41 Ind. App. 183 | Ind. Ct. App. | 1907
Lead Opinion
Action by appellee to recover the alleged surrender value of a life insurance policy issued to him by appellant on March 21, 1882. There was a trial by jury, a verdict for appellee, with answers to interrogatories. Appellant’s motions for judgment on the answers to interrogatories, notwithstanding the general verdict, and for a new trial, were each overruled, and judgment rendered on the verdict for $4,419.14.
The errors assigned and discussed are that the court erred in overruling each of said motions. The evidence shows, without conflict, that appellant, in 1882, issued the policy sued on, by which it insured appellee’s life in the sum of $5,000, and further provided that at the end of fifteen years, if living, he should be entitled to any one of five options, one of which was to take the surrender value of the policy in cash. Appellee paid his.annual premiums of $260.55 each,
The circumstances connected with the transaction, in connection with the testimony of appellee, fully justified this finding. This being true, the last and only act necessary to a completion of the contract was the acceptance by appellant
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion.
Action by appellee against appellant to recover the alleged surrender value of a life insurance policy. There was a trial by jury and a verdict for appellee for $4,419.14. With the verdict the jury returned answers to in-terrogatories.
It is assigned that the court erred (1) in overruling the motion for judgment in favor of appellant on answers to interrogatories; (2) in overruling appellant’s motion for a new trial. The amended complaint alleges that appellant, on March 13, 1882, issued to appellee a policy of
The sixth paragraph of answer alleges that the appellee at no time paid the annual premium on the policy issued, which became due on March 18, .1894, 1895 and 1896, or any of said debts; that on July 14, 1897, appellant notified the appellee that because of the failure to pay such premiums the policy had become forfeited and void; that the appellee thereupon abandoned any claim to said policy, and agreed that the same had become forfeited and void; that he did, on May 13, 1901, file in the district court of the United States his petition in bankruptcy, and was duly adjudicated a bankrupt; that with the schedules filed in his petition in bankruptcy, which were verified by him, he stated that he had no policy of insurance and no unliquidated claims of any nature ; that he did not set out among his assets in any place in such schedule the policy in suit, nor any interest therein, but claimed that his only property was clothing and ornaments of the person amounting to $75, which were set off to him as exempt under the laws permitting exemptions to householders.
Appellee filed a reply to the answer, the first paragraph of which was a general denial to the second, third and fourth paragraphs of answer. The second was a reply to the fourth
The evidence shows that appellee failed to pay the annual premium which fell due March-18,1894, and each succeeding premium which fell due thereafter. On July 14, 1897, appellant notified appellee that because of the failure to pay such premium the policy had become forfeited and void. On May 13, 1901, appellee filed in the proper district court of the United States his petition in bankruptcy, and was duly adjudicated a bankrupt. In the schedules filed with his petition, and which were verified by him, he stated that he had no policies of insurance and no unliquidated claims of any nature. He did not set out among his assets in such schedules the policy in suit, nor any interest therein, but stated that his only property was clothing and ornaments of the person, amounting to $75, which were set off to him as exempt under the laws permitting exemptions to householders. Upon this set of facts appellant claims that appellee cannot maintain t-his action. Section seventy of the bankruptcy act of 1898 (30 Stat., p. 565, U. S. °Comp. Stat. [1901], p. 3451) provides that the estate and title of a bankrupt shall pass by operation of law, to his trustee as of the date he was adjudged a bankrupt, except such property as is exempt. This was the rule in 1841, under the law of 1867, and is under the present law. It appears from the record that no assets, liable for the payment of his debts, were shown by the bankrupt; that his indebtedness amounted to $30,000, but, in the absence of assets, no trustee was appointed, and only one claim of $54.21 filed against the estate. The bankruptcy act vests title of the assets of the bankrupt in the trustee without any assignment in fact. Atwood v. Bailey (1903), 184 Mass. 133, 68 N. E. 13.
A wilful omission to state a debt in his schedule is good ground for refusing a discharge. Section 29 of the bankruptcy act (30 Stat., p. 554, U. S. Comp. Stat. [1901], p. 3433), prescribes punishment by imprisonment of a bankrupt for knowingly and fraudulently concealing, while a
The second proposition is, that, when all claims that have been approved within the year are paid, the surplus of the estate goes to the bankrupt. 30 Stat., p. 564, §66, U. S. Comp. Stat. (1901), p. 3448; Loveland, Bankruptcy (3d ed.), §270; Boyd v. Olvey (1882), 82 Ind. 294, 303. Section sixty-six, supra, provides that debts which remain unpaid after the final dividend has been declared shall be paid by the trustee into court. Dividends remaining unclaimed for one year shall, under the direction of the court, be distributed to the creditors whose claims have been allowed but not paid in full, and after such claims have been paid in fall the balance shall be paid to the bankrupt. Loveland, Bankruptcy (3d ed.), §270. Boyd v. Olvey, supra, decides that the judgment of the district court conclusively determines the fact that the assignee had performed his duties, was entitled to a discharge, and that the estate was finally settled. We quote as follows from said case: “Involved in this adjudication is a subordinate matter that the property here in dispute was never assets in the hands of the assignee. There can be no doubt as to this, because the fact was so stated in the assignee’s report, was so referred to in the register’s certificate, and was thus brought before the court for consideration, and it was considered and determined by the judgment confirming the report and discharging the assignee.” The case wholly differs from the one at bar, and the section of the statutes is not pertinent to the question before us.
The third proposition is that, where no trustee has been appointed, the title remains in the bankrupt, and if no trustee is ever appointed the bankrupt is never divested of title. Fuller v. New York Fire Ins. Co. (1903), 184 Mass. 12, 67 N. E. 879; Loveland, Bankruptcy (3d ed.), §149; 5 Cyc. Law and Proc., 343. Section forty-four of the bankruptcy
It follows.that appellee had no right of action, and the judgment should be reversed.