16 Ind. App. 662 | Ind. Ct. App. | 1897
-The complaint in this case is upon the bond of a special administrator; George N. Tomlinson, and his sureties, Wm. Tomlinson and David Hartman.
The complaint is in two paragraphs. A copy of the bond is filed with each paragraph.
The breaches of the bond assigned are that Tomlin-son, special administrator, received the sum of $1,-973.88 which he converted to his own use and the use of others.
Third — That said special administrator had knowledge of a large amount of personal property belonging to the estate, and failed and refused to preserve the same for the use of the estate.
Fourth — That $2,000.00 came into the hands of said special administrator which he wasted and wrongfully turned over to others, whereby the same was lost to the estate.
The breaches of the bond assigned in the second paragraph of complaint are in effect the same as those assigned in the first.
The appellee, G. N. Tomlinson, filed his separate answer in three paragraphs. The first is a general denial. The second alleges, in substance, that in March, 1894, he was duly appointed and qualified as special administrator of the estate of Austin L. Tomlinson, late of Montgomery county, Indiana, deceased, with bondsmen, as set out in the complaint; that after his appointment there came into his hands the sum of $1,971.85 from a certain insurance policy upon the life of his decedent; that Edith Tomlinson, the widow, claimed the money as her own, and demanded the same of him; that she had been substituted as beneficiary in said insurance policy, and threatened to bring suit against this defendant (appellee) for the recovery of the same; and that being unwilling to pay her said money without an order of court, he and the said Edith Tomlinson, by agreement, in good faith, on an agreed statement of facts submitted the question of ownership of said money to the circuit court of Montgomery county, Indiana, and thereupon the court found and adjudged, that said money belonged to said Edith, and rendered judgment in her favor,
The third paragraph alleges that the money mentioned in complaint did not belong to said estate, but did of right belong to Edith Tomlinson, widow aforesaid, and the administrator had no right to the same.
For first paragraph of reply to the second paragraph of the separate answer of appellee, George N. Tomlinson, appellant, alleges in substance that appellee’s appointment as special administrator was procured by fraud and collusion between the special administrator and Edith Tomlinson for the purpose of defrauding the creditors of said decedent; and as a part of the scheme the agreed statement of facts was entered into and submitted to the court, and the order procured for the payment of money to the widow aforesaid.
The second paragraph of appellee’s reply to second paragraph of answer admits the filing of the agreed statement of facts entered into by and between the
The fourth paragraph of reply to the third paragraph of answer of George N. Tomlinson alleges that George N. Tomlinson having procured himself to be appointed special administrator, having obtained the policy and presented it to the insurance company as special administrator, having surrendered it and received the money thereon, and deposited it in his name as .special administrator, etc., he could not afterwards dispute the fact that it was his duty to receive the assets of the estate, preserve the same and turn them over to the regular administrator.
There was also a general denial.
Demurrers to the second and third paragraphs of answer were overruled. Demurrer to the fourth paragraph of reply was sustained and overruled as' to the first and second. Thei’e was a trial had, and upon request of appellant the court made a special finding of facts, and stated its conclusions of law.
The first error assigned is overruling appellant’s demurrer to second paragraph of separate answer of appellee, George N. Tomlinson. Appellee, by the facts averred in this paragraph, seeks to avoid liability on
This paragraph, while addressed to the whole complaint does not answer that portion of it which avers that the special administrator “wholly neglected and refused to receive more than $500.00 of the property and assets of said estate which came to his knowledge and suffered and permitted the same to be wrongfully taken by others and converted to their own use.”
The complaint charges a neglect of duty, as to money and other assets which he refused to receive. This allegation is not met by this allegation of answer. The demurrer therefore should have been sustained. Farman v. Chamberlain, 74 Ind. 82; Dunn v. Barton, 2 Ind. App. 444.
The demurrer should have been sustained for another reason. The powers of a special administrator are declared to be by statute “to collect and preserve the property of the testator or of the intestate until demanded by an executor or administrator duly authorized to administer the same when such special letters shall be deemed, to be revoked.” Section 2391, Burns’ R. S. 1894 (2237, R. S. 1881). The question is passed upon in Tomlinson v. Wright, Admr., 12 Ind. App. 292.
