| Fla. | Jan 15, 1911
On the 21st day of December, 1908, the
That part of the bill bearing upon the question before us alleges that on the 22nd day of November, 1901, the said Life Assurance Society wrote a certain policy of life insurance on the life of Jerry F. Crowley, the intestate and son of the defendant, Kate Y. Crowley, and brother-in-law of the defendant, Gleavey P. Sheppard for the sum of one thousand dollars; that one of the privileges and conditions of the said policy is as follows: “Change of Beneficiary: This contract is issued with the express understanding that the purchaser may from time to time during its continuance change the beneficiary or beneficiaries by filing with the society a written request duly acknowledged, accompanied by this contract, such change to take effect upon the endorsemen tof the same on this contract by the Society, provided it has not been assigned and notice of such assignment recorded on the books of the Society.”
The bill further alleges that the said Jerry F. Crowley during his life time, on or about the 9th day of October, 1908, executed his request to the said Life Assurance Society; that the beneficiary of said policy should be changed from Lonnie L. Crowley to Cleavey P. Sheppard, which said request was received by the said Society on or about the 12th day of October, 1908, and the said change of beneficiary was endorsed upon the policy on the 15th day of October, 1908; that the said Jerry F. Crowley died intestate and without issue, on or about the 15th day of October, 1908; that satisfactory proofs of his death has been made and furnished the Society by Cleavey P. Shep
That on or about the 17th day of November, 1908, the defendant, Kate V. Crowley, made known her claim that at the time of the death of the said Jerry F. Crowley, she was the owner of the said policy and all benefits thereunder, because at the time of his death, the change of the beneficiary of the said policy to Cleavey P. Sheppard had not taken effect by the endorsement upon the said policy of the said substitution by the said Assurance Society as provided by the conditions of said policy, and the said Kate Y. Crowley claims the said sum of $1300.00, is due and payable to her, either as the administratrix of the estate of the sáid Jerry F. Crowley or in her own right.
That the said Cleavey P. Sheppard has commenced an action at law against the said Assurance Society to recover the said sum of $1300.00; and the said Kate Y. Crowley has procured letters of administration on the estate of the said Jerry F. Crowley, deceased, and employed lawyers to prosecute her claim for the said $1300.00.
That the said Assurance Society has always been willing to pay the amount of such insurance money to each person or persons as should be lawfully entitled to receive the same and to whom it could pay the same in safety, and offers to bring the same into court, as the court shall decree; and that the said Society does not collude with
The bill prays that the said defendants may be required to make full and direct answer, and that defendants may be restrained from commencing actions against said Assurance Society for the recovery of said sum of money.
The chancellor made an interlocutory order in accordance with the prayer of the bill.
Among other allegations the answer of Cleavey P. Sheppard shows that the said Jerry F. Crowley married Lonnie L. Sheppard, the sister of this claimant, that Lonnie L. Sheppard died on July 31st, 1908, without issue; that on the 9th day of October, 1908, the said Jerry F. Crowley made and designated the claimant, Cleavey P. Sheppard, by an instrument in writing, the beneficiary under said policy and directed the same to the said Assurance Society in the City of New York with the request to endorse this change on the policy; that on the 15th day of October, 1908, this change in the beneficiary was endorsed on the policy by the said Association at its office in New York; that Jerry F. Crowley was found dead, near Lake City, Florida, on October 16th, 1908; that due proofs of his death were made and forwarded to the said Society, a check was issued to the claimant, but payment of same was stopped upon notice of the claim of Kate V. Crowley, mother of deceased.
Mrs. Kate Y. Crowley answered that she is the mother of the said Jerry F. Crowley, deceased, and his sole heir at law and entitled to inherit all property of the said Crowley at the time of his death, that she has been appointed administratrix of his estate; she admits that
Upon a consideration of the testimony, the chancellor found that a change of beneficiary under the policy could only have become effective by and with the consent of the Society, by an endorsement upon the policy at its home office; that the same to be effective in the interest of Miss Sheppard must have been made in the life time of the assured, Jerry F. Crowley; “that the court finds from the evidence that said endorsement was made after the death of the insured.” The claim of Crowley is found valid and she is entitled to the funds arising out of this litigation.
The question arises when the change in the beneficiary of the policy took effect. This question is answered by the conditions agreed upon by and between the Equitable Association and the assured; “such change to take effect upon the endorsement of the same on this contract by the Society.” According to the terms of the policy, this change in the beneficiary could only be effected, provided the policy has not been assigned, and notice of such assignment recorded on the books of the Society, or if assigned that all assignments shall have been duly can-celled or released on the books of the Society. Such change of beneficiary could not take effect at any other time than that agreed upon without the consent of the Society. The Society indicates its consent to the change of beneficiary by an endorsement in writing upon the policy at the home office.
We do not think this question controlled by the principle that if the assured has taken all the steps necessary and otherwise done all in his power to effect a change of beneficiary, all that remains to be done is some purely ministerial duty on the part of the officers of the Society, the change will be regarded as complete. The act here required to be done by the company not being a mere ministerial act the principle just stated does not apply. See Freund v. Freund, 218 Ill., 189" court="Ill." date_filed="1905-10-24" href="https://app.midpage.ai/document/freund-v-freund-6972240?utm_source=webapp" opinion_id="6972240">218 Ill., 189, 75 N. E. Rep., 925, 109 Am. St. Rep., 283, in which the court was considering in a New York policy, as this one is, the provision in regard to the time the change of beneficiary takes effect.
The endorsement of change of beneficiary in the policy was made by the Society on the 15th day of October, 1908, and the chancellor found from the evidence that the assured, Jerry F. Crowley, died prior to that date. The
This transaction was pending and unfinished when the assured died, and upon his death the amount of the insurance was payable to his estate. Upon his death “his estate,” to be represented by his administrator, immediately became vested with the policy.
Upon the facts in this case, the mother of the assured, is entitled to the proceeds of the policy.
The decree is affirilied.