Appeal, 297 | Pa. | Jan 4, 1927
Argued January 4, 1927. Felix Eckerson took out two policies of endowment insurance in 1886 and 1888, payable to him on dates designated, should he live so long, or to his estate, upon his death. Each contained a provision for assignment with consent of the insurer. In 1899 he made formal written request to the company that the proceeds be turned over, in case of his decease, "to my sister Betty Eckerson if she survive me," and it gave assent to the alterations proposed in the following form: "It is hereby agreed that the amount insured in this policy shall be *470 payable to Betty Eckerson, sister of Felix Eckerson, the insured, if she shall survive him, in case of his decease during the endowment period, otherwise payable to the said Felix Eckerson, at the end of the endowment term." No consideration passed from her to the insured, and the policies themselves were never actually transferred, nor were copies of the notices of the change in payee, which had been sent to the insurance company, handed over. The brother died on October 31, 1925, leaving a will, and letters testamentary were granted to appellants in the present proceeding. They brought suit against the insurer for the amount claimed to be due, and it paid the sum owing into court. Later, the sister, substituted as beneficiary, was made a party to the proceeding, and a case stated was agreed upon setting forth the facts as above narrated, in which she was made the plaintiff, and the representatives of the estate defendants.
The sole legal question raised was the right to the proceeds of the two policies, it being insisted on behalf of the executors that the change made by the decedent was in effect an assignment, void because of lack of consideration, and not followed by formal delivery to the one benefited. On the other hand, the sister claimed the right to the sum in question by reason of the formal change made by Eckerson, and assented to by the insurer. The learned court below sustained the contention of the plaintiff, holding that the intention to name her as the beneficiary was apparent, and decided that proof of the actual transfer of the contracts with their appended modifications was not essential to a recovery. Attention was called to the fact that decedent had not attempted to assign unconditionally as a gift his interest in the insurance, as evidenced by his failure to use words so indicating, and shown by the reservation of his rights, in case his sister predeceased him. From the judgment entered for the plaintiff, this appeal is taken. *471
The policies provided for consentable assignments, but made no special reference to changes of beneficiaries. Had the latter provision appeared, there would have been no doubt of the insured's right to proceed as he did: Lovinger v. Garvan, 270 F. 298" court="S.D.N.Y." date_filed="1920-10-25" href="https://app.midpage.ai/document/lovinger-v-garvan-8819216?utm_source=webapp" opinion_id="8819216">270 Fed. 298. It is insisted by able counsel that the attempted transfer here must, under the circumstances, be considered as an abortive gift without consideration, ineffective since no delivery of the marks of ownership was made. Trough's Est.,
The language employed in Smith v. Metropolitan Ins. Co.,
The learned court below properly held there was no attempted assignment of the policies as a gift, requiring an actual delivery to be effective, but a change in beneficiary which became binding on both parties to the contracts, when assented to by the company. This approval was given, and it cannot, and does not, object to payment to the one designated. Nor, in our view, have the present defendants any higher standing.
The judgment is affirmed.