126 P. 982 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
It .is provided in Section 554, L. O. L., that: “Upon the appeal being perfected the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript, or such an abstract as the rules of the * appellate court may require, of so much of the record as may he necessary to intelligibly present the questions to he decided hy the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof and of the undertaking on appeal. * * ”
1-3. The terms of Section 555, L. O. L., are these: “When it appears by affidavit to the satisfaction of
4. There is yet another reason why the respondent’s additional abstract of record is improperly before the court, and should be stricken out. Section 555, L. O. L., already 'mentioned, provides a way by which the defective record can be corrected. Sophia elected to proceed under that section, and has failed for good and sufficient reasons already pointed out. Amplifying, so far as may be, Section 555, L. 0. L., Buie 7 of this court reads thus: “If the respondent shall deem the appellant’s abstract imperfect o.r unfair he may, within 10 days after receiving a copy
Motion to Strike Sustained.
Dissenting Opinion
dissenting.
The question for decision is whether the defendant Evelyn M. Cummings or the defendant Sophia J. Cummings is entitled to .the proceeds of said policy of insurance on deposit in the court below.
5. The evidence shows that Sophia J. Cummings was the wife of said Harry A. Cummings, and that Evelyn M. Cummings was not his wife. It appears that Harry A. Cummings and his wife, Sophia J., séparated about three years before his death in the State of
The defendant Evelyn M. lived with the deceased about two years as his wife, and he represented to his friends and to the public that she was his wife, and she claimed to be his wife. She bore the name of Evelyn M. Cummings, in Portland, but there had been no marriage ceremony. The deceased had not been divorced from his wife and could not legally enter into a marriage contract. Evelyn M. testified that she and the deceased had entered into an agreement to be married. Su'ch agreement, however, was void, but evidence of it was relevant to show the relation between her and the insured. She testified, also, that during the time that she lived with the deceased as his wife she advanced to him money, amounting in the aggregate to $6,000 and jewelry of the value of $2,000, and that she did this to assist him in business. She claims that he never repaid her this money. She testified, also, that he introduced her to -his friends as his wife,” and this is corroborated by the evidence of other witnesses. She does not claim that they were married, and, of course, she was not his wife, and it was a gross deception for him to represent to his friends and the public that she was his wife. There is no doubt that Sophia J. was his wife and that he had a daughter by her.
The policy of insurance provided that the $2,000 named therein should be paid to Evelyn M. Cummings, “his wife.” The evidence shows that, shortly after he obtained this policy, he delivered it to Evelyn M. and told her that it was a present to her, and that it remained in her possession. Sophia J. had no knowl
In her testimony, Sophia J. testified that she had never seen the original policy, and that she doubted whether anyone but Evelyn M. had seen it. It "is clearly shown, and not disputed, that the deceased lived with Evelyn M. two years as his wife; that he called her his wife; that he introduced her to his friends and acquaintances as his wife; that his friends and acquaintances believed her to be his wife; that the application for the policy referred to her as his wife, and stated that she should be the beneficiary of the policy; that the policy named her as the beneficiary; and that, after he obtained the policy, he delivered it to her and told her that the policy was a present to her, and that she retained possession of the policy, and that Sophia J. never had the policy or heard of it until after the death of the insured. These facts prove to a moral certainty that Evelyn M. was intended by the insured to be the beneficiary and to have the whole interest in the policy. This conclusion is strengthened by the fact that he had been for years estranged from Sophia J., his wife, and that this estrangement was so intense that no letters had passed between them since the separation, a period of several years.
6. The policy is a contract and should be so construed as to effectuate the intention of the parties to it. In 25 Cyc., p. 741, the rule for the construction of policies is thus stated: “The language of the policy designating the beneficiary is to be treated as of testamentary character and is to receive as nearly as possible the same construction as if used in a will. In determining the intention as to the beneficiaries, the policy should be so construed, if possible, as to give
7. In this case, by agreement between the deceased and Evelyn M., she adopted Ms surname and was called by them and by ber and Ms acquaintances “Evelyn M. Cummings,” and by tbeir agreement she was called his wife. A person may adopt or assume a different name from his or her true name and transact business in such assumed name. 29 Cyc. 270 states the law upon this subject thus: “Without abandoning a real name, a person may adopt any name, style, or signature wholly different from his own name by which he may transact business, execute contracts, issue negotiable paper, and sue and be sued. Such assumed or fictitious name may be either purely an artificial name or a name that is or may be applied to natural persons.” On page 271 of the same book the author further states the rule thus: “It is customary for persons to bear the surname of their parents, but this is not obligatory. A man may change his name without resort to legal proceedings and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth. ’ ’
8. When a policy is issued and delivered, naming a beneficiary, to whom the money is to be paid, without a reservation of power to change the beneficiary, an irrevocable trust is created: Bacon, Benefit Societies and Life Insurance, § 292.
