Ogletree v. Hutchinson
55 S.E. 179
Ga.
1906
Check Treatment
Cobb, P. J.

(Aftеr stating the foregoing facts.) While the ease was pending the insurance company paid thе amount of the policy into court, and was dismissed from the case. The only question now to be determined is, who is entitled to this fund which resulted from the contract made by the insured with the company ? In the application appears the following: ‍‌‌​​‌​‌​​​‌‌‌​‌‌‌‌‌​‌​​‌‌​​‌​‌​​‌‌​‌‌​​‌‌‌‌​​‌‌​‍“14. Name, etc., of beneficiary, subject to рrovisions of policy applied for as to payment. Name: Mrs. Edna E. Ogletree; Belationship: "Wife. 15. Is name of beneficiary to be entered in policy ? -.” The policy stipulated to pаy the amount thereof as an endowment to the insured when he shall have passed the age of seventy-nine years; and “if the insured shall die prior to the date of the maturity of the endowment, to pay, upon receipt of proofs of death of insured, made in the manner and to the extent and upon the blanks required herein, and upon the surrender of this policy and all receipt books, thе amount stipulated in said schedule. . . In case of such prior death ‍‌‌​​‌​‌​​​‌‌‌​‌‌‌‌‌​‌​​‌‌​​‌​‌​​‌‌​‌‌​​‌‌‌‌​​‌‌​‍of the insured the compаny may pay the amount due under this policy to either the executor or administrator, husband or wifе, or any relative by blood or lawful beneficiary of the insured, and the production of a receipt signed by either of them, shall be conclusive evidence that all claims under this policy hаve been satisfied.”

The application for the insurance being the proposal for thе contract by the applicant and the policy being the acceptance оf this proposal, the two papers are to be construed together, and any stipulatiоn in the proposal which is not inconsistent with anything in the policy would become a part of thе contract between the. parties. ‍‌‌​​‌​‌​​​‌‌‌​‌‌‌‌‌​‌​​‌‌​​‌​‌​​‌‌​‌‌​​‌‌‌‌​​‌‌​‍If there is a variance between the application and the policy, the policy having been accepted presumably with full knowledgе as to what it contained, and as to the fact that it did not follow the application, it would control as to the terms of the contract between the parties. The application designated the wife as the *456person to whom the benefits of the policy should accrue. It is tо be noted that the question in the application as to whether the name of the benefiсiary should appear in the policy is unanswered. If the company had issued the policy and designated therein some other person ‍‌‌​​‌​‌​​​‌‌‌​‌‌‌‌‌​‌​​‌‌​​‌​‌​​‌‌​‌‌​​‌‌‌‌​​‌‌​‍than the wife as beneficiary, and such person was one who could have been a lawful beneficiary under the policy, the acceрtance by the insured of the policy and payment of premiums thereon would have amounted to an assent to this change in the contract. Hunter v. Scott, 108 N. C. 213. The policy as issued did not contain the nаme of any person as a beneficiary. Hence as to this matter there is no conflict between the application and the policy; and it is to be assumed, as the company issued the policy in this shape and the insured accepted it, that there was a mutual assent that thе contract should be construed as one making the wife the beneficiary. The clause in the рolicy above quoted, as to who may receipt the company and thus discharge it from liability, does not amount to a designation of a class of persons or any one of them as bеneficiaries. This was merely an appointment ‍‌‌​​‌​‌​​​‌‌‌​‌‌‌‌‌​‌​​‌‌​​‌​‌​​‌‌​‌‌​​‌‌‌‌​​‌‌​‍by agreement between the parties as tо persons who might receipt the company and discharge it and thereafter hold the amount received for the benefit of the person ultimately entitled thereto. If the company had, in accordance with the stipulation in the policy, paid the amount thereof to the fаther and taken his receipt for the same, the company would have been discharged frоm liability to any other person; and the father, being within the class appointed for this purposе, would hold the money for the benefit of the beneficiary under the contract. See, in this connеction, State v. Schaffer, 50 N. J. L. 72, 11 Atl. 154; Harding v. Littlehale, 150 Mass. 100, 22 N. E. 703; Mass. Catholic Order v. Callahan, 146 Mass. 391; Bradley v. Insurance Co. (Mass.), 72 N. E. 989; Providence County Savings Bank v. Vadnis (R. I.), 58 Atl. 454; Folmer’s Appeal, 87 Penn. St. 133. When the application and the policy are construed together it clearly appears that there were two things agreed on by the insured and the insurer as parties to the contract, the one being that the wife was to be the benеficiary of the contract, and that the company should be discharged by a receipt frоm any one of the class of relatives named in the polic}", upon such relative complying with the conditions of the policy at ■the time of payment. The company has been discharged, and the *457fund is in court, and should be awarded to the person who was intended as the beneficiary of the contract. The demurrer was properly overruled.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.