72 Ind. App. 29 | Ind. Ct. App. | 1919
Lead Opinion
—This is an action by appellee Wendell E. Wells against appellant, the Garrett Savings Loan and Trust Company, and Germaine Wells, to foreclose a mortgage on certain real estate. Appellant and said company each filed an answer in general denial, and the appellant also filed a cross-complaint against appellee Wendell E. Wells, the Baltimore and Ohio Railroad Company and Germaine Wells, asking to have said mortgage declared satisfied, and to have her title to said real estate quieted as against said mortgage, and that said railroad company be required to account to her for certain funds. Appellees Wendell E. Wells, said railroad company and the Real Estate and Improvement Company of Baltimore City, which had subsequently become a party defendant to said cross-complaint, filed answers thereto in general denial. Appellee Germaine Wells was given notice of the pendency of this action against him by publication, as to both the complaint and cross-complaint, but, failing to appear, was defaulted. The cause was submitted to the court for trial on the issues thus formed and, on proper request, a special
“I, Robert S. Wells, of Garrett in the County of DeKalb and State of Indiana, a member of the Relief Department of the Baltimore & Ohio Railroad Company, by virtue of my principal application for membership in the Relief Feature of said Department, said application being numbered 31941, do hereby withdraw any designation of beneficiary heretofore made by me, and in lieu and stead thereof, do hereby direct that in the event of my death, any death benefit payable by virtue of my membership in said Relief Feature shall be payable to my wife, Bessie B. and my children in substitution for the beneficiary or beneficiaries heretofore named by me under, said application, without otherwise affecting or chang*34 ing said application or the terms thereof; this withdrawal and designation to take effect upon the 14th day of October A. D. 1907.”
That said designation of beneficiaries was approved by the superintendent of said relief department on October 21, 1907; that on June 10, 1911, said Robert S. Wells, obtained a loan of $1,081.52 from the Real Estate and Improvement Company of Baltimore-. City, hereinafter called the improvement company; that to secure the same he and his said wife, Bessie B., executed the mortgage in suit to said company, and as further security therefor said Robert S. Wells executed to the company a certain instrument in writing, as an assignment thereto of a sufficient amount of the benefits that would be due to his beneficiaries from said relief department in the event of his death, to pay the balance of the debt created by said loan; that the superintendent of the relief department and said improvement company joined said Wells in the execution of said written agreement, which recited in substance, among other things, that the improvement company had loaned said Wells $1,081.52 upon property owned by him; that it was a condition precedent to the making of said loan that said Wells should provide life insurance for the payment thereof, in the event of his death; that the proceeds of the insurance contract in question was to be pledged for that purpose, but that his children, who were named as beneficiaries therein, were minors, and by reason of that fact were unable to assign their beneficiary interest in.order to secure a loan; that it was therefore necessary to change the beneficiary to whom the benefits thereof should be paid, in order to comply with the conditions on which the loan was
The judgment is reversed, with instructions to- the trial court to restate its conclusions of law in favor of appellee Wendell E. Wells for a sum equal to one-third of the amount applied by the superintendent of said relief department from the proceeds derived from said insurance contract in payment of the indebtedness secured by the mortgage in suit, together with interest thereon since the date of such payment,’ but without attorney fees; that said Wendell E. Wells is entitled to a decree foreclosing, the mortgage in suit against all defendants and ordering a sale of the real estate described therein in satisfaction of the amount found due him, and that upon a restatement of said conclusions of law judgment be .rendered in accordance therewith.
Rehearing
—Appellant, in an able brief on her petition for a rehearing, contends that the decision of the court in this case contravenes a ruling precedent of the Supreme Court, as found in certain cases cited, to the effect that beneficiaries in insurance contracts of the kind involved in this action have no vested interest therein until the death of the insured. There is nothing in the original 'opinion in this case, when properly construed, that either expressly or impliedly sustains this contention. We do not hold that the children of the insuréd had any interest whatever in the contract of insurance, as beneficiaries or otherwise, that could not have been fully and completely divested by the insured, if he had elected to do so, and had taken the proper steps to accomplish that purpose. The true purport of our holding is not that he could not have done so, but that he did not do so. The special finding of facts- shows that on October 14, 1907, the insured, by an instrument in writing, specifically designated his children as beneficiaries in his insurance contract. The interest thus conferred was never divested unless the tripartite agreement of June 10,1911, worked that result. Appellant insists that 'whether or not it worked such a result must be determined from the provisions of certain by-laws, which formed a part of the contract of insurance, which provided that members procuring loans must furnish life insurance, which, in case of death, will be available to discharge such loans, and also which limit the persons who may become beneficiaries, but excepting from such limitation the superintendent of the relief department, when an assign