The court says in speaking of the special administrator, appellee in this case, and of the money realized from the insurance policy mentioned in the answer,
The third paragraph of the answer is addressed only to the averment of money in the complaint, alleging that it did not belong to the estate of Austin L. Tomlinson. It is pleaded in bar of the action and as it does not answer the entire complaint, the demurrer should have been sustained, Farman v. Chamberlain, supra.
The fourth assignment of error is the sustaining of the demurrer to the fourth paragraph of reply to the third paragraph of answer of appellee.
It is pleaded as an estoppel, but as we have held that paragraph of answer insufficient, it is not necessary to discuss this ruling.
The court in the special finding of-facts found that Austin L. Tomlinson was, on the 1st day of March, 1894, and for a long time prior thereto had been a resident of Montgomery county, Indiana, and that on said date while temporarily sojourning at. Fullerton, California, he died intestate; that on the 3d day of March, 1894, George N. Tomlinson was, by the clerk of the circuit court of Montgomery county, in vacation, appointed special administrator of the estate of said deceased and executed his bond with his co-defendants in this action, William Tomlinson and David Hartman as his sureties, which is the bond sued on in this action; which bond was- duly approved, and he immediately thereafter qualified and entered upon the discharge of his duties as such special administrator; that on the 26th day of Jan'uary, 1892, the said
“Fullerton, Cal., March 1, 1891.
To Richardson & McCrea,
Gen. Agents Eq. Life Assurance Co. of N. Y.
Indianapolis, Indiana.
Gentlemen: Please have life insurance policy taken out by me (A. L. Tomlinson) in 1892 for the amount of two thousand dollars, and made payable to my estate, transferred, and instead have the amount of said policy made payable to my wife, Et L. Tomlinson.
[Signed] A. L. Tomlinson.”
That he executed the foregoing instrument for the purpose of having .said policy transferred and made payable to his- wife; that before deceased left his home for California he expressed his intention of giving said policy to his wife, and after her arrival at Fullerton he informed her that he had done so; that the agents of said Equity Assurance Company received said letter after the death of said Austin L. Tomlinson, and answered the same on the 6th of March, 1891, giving instructions as to the manner in which he should make out the application for change of beneficiary in his policy. The court further found that between the 10th day of March, 1891, and the 1st day of April, 1891, said letter of the insurance com
That on the 2d day of May, 1891, Charles W. Wright, relator, the duly appointed and qualified regular administrator of said estate, filed his petition in said court alleging, among other things, that said agreed statement of facts was procured, and the order and decree entered thereupon, were obtained by fraud prac
That claims have been filed against the estate of A. L. Tomlinson and allowed to the amount of $1,400.00, which remain wholly unpaid; that said George Ñ. Tomlinson had knowledge of such indebtedness when he made said agreed statement of facts and at the time he paid said money to said widow; that in connection with the order vacating the judgment on the agreed statement of facts, the court made the follow
As a conclusion of law the court stated that the plaintiff had no right of recovery.
The court having found as facts that the decedent left no assets in the State of Indiana at his death to the possession of which a special administrator would have been entitled, unless said insurance policy belonged to his estate, and that the order made and entered upon the agreed statement of facts had been .vacated and set aside. We cannot see that the appellant was harmed by the ruling of the court upon the demurrer to the second paragraph of appellee, George N. Tomlinson’s answer.
The Appellate Court, in Tomlinson v. Wright, Admr., supra, in affirming the judgment vacating the order made upon the agreed statement of facts, was careful to say that the merits of the controversy were not before it and that the only question it deemed necessary to consider was whether the special administrator possessed such power as authorized him to enter into such an agreement with the widow of decedent, ad
The court makes no finding that the relator was entitled to the proceeds of said policy, nor is there any finding of fraud on the part of the special administrator or said Edith Tomlinson. The burden was upon the relator (appellant) upon both of these averments of the complaint.
A life insurance policy is a chose in action and may be assigned. Appellant contends that the common law will be presumed to be in force in California when the insured directed the change of beneficiary in the policy, and that, under the common law, choses in action are not assignable. Admitting that under the common law the policy could not be assigned so as to pass the legal title to the instrument, or the money, yet a transfer would be regarded as an equitable assignment and enforced in equity. Pomeroy v. The Manhattan Life Ins. Co., 40 Ill. 398.
