67 Ind. App. 153 | Ind. Ct. App. | 1918
The questions presented in this appeal had their origin in a suit on an insurance policy. The undisputed facts developed at the trial in the court below, pertinent and necessary to an understanding of said questions are in substance as follows:
The life insured by the policy involved was that of Carl Pape, hereinafter referred to as “C.”- He was twice married, and had children by each wife. By his first wife, Wilhelmina, he had five children, whose names and the dates of whose births are respectively as follows: Elizabeth (Pape) Isreal, born in 1859;
On September 22, 1879, C made a written application to the Mutual Life Insurance Company of New York for a policy of insurance upon his life. Upon this application the policy herein involved was issued September 26, 1879. C had a brother William to whom he assigned said policy in the year 1909. C and his second wife lived together as husband and wife until her death on April 27, 1908. C died April 25, 1911, survived by all his children above named except Minnie and William.
On May 2, 1912, William Pape, C’s brother, filed his complaint in the trial court against the Mutual Life Insurance Company of New York, alleging therein the issuing of said policy, and the assignment thereof to him, and that he was entitled to the proceeds thereof, and making said policy and assignment parts of said complaint by way of exhibit. Said company appeared in court to said complaint and filed
These various parties, by way of cross-complaints and other pleadings, joined issues upon their conflicting claims in the proceeds of said policy. The court, upon request of appellants, made a special finding of facts, and stated conclusions of law. These findings and conclusions were in favor of appellees, and judgment was rendered accordingly. A joint motion for new trial filed by all the appellants, and a separate motion filed by Charles G. Pape were each overruled.
The errors assigned and relied on for reversal are as follows: (1) The court erred in overruling appellants’ demurrer to the cross-complaint of appellees Elizabeth Israel et al.; (2) the court erred in overruling appellants’ demurrer to the cross-complaint of appellees Caroline Pape et ah; (3) the court erred in overruling appellants’ demurrer to the cross-corn-
The determination of the questions sought to be raised by appellants under their first, second and third assignments, supra, depends upon the construction of the policy of insurance here involved, and, inasmuch as appellants concede in their brief that the same questions “will be raised by not only the sufficiency of the evidence but the special findings,” we will pass' to a consideration of the other assigned errors relied on for reversal.
It will be necessary to an understanding of these questions that we set out the substance of the material facts found by the court. In addition to the general undisputed facts above indicated, the special finding sets out said application of C for insurance and the policy issued thereon, the parts of which pertinent and necessary to an understanding of said questions are as follows: ‘
The' application:
“3. A. State the amount of insurance applied for. * * * D. If for the benefit of the wife, state precisely whether it shall be paid to her children, to his children, or to the children of the two, if she be not living at its maturity. * * * A. 3000. * '* * D. Their children. * ■*
“The Mutual Life Insurance Company of New York ■ * * * in consideration of the application for this policy and of the several statements made therein, promises to pay * * * unto Caroline Pape, wife of Carl Pape * * * for her sole use* if living, in conformity with the statute, and if not living to their children, or their guardian for their use, Three Thousand Dollars * * V’
Other facts found specially by the court pertinent to said questions are as follows: C was for a number of years engaged in the manufacturing business in Ft. Wayne, Indiana, and operated a corporation known as the Fort Wayne Wind Mill Company, all the stock of which C had purchased and held up to the time when, in 1909, he made an assignment for the benefit of his creditors. He was the sole owner of said business and had full management thereof for a number of years prior to said assignment. During said period he had borrowed extensively from banks in Ft. Wayne and towns in the vicinity thereof, to secure which loans he had given his notes and notes of said corporation, among which were notes, aggregating in amount about $24,000, indorsed by the appellee William Pape, his brother. Said indebtedness had been carried for a number of years, and the notes had been from time to time renewed as required by the banks. On March 1, 1909, said C was financially embarrassed, and contemplated making an assignment of all his property for the benefit of his creditors. Said William knew this, and before said assignment was made was insisting upon the assignment to him of certain policies, including the one in suit. C continued to operate said
“Fort Wayne, Ind., March 1, 1909.” “This is to acknowledge the transfer as collateral only the following policies — to Wm. Pape, Sr.
Metropolitan Life Ins. Co. 2500.00 No. 201890
The Mutual Life Ins. Co. No. 205043 3000.00
*161 John Hancock Mutual 2500.00
Life Ins. Co. No. 75642
“If obligations are liquidated policies are to revert back to Chas. Pape.
C. Pape.”
C made the foregoing assignment on March 1,1909, and from said date said William paid the premiums on all of said policies, and upon the policy in suit amounting to $154.29, until the death of said Carl. Said assignment was in the handwriting of said Charles G-. Pape. C and said William were unable to read or write in English.
