16 Colo. 19 | Colo. | 1891
Lead Opinion
delivered the opinion of the court.
The amended answer admits, by failing to deny, the facts as stated in the complaint, and for the purposes of this appeal the new matter set up in this answer must also be taken as true. Upon these facts the position of appellee is that upon the death of the insured the right to the fund vested absolutely in the wife, Ella A. Bouse, and that upon her death the right to the uncollected fund passed as part of her estate to her administrator, to be by him disposed of as other assets of the estate. The contention of appellant is that, as the fund had not been paid over or collected at the time of the death of the wife, the right thereto became vested in the children under the terms of the policy.
The certificate is, in legal contemplation, a policy of life insurance, and to be construed as such. That the amount can only be collected by assessment upon members of the association after due notice of death, and the payment of such assessment is purely voluntary, can make no difference. The association, so far as it is engaged in the business of life insurance, must be treated in law as a mutual
Turning to the policy executed in this case, we find the disposing clause to be couched in the following language: “ Which sum shall at his death be paid to his wife, Ella A. Bouse, and in case of her death to Mary E., Clara D. and Anna L. Bouse, children.” It Would be difficult to find language to more clearly and definitely fix the time at which the right to this money vested in Ella A. Bouse than the words “ at his death.”
It is claimed, however, that the words following, “ in case of her death, to Mary E., Clara D. and Anna L. Bouse, children,” qualify the words immediately preceding, and that when construed together they give to the children a right to the fund so long as the same is capable of practical identification and control, and has not been otherwise appropriated by the wife, although the wife in fact survives the husband. But the plain intent of the language of the policy is against such construction. The words, “ which sum shall at his death,” fix the time at which the right to the fund is to be determined, and the words following provide for the payment to the children in case the wife shall not be living at that time. The children were only to receive the money upon the happening of certain contingencies. The risk taken by the association was upon the life of the assured. By his death the policy became fixed, and the right to the fund vested. The wife having survived the husband, her right became absolute by .the express terms of the policy. This construction finds support not alone in the language of the contract, but is also in accordance with the settled policy of the law, which is to favor vested, rather than contingent, estates — the first, rather than the second, taker. King v. Trick (Pa.), 19 Atl. Rep. 951;
A policy of life insurance is in the nature of a testament, and, although not a testament, in construing it the courts will, so far as possible, treat it as a will. Bolton v. Bolton, supra. In King v. Trick, supra, an absolute devise was made by a father to his son, followed by a proviso to the effect that, in case the devisee should die without children, grandchildren or wife living, the estate should go over. The words “ die without children,” etc., were held to refer to the death of the son in the life-time of the testator, and the son having survived the testator was declared the owner of the fee.
The case of Association v. Montgomery, supra, is in some respects quite analogous to the case at bar. It was provided by the certificate issued in that case that the insurance should be paid to the son and daughter of the insured equally, if living, and, if not living, to his heirs; in case of the death of either the son or daughter, the full amount was to be paid to the survivor; and the court held the provision as to survivorship related to the time of the death of the donor. And it appearing that both beneficiaries were living at that time, although one had died before the payment of the benefit, his executor was entitled to the share, and not the survivor. In the course of the opinion the court said: “ The scheme of the corporation is to raise a fund which shall pass to designated beneficiaries at the death of a member. The right, which before was inchoate and contingent, becomes upon the death of the member fixed and certain in the beneficiary. * * * The time of payment provided for, namely, ninety days after the death of the member, has no reference to who shall take as survivor.”
So, in the case at bar, we are of the opinion that, by the express terms of the policy, the right to the fund became vested in Ella A. Eouse upon the death of her husband. Consequently, upon her death, the fund should pass to the
While we feel that our conclusion as to the party entitled to the fund must necessarily follow as a matter of law, in answer to the argument of counsel based upon the duty of the deceased father to provide for his children, it may be .said that it was equally his duty to provide for his invalid wife. She was the person having the strongest claim upon his estate and bounty. If the construction contended for by counsel be adopted, the wife could not use the fund, no matter to what extremity she may have been driven in the final sickness intervening between the death of her natural and legal protector and her own death. She could not, by anticipating the payment of the legacy, surround herself 'with the things that might have been absolutely necessary to sustain her life from.day to day.
In addition to this, it would place the beneficiary primarily entitled to the fund to a great extent within the power of the insurer. Bor instance, by withholding payment, the beneficiary would be compelled to bring suit for the money, the ultimate decision of which might be delayed for years; and if, during the time, the wife should die, others would receive the reward of her endeavors without sharing the expense. Under such, circumstances, it is easily to be seen that the insurance corporation or association could compel the wife, in many instances, to accept less than the face of the policy, rather than institute a suit, no matter how clear her right of recovery might be.
We think the judgment of the district court is right, and it is accordingly affirmed.
