Cockrell v. Cockrell

79 Miss. 569 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

The demurrer to complainant’s bill should, we think, have been overruled. The contract of Mrs. Mary V. Cockrell with her late husband, William M. Cockrell, to have the policy of insurance upon his life so changed as to substitute their son, Claude Cockrell, as beneficiary therein in place of Mary V. Cockrell, and the release by her of her right in the policy for that purpose, was a valid and binding contract for that purpose, good both in law and in equity, and for breach of which there was a remedy in either court at her election. On account of the insolvency of William M. Cockrell, the legal remedy would have been unfruitful, but the right in equity is clear and efficacious. The right of Mrs. Mary V. Cockrell in the policy payable to her was a valuable right, not to be destroyed without her consent,- — ■ a chose in action which by the agreement between William M. and Mary V. Cockrell was contracted to be assigned to Claude Cockrell; and, upon the execution of the contract upon the part of Mrs. Mary V. Cockrell, by the release of her interest therein, Claude Cockrell acquired a clear equitable right to. have a performance of the contract upon the part of William M. Cock-rell in his behalf. The nonperformance of the contract by William M. Cockrell was a plain breach of duty, and his effort to make the policy payable to his legal representative was a palpable and positive fraud upon the rights of complainant in this bill. By his effort to defeat the right and interest contracted to be vested in Claude Cockrell under his agreement with Mary V. Cockrell, and in making the substituted policy payable to himself or his personal representatives, William M. Cockrell became a trustee ex maleficio; and Mrs. Martha E. Cockrell, his legatee under his will, and a mere volunteer, also takes the policy as a trustee ex maleficio.

Mrs. Mary V. Cockrell is a party to this bill, as the next friend of Claude Cockrell, and it is immaterial, we think, that she should be described as a party in her individual capacity, for she must be estopped hereafter from asserting any right adverse to any of the parties to this suit. ITer release of her interest in the policy under the agreement with William M. Cockrell, in order that the policy should be made payable to Claude Cockrell, was a good equitable assignment of her interest in the proceeds of the policy. Story, Eq. Jur., sec. 1047. It is a principle of equity jurisprudence that equity regards and treats that as done which in good conscience ought to be done. And the valuable right of Mrs. Mary V. Cockrell, which she contracted with William M. Cockrell to be assigned to Claude Cockrell, became, upon the execution of the release by her, a clear and distinct interest and right in Claude Cockrell, which the spirit of the maxim quoted secures to him under said agreement.

Demurrers overruled, and defendants have thirty days to mahe answer.