96 Tenn. 224 | Tenn. | 1896
The plaintiff in error, a mutual life insurance company, located in Philadelphia, on December 28, 1891, issued to Dr. Charles W. Winn
It is a conceded fact that Dr. Winn never paid any part of the quarterly premiums due on this policy, and it is true that, by its terms, this nonpayment worked, ipso facto, a forfeiture of all rights thereunder. On the trial of the cause, however, it was contended by the defendant in error that, by an agreement made by Dr. Winn with an agent of the company at the time the policy was taken out, and subsequently ratified by another agent authorized to speak for and bind the company, forfeiture was saved, notwithstanding this nonpayment, and that the assured, relying on this agreement, regarded the policy as in operation at the time of his death. Plaintiff in error insisted, on the contrary, that no such agreement had been made, or, if made, that it was not binding on the company, and that this was Avell understood by the assured, Avho, with full knowledge of the facts, permitted his policy to become lapsed or forfeited for nonpayment of pre
In an ordinary life policy, where the beneficiary is some other than the assured, and no control over the policy is reserved to him by its terms, then the law is that the interest of' the beneficiary vests at the time the contract of insurance is complete, and cannot be affected by subsequent acts or declarations of the assured. It is therefore held that testimony tending to show such acts or declarations is incompetent in . any litigation between the beneficiary and the company. Insurance Co. v. Booker, 9 Heis., 606; Insurance Co. v. Morris, 3 Lea, 102; Gosling v. Caldwell, 1 Lea, 454.
But the policy sued on in this action is not one that upon its issuance passed beyond the control of the assured. On the contrary, the first of the conditions, which are set out on the back of the policy, and by its terms made part thereof, is as follows: “The member or insured may, upon the approval of the president, change the beneficiary herein named by surrendering this policy and designating another beneficiary having a lawfully insurable interest in the
As is said by the Court of last resort in New York: “ Where the right of the payee has no other foundation than the bare intent of the assured, revocable at any moment, there can be no vested interest in the named beneficiary any more than in the legatee of a will before it takes effect.” In such a case, £ £ the designation ’5 of the beneficiary £iis in ' the nature of an inchoate or unexecuted gift, revocable at any moment by the donor, and remaining wholly under his control.” Smith v. N. B. Society, 123 N. Y., 85
In the case at bar, not only was the assured the one interested in, but he had actual control of, the policy, never having delivered it to his wife, and, under well-settled rules, his subsequent declarations against his interest were competent testimony, and plaintiff in error had the right to put them in evidence. Thomas v. Grand Lodge (Washington), Pac. Rep., Vol. XLI., No. 8.
For the trial Judge’s refusal to permit this, the case is reversed and remanded.