Thereafter, on July 7, 1909, C executed the following assignment, pursuant to the provisions of said-policy, viz.,
“Form of Assignment:
“For one dollar, * * * and * * * other valuable considerations - * * * I hereby assign, transfer and set over to William Pape * * * all my right, title and interest in this policy, No. 205043, issued by The Mutual Insurance Company of New York and for the consideration above expressed I do also for myself, my creditors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, his executors, * * * and their title to said property well forever to warrant and defend. '
“Dated * * * this 7th day of July 1909.
“C. Pape.”
In consideration of the assignment of these policies said William became surety on the renewal notes
Said Charles well knew at the time of the assignment so written by him that said policy was not assignable and well knew that said William could not’ read or'write English, and that William and C relied on him, Charles, to select the policies that were assignable, and William, relying upon the conduct of Charles, and induced by his conduct as to- this policy, before set out, became surety upon the renewals of said notes for said C and said mill company to the extent above referred to, and he did so believing that C had the right to assign the same, and having no notice or knowledge that Charles Gr. had or claimed any right in said policy.
By reason of becoming surety on said notes, William has been compelled to pay for said C and for said company, $8,953.31, and is now obligated to pay between $10,000 and $12,000, and there are no assets of the estates of said C or said company from which he can be reimbursed.
The conclusions of law stated by the court are, in substance, as follows: (1) That said William Pape has an interest in said policy to the amount of the premiums advanced by him on said policy, viz., $154.29; and said William has, in addition thereto,
In the case of Lehman v. Lehman (1906), 215 Pa. St. 344, 64 Atl. 598, a widower with six children married a widow with one child and had by her two children. After this marriage he took out a policy of insurance upon his life, whereby the insurer promised to pay the amount of the policy to his wife, “in trust for herself and their children, in equal shares.” The question arose whether his children by the first marriage were entitled to participate in the insurance. The Supreme Court of Pennsylvania affirmed a judgment in favor of said children, upon an opinion in which it was said, on pages 348, 349, 350 and 351: “There is nothing in the context to aid the appellant’s construction of the words ‘their children’ in the beneficiary clause of the insurance policy. Nor are any circumstances shown which it may be inferred would have been likely to influence the insured to prefer one set of his children over the other. The suggestion that naturally he would be concerned especially for the children of his second wife because they were younger would not be without force if there were any evidence that at the time he took the policy the children by his first wife were not dependent members of his household, they were adults or that
We think that these remarks are applicable to the case at bár. It can hardly be contended that the words “their children” have any such fixed meaning that they could not be construed to mean the children of the husband and the children of the wife, rather than the children having a common parentage only, nor do the facts found by the court necessitate such a construction. From the findings it appears that when the insured applied for the policy in suit his oldest child by his first marriage was a female about twenty years of age, and his youngest child by that marriage was about seven years old and that he then had two children by his- second marriage who were respectively two and four years old. It is not likely, in view of their ages, that he would have preferred the children of the second over those of his first marriage.
But appellants urge that the answer to question “3.D.” in the application set out in the finding of facts, supra, show that the insured intended that, should his wife predecease him, only his children by her should participate in the insurance.
It is insisted by appellants that if 0 had desired the children of both his marriages to participate in the insurance, he would have adopted that form of
It is contended, however, that said conclusions of law are erroneous even if said children of said first marriage are entitled to participate in the insurance, in that said conclusions would allow the heirs of said William Pape, the deceased son of C, to participate therein, to the extent of the interest which said William would have had, if he had survived the insured. Apparently, this question has never been decided in this state.'
For the reasons indicated, we think that the conclusions of law are not open to the objections indicated.
Because Charles was silent as to his rights in said policy when the assignment was made, he should now be estopped to assert those rights. In the case of Kiefer v. Klinsick (1896), 144 Ind. 46, 54, 55, 42 N. E. 447, 450, it is said: “He, who by his language or conduct, leads another to do what he would not otherwise have done, will not be permitted to subject such person to loss or injury by disappointing the expectations upon which he acted. A change of position by the first party would involve both fraud and falsehood, and the law abhors both. The principles of estoppel in pais have been applied to a great variety of cases. The doctrine has no application where everything is equally known to both parties, or where the party sought to be estopped was ignorant of the facts out of which his rights sprung or where the other party was not influenced by the acts asserted in estoppel. But if one stand by and see another purchase property without disclosing his interest to the person about to purchase, he cannot afterward set up a claim of which the purchaser had no notice. Nor. is it nec
The findings in the case at har show that Charles G. Pape did more than merely “stand hy” and fail to assert his rights in said policy. They show that he produced said policy as one which could he assigned, and wrote the memorandum of assignment. By this conduct he helped to create the situation which placed upon him the duty to assert his rights.
