55 P.2d 302 | Wyo. | 1936
Lead Opinion
On September 9, 1929, Ludvig Novosel, Jr., deceased, then sixteen years of age, applied to the Sun Life Assurance Company, herein called the insurance company, for a policy of insurance on his life, in the sum of $3,000, making Ludvig Novosel and Annie Novosel, his parents, the beneficiaries of the policy. On October 30, 1929, a policy, as applied for, was issued by the insurance company, numbered 1,154,308. The premiums were due on November 3rd of each year. In the application, the insured reserved the right to change the beneficiaries, and the policy contains the following clause 12:
"This policy is issued with the express understanding that, provided he has not assigned it or any interest therein, the assured may, without the consent of the beneficiary, (a) change the beneficiary or beneficiaries from time to time during the continuance of this policy by filing with the Company a written request in such form as the Company may require, accompanied by this policy, such change to take effect only upon the endorsement of the same on the policy by the Company; (b) Surrender, assign or pledge the policy and receive, exercise and enjoy every benefit, right and privilege conferred upon the assured by the terms of this policy."
Somewhat later in November another policy, an exact duplicate of the first, but numbered 1,174,381, with *428 premiums due on November 20 of each year, was issued to the deceased by the same insurance company. On January 15, 1934, apparently with the consent of the parents, the insured was married to Mary Kantor. On March 30 of that year, he made out the proper papers for a change of beneficiaries on the policy first above mentioned, designating his wife as such beneficiary, and sent them, together with the policy, to the insurance company, which received them prior to the death of the insured. An application for a loan, the amount of which does not appear, was also made. The insurance company failed, neglected, or refused to make the loan or to enter upon its record the change of beneficiary, seemingly on account of the fact that at that time the insured was not quite of age. In April, 1934, the insured went to Rochester, Minnesota, to be examined by Mayo Brothers. He died April 21, 1934, then 20 years, 11 months and 10 days of age. After his death, the parents of the insured, plaintiffs herein, were paid the sum of $3,000 on the second policy herein mentioned, that policy being in their possession. The first of the above mentioned policies was then in the possession of the insurance company. Plaintiffs also claimed the proceeds of that, and brought this action against the insurance company to recover it. The insured's wife also claimed such proceeds. The insurance company interpleaded, alleged that Mary Kantor Novosel also made claim to the proceeds, deposited the money, and were by the court discharged from all further obligations. Mary Kantor Novosel, hereinafter sometimes referred to as the intervener, through her duly appointed guardian, was thereupon brought into court, and she, through her guardian, made claim to the proceeds of the policy, relying on the fact that she was the last designated beneficiary of the policy as hereinbefore mentioned. The court awarded the proceeds of the policy to the plaintiffs, and from a judgment *429 to that effect, the guardian, on behalf of his ward, has appealed.
1. Counsel for plaintiffs, respondents here, claim, among other things, that the policy of insurance in question was the property of the plaintiffs from the beginning, inasmuch as the father took it out on the life of the insured for the benefit of himself and his wife, and that he, the father, paid all the premiums thereon. It is, of course, true that a parent may take out a policy of life insurance on the life of his minor son, and if he pays the premiums thereon he has been held to be entitled to the proceeds thereof. John Hancock Mutual Life Ins. Co. v. Lawder,
2. Counsel for plaintiffs contend that the conditions *431
of the right to change the beneficiary were not complied with, in that no endorsement of the change was made by the insurance company, and that the change accordingly is void. A great part of the brief is devoted to this point. But it is not necessary to review the cases cited. This court has already settled the point in this jurisdiction. It was held in Brotherhood of L.F. E. v. Ginther,
3. The plaintiffs further claim the right to the proceeds of the insurance policy in question because, as they say, they have shown an oral assignment of the policy to the father of the insured, and that a change of beneficiary could be made only upon the condition or proviso stated in clause 12, that "he has not assigned it or any interest therein." The premise that an assignment has been shown is incorrect, as will be seen hereafter. But even if that were not so, still plaintiff's objections to the change are not well taken. The proviso in clause 12 above mentioned should, we think, be construed in connection with clause 13 of the policy which provides that "no assignment of this policy shall be binding upon the company unless in writing and until filed at its head office." The proviso in clause 12 was designed, we think, for the benefit of the company, so as not to have two or more claimants of the proceeds *433
