70 Ind. App. 182 | Ind. Ct. App. | 1919
The appellee Farmers’ State Bank of Ossian, Indiana, filed its- verified complaint supplemental to execution against appellee Thomas
The cause was tried by the court which found that the appellee Thomas M. Brown was indebted to the Farmers’'State Bank in the sum of $241.32, to Fred Sharpe in the sum of $385.55, and to Beatty and Doan Company in the sum of $412 on the several judgments mentioned in the complaints; that the appellant had prior to the filing of the .several complaints received and then had in her possession and under her control $1,546.15 in cash belonging to said Thomas M. Brown; that $796.17 of said money had been deposited by appellant and was then on deposit in the said People’s State Bank, and that an amount sufficient to pay and 'satisfy said judgments should be paid into court for that purpose. Judgment was rendered in accordance with the findings.
The appellant filed a motion for a new trial on the grounds that the decision of the court was not sustained by sufficient evidence and was contrary to law.
The facts are in substance as follows: On December 16, 1913, the Farmer’s State Bank of Ossian recovered a judgment for $304.56 against Thomas M. Brown and Fred N. Sharpe on a promissory note executed by Thomas M. Brown and Irvin Brown and indorsed by said Sharpe; that said bank on the same day recovered a judgment against Thomas M. Brown and Beatty and Doan Company for $381.17 on a‘note executed by Thomas M. and Irvin Brown and indorsed by Beatty and Doan Company;, that said bank on the same day also recovered a judgment against Thomas M. Brown for $124.27 on a note executed by Thomas M. and Irvin Brown; that on May 6, 1914, said bank recovered a judgment against Thomas M. Brown for $154.50 on a note executed by Thomas M. and Irvin Brown. Irvin Brown died intestate on August 28, 1913, leaving as his only heirs one child and the appellant, who is his widow. All of said notes were filed as claims against the estate of Irvin Brown, said estate was settled as insolvent, and nothing was paid by said estate or by Thomas M. Brown on said notes or judgments.
Beatty and Doan Company, on April 6, 1915, paid the judgment based on the note indorsed by them, the amount so paid by them being $411.32, which included the costs.
Fred N. Sharpe, on April 5, 1915, paid the judgment based upon the note signed by him, the amount so paid by him being $328.69.
Irvin Brown some years prior to his death and prior to his marriage to appellant had obtained two
A short time before his death, and while the policies were so held by the bank, Irvin Brown and appellee Thomas M. Brown had talkéd about having the policies signed over to the appellant. Appellee Thomas M. Brown at that time told his son Irvin that, in the event of the latter’s death, he,would pay the money over to appellant. Shortly thereafter Irvin and Thomas M. Brown had a conversation with the cashier of the bank about having the transfer made. The cashier advised them to do nothing until the note was paid, and at this time Thomas M. Brown also told Irvin that in case the latter should die he would assign the insurance over to the appellant. No further action was ever taken toward changing the beneficiary named in said policies. Thomas M. Brown was a householder during all of this time, entitled to an exemption as such, and did not have any property subject to execution.
Appellant, after the death of her husband, promised Thomas M. Brown that she would pay the debts of
Appellant contends that undér the facts there was an. oral assignment of the policies and a constructive delivery of them to her.
Appellant’s husband, Irvin Brown, was not the owner or beneficiary named in the policies. He did not have possession of them, and he could not assign them to appellant. In Wilburn v. Wilburn (1882), 83 Ind. 55, the Supreme Court said: “In truth,-the policy is not the property of the insured in any sense, but is the property of the beneficiary from the day of its issue, for from that time he has the whole beneficial interest.”
Appellant’s husband had talked about changing the
Our conclusion is that the proceeds of the two policies were the absolute property of Thomas M. Brown, and that he could not, after the death of the insured, make a gift of such proceeds to appellant, to the detriment of his creditors. There was no error in overruling the motion for a new trial.
Judgment affirmed. .