Steller v. Sell

55 N.J. Eq. 530 | New York Court of Chancery | 1897

The opinion of the court was delivered by

Lippincott, J.

Originally the bill of complaint in this matter was filed in> the court of chancery by the respondent, S. Elizabeth Sell,, against John Steller, Jr., who is one of the appellants.

To this bill of complaint a demurrer was filed by John Steller, Jr., which, upon hearing, was overruled by the chancellor.

His opinion is reported in 8 Dick. Ch. Rep. 397.

After the demurrer was overruled an answer by John Steller,. Jr., was filed. After this answer an amended bill was filed, in which Ida Steller, the wife of John Steller, Jr., was made a party defendant to the bill of complaint. To this amended bill Ida Steller filed a separate answer. Some portion of this answer' was expunged, after which the cause came to final hearing upon the bill, amended bill, answers and proofs, and a decree advised by Vice-Chancellor Reed in favor of the respondent against the-appellants, from which decree this appeal was taken.

The contest in this case arises over the question who is entitled to certain excess insurance upon three policies which were taken-out on the life of George W. Sell, the husband of the respondent..

The facts, briefly stated, appear to be that in March, 1884, George W. Sell, the husband of the respondent, obtained on his life three certificates of insurance in the Northwestern Masonic-Aid Association. These certificates of insurance were for $2,500,. $5,000 and $1,000, each certificate naming Ida Steller, his sister, as beneficiary. These certificates were taken out under the following circumstances : Sell became indebted to John Steller, Jr., the husband of Ida Steller, and she is the beneficiary named in each of the certificates of insurance. Steller proposed to Sell this insurance to secure his indebtedness. Steller, to obtain this insurance, proposed to keep the premiums or assessments thereon paid. After some negotiations between Sell and Steller, Sell assented to this method of insurance and the certificates were-taken out in the sums named, which aggregated a much larger sum than the indebtedness. It further appears that it was agreed between Sell and Steller that on the death of Sell and upon the-payment of the insurance money to Idá Steller, his sister, that-she should pay the money to Steller, and Steller then should retain the indebtedness and interest thereon and all assessments and premiums paid on the insurance and interest thereon, and then pay the balance to the respondent, the widow of Sell. It also further appears that Sell promised that, within the space of two years, he would pay the indebtedness to Steller and also such "assessments as had been advanced by Steller on the insurance, and interest thereon, and take the life insurance to himself.

Under the articles of incorporation of the aid society, only a blood relative of the insured could be made a beneficiary. The insurance was received by Ida Steller, paid over to John Steller, Jr., and now Mrs. Sell seeks to have a trust declared in her favor for the excess of insurance after the payment of the indebtedness and the assessments and interest, and asks for an accounting and payment over to her. Steller paid the assessments on the insurance for ten years, when Sell, in 1894, died, and the amount of the certificates was paid by check of the aid society to the order of Mrs. Steller, which check was by her endorsed and delivered to her husband on June 21st, 1894, who collected the money thereon and has since controlled the proceeds of the certificates of insurance.

The indebtedness of Sell at the time the insurances were taken out, according to the statement of Steller, was $1,300. The respondent understood that it was only $800. The facts are very fully stated in the opinion of the learned vice-chancellor and need not be repeated.

Only such facts are here stated as reveal the questions raised and argued in this court.

The respondent insisted in the court of chancery that after the payment of the debt due Steller by her husband, and the amount of the premiums or assessments, and all interest thereon, she was entitled to the balance of the policies; the appellants claimed that the balance belonged to Mrs. Steller.

The decree in the court of chancery, as advised by the vice-chancellor, was that the appellant Ida Steller had no equitable interest in the proceeds of the insurance, and that a trust was impressed upon the certificates in favor of the respondent, and that after the receipt by John Steller, Jr., of the proceeds, of the insurance on June 21st, 1894, he was bound to pay the same, less the assessments paid by him and interest, and less also the indebtedness of Sell to Steller and interest, to the respondent.

The conclusion reached by the court is that so far this decree of the court of chancery should be affirmed.

By the decree, upon the accounting, as stated by the learned vice-chancellor, between the respondent and Steller, he was allowed the amount of the assessments paid by him, with an average interest thereon, to the 21st day of June, 1894, and so far again the decree is affirmed.

By the decree there was also allowed to Steller an indebtedness of $800 loaned to Sell prior to September 1st, 1883, and interest thereon from the latter date to June 21st, 1894, and that there was due from Steller to the respondent, as the excess proceeds of the certificates, the sum of $5,916.66.

Upon a consideration of the facts of the case, I have reached the conclusion that the part of the decree allowing to Steller only an indebtedness of $800 and interest thereon, and fixing the amount as due from Steller to the respondent at the sum of $5,916.66, is erroneous.

Steller swears distinctly and emphatically that at the time the policies were taken out, Sell was indebted to him in the sum of $1,300. The indebtedness of $800 was admitted by the respondent. Steller declares circumstantially that in November, 1883, he thinks it was the 29th or 30th of the month, the day after Thanksgiving, a further loan of $500 was made by him to Sell. It was to be but a temporary loan for a week or two, but Sell being unable to repay it, the indebtedness continued and existed at the time of the issuance of the certificates of insurance and has never been repaid. It is true that Steller admitted in his evidence that he had told others of the loan of $800, but had omitted to mention the fact of the loan of $500. His explanation of this omission is that he did not wish his wife to know of it at the time. It is true that he at other times stated that the indebtedness of Sell to him amounted to about $2,500, which would be about the amount of the assessments and interest, and $800 and interest. While these are circumstances of suspicion as to the correctness of his claim for the additional sum of $500, yet it is not sufficient to overcome his positive evidence as to the loan of this amount and the detail of facts and circumstances under which it was made.

The conclusion reached upon the proof is that this additional loan of $500 was made, and that in the accounting Steller should have been allowed that additional sum and interest thereon from November 30th, 1893, the date of its advancement to Sell, to June 21st, 1894, and that the decree, in so far as it omitted this allowance, should be reversed, and the cause remanded to the court below to the end that such additional allowance of $500 and interest be made, and the decree of that court, so modified and corrected, carried into execution.

I shall, therefore, vote for such modified reversal of this decree.

For reversal — Collins, Depue, Dixon, Garrison, Gum-mere, Lippincott, Ludlow, Van S yokel, Bogert, Dayton, Hendrickson, Nixon — 12.

For affirmance — None.