116 Neb. 33 | Neb. | 1927
This action was brought by the executor of the last will and testament of Fred H. C. Suhl, in behalf of the creditors of his testate, against Emma Suhl, the Farmers State Bank of Millard, Nebraska, et ah, to have the change in beneficiary in three certain life insurance policies for $10,000 each from his estate to the appellant, Emma Suhl, decreed fraudulent as to his creditors, and to have the same canceled and set aside and said defendants enjoined from transferring and disposing of the proceeds thereof and to impound and recover the part of said funds to which said estate was entitled. Plaintiff’s cause of action is predicated upon the following undisputed facts:
On the 26th day of November, 1924, Fred H. C. Suhl was carrying life insurance on his own life in the North
The dates, amounts and annual premiums of said life
One dated April 15, 1918, for $10,000 with an annual premium of $246.36.
One dated April 23, 1918, for $10,000 with an annual premium of $246.30.
One dated March 20, 1919, for $10,000 with an annual premium of $253.40.
One dated October 23, 1919, for $20,000 with an annual premium of $521.80.
The appellant in her answer alleged that she had a separate estate which she received by inheritance from her father, and that in good faith she loaned her husband money derived therefrom, and that shortly before his death, in payment of and to secure payment of said indebtedness, he duly assigned said policies of' insurance to defendant, and that defendant accepted the same in good faith in payment of and as, security for payment of said indebtedness. She further alleged that the amount of insurance she had received was less than the amount owing from said deceased and the amount exempt to her under and by virtue of section 7881, Comp. St. 1922. She prayed that the action of plaintiff be dismissed, that so much of said insurance as was purchasable by annual payments of $500 should be decreed to be held exempt from the claims of the creditors of insured, and that the policies be decreed to have been received in satisfaction of and as security of the indebtedness of the deceased to the defendant.
The reply was a general denial.
The trial court found that the -change in beneficiaries in the three $10,000 policies was fraudulent as to the creditors of the insured, and that the transfer of such insurance should be canceled and set aside. The court further found that there was exempt to the defendant, Emma Suhl, as the beneficiary named in the $20,000 policy, a sum equal to a policy on which the annual premium did not exceed $500, and that the proceeds of all insurance over and above that amount inured to the creditors of Fred H. C. Suhl. The court
The defendant, Emma Suhl, prosecutes appeal from said decree.
Prior to the submission of this case appellee filed a motion to dismiss the appeal of the appellant, Emma Suhl. The motion was submitted with the case. The record shows that, after the rendition of the judgment and before an appeal was taken, the defendánt bank paid into the district court the sum of $28,029.58 in accordance with the decree, and at that time the defendant, Emma Suhl, appeared and objected and reserved an exception to said payment by her codefendant. The principal ground of the motion and the only one that merits consideration is that, by the payment of the sum of $28,029.58 into the district court in compliance with said decree, no real issue is presented here for determination. Counsel for appellee filed their affidavit in support of the motion. It appears from the affidavit that the appellant indorsed a cashier’s check issued to her on the defendant bank in the sum of $20,000 and a draft on the Merchants National Bank of Omaha issued by the defendant bank to her for the sum of $10,000, same being part of the proceeds derived from the insurance, and delivered same to the defendant bank, and that the cashier of defendant bank thereupon placed said money in a special fund in said bank and drew a check on said fund payable to the clerk of the court and delivered the same to him pursuant to the decree of the court. It is contended, under the facts stated, that payment by the bank amounted to a confession or recognition of the correctness or validity of the judgment by appellaht, and that her objection to thé
The appellant assigns as error the finding of the trial court “that the change in beneficiaries in said three policies from the estate to the appellant is fraudulent as to creditors and should be set aside.” It is the contention of counsel for appellant that the evidence establishes that the insured was indebted to appellant at the time of the transfer of said policies in about the sum of $20,800 for money loaned to him by her from her separate estate, and that she was entitled to have set off to her so much of the
In this connection it is claimed by counsel for appellee that there was no actual change in beneficiaries in the three policies prior to the death of the insured, in that the indorsement of such change was not made by the insurance company thereon until after the death of the insured and that therefore the estate was entitled to the proceeds of said insurance. Whether such .change was made depends upon the precise wording of the policies in question. The policies all contain this provision:
“The insured may change any beneficiary not irrevocably designated, but that no such change shall be effective unless made in writing and filed in the home office of the company (accompanied by this policy for suitable indorsement) prior to or at the time this policy became payable.”