When the policy does not declare an assignment without the consent of the company void, a parol assignment is valid. O’Brien v. Prescott Ins. Co., 11 N. Y. Supp. 125.
Knowledge of the assignment of a life insurance policy is important to the insurer to prevent the possibility of its being compelled to pay both the assignee and the legal representatives of the insured.
In fire insurance policies there is generally a con
A life insurance policy may be transferred by delivery without writing. Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y. 625.
A husband may orally assign a policy of insurance on his own life to his wife. Chapman v. McIlwrath, 77 Mo. 38, 46 Am. Rep. 1.
In Grand Lodge, etc., v. Child, 70 Mich. 163, 38 N. W. 1, in which case the certificate of membership made the betrothed of the insured, beneficiary, he retaining the certificate in his possession. She married another, and the certificate having been lost he,made a statement of the loss and applied for a reissue of the certificate to his son as beneficiary, and the application was refused; the rules of the organization required the change to be endorsed on the original certificate. By the advice of the officers of the organization he attempted to make the change of beneficiary by giving power of attorney to collect the amount which should accrue under the certificate. The court held that such acts constituted an equitable change of beneficiary, and that the son was entitled to the fund.
The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to exceptions, and one is that, if it be beyond the power of the insured to comply literally with the regulation, a court of equity will treat the change as having been legally made. Supreme Conclave v. Cappella, 41 Fed. 1.
In short, subject to the claims of creditors to avoid
' From the findings of the court there can be no question as to the intention of the insured to transfer to his wife his rights in the policy under consideration; and in the light of the authorities cited, and many others to the same effect there can be no doubt that an assignment in equity was made valid as to every one, unless the creditors of the assured are to be excepted.
Can this equitable assignment made by an insolvent debtor be upheld against the creditors?
It is the duty of the husband and father to provide reasonably for his dependent family. The law favors the making of reasonable provision by a man for his' dependent family, and in Johnson v. Alexander, 125 Ind. 575, 9 L. R. A. 660, the Supreme Court of Indiana has said: “It is not a violation of the statute, and in fraud of creditors for a debtor, though insolvent, to contribute and pay a reasonable amount for insurance for the benefit of his family.”
In Pence v. Makepeace, 65 Ind. 345, it is held that only on the clearest proof of fraud, if at all, can the premiums paid by an insolvent debtor on a policy of insurance on his life for the benefit of his wife and children be revoked by his creditors, and in no event can any excess over the amount of the premium so paid be recovered.
To the same effect is Washington Central Bank v. Hume, 128 U. S. 195. In 2 Bigelow Frauds, p. 129, it is said, “a debtor though insolvent may use his earnings to pay for insurance on his life, in favor of his family.”
In McGutcheon’s Appeal, 99 Pa. St. 133, it is held that when a person takes out a policy of insurance
Authorities in the same line, to the same effect, might be multiplied, but it is not necessary. There is nothing in the findings of the court to show bad faith; on the contrary, they show a commendable desire on the part of the husband to make some provision for his wife and child. The policy was taken out in January, 1892, and transferred March 1st, 1894, at which date the insured died. At most his creditors are injured if the transfer is upheld by the amount of premium paid for two years. The amount might have been ascertained in the proceedings which appellant was ordered by the court below to institute, to determine the ownership of the insurance policy in question, which order of court he failed to obey. In our opinion the transfer of the policy was valid and not in fraud of creditors. Upon the effect of the setting aside of the order made on the agreed statement of facts to pay the widow the balance of the proceeds of the insurance policy, after the special administrator had paid to the widow under said order said balance, we deem it only necessary to say that trustees, acting under orders of the court having jurisdiction of the subject-matter, will be protected thereby. If by reason of such order or decree money is paid to one not entitled thereto, the protection afforded to the trustee is not extended to the person so paid. In such cases the party really entitled to the money, if not a party to the previous suit and bound by the decree, may have suit against the person to whom the money is paid.
Judgment affirmed.