9. It is the settled law of this country that a person has a right to insure his own life and have the money made payable to any person whom he may desire, whether such beneficiary has an insurable interest in his life or not: Brett v. Warnick, 44 Or. 519 (75 Pac. 1061, 102 Am. St. Rep. 639); Dolan v. Supreme Council, 152 Mich. 266 (116 N. W. 383, 15 Ann. Cas. 232); Reed v. Provident Life Ins. Co., 190 N. Y. 111 (82
In Brett v. Warnick, 44 Or. 519 (75 Pac. 1061, 102 Am. St. Rep. 639), Justice "Wolverton says: “It is beyond cavil that a person may take out a policy of insurance on Ms own life and make it payable to whomsoever he pleases; he being the moving spirit and assuming the responsibility of meeting the premiums or assessments.”
In Reed v. Provident Life Ins. Co., 190 N. Y. 111 (82 N. E. 734), the New York Court of Appeals says: “But a person may insure Ms own life and provide in the contract of insurance that the money shall be payable to anyone whom he may appoint or assign the policy to.”
In Dolan v. Supreme Council, 152 Mich. 266 (116 N. W. 383, 15 Ann. Cas. 232), the Supreme Court of Michigan says: “The authority of these cases [referred to in the opinion] and their reasoning warrants the statement that the rule of public policy which forbids one insuring a life in which he has no insurable interest does not prevent his being made a beneficiary in an insurance policy secured by the insured.”
In the case of Union Fraternal League v. Walton, 109 Ga. 1 (34 S. E. 317, 77 Am. St. Rep. 350, 46 L. R. A. 424), the Supreme Court of Georgia says: “But we feel assured, both by reason and the long line of adjudicated cases to which only partial reference has been made, that the true rule which should obtain in such
In this case the policy was made payable to Evelyn M. Cummings, designated as the wife of the insured. She was not his lawful wife, but she was reputed to be his wife. The insurance company is not making any defense in this case, and, in fact, it admits its liability.
The living together as husband and wife of the deceased and the beneficiary, while the deceased had a wife living, was an act of gross immorality that cannot be too strongly condemned, but this illicit relation between them did not incapacitate him to make a valid contract of insurance upon his life for the benefit of his reputed wife. If he had made her a present of $2,000, the gift would have been valid as to all the world, excepting his creditors. A man or a woman, being of lawful age and compos mentis, has power to give all his or her property to his or her paramour, and no one but the creditors of the person making such a gift can successfully contest the validity thereof. The immoral relation between the parties does not vitiate their contract or gift.
It may have been the insured’s duty to provide for his wife and child and to have made no provision for the woman with whom he lived illegally. We do not doubt his duty in the premises, but this duty is of imperfect obligation, and this court has no power to make a contract for him or to change one he has made. By
The case of Bogart v. Thompson, 24 Misc. Rep. 581 (53 N. Y. Supp. 622), is very much like this case. There a husband abandoned his wife but thereafter promised to marry one whose Christian name was ‘ ‘ Emma L. ’ ’ His fiancee did not know of his previous marriage, but she knew that he had lived with the woman who was hi's wife. She claimed, however, that she did not know of his marriage to her. He obtained a policy on his life and made it payable to his fiancee as “Mrs Emma L. Thompson, his wife.” His wife’s name was Eliza Jane Thompson. Both he and his wife died, and his fiancée and the administrator of his wife’s estate each claimed the proceeds of the policy. A suit of interpleader was brought, and the wife’s administrator claimed the money on the ground that his intestate was the wife of the insured and that his illegal fiancée was not his wife, but the court held that, the insured intended his fiancée to have the money and gave it to her. The court said: “The defendant contends that the designation ‘wife’ indicated Thompson’s intention to designate his lawful wife, Eliza Jane Thompson. In view, however, of the difference in names, and of his engagement to marry the plaintiff,
In Story v. Williamsburgh M. M. B. Assn., 95 N. Y. 474, the facts were: Story married a woman named Mary and lived with her as his wife until his death, but he had a lawful wife living in England. During his life he obtained a policy and made it payable to “Mary Story, his wife.” After his death, she claimed the proceeds of the policy and sued the insurance company. The Court of Appeals held that the reputed wife, named as the beneficiary, was entitled to the money, and that it was not necessary that she should- be his lawful wife, although she was referred to in the policy as his wife.