The policies also provide that the insurance should become payable upon proof of the death of the insured. In considering a similar question in the case of Goodrich v. Equitable Life Assurance Society, 111 Neb. 616, it is said in the opinion by Judge Day:
“In some of these cases where the insured has not an unconditional right to change the beneficiary, and the language used seems to require that some exercise of judgment on the part of the company is essential to the change of beneficiary, it is held that, notwithstanding the insured may have done all that is required of him, but dies before the insurer’s consent is given, the change of beneficiary is not effected'. The question in each particular case, therefore, is ordinarily whether the acts required on the part of the company are essential parts of the contract or mere ministerial and former details.”
Applying the foregoing as the correct' rule in construing the provisions in the policies in question, the question arises: Were the acts required by the company essential parts of the contract of insurance or merely ministerial
Briefly summarized, the evidence upon the question involved shows that appellant owned eighty acres of land when she was married to Fred H. C. Suhl, which she had inherited from her father. This eighty was sold in the fall of 1919 for $20,800. Eighteen-hundred dollars was paid at the time the contract of sale was made and the balance on March 1, 1920. The evidence does not show what be
It is claimed that certain statements made by her husband to the insurance agent who made the transfers of the insurance policies tend to support her claim that he was indebted to her. The statements in substance were that he wanted to transfer the policies to her because he had “went through with about all of her property.” These statements-made by the husband have little probative force upon the question involved. The Keith county land had been purchased when, as a matter of common knowledge, land values were at about their highest point, and the land had decreased in value from that time until at the time of his death it was worth but little more than the incumbrance against it, and his statements probably refer to the fact that he had lost her money by making their joint investment. We have nothing but her bare statement that she loaned the money to her husband. On the other hand, the facts and circumstances disclosed by the evidence seem quite convincing that she invested her money in the Keith county land. We are convinced from a careful examination of the evidence that appellant has not established that her husband was indebted to her at the time of the transfer of the insurance policies, therefore she does not have any
Counsel for appellant further contends that, should it be found from a consideration of the evidence that the insured was not indebted to appellant at the time of the change in beneficiaries on the three policies in question, such change would be valid under section 7881, Comp. St. 1922, and taking into consideration the $20,000 policy in which she was named as beneficiary, that she would be entitled to so much of the proceeds of such insurance on all of said policies as a $500 annual premium would purchase, and that the remainder of said funds would inure to the benefit of the creditors. That statute provides:
“All moneys and all and every benefit accruing under any policy or certificate payable at the death of the insured where the annual premium thereon, including all others on like policies, does not exceed five hundred dollars, shall be exempt from the claims of creditors when the person entitled thereto is not the executor or administrator of the insured or of the beneficiary. And when the annual premium thereon shall exceed five hundred dollars, such exemption shall not apply to such excess, but all money accruing thereunder, or under like policies, by virtue of such excess, shall inure to the benefit of the creditors of the person paying the same, whether such person is the insured or a beneficiary.”
Under the statute all moneys and benefits accruing under any policy or certificate payable at death of the insured, where the insured pays the premium thereon, are not exempt from the claims of creditors of the insured when the person entitled thereto is the executor or administrator of the insured. The effect of the change in beneficiary from his estate to his wife was to make a part of the proceeds
The trial court found that under the statute the appellant •was entitled to all the proceeds of the $20,000 policy, in which she was named as beneficiary and on which there was a premium of $521.80 payable annually; the proceeds of which, after deducting the loans made thereon by insured, hmounted t'o $18,658.44. This was all that she was entitled’ to."' v
It is further urged by appellant that section 7881, Comp. St. 1922, is unconstitutional and void. The- appellant is not in a position to raise this question. She invoked the protection of the statute and thereby treated the same as constitutional and valid. The rule is: “A party invoking the provisions of a statute is not in a position to raise the question as to its constitutionality.” Ross v. Lipscomb, 83 S. Car. 136.
The decree is right, and is
Affirmed.