170 Mich. 476 | Mich. | 1912
This case involves a claim presented by Joseph W. Stockwell against the estate of Mary E. Reid, deceased. The claimant and deceased were formerly husband and wife, having been married on the 5th day of May, 1879. They lived together until some time in the year 1900. They were subsequently divorced on a bill of complaint filed by the wife on January 7, 1901, in the circuit court for Benzie county, in chancery. At the time the decree of divorce was granted, claimant had been arrested and was thereafter tried in the circuit court for the county of Genesee for the crime of conspiracy and sentenced to the State prison at Jackson on or about the 22d day of January, 1903. In the month of May, 1905, Mary E. Stockwell was remarried to a man by the name of Reid with whom she lived but a short time; she having been killed in the month of August of the same year, leaving a last will and testament which was admitted to probate by the probate court of Ingham county on September 8,1905. Following the probate of the will of Mrs. Reid, and while the claimant was still in prison, commissioners were appointed by the probate court to receive and allow claims against her «state. The commissioners made their report to the probate court showing the various claims allowed on the 17th day of February, 1906 j the claimant still being in prison.
The claimant, after being confined for about 34-years, was paroled, and on being released from prison, and on September 27, 1907, petitioned the probate court for a revival of the commission on claims in order that he might have an opportunity to present a claim against said estate, which petition was granted by the court. No claim was proved before the commission thus revived, and the claimant again petitioned the probate court for a revival of the commission, which was granted. Owing to the failure of the commissioners to act within the time provided in the order, the claimant was unable to present the proofs of his claim, and he again presented his petition for a third revival of
On the trial of the case, the claimant by his attorneys waived all claims against said estate except one of $1,200, which amount he claimed he had paid as assessments upon a life policy held by the father of the deceased in the Royal Arcanum Insurance Association; she claiming to be a beneficiary under the policy, and claimant claiming that such money had been paid by virtue of an agreement between the insured, the deceased, and the claimant to the effect that what the claimant paid should be paid hack to him on the maturity of the insurance.
Owing to the course which the trial took in the circuit court, the testimony offered on behalf of the claimant is entitled to its greatest probative effect.
To support his claim, on the trial the claimant offered testimony showing that Thomas Shivley, the father of deceased, was insured in the association above stated. The date of the policy was September 2, 1881, and the amount was $3,000. The original beneficiary was Catharine Shivley, the wife of the insured. The beneficiary was changed November 28, 1886, to Andrew J. Shivley, son; and again in August, 189Í, to Catharine Shivley two-thirds, and Andrew Thomas Shivley, grandson, one-third. It was changed again November 7, 1894=, to Andrew T. Shivley, grandson, $1,000; Mary E. Stockwell, daughter, $2,000. It was changed again on March 27, 1895, to Mary E. Stockwell, daughter, $3,000. That was the last change, and Mary E. Stockwell was the beneficiary at the time of the death of Thomas Shivley, which occurred March 4, 1904, and she drew the amount of $3,000 upon said policy or certificate.
The claimant’s evidence tended to show that soon after May 24, 1891, there was a meeting of the relatives of
Levi W. Shivley testified that a conversation was had in relation to the insurance policy in which all present took part. At that time Andrew Shivley, a brother of the deceased, had recently died, and the father, Thomas Shivley, requested a conversation and interview over the matter of the insurance, as there was an assessment due or about to become due; that Mrs. Stockwell said to the witness:
“ Now what can be done about it ? We must have an understanding what should be done about it. I have a proposition to make to you. If it will be changed suitable to us, Stockwell and I will go on and keep the insurance up.”
When witness asked her on what conditions they proposed to put in that, she replied, “Thomas Andrew (son and only heir of Andrew Shivley, who is dead ) shall have a share of it, like one-third,” and two-thirds was to go to Mrs. Stockwell. And Mrs. Stockwell suggested that:
“ Whoever keeps this up should receive back what they paid in.”
Mr. Stockwell proposed like this:
“ That if they would fix this beneficiary so that little Andrew would have one-third and Mary (Mrs. Stockwell) two-thirds, he would keep it up himself.”