at the same time while the policy is current, and contemplates an assignment in writing. If this were not true, the insurance company would be required in every case, though no written assignment appeared, to investigate every time a change of beneficiary were desired, whether or not there existed an oral assignment, which would be most difficult, would often take a long time, and at times would be impossible of definite ascertainment. It is improbable, and almost impossible to believe, that the company would assume such a burden. If, however, by chance, this deduction is incorrect, it must at least be true that the proviso in clause 12 can refer to nothing more than an assignment recognized by law, and existing at the time when a change of beneficiary is desired to be made. And an assignment legally revoked cannot be considered as an assignment recognized by law. That the insured revoked whatever assignment is claimed to have been made, is clear from the fact that without any reservations whatever, he designated his wife as the person who should have the proceeds of the policy in question here; that he attempted to get a loan thereon; and that he left one of the policies on his life unchanged in the hands of the parents. Was he entitled to do so? It must not be overlooked that minors have been from early dawn of civilization, and are now, favorites of the law. They have the capacity to take, but their capacity to give is limited. They have capacity to contract, at least when of sufficient age to understand what they are doing, but, in general, they have the right to repudiate their contracts. Thus they may contract to insure their lives, but the contract is, ordinarily, voidable at their election. 31 C.J. 1086. So their assignments of a contract are void, or at least voidable, and may be repudiated unless some equitable circumstances appear which should impress a trust upon the contract, as, for instance, where a bank or other third *434
party pays premiums, in order to preserve their security for money advanced or loaned on the strength of the assignment. 31 C.J. 1087; City Sav. Bank v. Whittle,
However that may be, whatever payments of the premiums may have been made by the father, they were voluntary. At least nothing to the contrary is shown. The father's relation to the son puts the situation in a light different from that where a stranger pays the premiums. And the rule appears to be that the mere voluntary payment of premiums will not deprive the insured of the right to change beneficiaries in accordance with the reservation thereof in the policy, unless there is an agreement to the contrary. Wentworth v. Equitable Life Ins. Soc.,
"The mere fact that she (the wife) paid some, and possibly all, of the assessments, prior to the change of beneficiary, even if paid out of her separate estate, raises no legal claim. Perhaps there was not even a moral claim; since throughout the period during which she paid assessments, she enjoyed the full protection *436 which the order agreed to furnish, and for this alone payments were made."
The same rule was applied in Fisk v. Equitable Aid Union (Pa.),
4. The testimony to show such agreement and ownership of the policy by assignment is substantially as follows. John Novosel, a son of plaintiffs, testified as follows: *437
"Q. Did you ever hear your deceased brother say anything about this policy? A. Yes, sir, I did; he mentioned it many times that that belonged to his dad. Q. What do you mean by many times? A. He said more than once. Q. How did he happen to say it? A. Well, he owed his dad quite a lot of money, and he used to say that belonged to him."
The witness Mike Novosel, another son of plaintiffs, testified:
"Q. What did he (the insured) say? A. He said `I am glad my dad has got that insurance policy. I owe him and the only way I can pay,' he said that not only once but several times. Q. What did he mean by debts? A. He would stand behind him, when he bought a car, and Dad would give him money when he was running around. Q. Who did your deceased brother say owned the policy? A. My Dad. Q. Whom did your deceased brother say owned the policy? A. Why Dad and Mother."
A daughter of the plaintiffs testified:
"Q. What did he (the insured) tell you? A. He always told me everything. He told me `I am so glad my father has those policies. * * * I know what I have done to my father, and now if ever anything happens, my father will be taken care of. * * * Dad is protected and I don't care about anybody else,' that is what he always told me. * * * He had the blues, he had debts, and he was a great spender; he couldn't make enough money to get the money he spent."
