*1 638 Metropolitan S. Appellant, Plummer, v. Insurance

Charles Eugene al., G. Re Co. Lacey, et Executor et al., Defendants ; spondents. S. W. (2d) 453. Appeals. City March 1935. Kansas Court *2 appellant. David W. Wilhite for

L. Amasa Knox and Lacey. Carl R. Johnson for respondent Pounoey D. James respondent Watkins.

REYNOLDS, alleged C. This an the plaintiff action as the upon therein two certain insurance issued Metropolitan (hereinafter defendant Company Insurance company) called upon defendant P'lummer, deceased, life of Sallie as the insured under each.

At the time the first issued, one was the name of the insured was Squires; Sallie and she was described therein under said ñamé. She afterwards Waldon, married to one changed and her name was to Sallie Waldon, endorsement to that effect was made 26, 1917, April she About policy. on said

defendant changed to Sallie herein; name was married to the and her. made Plummer; effect was and an endorsement to such policy. company on said 19, 1906, the name February of said was issued second "Waldon; described and she was at time Sallie

of the insured such marriage to the Afterwards, upon her such name. therein under policy of endorsement to be made such plaintiff, she caused .an change her name marriage the fact of her and of. to that of Sallie Plummer. commonly type class known

Both of said are of the policies; provided industrial and the insurance each insurance; and, by each, de- commonly known as industrial company engages fendant therein an endowment seventy-nine years in- age sum, in a passing fixed *3 cluding guaranteed each, provided provided, certain dividends for in however, obligation prior company “that no is assumed by the date thereof nor is alive and in unless on said date the assured company prior In sound health. case of such death of the insured the may pay beneficiary policy the amount due under this either or administrator, wife, named to the executor or or husband or by relative blood of insured, person appearing or to equitably by to said entitled the same reason of having expense on behalf of insured for his her or burial, and production receipt signed of of either them shall be conclusive policy evidence all claims under this have been satisfied.” It provided is further policies that, each of said sub- ject the approval company, defendant the insured therein may, during at time policy, provided the continuance of the policy assigned, change is not then or beneficiaries written notice to office, the defendant at its home accom- panied policy, change such take effect on the endorsement on policy same company. defendant policy The provides first for a $286.50 fixed endowment of with guaranteed dividends to be added. The beneficiary thereunder, named originally issued, when was the estate of the Afterward, insured. on May 21, 1917, the named beneficiary, appears itas from an endorse- ment company, thereon defendant changed was to Charles S. Plummer, the husband of the insured at such time and the herein.

The fixed provided endowment policy $325 the second after year and, one at the end of the period $450, endowment provided, is the latter sum guaranteed made inclusive of all dividends. The therein, named originally when issued, Judy was 1917, Afterward, May 21, of Montgomery, a sister insured. on beneficiary, appears as it from the thereon endorsement changed Plummer, company, defendant to Charles S. husband time herein. insured at such and now prior from appear would the evidence the insured died death, maturity that, of prior of either said and to her husband, year her plaintiff, had, left about the gone accepted employment he to the State Texas where and living made his home and at the time of her death.

that, a.day, leaving her, after occasionally City he visited Kansas short, telephone when he her or call to see her for. a perhaps would year Occasionally, money. while. he sent her small sums In the. 1926, the of divorce the circuit court obtained a.decree county, Missouri, against plaintiff, of Jackson Independence, at by which him. she divorced the court recited that decree having allegations evidence, the court, after heard the found that the plaintiff’s petition therein was the innocent were she true injured with party. petition charged in said cause him having abandonment and desertion of with live failed support home, absenting with and him- her and furnish her a year self from her reasonable whole space without cause one more, marriage. guilty adultery and with been since the will, designated June, 1925, in which the Insured made her she. death, Eugene Lacey.as Upon her the executor- thereof. qualified possession and took suit , made proof due the death of-the. insured to the defendant com- under pany and' made for the demand plaintiff, *4 thereof him as The to such executor. asserted a right policies to as the each and de- of. them right-as possession executor, of the same in his own such. manded The however, refused to him and his surrender them to denied them. Thereupon, against plaintiff defendants, filed this suit -

