189 Ky. 185 | Ky. Ct. App. | 1920
Affirming.
On May 13, 1864, the New England Mutual Life Insurance Company granted to Mary C. Gheen, a married woman, residing in Louisville, Ky., and the wife of Joseph P. Gheen, a policy of life insurance, by which it insured the life of the husband, in the sum of $5,000.00. The portion of the policy necessary to be adverted to is as follows:
“This policy of insurance witnesseth, that the New England Mutual Life Insurance Company in consideration of the premium of one hundred and twenty-eight dollars and — cents, to them paid in the manner provided in the rules of this company, by Mary C. Gheen, of Louisville, in the county of Jefferson, in the state of Kentucky, being the assured in this policy, and of a like sum to be paid to them by said assured, on or before i the thirteenth day of May, in every year, during the continuance of this policy, do insure the life of said Joseph P. Gheen, her husband, in the amount of five thousand dollars, for the term of his life, from this date at noon.
“And the said company do hereby promise to and agree with the said assured, her executors, administrators and assigns, well and truly to pay the said sum insured to the said assured, her executors, administrators, or assigns, sixty days after due notice and proof of the death of the said insured during the continuance and before the termination of this policy. For her sole benefit.”
The assured, Mary C. Gheen died intestate, on October 25, 1887, leaving two children surviving her, viz.: Alice, who is now the appellant, Alice G. Conn, and Charles R. Gheen, who died, intestate, on October 23, 1913, leaving surviving him, his widow, Clara M. Gheen, now the appellee, Clara M. White, and two children, Mary Elise Gheen and Charles Robert Gheen.
The insured, Joseph P. Gheen, continued to live until November 6, 1917, when he died testate. The insured, Joseph P. Gheen, by his last will'and testament devised the entire proceeds of the policy of insurance upon his life to his daughter, Alice G. Conn, the appellant. The administrator of the assured, Mary C. Gheen, after the death of the insured, Joseph P. Gheen, collected the proceeds of the policy, and now has it, in its hands for distribution. The appellee, Clara M. White, the widow of Charles R. Gheen, set up claim to one-fourth of the proceeds of the policy of insurance. Her claim was denied by Alice G. Conn, who claims the entire proceeds under
Mary Elise Gheen and Charles Eobert Gheen, the children of Charles E. Gheen, through their guardian have disclaimed any interest in the proceeds of the insurance policy, because of the fact that under the will of their grandfather, Joseph P. Gheen, they are made devisees of property of much greater value than any interest they could claim in the insurance policy, and the will undertaking to dispose of the policy to Mrs. Conn, they were under the necessity of electing whether they would claim an interest in the policy or accept the devises made to them by the will.
The theory upon which Mrs. C'onn claims the entire proceeds of the policy is that in the year 1864, when the policy contract was first made and the policy -issued, the right to receive the proceeds of it, in the event of the death of Joseph P. Gheen, was a right to personal property in Mary C. Gheen, and that under the principles of the common law then prevailing, the ownership of the. personal property of a married woman vested in the liusband, immediately upon her acquisition of it, unless the husband was excluded during the life of the wife, when the property was .the separate estate of the wife, and in that event the exclusion continued no further than the lifetime of the wife, and at her death his right to possession might be exercised, and besides that, under the statute of distribution in force in 1887 at the death of Mary C. Gheen, her husband was entitled to the entire surplus of her personal estate, and Joseph P. Gheen having survived his wife for many years, was the owner of the policy and that it passed under his will to-Mrs. Conn.