It may be noted that the sons said nothing about the second policy of $3000 above mentioned, and without an explanation in that regard, there is no way to tell whether the insured talked about the first or the second policy. Disregarding that point, however, it is very clear that all the talks turned round the debts of the insured, and that the sum and substance of the testimony is at most to the effect that he, the insured, was glad that his father had the policy so as to protect the latter against loss for any money received by the son from the father. It was the debts which troubled the *438 insured, as is also shown by the testimony of the witness Symes. And all that he meant, evidently, was that he was glad that his father, as one of the beneficiaries of the policy, and in that sense the owner, would ultimately be repaid. There is not a word that the father had the policy under an agreement that the debts should be paid therefrom; he simply at the time when he made the declarations was glad that they would be paid. He was correct at the time, since had he not made a change of beneficiary in one of the policies, the parents would have had the proceeds of both. But the fact did not take from him the right to change the beneficiary, unless other facts were shown; and these other facts are lacking. Of course, counsel for plaintiffs try to make something more than we have indicated out of the statements of two of the sons to the effect that "dad owned the policy." We think, however, that the testimony as a whole cannot be construed otherwise than as we have. But even if "dad owned" the policy by assignment, such ownership, as we have already shown, could be and was revoked, and counsel would still be compelled to show equitable facts to establish their case. In other words, the right of recovery herein on the part of the plaintiffs depends, in its final analysis, upon the fact as to whether or not they have shown such equitable facts which call upon the conscience of the court to give them relief. We may say further that the daughter did not testify to such "ownership," and the testimony of the disinterested witnesses shows the contrary. Wayne Symes testified to the payment of the premiums ofhis, the insured's, policy. The testimony of the witness Whitcomb, also disinterested, shows that the insured on November 20, 1933, treated the policies as his own. And it is at least queer, if the father owned the policy in question, that he did not himself arrange for the premiums due in November, 1933, but let the insured *439 do so, and thus permit him, or give him an opportunity, to hold himself out to the world as the owner of his policies.
5. It is also contended that the intervener cannot recover herein because "the policy was delivered by the insurance company to the father, and was surreptitiously, and without the father's knowledge or consent, extracted from the father's desk." It is true that there is testimony that the policy was handed over to the father by the agents, but, under the circumstances at least, there is no evidence of ownership on the part of the father. The whole family was gathered at the place, and it was but natural that the agents should give the policy to the head of the house. Further, the parents of minor children are their natural guardians. Bowers v. Parker,
Nor is there any evidence in this case to sustain the contention that the policy was surreptitiously removed from the father's desk. It seems that it and other papers were kept therein, and that it was accessible to all the members of the family. The father's home was the insured's home up to a time shortly before his death. One of the sons of plaintiffs testified that he saw the policy last in March, 1934. It seems that it was in an envelope. He evidently had access to it, just as the insured had, and one wonders what business he had in looking into the envelope. In any event, simply because the policy in question was still in such envelope in early March, 1934, proves nothing as to what took place thereafter until March 30th, 1934, when the papers in regard to a change of beneficiaries were sent to the insurance company. At that time the insured was married; he perhaps also realized that he was sick and was uncertain as to the future, and he became possessed of the laudable desire to protect his wife, and possible offspring. At the same time, he considered his father; probably on account of debts. What the indebtedness was is not shown; the testimony indicates but small sums, one of $60 and one of $80, and some premiums paid. Counsel for plaintiffs evidently think that the indebtedness arising out of the last illness of insured should be considered. But in all probability neither the son nor his father considered them; at least there is no evidence indicating the contrary. Thousands, doubtless, of parents every year pay these expenses for their minor children without any thought of having them repaid. However that may be, judging from common experience the sum due the father, including the expenses of insured's last illness and death, in all human probality amounted to much less than *441 $3000, and this amount has been paid by one of the policies, so that we cannot see how the parents are, in equity, entitled to any more than that amount. It has not been shown that they are. So it would seem that the boy, instead of being a purloiner of goods, acted, by leaving one of the policies unchanged, as a loyal and honorable son of the most worthy parents. Moreover, the son was married with the consent of his parents. Whether the consent was valid in law or not is immaterial herein. We mention that fact merely as showing that father and son remained friendly. The situation was then wholly changed. The father of insured is shown to have been a benevolent parent. And it is almost inconceivable that an ordinary parent, let alone one of benevolent disposition, could, upon his son's marriage, desire, with a clear conscience, to strip him of all worldly goods, leaving, in case of the latter's death, his wife and possible or probable offspring in a helpless condition. Hence we cannot agree with the contention of counsel for plaintiffs that we should besmirch the name of the dead, and consider the boy as a liar and a thief. The only way in which we can explain the instant suit is by reason of the fact that the son's death, after his marriage, was so sudden.