alleging, among things, -policies other thé existence and al- leging that he was the in each and that he was unable possession and, reason, obtain either for such unable to was may copies petition. them or thereof with file -the be stated- that the'petition respects was in all a sufficient state cause-of action against plaintiff policies. ^petition two the defendants -The full, unnecessary appears set it out. record.. here to setting company answer, -up executor, The defendant made that the Eugene Lacey, making conflicting a and an adverse claim that the'payment.-,to him, the.plaintiff executor,-of as such' denying plaintiff- any right of said and was that proceeds had com- alleges that further The answer proceeds. to' claimants, the of said knowledge which as to have pany did not proceeds to such entitled lawfully executor, was plaintiff or and that it thereto might person be entitled whether some arising of the con- out interests protect its required, in order arise, others made, and of claims flicting and adverse and require court attorneys asked that the employ thereto a claim might assert persons as such other the executor and rights and respective as to their join themselves as between issue to such was entitled parties which of said to determine the court asked to whom it as company the defendant proceeds to direct payment, as that, upon such and asked same make liability under said discharged from all directed, it be attorneys’ for its reasonable judgment its costs and that it have fees. executor, by Eugene answer as such Lacey, filed an executor, suit, policies in claimed to be entitled which he Plummer, the deceased Sallie executor, for the estate as such pro- plaintiff’s to such denied insured, and which he further ceeds. answer, in its be- order, requested by defendant

Said as Brothers, court, Watkins undertakers ing treated as made incorporated, referred to the inter- embalmers, hereinafter claiming undertaking interplea filed an pleading corporation, of said be entitled to and burial ex- $323, on account of funeral

such to it the sum with the and burial of penses by it in connection funeral deceased insured. separate reply filed a answer of the defendant Eugene Lacey, answer of executor. separate and also to the interplea filed the part He likewise filed a motion to strike the on Eugene undertaking interpleading corporation. Defendant Lacey, executor, interplea also filed a motion.to dismiss the interpleading undertaking corporation. tending interpleading

There was show evidence under- taking corporation had furnished for the burial of the a casket necessary equipment, amounting $323, and other value .to presented not been claim paid; against had therefor had been $323 the insured’s estate and allowed in probate the sum of county. thereto, court of Jackson addition that she was *5 indebted, death, otherwise at the of her on time account of taxes personal obligations, during and such as for her doctor’s bills her last illness other and items. The total amount of indebtedness of the de- ceased, together with her expenses (exclusive funeral and burial the time ascertain at had been able to taxes), far as her executor so appraised personal of her The trial, $653.93. was around value policies, $106.50. inventoried, insurance exclusive of fifteen around at time-been estimated her "real estate had one value of trial, her executor dollars; but, at the time hundred had.been buying it, that unable, death, find one interested so her since of its value at such any probable unable to make estimate he was time. that, tending show since further

There was evidence Bell at one time in living her, the insured had been ceased City, Missouri, undergoing operation for a Hospital at Kansas others; had, that she at tumor; expenses had been borne that her help for and had been upon Association times,, called the Provident it; pay her doctor’s for her last helped.by that she was unable to bills illness; for and upon she had called various and loans that January 26, 1933. other She died about assistance. from will first there- provided, her that she clause

in, debts the-payment her executor and for her her of. burial that, by expenses funeral out of her estate a later clause gifts persons, gave therein, among other devises other she bequeathed the which held of two she company payable to her estate a with the brother a niece. executor, taking charge effects, upon of the insured’s death, among papers

her found her the two of insurance in suit, together policy society with another in a benefit and an insurance permitted been policy lapse. appear had does not that policies. he found obligated

The evidence does not show that the had ever pay expenses by way himself to incurred during pay doctor’s services her expenses last illness or to of her or, matter, funeral or after burial her death debt expense most, her after he abandoned her. At support record shows he' contributed to her after the time he True, sum more; $140. left he contends that he sent her but that he did rests- his mere statement effect. How more, any, if appear. that, much does not The evidence is to the effect approached obligating when with reference himself expenses during of the insured her last illness and for her funeral expenses death, gave and burial since her no satisfaction. hearing, the conclusion overruled the motion of court

At Eugene Lacey, executor, interplea dismiss of the inter- pleading undertaking corporation.