In the case of Lampkin v. Travelers’ Ins. Co., 11 Colo. App. 249 (52 Pac. 1040), the facts were briefly these: “Jos. R. Lampkin obtained a policy of insurance on his life, and made it payable to Lou Lampkin as his wife. He died, and the beneficiary sued the company to recover the insurance, and the company defended on the ground that the beneficiary named was not his wife, and that he had a lawful wife living. The company claimed that the statement, in the application for the policy, that the beneficiary was his wife was a warranty. The insured had lived with the beneficiary as his wife. The Court of Appeals, however, held that the statement in the application that the beneficiary was his wife was not a warranty but a mere description of the person. The court held also that a
In this case the insurer makes no defense, and there is no issue as to fraud or breach of warranty, and therefore the cases on those subjects are irrelevant.
The' counsel for the respondent placed much reliance on the case of Hogan v. Wallace, 166 Ill. 328 (46 N. E. 1136). The facts were these: Michael Hogan, who could neither read nor write, obtained a policy of insurance on his life, and it was made payable to “Mrs. Kate Hogan, his wife.” Another person filled out the application for the insured and made a mistake in the name of the beneficiary. His wife’s name was Ellen B. Hogan. The insured lived with her until the time of his death and had several children by her. He never had any other wife. His sister’s maiden name was Kate Hogan, but when this policy was issued her name was Kate Wallace. His wife and his sister each claimed the proceeds of the policy. His sister’s name did not correspond with the name in the policy, as it was payable to Mrs. Kate Hogan, his wife, while her name was Kate Wallace, and of course she was not his wife. His wife’s name was Ellen B. Hogan. The court, after hearing the evidence, decided that there was an error in the name and gave the money to the wife on the ground that it was the intention of the insured to provide for her.
In this case it is morally certain that there was no error in the name of the beneficiary, the appellant having adopted the name “Cummings” with the approval of the insured, and he having held her out to the public as his wife. We are satisfied that he intended that she should receive the proceeds of the policy, and that bis lawful wife should have no interest therein.
10. The respondent’s counsel claims that the findings of the court below should be of persuasive force on
The decree of the court below is reversed, and a decree of this court will be entered requiring the payment to Evelyn M. Cummings, the defendant and appellant, of the said sum of $1,974.36 deposited in this case in the court below, as the proceeds of said policy of insurance by the complainant, the Mutual Benefit Life Insurance Company, of Newark, New Jersey, and neither party wall be allowed costs or disbursements in this court or in the court below.
Reversed: Decree Rendered.
Dissenting Opinion
delivered the following dissenting opinion:
The cases cited in the opinion fully justify upon authority the conclusion reached, but in my opinion they all overlook to a great extent the element of morals and public policy which enters into the question. Under the testimony here we have a case of a man deserting his lawful wife and living in adultery with another woman, who, the circumstances indicate, must have been aware of his offense against his wife and family. In this situation he takes the money that should have been expended for the protection of his lawful wife and buys a policy of insurance for his mistress. To allow the mistress under such circumstances to recover would, in my judgment, be contrary to public policy and good morals. It would tend to encourage such illicit relations, and. to promote their continuance. Though the contract was void as against
There is no precedent for the course thus indicated, but, in my judgment, the Supreme Court of Oregon should make one, as I believe the law justifies it and the conservation of public morals requires it.
Opinion on the Merits
Argued July 6, decided July 22, rehearing denied September 9, 1913.
On the Merits.
(133 Pac. 1169.)
delivered the opinion of the .court.