6. Summarizing the situation in this case, then, we find that the plaintiffs cannot be held to have been the original owners of the policy in question, since the contract was between the insurer and insured. Plaintiffs were the originally designated beneficiaries thereof, but inasmuch as the right to change was reserved to the insured, they had only a right of expectancy. 37 C.J. 579. This right was nullified when the insured designated Mary Kantor Novosel as the beneficiary. If the parents obtained any greater interest in the policy than already mentioned, it must have been after its issue. No such interest has been shown to have been granted by the insured, either in writing or orally. But *442
if by any possibility it could be said that there is some testimony tending to show an oral assignment of the policy was made to the father of the insured, such assignment was revoked, and the insured, as a minor, had the right to revoke it, unless for some equitable reasons the policy should be charged with a trust for money expended on the minor's behalf by the father. Such expenditures must, in the absence of evidence to the contrary, be taken as a gift. And there is no evidence to the contrary, except a showing of a consciousness on the part of the insured that he should repay his father for any outlay on his behalf. The amount of such outlay, so far as the evidence indicates, was comparatively small. The father, perhaps, paid part of the premiums. But even the total premiums paid on both policies herein mentioned would be only the sum of $790.00. The expenditures arising out of the boy's last sickness and funeral cannot be taken into consideration. Under the law, the father was compelled to pay them (46 C.J. 1262, 1278) unless, perchance, the child was emancipated, which, as counsel for plaintiffs concede and in fact contend, is not true in this case. At least no more than a moral or equitable obligation on the part of the insured can be claimed. And that moral or equitable obligation, if it existed, was discharged. The parents received the sum of $3000 on the second policy herein mentioned. A contention that this policy has nothing to do with the case is unsound. It has much to do with it, under the facts in this case. The insured had the right to change the original beneficiaries of that policy the same as those of the first. But, evidently out of affection for his parents, and to meet any possible obligations due them, he did not do so, thus not only discharging any moral obligation resting upon him, but eliminating any question of equitable considerations in favor of the parents as well. We see no possible reason why Mary Kantor Novosel should be deprived of the *443
benefit which she received by reason of the act of her husband, upon whom rested at least the highest moral obligation not to leave penniless his wife and possible offspring. The right thus bestowed should not be lightly taken away. Talks and statements at random are uncertain factors to do so. In Fee v. Wells, (Colo.)
"Proceeds of a life insurance policy are a property right, and before the beneficiary can be divested of the title, use, and enjoyment thereof by mere reported statements made out of court to strangers, upon the ground that they are statements against interest, the evidence will be received with great caution, and the proof must be beyond a reasonable doubt. The presumption arising from making Mrs. Fee beneficiary must prevail until the contrary is established beyond a reasonable doubt. Skeen et al. v. Marriott,
The case, in its facts, is, of course, different from the case at bar, and yet the language is appropriate, though we need not go as far as the Colorado case.
The judgment of the trial court is reversed, with direction to enter judgment for the intervener, Mary Kantor Novosel, or her guardian. The sum of $150 was awarded to counsel for the insurance company, as interpleader. No one has questioned that order, and it is not involved herein.
Reversed, with direction.
KIMBALL, CH. J., and RINER, J., concur.
Addendum
1. Counsel takes exception to what we said on the point of revocation of any oral assignment which the insured might have made. What we meant by that is clearly shown in the original opinion, and we need not go over that again. It is argued, however, that, in order that a minor may revoke an assignment made by him, it is necessary for him to have a guardian, go into court, give due notice to the opposite party and have the revocation duly adjudged in court. We think that this was unnecessary in this case. The change of beneficiary made by him itself, we think, revoked whatever, if anything, he had done which was inconsistent therewith. 31 C.J. 1068-1069.
2. Counsel refers at various places in his brief on rehearing to the fact that the insured was mentally incompetent when he made the change of beneficiary. We did not refer to this point in the original opinion, since counsel for plaintiffs in his original brief mentioned it but incidentally, and counsel for intervener did not mention it at all, and we did not think that there was any evidence to support the contention. The fact that the boy took a policy of $3000 and made his wife the beneficiary thereof seems like a perfectly natural act of a sane man, and the further fact that he left his *445 parents as the beneficiary of another policy of $3000 would seem to indicate a keen and just sense of discrimination. Mrs. Mackie's testimony merely showed that the insured had the blues at times, which few, if any, of us escape. Dr. Newman testified that he examined the insured from time to time commencing with January, 1934, to March 3rd, 1934; that the boy complained of vertigo; that Mayo's later found an encephalitic condition of the brain — "a slow inflammatory process that goes on in the brain."
