269 Mass. 148 | Mass. | 1929
This is an action of contract to recover the cash surrender value of a policy of life insurance issued by the defendant November 8,1921, on the fife of one Theodore N. MacKay. Section 13 of the policy in part is as follows: “At any time after the premiums for two years have been paid the Company will purchase this policy for its cash value on satisfactory release by the insured and assigns and surrender at the Home Office while it is in force, or within the thirty-one days of grace hereinbefore provided.”
The policy was issued apparently by a foreign company. It does not appear from the record whether it was issued in this Commonwealth or elsewhere. If it was issued or delivered in Massachusetts by a foreign company the form of the policy must have been approved by the insurance commissioner. G. L. c. 175, § 132, as amended by St. 1927, c. 93, § 2. If it was issued by a domestic life insurance company a clause similar to the one above quoted would have been required by G. L. c. 175, § 144. In any event, wherever the policy was issued and delivered, the above quoted clause was a part of the contract and binding upon the parties.
It appears from the record that MacKay had occupied a
At the hearing of the case before a judge of the Superior Court it was agreed “That due and sufficient notice of the assignment referred to in the report of the special master was given to the defendant, and on September 8, 1928, demand for the then cash surrender value was made by the plaintiff on the defendant. . . . That at all times subsequent to the decree entered in the original suit in equity the whereabouts of the said Theodore N. MacKay were unknown to either party. . . . -That at no time prior to September 8 was any notice of any assignment under this policy received by the defendant. . . . That no loan to the said MacKay upon said policy has been made at any time by the defendant. . . . That no surrender of the policy itself or any tender of such surrender has been made by any person at any time to the said defendant. . . . That the assured under the terms of the policy had the right to change the beneficiary .... That the plaintiff has never had possession of the policy.”
The policy is a nonnegotiable chose in action, with the right to receive in the future a certain sum of money upon the happening of certain contingencies. Herman v. Connecticut Mutual Life Ins. Co. 218 Mass. 181, 185.
It is settled that the interest of the insured in a life insurance policy is a property right which ordinarily can be reached and applied by a creditor. It was said by Hammond, J. in Alexander v. McPeck, 189 Mass. 34, at page 44, that “the statute should be broadly construed and that if the value of either of these rights can be ascertained either by sale or appraisal, it is within the statute; and that for the purposes of the statute the value of each of them can be ascertained by sale or by some other means within the ordinary procedure of the court.” Anthracite Ins. Co. v. Sears, 109 Mass. 383. Blinn v. Dame, 207 Mass. 159, and cases cited at page 166.
It is a general rule that the parties to a contract are bound by its terms expressed in plain and unequivocal language. Under the terms of the assignment the plaintiff has all the right, title and interest that were originally vested in the insured, but he has no greater rights. It is plain that compliance with the surrender clause in a contract of insurance is a condition precedent to recovery. Boruszweski v. Middlesex Mutual Assurance Co. 186 Mass. 589, 590. Smith v.
Exceptions sustained.