The following question and answer appear:
“Claimant’s counsel: As I recall it now, Mr. Shivley, you stated that Stockwell made a proposition that he would keep up the premiums on the policy provided that the policy was changed so that Stockwell’s wife would have a two-thirds interest and little Andrew a one-third interest ?
“A. Yes, sir; Mr. Sedina said it was all right; Mrs. Stockwell said all right; all of them there said all right.*481 * * * They acquiesced with the thing and matters as it was put before them.”
Levi W. Shivley further testified:
“I had a talk with my sister, Mary Stockwell, with regard to the insurance and what was to be done with Stockwell, and she said to me, c Whoever keeps this up shall be paid for all he puts into it,’ and she says, * Mr. Stockwell stands ready and willing to keep these payments up. * * * After Thomas Shivley’s death a short time, I had a conversation with Mrs. Stockwell with regard to the property and this insurance. When she was waiting for the insurance we had a conversation about it, and I said I hoped when she got it she would carry out the agreement as it was made by Mr. Sedina, my father, and Mr. Stockwell and herself. She said there had been some misunderstanding about the insurance between little Thomas Andrew’s mother and herself some way. She said she was perfectly willing Stockwell should have back what he had paid in.”
To further support his claim, claimant offered the testimony of one Fred C. Reichert tending to show that during the years 1891 to 1900 the claimant paid the assessments on this insurance as they fell due; that in 1900 or 1901, while claimant and deceased were talking over some other matters in relation to some land that he wanted her to deed back to him, the insurance matter came up, and the claimant told her that he did not feel like going on and paying this insurance any longer; that he did not know that he was ever going to get anything out of -it, and she asked him how much money he had paid into it, and he said somewhere in the neighborhood of $1,200, and she said he would get every penny of it back for what he had paid up to that date; that he would get back what he had paid into it just as soon as she received it; that she there agreed to pay him $1,200 when she got it; that this was a short time before the final separation of the claimant and deceased; that afterwards in 1904, after her father died, said Mary E. Stockwell told the witness that she was going to pay the claimant $1,200 when she got her money.
At the close of the testimony, defendant’s counsel moved the court to direct a verdict for the defendant for the following reasons:
“ (1) The court has no jurisdiction to litigate the question or questions involved because the probate court had no legal right to revive the commission, and because Mr. Stockwell procured the revival by deception and fraud which is disclosed by the evidence.
“(2) There is no evidence to establish an agreement on the part of Mrs. Stockwell to reimburse the party, Stock-well, for the moneys which he promised to pay, the assessments on the life of Thomas Shivley.
“(3) There is no evidence from which the jury can determine what, if any, sums Stockwell advanced or paid to keep up the assessments on the certificate issued on the life of Thomas Shivley. ■
“(4) Even though there is some evidence tending to show that Mrs. Stockwell agreed with Stockwell that, if he should pay the assessments on the certificate issued by the Royal Arcanum on the life of Thomas Shivley, she would pay him back whatever sum he should so advance or pay, such promise and agreement, on her part was not binding upon her because she was at the time of such promise a married woman and was under no legal obligations to pay the assessments, and such payments do not affect her separate property.
“ (5) Because it appears from the undisputed testimony in the case that if an agreement was made by which Mrs. Stockwell became obligated to pay Mr. Stockwell all moneys necessary to keep up the payments, Stockwell did not perform his part of the agreement, and by his own misconduct made it impossible to keep good his contract and agreement.”
This motion was granted by the court, and the learned
The claimant has brought the case to this court by writ of error, assigning a large number of errors in the statements of defendant’s counsel in his opening to the jury, in the rulings relating to the admission of evidence, and in directing a verdict for the defendant. Counsel upon both sides have discussed the questions raised by the assignments of error and involved in the points urged by defendant’s counsel in his motion to direct a verdict, and we shall follow the same course.
