87 So. 6 | Miss. | 1920
delivered the opinion of the court.
This is a suit in chancery by the executrix of the estate of John Kerr, deceased, against the Equitable Life Assur
The policy issued on the life of Mr. Kerr, deceased, and payable to his estate or his assigns, was for five thousand dollars, but at the time of his death he had borrowed from the insurance company about three thousand five hundred dollars on the policy and delivered it to the company, so at the time of his death there, was a balance due of about one thousand five hundred dollars. In 1910 Mr. Kerr assigned the policy to the appellee, Meridian Lodge No. 515 B. P. O. Elks, and this assignment was delivered to the insurance company, which accepted' it and thereafter treated the Elks Lodge as the owner and designated beneficiary therein. The Elks Lodge for the past ten years continued to pay the premiums due on the policy, which at the time of the death of the insured amounted to about sixteen hundred dollars, or about one hundred dollars more than the balance due on the policy.
The appellant, complainant below, claimed in her bill that the balance due on the policy should go to the estate of the deceased and not to the Elks Lodge, for the reason that the assignment .by the insured, Mr. Kerr, was not authorized or assented to in writing by the insurance company and was therefore void; and that there was no delivery of the policy by the insured to the assignee, the Elks Lodge. And it is contended here that the assignment was void for these reasons under the terms of the policy. The particular clause relied upon is as follows:
“No person except one of the following executive -officers of the Society at its home office in New York, viz., the president, one of the vice presidents, the secretary, the assistant secretary, one of the actuaries,, the comptroller, the treasurer, the auditor or the registrar, is authorized to make, alter or discharge contracts or waive forfeiture;*159 and attention is particularly called to paragraph 5 of the ‘Provisions and Requirements.’
(5) The contract between the parties hereto is completely set forth in this policy, and the application therefor, taken together, and none of its terms can be varied or modified, nor any forfeiture under it waived, except by an agreement in writing, signed by one of the following officers, viz., the president, one of the vice presidents, the secretary, one of the actuaries, the comptroller, the treasurer, the auditor or the registrar of the society, whose authority for this purpose will not be delegated; no other person has or will be given authority.”
The argument of the appellant is that these clauses in the insurance contract prohibited an assignment without the assent in writing of the insurance company. We are led to infer that counsel means to contend that the assignment by the beneficiary is a modification of the contract and is void unless assented to in writing by one of the proper officers named.
We cannot agree Avith appellant in this interpretation and application of the provision of the policy in so far as it concerns the rights of the appellant. If the assignment of the policy by the insured is a modification of the contract Avithin the meaning of the clause in question., then the other party to the contract, the insurance company, is the only one AArho can complain. But the insurance company does not, and cannot, complain, because the Avritten assignment by the insured was accepted and assented to by the insurance company. It is obvious there was a valid consideration supporting the assignment. It therefore folloAvs that the assignment to the Elks Lodge was valid and the balance of the proceeds of the policy was correctly aAvarded to it by the chancellor.
The point made by appellant that the assignment is void because there was no delivery of the policy deserves but scant consideration, for the reason it is elementary that an assignment in such cases is equal to a delivery. 5
The judgment of the lower court is affirmed.
Affirmed.