■ Appellants say that there is no finding of a misrepresentation of existing facts hy said Charles, hut merely an expression of opinion as to his rights, which does not create an estoppel. McGirr v. Sell (1877), 60. Ind. 249; Ross v. Banta (1895), 140 Ind. 120, 34 N. E. 865, 39 N. E. 732; Mitchell v. Fisher (1884), 94 Ind. 108. In answer to this, it may he said that the findings do not show that said Charles expressed any opinion whatever, or that he made any
Appellant Charles, under the circumstances indicated, having remained silent as to his known interest in said policy, at the time of said assignment, to permit him now to assert and obtain an interest in said policy against the claim of his uncle would operate as a fraud on the uncle, which the law will not permit.
Appellants say also that ’William Pape was not diligent in learning the nature of the policy assigned to him. In cases of estoppel by silence it has been held that the person relying on the silence must not have had the means of knowing the true state of facts, as, e. g., by reference to the public records, and it has been said that in this respect such estoppel differs from the class of estoppels resulting from affirmative acts or conduct. 10 R. C. L. 694, and note 15. The whole course of Charles’ conduct, as shown by the findings — his producing said policy as one that could be assigned, his writing the assignment thereof, and his failure to assert his rights
By the first three grounds of their motion for a new trial, appellants challenge the decision of the court as not. sustained by sufficient evidence, and as being contrary to law. The proposition advanced in support of these contentions are the same as those advanced in support of the contention that the conclusions of law are erroneous, viz., the absence of certain of the elements of fraud.
William Pape, the plaintiff, testified substantially as follows: He had been for years indorsing his brother C’s notes; Charles G. Pape would at times bring such notes to him for renewal; about March 1, 1909, he called at C’s house; at that time there were, due some of C’s notes, which William said he would not sign. C then mentioned some policies of insurance and said to his son, the appellant Charles G. Pape: “I got $25,000.00 life insurance and let us sign some over so he is secured, so he wont lose anything.” Charles G. Pape replied: “Pa, you have only $10,000.00 and $2,000.00 you can’t sign away.” C then said that he would assign to William $8,000 in insurance policies, which William replied was satisfactory. William then commenced to sign the notes. The next day William with his son, a man of mature
Charles G. Pape testified as follows: At the request of C, his father, he sometimes took renewal notes to William Pape for his signature. Most of these notes were in said Charles’ handwriting. In December, 1908, his father requested him to come to his home. Upon arrival there, C said: “Bill here is insisting on having all the insurance assigned to him. ’ ’ On March 1,1909, C telephoned to witness and asked him to bring the policies to his father’s house. There C asked him to write the memorandum of assignment above set out, which he did, and he handed it and the policies to his father.
William Pape, Jr., a son of plaintiff, testified that after the death of Carl Pape, Charles G. Pape came to see him about the policy in suit, in which he claimed an interest, and then said to witness that he knew at the time this policy “was signed over that we couldn’t get the money.”
Appellants claim that the court erred in sustaining the objections to certain questions propounded to Albert O. Pape. The questions and testimony offered in response thereto are as follows: “Q. I will ask you * * * to state to the court whether or not prior to your father’s death, he gave or conveyed real estate to the children of the first marriage?” Upon objection to this question, appellants offered to prove in explanation of “the position and intention of the parties herein as supplemental to the policy as well as the ■ application and as further to assist the court in arriving at the intention of the parties to the contract, that the decedent, Carl Pape, before his death, conveyed a large quantity of real estate to each of the children of the first marriage.” “Q. I will ask you to state to the court * * * if you know from your own knowledge whether your father, before his death, did convey property consisting of real estate to each of the children of the first marriage, of the value in the neighborhood of 12 or $15,000.00?” The appellants offered “to prove in answer to this question that * * * Carl Pape before his death, conveyed to the children of the first marriage, real estate of the value of 12 to $15,000.00. ’ ’ “ Q. I will ask you * * * to state to the court whether or not at that time you had a conversation with your father about why he was conveying real estate to his first children and not to his second, and whether or not you had any conversation about insurance, if so, what did he say with reference to that?” The appellants offered to prove in answer to this question “that these conveyances were made
The third question, supra,- was properly excluded for the reason indicated in our discussion of the evidence offered in answer to the first and second \questions supra.
Finding no reversible error in the record, the judgment below is affirmed.
Note. — Reported in 119 N. E. 11. Insurance: meaning of term “children” as used to designate beneficiaries in life policy, 15 Ann. Cas. 529, Ann. Cas. 1913A 300; vested interest of beneficiary in ordinary life policy, 1 Ann.- Cas. 684, 11 Ann. Cas. 49, Ann. Cas. 1912B 1144, 19 Am. St. 786, 790. See under (1) 25 Cyc 888 (2-4) 25 Cyc 890, 891; (5-6) 16 Cyc 759; (8) 16 Cyc 734; (9) 25 Cyc 933,