84 Vt. 350 | Vt. | 1911
There is nothing to take this case out of the general rule laid down in Atkins v. Atkins, 70 Vt. 565, 41 Atl. 503, “That a policy of life insurance, and the money to become due under it, belong, from the time it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance by any act of his, by deed or will, to transfer to any other person the interest of the person named, nor to modify and limit such interest. An irrevocable trust is created”. The Court there further said: “Rhe person who procures insurance on his own life payable to a beneficiary named in the policy, thereby creates in effect a voluntary trust, and what is equivalent to a voluntary settlement, for the benefit of such beneficiary, and when such a trust or settlement is created, it cannot be annulled nor modified by the act or declaration of the party creating it, unless a power of revocation or modification is reserved by the terms of the trust for that purpose.” There, as in the case at bar, the insurance was procured and the premiums paid by the father, and in each instance the beneficiaries named in the policy were the children of the insured. The only difference being that in the Atkins case the beneficiaries took through a person named in the policy as trustee, while in the case before us they took directly under the policy.
The whole consideration for the policy in question was paid by the insured at the time of its execution and delivery by the company, and no power of revocation, modification, or surrender is reserved to him in the policy, by which the interests of the beneficiaries could be impaired.
One contention of the defendant is, that since the policy was payable at the insured’s death to “his children, equally, or their executors, administrators or assigns,” the interests of the several children were so contingent and uncertain that no rights could vest in them until the death of the insured, and consequently he had the power to surrender the policy to the company. This position cannot be sustained. In Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 583, it was held that the desig
We therefore hold that the policy in question and the money to become payable under it were owned by the beneficiaries named from the time of the issue of the policy, and that their interests therein were not affected by the surrender of the policy by the insured, unless being of full age, they concurred therein, or ratified the same after attaining that age.
W. Clark Bishop, a beneficiary of the age of majority, joined in the contract of surrender, and no question is made but that he is bound thereby. The question of ratification by the other beneficiaries is considered in a later paragraph.
It is urged that the father is the natural guardian of his minor children, both at common law and by statute (P. S. 3144), and that the natural guardian may have the legal possession and control of the property, as well as the person, of his minor child, until another guardian is chosen or appointed; that (in-the language of defendant’s brief) “the natural guardian takes the place of the guardianship in socage (now in disuse) until'
It is true that at common law a guardian in socage has the custody of the infant’s lands acquired by descent, as well as of his person, and no one who can possibly inherit the infant’s lands so acquired can be such guardian. This guardianship continues until the infant arrives at the age of fourteen, and until he selects a guardian for himself; but it takes place only when the infant derives lands by descent. Lord Chief Baron Comyns says that if an infant claims land by purchase, not by descent as heir, he shall not be in ward. Comyn’s Digest, Tit. Guardian B2; Co. Litt. 87 b.; 88 b. note 13.; Quadring v. Downs, 2 Mod. 176; 2 Kent’s Com. 11th Ed. 237. In note 13, Co. Litt., to which reference is made above, Mr. Hargrave says that whether the guardian in socage is entitled to take into his custody the infant’s personal estate, he has not been able to ascertain by any express authority, but he is inclined to think that the personalty is included, except where by the custom of a particular place it is liable to a different custody. And Chancellor Kent says that Mr. Hargrave supports his opinion in this respect by strong reasons. 2 Kent’s Com. 11th Ed. 238. As under our statute a father may take the infant’s socage estate by descent, he cannot at common law be guardian by socage. 2 Kent Com. 11th Ed. 237; Fonda v. Van Horne, 15 Wend. 631, 30 Am. Dec. 77. However, it is unnecessary to notice further the principles of the common law governing such guardianship; for certain it is that, since the infants Kufus W. and Priscilla B. are not shown to have had any land whatever, the rights, powers, and duties of a guardian in socage afford no analogy to the rights, powers, and duties of the insured in this case as natural guardian either at common law or under the statute.
Guardian by nature at common law is the father, and on his death, the mother, and continues until the child is twenty one years of age; but it extends only to the custody of the person. “According to the strict language of Pur law,” says Mr. Hargrave in Note 12, Lib. 2, Ch. 5, Sec. 123, Co. Litt., “only an heir apparent can be the subject of guardianship by nature; * * * Therefore when guardianship by nature is extended to children
It is further urged that if it be held that the beneficiaries acquired a vested interest in the policy before it was surrendered to the company, the insured was holding it as their natural guardian and agent, and if he exceeded his right or authority in surrendering the policy, the agreement of surrender was not void, but voidable, and subject to ratification by each of the beneficiaries after arriving at the age of majority; and that if the beneficiaries would hold the policy in force, it was incumbent upon each of them after reaching that age to disaffirm the act of their father in making the surrender, and give the father and the company notice of such disaffirmance. The record shows that neither Rufus W. nor Priscilla B. ever had any of the property, nor the benefit of any of the property, by the company passed over to the insured in consideration of the surrender, nor the equivalent of such property or any part thereof, and never claimed it, nor made any demand therefor upon their father. Nor did they demand the policy of the company.
It was not essential to the interests of the beneficiaries that they have the manual possession of the policy. In the circumstances of the case, the taking delivery of the policy from the company by the insured constituted an act of acceptance for the named beneficiaries, and in subsequently holding the same he made himself a naked depositary, without any interest, for those entitled thereto. And since the insured had no legal or equitable interest in the policy at the time of its surrender, and as natural guardian had no right to it, nor power over it, his act of surrender was a nullity and could not affect the rights of Rufus W. and Priscilla B., then minors (Ricker v. Charter Oak Life Ins. Co., cited above), unless they with full
In the case at bar it is found that Rufus W., immediately on coming of full age, acting for himself and for Priscilla B., notified the defendant that the discharge of the policy in question, as far as he and his sister were concerned, was contrary to their wishes, andithat any legal rights had by them under the policy, they still claimed. It is argued that this was no notice by Priscilla B., because being then a minor, she could not authorize an agent to act for her. If notice of disaffirmance by her were necessary, in order to avoid the contract of surrender, there might be some question whether the defendant can successfully claim to stand unaffected by the notice given through her agent, on the ground of her legal incapacity to appoint such agent during infancy, a privilege personal to her (Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630); but since, for reasons above stated, the contract of surrender was void as to her, the defendant,
Some exceptions were saved relative to evidence, but none are noticed in defendant’s brief.
Judgment affirmed.