198 A. 852 | N.J. Super. Ct. App. Div. | 1938
This interpleader suit grows from a group insurance policy written by complainant for General Electric Company, and from a certificate thereunder issued by complainant to one of the company's employes, Mike Matwijizyn. Complainant thereby promised to pay, upon the employe's death, $2,000 to the beneficiary designated by him. The policy also provided, in lieu thereof, that in the event of the total and permanent disability of the employe, complainant would "begin making payments to such employe or to a person designated by him for the purpose," of five annual installments of $428 each. "Should death of the disabled employe occur, any remaining installments shall be paid to the Beneficiary nominated by the employe, or such Beneficiary may have the remaining installments paid in one sum."
Matwijizyn contracted tuberculosis and became disabled. He engaged defendant Poliakoff, an attorney, to prosecute his claim under the policy. The company at first replied that the policy had lapsed for non-payment of premium but was finally convinced by Poliakoff that the claim was valid. It made three annual payments of $428 each, and then Matwijizyn died. Conflicting claims were made for the two remaining installments, so the company filed the bill. *527
A claimant for one-half the installments is Poliakoff, who relies on the contract whereby Matwijizyn retained him, and further — "In consideration of the services rendered and to be rendered by the said David A. Poliakoff, my attorney, I hereby agree to pay him and he is authorized to retain out of any moneys that may come into his hands, fifty per cent. of all sums received or recovered by him by suit, settlement or otherwise, by reason of the above claim." A copy of this instrument was promptly filed with complainant. Matwijizyn never expressed any dissatisfaction with his bargain with Poliakoff and, in accordance with it, he paid to Poliakoff or allowed him to retain, half of each of the three installments received in his lifetime. Under circumstances which have been proved, the arrangement seems to me to have been fair to the client.
Both the group policy and the individual certificate stated that the right to change the beneficiary was reserved. At the time Matwijizyn and Poliakoff entered into their contract, the beneficiary named in Matwijizyn's certificate, was "Estate." Two years later, he designated as beneficiary his nephew, John Matwijizyn, who is the other defendant. He has been paid one-half the sum which remained unpaid at the death of insured. Only the other half is in dispute.
To win the fund, Poliakoff must show that his contract with assured operated as an assignment, or at least gave him an equitable lien which ripened into title on non-payment of the stipulated fee.
Generally, a chose in action is assignable; but not if the contract from which the chose grows, forbids assignment. Grigg
v. Landis,
The prohibition to assign is subsidiary. The court must seek the real intention of the parties and carry that into effect. If an assignment under the circumstances of the case will not interfere with fulfillment of the parties' intention, the prohibition will be disregarded. Grigg v. Landis,
There were three parties to the insurance contract — the complainant, the Electric Company and the insured. The non-assignability clause may have been inserted in the interest of complainant, to facilitate payment. But complainant does not object to the assignment; it has paid the money into court and is indifferent between the claimants. The claim of Poliakoff, as assignee, is valid as against attack based on complainant's rights. Travelers' Insurance Co. v. Grant,
Besides the complainant, the Electric Company and the assured, it may be suggested that there was a fourth party interested, namely, the beneficiary. But in this instance the policy was payable to assured's estate. "While the word `estate' is not very apt, its meaning is clear. The parties undoubtedly meant that the money should be paid to the insured's executor or administrator, to be administered as a *529
part of the property which insured might leave at his death."Coghlan v. Supreme Order, c., of Heptasophs,
An assignment may be effected by parol. Travelers' InsuranceCo. v. Grant, supra. In former days, a writing was used not to pass legal title, but to declare a trust and to authorize the assignee to sue in the name of the assignor, but for his own benefit. Allen v. Pancoast,
However, a contract by a client to pay his attorney compensation out of the fund to be realized by his efforts, raises an equitable lien in favor of the attorney as against the client, which fastens to the fund as soon as it takes form.Wilson v. Seeber,
Recent cases on the subject may be found in 7 C.J.S. 1071. As to equitable liens in general, see Rutherford National Bank v.H.R. Bogle Co.,
The opposing claimant cites Weller v. Jersey City, c.,Street Railway Co.,
Was Poliakoff's lien confined to the insurance installments that fell due in the insured's lifetime? I think not. The answer is determined by the intention of the parties. They doubtless contemplated that the attorney's services would be complete when complainant was persuaded of the validity of the insurance claim; that thereafter over a period of years would follow payment of the insurance and payment of the attorney. The fair value of the attorney's services was not affected by the death of insured; and that happening should not be permitted to reduce his compensation.
John Matwijizyn, the beneficiary of the policy, relies onSullivan v. Maroney,
As already noted, Matwijizyn's policy was payable to his "estate" when Poliakoff acquired a lien on the proceeds. No one then had an interest in the policy save insured; the entire proceeds were under his control and were subjected by him to Poliakoff's lien. Once the lien was given, it could not be defeated by the action of insured in naming a beneficiary. John Matwijizyn can claim only as insured's nominee; his title is subordinate to the encumbrance which insured had created.
Decree for Poliakoff.