644 finding court, matter the court made submitted to the a fully supported judgment facts fol- by the evidence directed : lows defendant, Metropolitan

“-that a Company, Life Insurance corporation, owes on policy industrial insurance numbered Squires, issued it on of Sallie whose name life subsequently changed marriage policy after the issuance of said Waldon, again changed by subsequent marriage to that of Sallie Plummer, $338.89, to that of Sallie K. the sum of and that defend- ant, Metropolitan Company, Life Insurance policy owes on the n industrial insurance numbered 27305971 it life of issued on the Waldon, changed marriage Sallie subsequently whose name was after policy the issuance of said Plummer, to that of Sallie the sum $505.20, or a total policies $844.09, on both which the numbered n defendant, Metropolitan ready, Insurance Company, Life has been willing party able and pay parties equitably entitled same; (cid:127) Plummer, “The court further finds Sallie K. that policies, day the above numbered March, 1926, on the 22nd ob a plaintiff, Plummer, tained decree of divorce from the Charles S. county, Independence: Circuit Court of Jackson Missouri, at plaintiff,' Plummer, that the Charles S. did not- contribute sub support stantial amount to the Plummer, Sallie K. subsequent year obligation be taken him; K. equities of the insured Sallie Plummer to that there are no in favor of right, and that has no title or in policies 'thereof, in either terest of said numbered proceeds and does not come equity into clean hands and is éntitled to nothing therefrom; take that under will of Sallie1K. Plummer, insured, deceased, her intention plaintiff, that the Charles Plummer, S. should not be entitled to proceeds two industrial question; that it was her intention that of said obligations; used to defendant, that the Undertaking Watkins Brothers Company, is en $323 titled to the sum of paid out of $844.09 said Sum of in pay undertaking ment its funeral and bill under the order of the probate court; for defendant, Metropolitan counsel In Company, surance is allowed the court $30 the sum of as at torneys’ filing fee for its answer in the nature of a bill of inter- pleader representing said defendant herein.

“The court further finds number of in ad- Eugene’ dition defendant, Lacey, G. executor of the deceased, Plummer, defendant, of Sallie K. and the Watkins Brothers Undertaking Company, equitably are to a part entitled of the funds resulting of said numbered from the insured; expenses on behalf

reason of by such exhausted sum, $844.09, probability will all namely, not sufficient insured is equitable that the estate of the payments; $844.09, administration; that said sum pay all claims and costs *7 attorneys rep- as a fee to the except $30 of thereof allowed the sum Company, Life Insurance resenting defendant, Metropolitan the defendant, Metro- by said to the clerk of court paid should this this court the clerk of Company, and that Life Insurance politan executor $814.09, to the fund, namely, pay the of said balance filing of said Plummer, deceased, upon the of of K. the estate Sallie with probate court may approved as the executor of such bond $814.09,shall then be dis- court; the clerk this that said sum of of and the with this decree said executor in accordance tributed adjudged court; in case be probate of that all costs this order the against S. Plummer. plaintiff, Charles as follows: ordered, adjudged and decreed

“It is therefore Company, defendant, Metropolitan “1. Life Insurance That the as its $30 allowed it $844.09 deduct from the sum of the sum of (cid:127) - sum, namely, attorneys’ of said fee, and that the balance pay court; open court, is now in $814,09, to clerk of this done n defendant, Metro- adjudged ordered, it is now and decreed and dis- Company,, hereby released politan Life be and it Insurance any charged liability and claims of any in full and from and all of insurance involved persons policies all of industrial (cid:127)and the two herein each of them. adjudged against plaintiff,

