Moser v. Conn. Mut. Life Ins.

134 Ky. 215 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Hobson

— Affirming-

On August 10,1888 the Connecticut Mutual Life Insurance Company issued to Morgan D. Mclnerney a policy insuring Ms life in the sum of $2,000 in consideration of an annual premium of $60.94 for 20 years. The policy' was made payable to Mclnerney’® wife, Catherine Mclnerney, or, if she was dead, to' his children. The policy also contained this provision: “And at the end of ten years from the date above written, or ait the end of each period of five years thereafter this policy having been in force during such entire periods for the full sum first above named ¡as insured hereby and not otherwise, this company will pay to the person or persons thereunto designated in the aforesaid ¡application a cash value therefor, to be ascertained by the table of cash values printed hereon and hereby made a part of this contract, but only upon surrender and release hereof by such person or persons within thirty days after the end of such period.” In the application for the policy Mclnerney designated himself as the person to whom the money was to be paid in case of maturity or surrender within his lifetime. On December 2, 1907, Mclnerney, by writing in consideration as expressed therein of $1,200, assigned ibe policy to George Moser. His wife, Catherine Mc-Inerney, did not join in the assignment. On August 12, 1908, Mclnerney wrote to the insurance company, notifying it that he had signed the writing purporting to be an assignment of the policy, but stating that it was without consideration, and requesting that the policy be not surrendered or the surrender value paid to George Moser. Moser, at the end of the 10-year period, tendered the policy to the company and demanded ihe cash surrender value, which amounted to $1,016 plus a dividend. The company refused to cash the policy for Moser, and thereupon he brought this action in the Kenton circuit court against it. The company filed its answer, and on its motion Mclnerney and wife, who were claiming the policy, were made defendants to the action. They appeared and filed a demurrer to the plaintiff’s petition. The court sustained the demurrer and dismissed the action. Moser appeals.

The policy is verbatim the same as that before us in Townsend v. Townsend (Ky.) 105 S. W. 937. 127 Ky. 230. In that case, Townsend, the insured, had designated himself in the application as the person to whom the surrender value was to be paid, and, after he had paid all the 'premiums on the poficy, made a general assignment for the benefit of his creditors, by which he conveyed to his assignee all his property, including dioses in action and other demands. The •assignee demanded the surrender value of the policy at the expiration of the next 5-year period, and his demand being refused, brought a suit, which was dismissed by the circuit court, and on appeal to this court the judgment was affirmed. There is no distinction between that case and this, except that here there was an .assignment of the policy, which on its face purports to have been made in consideration of $1,200, and there, there was an assignment of all the debtor’s property, including his choses in action and demands for the payments of his debts. We cannot see that there is any distinction between a specific .assignment of the policy and a general assignment which includes it. The opinion in that case is not rested upon any such ground. It rests upon the ground that the power of Mclnerney to terminate the policy and take its surrender value is a mere power, which he might exercise himself, but which he could not transfer to another; that the beneficiaries in the policy, the wife and children are entitled to its proceeds, unless the power to terminate it is exercised by the person in whom that power is vested by the policy. In that case the court said: .“Admitting that one may transfer his option so as to vest it in his assignee, it must at least be confined to his option concerning that which is his alone. If it has, by a tripartite contract, the option to adopt such a course in his judgment as v ould end the estate of one of the parties, the latter is entitled to have him exercise his own option. A. might be willing that B. should have the power to terminate the former’s estate, whereas be would be altogether unwilling to risk it with C., although selected by B. for the purpose. That the beneficiaries in this policy did not exercise their own will in bringing the contract into existence takes nothing from the applicability of the principle that one vested with a power, to be exercised on behalf of or against another party to the instrument creating it, must exercise it in person, and may not delegate it to another. Sugden on Powers, 214, 224. ’ ’ The rule referred to in Sugden on Powers is thus stated in 22 Am. & Eng. Enc. of Law, 1105: “Where ,a power is given, whether over real or over personal estate, and whether the execution of the power will confer the legal or only the equitable right upon the appointee, it cannot be delegated to another if it reposes a personal trust or confidence in the donee to exercise his own judgment or discretion.” In Adams Express Co. v. Ohio, 166 U. S. 397, 17 Sup Ct. 604, 41 L. Ed. 965, the United States Supreme Court quoted with approval the following: “A power is an individual personal capacity of the donee of the power to do something. That it may result in property becoming vested in him is immaterial. The general nature of the power does not make it property. The power of a person to appoint an estate to himself, is in my judgment, no more his ‘property’ than the power to write a book or to sing a song. The exercise of any one of those three powers may result in property, but in no sense which the law recognizes ¡are they ‘property.’ ” See, also, Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908; Hill v. Cornwall, 95 Ky. 512, 26 S. W. 540, 16 R. 97.

We are referred to decisions in other states reaching a different conclusion, but the question in this state is concluded by the case referred to.

Judgment affirmed.