Equitable Life Assurance Society v. May, 82 Ga. 646

Equitable Life Assurance Society v. May

82 Ga. 646 | Ga. | 1889

Bleckley, Chief Justice.

May, the father and husband,' having a life insurance *654policy payable to his wife and children, died testate. In his will he gave directions concerning the collection of the policy and the application of its proceeds. In so far as he conld do so, he conferred authority up'on his executors to collect the money and apply the same in conformity to his testamentary scheme. The executors having made the collection from the insurance company, the children -filed a bill against them claiming the fruits of the collection. That bill was prosecuted to a final decree, and resulted in an adjudication establishing the rights of the children to the money which the executors had realized on the policy. Whilst the bill was pending and before final decree thereon, May, the present defendant in error, one of the beneficiaries, commenced a suit against the insurance company upon the policy. This action was defended, in part, upon the doctrine of ratification; and by plea duly filed before final judgment, the recovery of the decree in the equity cause was set up in bar. The court held it to be no bar, inasmuch as satisfaction thereof had not been obtained. The controlling question for our decision, therefore, is whether, upon the facts of the case, a decree in behalf of the son againsf the father’s executors, charging them with the money realized upon the policy, will defeat the son’s action founded on the policy itself, against the insurance company. The son, though a minor when the equity cause was commenced, was of full age, and had been so for some years, when the decree was rendered. The facts are stated at large in the official report.

Certainly the money which the executors derived from the insurance company in satisfaction of the policy, could not become property of the owners of the policy except by ratification on their part of the act of collection. Otherwise that money would have belonged to the insurance company after its payment to the exec*655utors, as fully as it did before. The owners of the policy could not have title to it but by election to treat it as their money in the hands of the executors. This they did; and their doing so was essential to obtaining the decree which was rendered in their favor against the executors. The father,, by his will, assumed to confer such authority as he could upon his executors to make the collection. In so doing, he might be supposed to have acted in behalf of his children, as well as for the general interests of his estate. No doubt the children had the right, had they chosen to exercise it, to repudiate this act. But instead of doing so, they chose to adopt it and to claim the fruits of the authority to collect which that act endeavored to create. By the decree the money was adjudged to belong to the children; and that necessarily excludes any title to it in the insurance company. If it belongs to the company, they are still liable on the policy, but if it does not belong to them, as the decree has adjudicated, the policy is extinguished. A plaintiff may pursue any’ number of concurrent remedies against different individuals, until he obtains satisfaction from some of them. But this r-ule does not hold touching inconsistent remedies; and remedies are inconsistent when the right to any of them necessarily yields ór concedes the right to another. And such is the case' here. To found any remedy whatever against the executors for the proceeds of the the policy on the theory of contract, it was requisite to treat the policy as extinguished by reason of the payment made by the company to the executors. As the defendant in error continued to prosecute his bill against the executors after he arrived at majority; and as that voluntary act on his part resulted in the obtainmerit of a final decree against them before his action against the company on the policy terminated, we think he is *656estopped by his election, and that the court below erred in rendering a judgment in his favor.

This is the obvious justice of the matter, since by lapse of time the company would now be barred by the statute of limitations, were it to bring an action against the executors for the recovery of the money as having béen paid to them without due authority.*

Judgment reversed.

A decision to the like effect in.principle was made by the Court of Appeals of New York on the 23d of April, 1889. Fowler vs. Bowery Savings Bank, 39 Alb. Law J. 468. The opinion by Earl, J., cites numerous authorities more or less in point. Ruger, C. J., dissented.