122 Ky. 572 | Ky. Ct. App. | 1906
OPINION of the Court by
— Affirming.
On the 6th day of February, 1900, the Mutual Life Insurance Company of Kentucky, in consider
It is insisted for appellant that the lower court erred in overruling* the demurrer,- and this contention is bottomed upon the theory that she, as'the beneficiary named in the policy, upon its issual, took a vested interest therein, of which she could not he deprived by the act of the insured in assigning it as collateral security for a loan made Mm by the company, or by later surrendering it for its cash value for cancellation, as neither the assignment nor surrender of the policy was with her consent. It is also argued, in her behalf, that her interest in the policy and right to its proceeds is protected by section 654, Ky Stats., 1903, which declares, in substance, that a policy of insurance on the life of any person expressed to be for the benefit of, or. duly assigned, transferred, or made payable to, any married woman, or to any person in trust for her, or for her benefit, by whomsoever such transfer may be made-, shall inure to her separate use and benefit and that of her children, independently of her husban’d or Ms credit
We are unable to sustain these contentions of counsel. In discussing the question under consideration this court, in Hopkins v. Hopkins’ Adm’r, 92 Ky., 324; 13 Ky. Law Rep., 707; 17 S. W., 864, said: “The general rule is that the right to a policy of insurance, and the money to become due under it, vests immediately upon its issual in the person named in it as the beneficiary, and that this interest, being vested, cannot be transferred by the insured to any other person. Central Nat. Bank v. Hume, 128 U. S., 195, 9 Sup. Ct. 41, 32 L. Ed., 370. The vested right cannot be divested without the consent of the person invested with it. This is so as to insurance in both mutual and ordinary life insurance companies. This does not hold true, however, where the contract of insurance provides that the insured may change the beneficiary. In such ease it vests conditionally only. The right of the one named in the. policy is then subject to be defeated by the terms of the very contract‘naming him as the beneficiary. It is a condition of the contract, and his right is therefore subject to it. ” In considering the statute upon which counsel for appellant relies, the court in the opinion, supra, also declared: “The clause in the policy relative to change of beneficiary does not, in' our opinion, conflict with the provisions of the company’s charter and the general law. They certainly do not in express terms forbid such a condition in the contract, nor can the prohibition be fairly implied. They merely mean that, when a married woman is entitled to insurance, or the proceeds of it, it must be held to be her separate estate, and not liable for
In the case at bar, the policy in express terms conferred upon the insured the right, with the consent of the company, at any time, “to assign it, or before assignment, change the beneficiary therein, or make any other change,” and this right is not in any way made' to depend upon the consent of the beneficiary named in the policy. It is alleged in the answer, and admitted by the demurrer, that the insured did in fact assign the, policy to appellee as collateral security for the payment of his note, executed for money borrowed of it. He dearly had the right to make such use of the policy, though without the knowledge or consent of appellant, whose interest in it as the named beneficiary was subject to his superior right to so use it.
Our examination of the record affords us no ground for disturbing the judgment complained of.
Wherefore it is affirmed.