The rule is well stated in Niblack on Accident Insurance and Benefit Societies (2d Ed.) in the latter part of section 227, as follows:
“ A beneficiary who pays the assessment on a certificate voluntarily and gratuitously, and not under a contract with the assured, acquires no vested interest therein as against a person afterward named as beneficiary by the member. A member may change this beneficiary, though the latter has paid the assessments and has possession of the certificate. But it has been held that where a person became a member of a society under an agreement with the beneficiary designated in his certificate that the beneficiary should pay all assessments, and he paid them under the agreement, the beneficiary acquired a vested interest in the certificate, and the member could not afterward make another designation. A provision of the charter or of a contract of the society, declaring that a member shall have a right to make a change of his beneficiary without the consent of the latter, applies when the original designation is in the nature of an inchoate or an unexecuted gift, and where there is no agreement on the part of the member, the society, and the beneficiary that no change shall be made. It does not prevent an express contract between the member, the beneficiary, and the society that a vested right shall pass to the beneficiary ” — citing Maynard v. Vanderwerker (Sup.), 24 N. Y. Supp. 932; Smith v. Benefit Society, 123 N. Y. 85 (25 N. E. 197, 9 L. R. A. 616).
To the same effect, see 2 Bacon on Benefit Societies and Life Insurance (3d Ed.), latter part of section 295.
In Stronge v. Supreme Lodge K. of P., 189 N. Y. 346 (82 N. E. 433), many authorities are reviewed, and
The rule is stated in 3 Am. & Eng. Enc. Law (2d Ed.), at page 993, as follows:
“ While the established rule is that the beneficiary’s interest in a mutual benefit certificate is a mere expectancy, there are some circumstances which modify his operation. Where the member, upon taking out the certificate, makes an agreement with the beneficiary that the latter should pay the assessments, and that no substitution should be*487 made, the beneficiary, upon performing this agreement, acquires a vested right” — citing many cases, including some of those above cited.
See, also, 29 Cyc. p. 128, and cases cited.
It appears and is undisputed that at the meeting in May, 1891, between the father, Thomas Shivley, the deceased, the claimant, and others, that the father was desirous of having some provision made for the payment of the assessments upon his certificate which he was unable to pay. It was perfectly competent for him to make an arrangement with the deceased in and by which if she would make the payments in the future she should become the beneficiary in the certificate. It is claimed that such an arrangement was made and carried out. The change in beneficiaries was subsequently made giving her an interest first, and finally the whole of the benefits under the certificate, and she drew the whole amount thereof. This arrangement gave her a trust interest in this certificate. It may have been an equitable interest only, but it was such an interest as the law will recognize. It was a vested interest; it was to her solely; it related to her sole property in the certificate; it was more than an expectancy; and we think the authorities cited by defendant are readily distinguishable from those which we have above cited. The case falls in principle within that of Grand Lodge A. O. U. W. v. Beath, 150 Mich. 657 (114 N. W. 662). The majority opinion in that case, recognizing the trust relation and trust fund, holds that under circumstances somewhat similar to those in this case, where the member had no property or means of support and could not even pay his premiums and keep his policy alive unless he could borrow money upon it, an arrangement by which he did obtain such relief was properly sustained. See, also, Woodruff v. Tilman, 112 Mich. 188 (70 N. W. 420); Cowin v. Hurst, 124 Mich. 545 (83 N. W. 274, 83 Am. St. Rep. 344). In this last-cited case an equitable rule is invoked that a trustee cannot be heard to say:
*488 “ I will not carry out the trust, because the parties had no legal right to repose the trust in me.”
It is only necessary to go a step further to hold that there is a claim here that should have been presented to the jury: Mrs. Stockwell, having an equitable interest in this policy or certificate, had the legal right to pay the assessments and claim her interest; she had also the right and power to agree with the claimant that he should make the payment and that she would reimburse him. It related to her separate property. That is the claim here. In our opinion it should have been presented to the jury under proper instructions; and we do not think that the claim of the defendant in the fourth reason stated can be sustained. The claimed contract in this case had a direct reference to the avails of the insurance which was to be thereafter received by the decedent.
It should be borne in mind that this is not a case where the insurance company or society is resisting the claim of the decedent. The money was paid to her, and we think that the alleged agreement with her husband was with reference to a vested interest in her separate estate.
We shall not review seriatim all of the alleged errors relating to the statements of defendant’s counsel to the jury or in the reception of the evidence. We do not think that the relations between the claimant and his deceased wife, whether pleasant or unpleasant, harmonious or otherwise, are involved in the case. We see no materiality as evidence of the bill of complaint for divorce unless it
The judgment of the circuit court is reversed, and a new trial granted.