The terms of the policy contract clearly show that it was the intention of the parties that the title to the benefits of the policy were to be for the sole use and benefit of the wife to the exclusion of any right in the husband to the use or control or ownership of it, and thus created in her an absolute separate estate, as such estates then had their place in our judicial system. Magill v. Mercantile Trust Company, 81 Ky. 129; Hutchison v. James, 1 Duv. 75; Petty v. Molier, 14 B. M. 247; Bowen v. Sebree, 2 Bush 112; Shackelford v. Collier, 6 Bush 149; Trail v. Trail, 7 R. 306. There was no provision in the instrument which continued the exclusion of the husband, or controlled the disposition of the estate in the
‘ ‘ Section 30. A policy of insurance on the life of any person expressed to be for the 'benefit of any married woman, whether procured by herself, her husband or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband, or his creditors, or the person effecting the same or his creditors . . . ”
“Section 31. A policy of insurance on the life of any person duly assigned, transferred or made payable to any married woman, or to any person in trust for her, or for her benefit, whether such transfer be made by her husband or other person, shall inure to her separate use and benefit and that of her children, independently of her husband, or his creditors, or of the person effecting or transferring the same or his creditors; . . . ”
The provisions embraced in the above statutes have continued in force since their enactment, and are now substantially embraced in sections 654 and 655, Kentucky Statutes, with the addition of other provisions which, however, in no wise modified the original ones. It is very clear, that, if the provisions of these statutes have effect and operate upon the disposition of the proceeds of the insurance policy, in controversy, there could be no question, that if the assured, Mary O'. Gheen, in such policy, being a married woman, and at her death leaving surviving children, the children would be entitled to have the proceeds of the policy as against the surviving husband, and that an attempt by the surviving husband of the beneficiary to control the disposition of its proceeds by a last will and testament, would be ineffectual. The language of the statutes is emphatic, that when a policy of insurance is expressed to be for the benefit of a married woman, it ‘ ‘ shall inure to her separate use and benefit, and that 'of her children, independently of her husband.” The policy in controversy was issued in 1864
In Thompson v. Cundiff, 11 Bush 567, it was held that the statute of March 12, 1870, affected a policy of insurance of which a married woman was the beneficiary, and which was issued previous to the enactment of that statute, as regarded the rights of creditors of the husband, who had procured the policy upon his own life for the benefit of his wife, and based the reason of the holding upon the nature of a contract of insurance in that the insured being privileged to decline the payment of any yearly premium and permit the policy to lapse, that the payment of the premium which became due after the statute was enacted was in a sense the making of a new contract in contemplation of the provisions of the statute. The terms of the statute do not any more rigidly exclude the right of the husband’s creditors, than they do the husband, although those terms would not of themselves exclude the right of the husband as a distributee after the death of the wife, in the absence of children of the beneficiary. The legislature exercising its power to control the disposition of the proceeds of a policy for the benefit of a married woman, expressly provided that it should inure to the benefit of the beneficiary and that of her children to the exclusion of the husband. Hence, the cited statute of 1870 and the statute of distribution in effect in 1887 must necessarily be construed together and in so doing the statute of 1870 must'be followed regarding the particular kind of an estate to which it has application. It is insisted upon the authority of Wirgman v. Miller, 98 Ky. 625, that the words in the statute “shall inure to her separate use and benefit and that of her children” do not give to the children of the beneficiary an interest in the policy, because the policy does not expressly give them an interest and it is not shown that an interest is given to them by the charter of the company. The language above quoted was used in that opinion, but in that
It is therefore concluded, that under the express terms of the statute controlling the devolution of such property, 'upon the death of Mary C. Gheen, the right to the benefits of the policy passed to and vested in her children. The undenied averment of the amended answer, that the insured, Joseph P. Gheen, paid all the premiums, is not material nor controlling, as the policy recites that the contract was made by the wife who paid the first premium, and if the husband paid the premium, and thereafter paid the other premiums the wife was notwithstanding, the contracting party. It was a contract, for her own benefit and the husband was acting as the agent of his wife and after her death of her children. Mutual Life Insurance Company v. Spohn, 170 Ky. 721. Besides, the statute makes a married woman and her children the beneficiaries of such a policy, regardless of who procures the insurance. The terms of the policy did not authorize Joseph P. Gheen nor Mary C. Gheen, nor any one else to change the beneficiary, nor was there any provision touching the result in the event the beneficiary died within the lifetime of the insured. The right to the benefit of the policy being vested in Mary C. Gheen, without authority upon the part of any one to divest her of it, and she having left two children, Mrs. Conn and Charles B. Gheen, the right to the benefits of the policy necessarily vested equally in them, and one-half of the amount of the insurance became a portion of the estate of Charles B. Gheen, payable to him upon the death of his father, and having died intestate with reference to it, it passed to his heirs and distributees.
It is, further, insisted, that notwithstanding, it should be held that the insured, Joseph P. Gheen, had no interest in the policy and that his attempt to devise the
The judgment is therefore affirmed.