179 Ky. 76 | Ky. Ct. App. | 1918
Opinion of'the Court by
Affirming.
The agreed facts show that on October 1,1891, one W. M. Clyne executed to Hobson & Company, of Paducah, his promissory note for $1,845.65, due one day after date. This note on October 1, 1892, was sold and assigned by Hobson & Company to L. W. Emery, who later died testate and whose will was duly admitted to probate by the McCracken county court. By his will the- testator bequeathed the above note to his daughter, M. F. Emery, who by reason thereof became the owner and obtained possession of the note. "When it came to her hands the note contained this endorsement:
“I hereby promise that this -policy No. 127025, in the Manhattan Life Insurance Company, may be used by the estate of L. W. Emery to pay this debt; but any proceeds arising from said policy above the debt shall be paid to my family.
“This February 9, 1906.
“W. M. Clyne.
“Attest: G-eo. F. Emery.”
The above policy, which was for $2,500.00, was issued by the Manhattan Life Insurance Company upon the life of W. M. Clyne, March 5, 1902, and on March 12, 1902, was assigned to the appellant, M. F. Emery, by the following writing, viz. :
“In consideration of debt evidenced by note for $1,-800.00 and interest, I hereby sell and assign unto M. F. Emery, of Paducah, county of McCracken, State of Kentucky, the annexed policy No. 127025 on the life' of W. M. Clyne, near 'Wandville, McCracken county, issued by the Manhattan Life Insurance Company, of New York; and I do also, for myself, my executors and administrator, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, his executors, administrators and assigns, and their title to the said policy will forever warrant and defend. And I
“"Witness my hand and seal this 12th day of March, 1902.
“WrcniAM M. Cly*ne.”
All the premiums on this policy were paid down to and including March 5, 1912. No part of the note owing by Clyne to M. P. Emery had been paid when the above assignment of the policy was made and there was then due thereon $2,891.39, which thereafter increased until at the time of the institution of this action it amounted to $4,503.17.
Within thirty days after the payment of the annual premium March 5,1912, on the policy in question, the appellant offered to surrender it to the Manhattan Life Insurance Company for a non-participating paid-up term policy on the life of the insured, Clyne, for $2,500.00, to run for a period of five years and.seven months, beginning on the date of the payment of the last premium, viz.: March 5, 1912, which the insurance company was requested by appellant as assignee of the present policy to issue; but refused to issue without a written request from Clyne, the insured, in addition to the request from the assignee, which request from -Clyne was never made. At the time the request for the issuance of the non-participating, paid-up policy for $2,500.00, on the life of Clyne was made, there were no notes, loans or indebtedness against the policy due the Manhattan Life Insurance Company. After Clyne’s death, which occurred April 16, 1916, appellant furnished the insurance company proper proofs thereof and was thereupon tendered by it $998.00 in settlement of its indebtedness on the policy; the latter claiming that this amount was its automatic cash value as a paid policy at the date of the death of the insured. Appellant refused to accept the $998.00 tendered, and demanded of the insurance company $2,500.00 as the amount due thereon, and upon the refusal of the latter to pay same, brought this action seeking to compel its payment.
By the terms of the assigned policy certain options were given the insured. Among these was one entitling him, within thirty days after the payment of the last annual premium, to make a “legal surrender” of the policy to the insurance company and demand of it a non-partici
By the only policy that was in force on the life of the insured the option of applying its cash surrender value to the purchase of the extended paid-up insurance of $2,-500.00 that might have been given by the non-participating policy, which appellant complains was not issued to her by appellee, was an option that was personal to the insured, which could not have been made available by his assignee before his death, in the manner attempted, without his written consent. Although this fact was made known to appellant by the refusal of appellee to issue to her the non-participating policy four years before the death 'of the insured, as no such written consent was ever procured of him by her, the conclusion is inevitable that' its cash surrender value of $998.00 was all that she 'had a right to claim.
All that passed by the assignment of the policy from the insured to appellant was the right to collect whatever of its proceeds he might have been entitled to be paid, by way of its cash surrender value, before his death, . or that the appellee was liable for at his death, in the absence of an exercise of the option with respect to the extended, paid-up, non-participating insurance given by the assigned policy; which was and could have been no more than the $998.00, for which she obtained judgment.
The case of Mutual Benefit Life Insurance Co. v. First National Bank, 160 Ky. 538, cited by counsel for appellant does not conflict with the conclusions we have expressed. There was in that ease no controversy as to the amount to which the assignee of the policy was entitled. Indeed, only the cash surrender value of the policy was claimed by the assignee, and the insurance company re- ' sisted its recovery by the assignee upon the ground"that the right to receive it was confined by the terms of the policy to the insured alone. In rejecting this contention we held that where a note is secured by the assignment to the payee, by the obligor and his wife, of an insurance policy on the life of the former having a cash surrender
We find no error in the judgment of the circuit court. Hence, it is affirmed.