“2. all That costs this case be nothing by Plummer, this action. Charles S. and that he recover by the clerk of this court paid $814.09 “3. That said sum of Plummer, de- Eugene of Sallie K. Lacey, G. of the estate executor finding and this decree.” ceased, in accordance with the above new rendered, after unsuccessful motions Prom the decree judgment, appeals. trial and in arrest Opinion. that, appeal is point upon this first made right with the he became vested the death pay to demand the policies of the of insurance in suit and

proceeds there of action proceeds and with the to a cause ment of such beneficiary policies. in each of said named as the reason policies as the designated each of said appears true therein; policies of said it nowhere either but given any or he, beneficiary, vested as such named to him proceeds thereof demand or enforce company maintain action what- against named thereof. As such account against ever the defendants on classes persons or merely designated as one beneficiary, he is pay proceeds company the defendant to whom thereunder; obligation but neither itself all acquit requiring that the direction contains beneficiary by de- such named same to him as paid shall be company. fendant would policy, provided

Under terms of the age seventy-nine years passing the insured’s have matured her; payable but such thereupon have become and- would provisions with the contain further in connection maturing, thereof, to their prior event of her death may this the amount due under the effect that “the in the said schedule or policy to either the administrator, wife, any relative blood husband or executor or to be appearing to said person insured or expense equitably reason of entitled to same production and the on behalf of the insured or for his or burial *8 receipt signed evidence of a either of them shall be conclusive policy that all have been satisfied.” claims under this 1‘ ’’ clause, facility clause, commonly payment This known as the of or the frequently some clause similar thereto is found in of character It will be that it does not amount to a upon. sued noticed company pay direction to of such to the defendant the beneficiary pay to the as the named therein or to the any designated person persons same other or class of therein but to merely grants right of company payment the to make the same any persons designated as, discretion, to its proper of the in it sees liability. and, upon payment, acquitted such to be further of [Burns v. 81; Prudential Ins. of 253 W. America, Co. S. Jackson v. Metro politan (Mo. Life App.), Ins. Co. 294 W. S. 453.]

In Metropolitan Company, supra, Jackson v. Insurance Life l. c. 455, court, through Judge speaking this said: Bland, State,

“It has been held in this in a ‘facility pay- reference to of ment policy suit, clause’ such as in in the that no of against any coming action is the vested defendant to one within the persons clause, of class are described such of which one, only the suit at bar is and that the executor or administrator of the insured’s can maintain the action.” case, policy payment the directed the of the insurance to administrator, payment insured’s executor or unless the should be provisions paragraph following made under the of a therein. paragraph which reference was made was as follows: may payment grant any or nonfor- company “-The make insured, wife, or privilege provided feiture husband or herein the marriage insured, relative or blood or connection en- equitably other to said person appearing behalf titled the on of expense same reason of receipt burial; production a the or for his or her and the of signed of persons, proof payment such or either said them, grant shall be conclusive evidence privilege of such to either policy that all under this have been claims satisfied.” will was the executor or administrator therein not noticed that payment be made parties mentioned one whom facility clause; payment to make payment but the direction policy body executor administrator was found in independent facility clause; was preceding the and such direction except that, policy, a facility clause construction subject necessarily held that it de- must any of facility clause to fendant to make under the designated parties clause. in that case in policy are here suit unlike the pay

that, is a there no direction of while there named beneficiary merely beneficiary. named ment to named Such may be made under parties mentioned as one of the to whom facility clause. Company, Mo. Metropolitan v. Insurance In Clarkston exact, embodying pro same 437, 176 S. W. App. policy in suit and issued with the two here visions form of contract there involved. held by the same defendant in where, death Appeals St. Louis Court had failed maturity prior policy, sured any of policy and refused facility ap clause, notwithstanding that a *9 policy to payable of such were peared therein, proceeds named the beneficiary, unless further not to the a the estate of the insured and payment of the same appeared policy requiring in direction beneficiary of the estate of the and that the executor made to the only payment to demand the of authorized person insured the an action for the same. insurance or to maintain such one in Jackson forms contract —the It will be noticed that in both of supra, in Company, and the one Insurance Metropolitan v. Life supra is held Metropolitan Company, Insurance v. Life Clarkston —it of the deceased insured’s or administrator that the executor right the of to enforce demand only proper party the is the after death of the or the payment the the of company the has failed maturity where policy, the of the prior (648 designated payment any persons

or refused to make' in facility clause. beneficiary is not is immaterial therefore whether a or is policies two

named in such concur as in the cases where circumstances- supra in the case now under consideration. facility