Affirmed.
The former opinion of the court delivered by Mr. Justice Elliott is withdrawn.
Dissenting Opinion
{dissenting). I cannot concur in the foregoing opinion. In the original investigation of this case the various questions involved, in the record were care, fully considered. By the re-argument nothing essentially new has been presented. Hence I now feel constrained to refile the former unanimous opinion of this court as an expression of the reasons for my present dissent. The part relating to the construction of the certificate was as follows:
“ While the certificate is to be construed as a contract, nevertheless, it being in the nature of a policy of insurance,- — -a post-morterri' provision for the benefit of those dependent upon the assured for support,— it is, like the provisions of a will, to be liberally construed in favor of those who may naturally be presumed to have been the objects of their father’s bounty.
“ In order to correctly understand and give effect to the contract over which this controversy has arisen, certain rules for the interpretation and construction of written instruments will be noticed. Primarily to be considered is the intention of the husand and father in effecting the insurance, and this is to be ascertained from the language of the certificate itself, construing its words according to their common and reasonable signification, so as to give effect to the entire instrument as far as practicable; secondly, the language of the instrument is to be construed in the light of extrinsic circumstances attending its execution, consider ing the situation and relations in life of the several parties therein mentioned, and the objects and interests to be thereby secured. We are not unmindful of the rule which excludes the proof of contemporaneous oral language to vary the terms of valid written instruments. 2 Bl. Comm, pp. 379-381; 1 Redf. Wills, pp. 421, 663; 1 Greenl. Ev. §§ 275-277; Mining Co. v. Tierney, 5 Colo. 582; Ballou v. Gile, 50 Wis. 614; Clarke v. Boorman, 18 Wall. 502, 503; McDermott v. Association, 24 Mo. App. 73; Walker v. Douglas, 70 Ill. 445; Society v. Fietsam, 97 Ill. 474.
“ What, then, was the intent of the assured in causing to
££ It is claimed by counsel for the administrator that by the terms of the certificate the right to the insurance money vested in Ella A. House immediately upon the death of her husband. This claim is based upon the words of the certificate that the money shall £ at his death be paid to his wife, Ella.’ But these are not the only words of the instrument relating to that subject. It also contains the words, £ in case of her death; ’ that is, it is further provided that in case of the death of the wife, Ella, the money shall be paid to Mary, Clara and Anna, children of the assured. In argument, however, counsel have sought to maintain the administrator’s claim by construing the certificate — First, as though the children were not named therein as beneficiaries ; and second, as though they were only entitled to the insurance in case the wife should die before the death of the assured. The argument is not well founded. It violates an elementary rule for the construction of contracts, in that it does not give effect to the whole language of the instrument. In the first instance it omits, and in the second adds, important words. The effect of the addition, as well as the omission, is to .defeat the clearly expressed intention of the assured. It is true the certificate was framed so that the wife’s right vested immediately upon her husband’s death, but such right was not indefeasible. On the contrary, it was subject to be divested by her own death. The certificate expressly provides that, in case of the wife’s death, the insurance shall be paid to the children; and thus provision was made for the vesting of the children’s rights just as surely as for the vesting of her own. This last provision is in no way limited or qualified as to the time of her death; it is direct and unequivocal to the effect that, in case of the wife’s death, either before or after the death of the assured, the money shall be paid to the children named
“ The adjudicated cases cited in behalf of the administrator’s claim do not necessarily militate against the foregoing construction. In the case of Richmond v. Johnson, 28 Minn. 447, the wife only was named as the beneficiary in the certificate. In the case of Insurance Co. v. Burroughs, 34 Conn. 305, the policy was made payable to the children only in case the wife should die before her husband’s death should occur; and in Chapin v. Fellowes, 36 Conn. 132, the policy contained a similar provision. In each of the Connecticut cases the wife died before the husband. In the former case the wife had made an absolute assignment of her interest in the policy for a valuable consideration, but the children nevertheless were allowed to recover against the claim of the assignee. In the latter case the children were protected against the claims of the creditors of the husband. Thus it appears how jealously the rights of beneficiaries of such insurance, even in the second degree, are guarded by the courts.
“ Our attention has not been called to any case where the provisions of the policy or certificate of insurance were identical, or so nearly analogous to the one under consideration as to affect our conclusion. It is always safer to be guided by legal principles, founded on justice and equity, than to attempt to follow case precedents based on facts or circumstances not strictly analogous or controlling. In
“ Again, after adverting to the fact that the English courts follow precedents in matters of this kind more strictly than do the American tribunals, the same author adds: ‘ But, at the same time, when cases occur, as will always be the fact in regard to the largest proportion, which have,to be determined upon their peculiar circumstances, the English courts manifest no reluctance to grapple with the difficulties which present themselves, however formidable or embarrassing, and to place all cases upon their proper basis of truth and justice, without regard to the entire want of precedent to maintain them. * * * And the same tendency is observable in decisions of the American courts.’ 1 Redf. Wills, p. 423.