"Q. What would you say on the third of March, 1934, as to Ludwig Novosel Jr. being able to transact his business or transact business intelligently? A. I didn't go into the functioning of that gland especially. A man in that condition is not a normal man, and he undoubtedly had that condition before he reported to me, it is not a condition that comes on suddenly. Q. Do you know whether he went alone? (to Mayo's at Rochester, Minnesota). A. I don't recall. Q. Was he capable of taking care of himself, if he did? A. I would say he could do that, yes."
This evidence fails to show that the insured was insane at the time when he made the change of beneficiary. No man who is sick is "normal," but that does not constitute proof of insanity.
3. So many policies are taken out by parents on the lives of their minor children that it has seemed advisable to again give a thorough consideration to the subject of original ownership of the policy in question, and to clarify and amend what we said on that subject in the original opinion and consider the point in its fundamental aspects. After an exhaustive search of the authorities, both now and at the time of the original hearing, we have found none directly in point. The late case of Grosz v. Grosz, (Ore.)
"Where the policy of insurance names a third person as beneficiary, the policy is then a contract made for the benefit of a third person, and the third person is called the beneficiary. The beneficiary is not a party to the contract, and is not the owner thereof, and where a policy of insurance reserves to the insured the right to change the beneficiary, the interest of the designated beneficiary, prior to the death of the insured, is that of a mere expectancy of an incompleted gift, subject to revocation at the will of the insured."
If parents desire to take out a policy for their own benefit, that is easily done. All that is necessary is to leave out of the policy the right to change the beneficiary. In such case, it is universally held that the rights of the originally designated beneficiary become vested. 37 C.J. 578. When it is so easy to fix such vested interest, a course taken to the contrary to that above mentioned ought not lightly to be construed as though in conformity therewith and thus give rise to all kinds of litigation, as it did in this case. If a person is insured, with right in the policy such as granted in that in the case at bar, such insured, ordinarily at least, would be considered the owner of the policy. But let us take for granted that, as claimed, the father took out the policy on the life of his son. That act in this case meant at most that he told the agent to have the policy written and that he would pay the premiums. He did not, however, take out the policy by himself, but only in conjunction with his son, so that we need not express an opinion of a situation when a policy is issued without the co-operation of the insured. The contract finally consummated in this case was between *447
the son and the insurance company. The son reserved the right to change the beneficiary. The powers granted in the policy were those granted to the son — to have the right to the surrender value, to assign the policy, to obtain a loan thereon, to change the beneficiary. If a policy had been taken out without the clause giving a right to change the beneficiary, the rights of the parents would, of course, have been irrevocable, as already mentioned. Under the policy taken out, they had but an expectancy. They had no property right therein. Mutual Benefit Life Insurance Company v. Swett, 220 Fed. 201; Golden Star Fraternity v. Martin,
"It is uniformly held that where insured's failure to complete the change of beneficiary in his policy before his death by a return of the policy to the insurer was caused by a refusal of the beneficiary named therein to surrender the policy to him, his efforts, if otherwise in substantial compliance with the requirements imposed by statute or contract will — at least as between the persons claiming as beneficiaries — be given effect, and the equitable rights of the person designated by him as the new beneficiary will prevail over the strict legal title appearing on the face of the policy."
4. Counsel still insists that since the insurance company failed and refused to endorse a change of beneficiary on the policy, no change was effected. He insists that there is a distinction in this respect between a fraternal insurance policy, or one similar to that, and a policy of the ordinary life insurance company; that accordingly the rule laid down in the case of Brotherhood of L.F. E. v. Ginther,
"Where, as here, the insured has the unrestricted right to change the beneficiary and has done substantially all that he is required to do to effect such change, *451 the change becomes effective notwithstanding the fact that the insurance company has lost the instrument executed by the insured or has failed or refused to indorse such change upon the policy. In such case equity will consider that done which should have been done by the insurance company."
The rule is supported by numerous authorities, some of which are the following, all involving an ordinary policy of insurance and not fraternal insurance: Hancock Mut. Life Ins. Co. v. White,
For the reasons pointed out, the petition for rehearing herein must be denied.
Rehearing denied.
KIMBALL, CH. J., and RINER, J., concur. *453
