Liles v. Eubanks

75 So. 447 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

The appellants, plaintiffs in the court below, filed suit in the circuit court of the First district of Hinds county, Miss., against the Odd Fellows’ Benefit Association, a negro fraternal insurance company, based upon a policy of insurance upon the life of their father, G. E. Eu-banks, in which policy these children were named as beneficiaries. Susan Eubanks, the second wife of the insured, made claim to one-half the proceeds of this policy, in accordance with law. The insurance company by proper pleadings paid the money into court. This controversy is between the named beneficiaries of the policy and the second wife. The only contention of the second wife, the appellee here, is that she made an ante-nuptial agreement with the insured, G. E. Eubanks, “whereby in consideration of her giving him a home with her and helping him, he would name her as beneficiary to one-half of the proceeds of the insurance contract held by bim in this order.” The appellee contends that after this antenuptial contract was made, and when a policy was delivered to her in accordance with it, then her right to one-half of the proceeds of the policy became irrevocable, and that any change in the appointment of a beneficiary in the policy, depriving this appellee of her share, would be a nullity.

The uncontradicted testimony shows that the insured changed the beneficiaries in this policy on two different occasions. Section 14 of the constitution and by-laws of the order, which is to be .considered as a part of the contract of insurance, provides that the insured may change the beneficiary in the policy when he desires, and then prescribes the manner in which the change may be made. In this case, the insured, (i. R. Eubanks, tonic advantage of this clause in the policy and changed the beneficiaries. When this was done the old policy became lifeless. The policy in force at the time of Eubanks’ death was the one which provided that the money should be paid to those appellants. This court has uniformly held that:

“It is settled that the right of a beneficiary of a benevolent society, like this of the Knights- of Pythias, is inchoate, imperfect, and ambulatory until the death of the member holding the endowment certificate.” Carson v. Bank, 75 Miss. 167, 22 So. 1, 37 L. R. A. 559, 65 Am. St. Rep. 596; Sykes v. Armstrong, 111 Miss. 44, 71 So. 262; White v. White, 111 Miss. 219, 71 So. 322.

At the conslusion of the testimony in the circuit court the appellants here requested a peremptory instruction, which was refused. This instruction should have been given. The jury returned a verdict in favor of the appellee for one-half of the proceeds of the policy, upon which judgment was entered by the lower court. This judgment is reversed, and judgment will be entered here in favor of appellants.

Reversed and judgment here.