“ Beading the certificate in the light of the extrinsic circumstances as shown by the amended answer, and consid- . ering the condition of the assured and of the different members of his family, and the relations they sustained to each other at the time of effecting the insurance, no one can doubt for a moment that it was the father’s intention that the insurance money should be' paid to his infant daughters in case his invalid wife should die either before his own death should occur, or before the money should be paid to her. These children were his legitimate heirs, dependent upon him for support, and, next after his wife, the natural objects of his bounty. They were not the children of his wife, Ella, and could not inherit from her; hence we
“ If anything further were needed to strengthen the construction we have given this instrument, the objects, purposes, rules and regulations of the benevolent order from which this certificate of insurance emanated might be considered. But it is scarcely necessary to invoke cumulative authority to confirm the view that it was the father’s intention, in case of his wife’s death, that the insurance money should go to his doubly orphaned minor children, instead of the administrator of the deceased wife, either for the payment of her debts, or for the benefit of her heirs, who were to him as strangers, having no special claim upon his fortune, his benevolence, or the fruits of his labor.” Henry v. Thomas, Ex'r, etc., 118 Ind. 27.
In the opinion on the rehearing, the majority.of the court place great reliance upon the case of Association v. Montgomery, 70 Mich. 587. That case, to use the language of Judge Bedfield, quoted in the former opinion, is neither “ precisely analogous ” nor “ strictly identical ” with the one now under consideration. In that case the certificate was for $1,500 upon the life of Edward O. Franklin, payable ninety days after satisfactory proof of his death, and the concluding clause was as follows: “ The said Union Mutual Association agrees to pay to his son and daughter, FT. Lyon and Charlotte A. Franklin, equally,— in case of. death of either, full amount to go to the survivor,— $1,500, if living; if not living, to the heirs of said member.”
' Both beneficiaries were living at the death of the assured. Satisfactory proofs of the death of the assured were made, and both beneficiaries claimed payment of their respective moieties; but before the money was paid one of the beneficiaries died, leaving a will by which his interest in the certificate was disposed of. The court held that the words “if living” and “if not living” refer to living at the time of the assured’s death; and that the share of each
It is unnecessary to question the correctness of the Michigan decision in construing the instrument before us. In that case it was necessary to construe the words “ if living” and “ if not living ” with reference to some particular date or event connected with the vesting of the fund specified in the certificate. BTo such necessity exists in the case before us. The certificate does not contain .the words “ if living ” or “ if not living,” or other equivalent words; but, as was said in the former opinion, the provision in regard to the children’s interest “ is in no way limited or qualified as to the túrne of the wife’s death; ” so that, whether the wife be living or not living at the death of the assured, the direct and unequivocal provision of the certificate is that, “ in case of her death,” the money shall be paid to the children named therein. It does not appear in the record before us that the wife, either by will or otherwise, ever attempted to dispose of the insurance money, or of her interest in the certificate. If she had needed the fund to provide for her necessities while living, and had actually disposed of or hypothecated it for that purpose, as indicated in the present opinion of the majority of the court, and such fact had been properly pleaded, perhaps the claim of the children might have been defeated in whole or in part for that reason. But it is vain to speculate as to matters not set forth in the record.
Much stress is laid upon the rule that the law favors vested estates in preference to contingent, unless an intention appears to the contrary. It will be noticed that the rule thus stated is pregnant with two very important and significant admissions: First, that contingent estates may be created; and second, that the intention of the parties creating an estate is to be considered in determining its
In the many elaborate briefs and arguments of counsel for the administrator it is nowhere claimed that Sterling D. Bouse could or did have any intention of making provision for strangers to the exclusion of any member of his own. dependent family. But the contention is that a certain “ formula of words ” used in the certificate has been construed by the courts to have a certain and definite signification, and that this court should feel itself bound by such precedents. As heretofore shown, no case has been cited in which the language was “ precisely analogous ” or “ strictly identical” with the certificate under consideration ; nor has any case been cited where the circumstances and relation of the parties to be affected by the instrument were either precisely or substantially analogous to those under consideration. -
It has been before observed, and it can scarcely be made clearer by repetition, that the courts, especially the American courts, will not allow themselves to become slaves to “ arbitrary and unbending ” precedents, when the effect of such servility is to do manifest injustice. But they will rather “grapple with the difficulties which present themselves, however formidable'or embarrassing,” in each particular case, and determine the same with reference to its “ peculiar circumstances,” placing the decision “ upon the proper basis of 'truth and justice without regard to the entire want of precedent.” 1 Bedf. Wills, supra.
The law is not, and in the nature of things cannot be, an exact science, like mathematics. Long ago able jurists gave
Affirmed.