The in of such have named clause right against compel pay no vested of action the defendant to them, ment of neither does the defendant the insurance right in have such independently named such beneficiary requiring of payment absence directions in such such to him. 124-130, 202 [Manning Company, App. Mo. v. Prudential Insurance 897; Metropolitan 213 S. W. 207 Company, Walton v. Life Insurance 296, 232 of App. 259; W. Ins. Mo. S. Burns v. Prudential Co. America, supra.] company

It is also herein has immaterial defendant its option payment. not exercised and has not made immaterial presenting that the is not defendant defense paid question has person to some to whom insurance it is authorized' to make payment facility under the clause and longer obligation no policies. under character under said plaintiff’s rights respect thereby a cause action are not enlarged right thereby so that action which he has a before" did not have. question underlying appeal right this concerns the the plain- against

tiff maintain same company; and such right depend does not the assertion or nonassertion the de- any right fendant it has under the terms insurance, to-make deseretion, person its to one than beneficiary. another other named beneficiary Neither does one a named as life a i event, policy, a pay take vested interest demand that ment of policy, upon death of'the time, at the absence of in the'policy, direction be made beneficiary. him as Nor, such named such made, where direction is least, does he take a prior, vested interest at to the death the- policy insured where the right reserves to the change insured the beneficiary. such named right such latter case, the beneficiary contingent and, only; if change is exercised the insured and another substituted, attaches-, original’named no final ever arises or payment. to such York Co., v. New Ins. App. Mo. [Robinson 534; Sovereign Camp, Woodmen S. W. Eves v. World, App. 247-254-255, 657; 153 Mo. 133 S. W. Metropolitan Clarkston v. *10 supra; Neely (Mo. Ins. Co., Life Schlerth App.), 168; v. 285 S. W.

649 Bank, App. 202 Mo. Missouri Ins. Co. State State Life v. California 785; Kelly America, 347-349, 216 Ins. S. W. v. Co. Prudential J. App. 249-257, 649; Mo. S. W. 31 C. 971.] beneficiary herein, plaintiff, follows as one there legal right policies has two in suit and no to the this action; right maintain fore no to maintain this that'the is, facts recovery action for of the the same under executor, execu Eugene Lacey; that, in the in as such record, action, where tor, only person is maintain he entitled to in and those necessary, protect interests terested therein. being 'that, policies question

Plaintiff contends further involving amounts, questions industrial are small there public an endeavor the in policy to be reckoned with in to effectuate parties respect thereby provided. tention with to the insurance for the usually Such furnish means are intended to available small expenses expenses burial or the last illness through probate no and are estates to courts be administered through He not such courts. contends intended to be administered which purpose that the incline for court should to effectuate provided require disposition of it that is and should not it is intended. purpose would render it unavailable for the which constantly being courts. applied Such rule has been Metropolitan supra.] applied will Co., v. Ins. be [Clarkston claim and, plaintiff’s this applied, proves case destructive of nothing facts under head. There is and the circumstances this plaintiff’s equity revealed the record which to base might behalf the insurance involved. held entitled to he ; anything that, Neither inspiring is there the least confidence should will hands, purposes such insurance reach his devoted purposes which it was intended deceased insured proper party to ad- provided. for which it was As a and disinterested accomplishment with minister in a consistent such funds manner dis- provided, completely purposes they for which were he disqualified, in- armed both his conduct toward the deceased respect disposition present with sured and his attitude said' funds. already herein, place, first been not

In the has found party a- entitled the terms of the exact their it, option receive than at the the defend event or to paid facility under clause. It ant deseretion, company, if, him in the exercise of its good faith, find it advisable to it to him. The option respect its the defendant exercise *11 person payment whom it make has never been exercised to plaintiff’s plain- it in favor conduct toward become, nor has it its record, tiff or otherwise, so far as is bound disclosed manner, legally equitably, in his favor or option to exercise such payment make such him. to wholly place,

