “ paragraph: [Nina agreement contained this
settlement Brewer] hereby concurrently agrees to and does herewith [Jerry any Brewer] all and interest and release to transfer on the and life has all insurance she now Casualty Company [Jerry Brewer] and in the Life life of Company, including Equitable Insurance Southern policy [Jerry Brewer] of has in one endowment a certain companies; agrees [Jerry Brewer] shall said poli- designate right sole beneficiaries of said have the beneficiary [Nina Brewer] if he as a cies, and exclude Jerry lapse If Brewer died before the so desires.” had change might a reasonable effected a time which he beneficiary, if circumstances, or there extrinsic remarriage part, discovering as such a on his to assist us agree majority intent, then I should with the true opinion. however, not before When are us. situations,
These signed Brewer read directly brought he to his attention that it was power “if he exclude as had the elapsed desire[d].” be- nine months Yet so Jerry’s death tween the execution steps he took no He not Nina’s suit for divorce. did did not contest
He remarry. *5 In the left no children. circumstances He he re- to believe that wanted not unreasonable majority proceeds are What the ceive the Jerry really doing guessing the meant to is doing get of not it. Instead but did around way go making guess as well as the that could one prefer give other effect to the written directions policies, changed. the which did not fit have see hy majority, point.
Roman v. cited the is not in There pay the settlement recited that the husband would wife $40,000 and deliver to her $1,800 U.S. bonds. gave In fact he $1,780 her bonds, cash instead and it was noted $1,780 “Cash substituted for It Bonds.” was to the husband’s direct pecuniary interest to substitute cash for the bonds not to bonds reissued in his name their before maturity. Hence slightest in that case there was not doubt about the husband’s intention to exclude wife participation proceeds from in the bonds. Here materially facts are so different that the case authority today’s not decision. I would reverse decree. joins
Ward, J., in this dissent. v. Gordon
Coffelt
5-3605 2d 633 S. W.
Opinion May Delivered 31, 1965.