Brown v. Powell, No. 22913

No. 22913 | Miss. | Sep 15, 1922

Smith, C. J.,

delivered the opinion of the court:

Ben Powell exhibited an original* bill in the court below against the Lincoln Reserve Life Insurance Company of Birmingham, Ala., and Frances Lax Powell, alleging, in substance, that on December 5,1913, the Afro-American Life Insurance Company, which -afterwards became the Lincoln Reserve Life Insurance Company, issued to Ben Powell a policy of insurance upon his life in the sum of two thousand dollars, the language therein designating the beneficiary reading as follows: “My estate beneficiary with right of revocation.” Section 8 of the' stipulations of the policy styled “Benefits and Provisions” reads as f oIIoavs :

“Change of Beneficiary. — When the right of revocation has been reserved, or in the case of the death of any beneficiary under either a revocable or irrevocable designation, the insured, if there be no existing assignment of the policy made as herein provided, may, while the policy is in force, designate a new beneficiary, with or without reserving right of revocation, by filing written notice thereof at the home office of the company accompanied by the policy for suitable indorsement thereon. Such change shall take effect when indorsed on the policy by the company and not before. If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured.”

On December 15, 1915, Willie V. Powell, the wife of the insured, was substituted as the beneficiary in the policy in accordance with the provisions thereof for changing the beneficiary. Willie V. Powell died, and Ben married Frances Las, who was substituted as a beneficiary in the policy on April 4, 1921. On July 1, 1921, the beneficiary was again changed by Ben, with the approval of the company indorsed on the policy, so as to malee the policy payable to Frances Lax PoAvell and Bernice Powell, a daughter of the insured. Neither, the notice to the company that the insured desired to make Frances Lax PoAvell the beneficiary in the policy, nor that he desired to join Bernice Powell therein Avith Frances Lax Powell, reserved to the insured the right of revocation. The insured again attempted to change the beneficiary so as to make Edgar Brown the beneficiary therein as trustee for the insured’s sister, Charity Davis, and Bernice Powell, his daughter, but Frances Lax Powell, in whose possession the policy was, declined to surrender it, so that the change in the beneficiary could be indorsed thereon.

The prayer of the bill is that Frances Lax Powell be directed to surrender the policy, and that Edgar Brown be substituted as beneficiary therein as trustee for Charity Davis and Bernice Powell. While this cause .was pending Ben Powell executed a will by which he devised the proceeds of the policy to Edgar Brown in trust for Charity Davis and Bernice PoAvell. Before the cause was disposed of Ben Powell died, and the cause was revived in the name of Edgar Brown as executor and trustee under the will. The insurance company answered the bill,-admitting the right of Ben Powell to substitute his sister and daughter as beneficiaries in the policy, and offering. to pay the amount thereof to whomsoever the court should direct. Frances Lax Powell answered, denying that Ben Powell had the right to change the beneficiary, in the policy from herself as sole beneficiary therein to herself and Bernice Powell jointly, or had the right to make the change now sought to Edgar Brown as trustee. The cause was submitted on bill, answer, and proof, and a decree was rendered, dismissing the bill and directing the insurance company to pay to Frances Lax Powell the amount due by it under the policy. From this decree the executor has appealed to this court. The only other fact necessary to be set out is that when Ben Powell notified the insurance company that he desired to make Bernice Powell a joint beneficiary therein with Frances Lax Powell, his intention so to do was known to the latter, and she made no objection thereto.

The contention of counsel for the appellant is that the right reserved to the insured in the policy to revoke the beneficiary therein was not exhausted by the first substitution of a beneficiary, that is by the substitution of Willie Powell as beneficiary, but that each substituted beneficiary in the policy takes only the right enjoyed by his predecessor, that is, the right to collect the proceeds of the policy in the event his appointment as beneficiary is not revoked by the insured. The contention of counsel for the appellee is that the right of revocation reserved to the insured is simply to revoke the designation of the beneficiary made in the policy and is exhausted when exercised unless it is reserved anew with each substitution of a beneficiary. We are not called on to decide which of ‘ these contentions would be correct if the right of the insured to change the beneficiary was dependent alone on the reservation thereof immediately following the designation in the policy of the original beneficiary. For the provision of section 8 of the “benefits and provisions” clauses that “the insured . . . may . . . designate a new beneficiary, with or without reserving right of revocation, by filing written notice thereof at the home office of the company,” clearly contemplates that the notice filed at the home office shall set forth both the name of the new beneficiary, and whether the insured intends to make the change “with or without reserving right.of revocation.” From which it necessarily follows that if the notice does not reserve the right of revocation, the insured is without power to thereafter exercise it.

One of the contentions of counsel for the appellant seems to be that the meaning of the revocation clause of the policy should be determined by the construction which the parties thereto, including Frances Lax Powell, placed on it when Bernice Powell was substituted as a beneficiary therein, that is, that Ben Powell had the right to substitute a new beneficiary without the consent of the old beneficiary. The rule here invoked has no application, for the reason that the language of the policy, providing for the appointment of a new beneficiary “with or without reserving right of revocation, by filing written notice thereof at the home office of the company, etc., is plain and unambiguous.

Affirmed.