In the next to have been appear conditions changed designated they from was plaintiff what were at the time changed the named make and so as to altogether through him improper person an whom the in insured’s respect might reasonably expected tentions with to such insurance evidently be carried out. The insured intended such insurance for payment including expenses, her funeral and burial the ex penses might of her last illness and other matters which she be obligated. By will, directed, first, come payment her she of all her funeral'expenses. designated debts and At the time she ' beneficiary, living the named he was with her as her husband. She proper doubtless he party considered that was at such time the necessary be relied to handle such insurance and to use it where obligations. payment expenses her funeral and other and However, afterward he and had, deserted abandoned her and at the time of death, living apart her been from her another State for a years period estranged of about ten completely and had become from her her necessities and interests. that she di during year 1926; him that, during period vorced all of the her, time after he left support. he contributed but little to her She was compelled go undergo operation hospital for a tumor depend upon pay far expense others to thereof. So as is and. record, help disclosed she from He received no him. was en tirely unmindful of her necessities.- unable her doc She expenses tor’s bill during or other illness. her last He made no con way tributions in the help to her on Upon account such. her death, her executor interpleading looked after her burial. The under taking corporation expense relying her $323, buried at an estate for reimbursement, supposedly actually an estate to be swollen this insurance. The never, time, obligated at himself payment for the expenses of her burial or for the expenses of her last or for expenses illness other on her account or for her indebtedness; nor did offer Upon so to do. the contrary, ap when proached matters, give with reference to such he failed satis ease, faction denying whatever. this he is in- terpleading undertaking corporation, who furnished casket equipment deceased, the burial any part of the in surance expenses. for the claim its for funeral He is opposing likewise of the executor to such funds for pur- bill corporation’s undertaking paying’ interpleading pose of expenses last and for the insured’s illness other: her debts. duty the intent

If it court effectuate purpose for-which such insurance insured with reference to facts, the record appear from the provided, and is it does not by com reasonably expected it effectuated that would be *12 equity -is no shown payment of the him. There pelling the same to is entitled to claim by by plaintiff the the record reason of which entitled maintain action therefor. He not this insurance or to legal right. any. event, the any to maintain this action under only under the circum required, herein involved can be The existing, paid -to of the deceased. trial stances to be the executor abundantly sup The the record properly court so found. evidence in ports findings its and its decree. alleged respect plaintiff of the to the

The contention identify those failure of the evidence the insurance as to They in will of is not well made. are the mentioned the insured only policies which insured with the defendant found held They pay to are among shown have existed. her effects or otherwise required estate, they paid not able to her the reason are any case, they payable person. When such is the other are required only by can the executor thereof. paid estate and in plaintiff, them, in has interest no as named unnecessary same, upon enforced. can-be change any have been made in have, having sured, such, him in order eliminated after named above, in him. he took no interest such As stated legal beneficiary. The was at all times the estate of insured beneficiary. estate, right, by will, As assets of her had the insured pass legatees thereof to such as she named therein. subject However, gift would be of her debts and only expenses, provisions not under the her will but under express direction of law. showing no in permitting There was evidence error trial indebtedness, or condition against her claims asserted estate. permitting

Neither there error evidence to show the rela- existing plaintiff tions the insured to show between that he years, meager except way, had not in later to her contributed necessities. show, any permitting

Neither was there error in evidence or tend- show, ing and her need of the necessities of assistance from others in order to meet such necessities. Neither was there showing divorcement respect permitting error with evidence the divorce in evidence of the admission insured of the bearing the issues competent, as decree. All such evidence was might be de- which it searching equities from case and out the favor or otherwise. plaintiff’s whether termined existed in By abandonment of plaintiff’s reason of desertion and over, year as found during period her life for a of one sured of section reason proceeding, he, the court in the divorce pro any part claim 1929, lost all Revised Statutes part of her estate. ceeds of the insurance as a advanced sufficiently disposed of all the contentions We have find no of them. merit legal equitable in the plaintiff, no therefor, is not interested insurance or maintain this action disposition insurance made the decree the court. just right. There error was no The decree of the court Campbell, accordingly It is ordered. therein. It should be affirmed. so C., concurs. foregoing Reynolds, C., adopted

PER opinion CURIAM: The *13 opinion judgment All as the of the court. The is affirmed. concur. Philip Smolinsky al., Respondent, Mae et Johnson, Lillie v. Appellants. (2d) 81 S. 434. W. February City Appeals. Kansas Court of 1935.