42 S.E.2d 481 | Ga. | 1947
1. Count one of the petition as amended — alleging that the plaintiff's intestate, the insured, assigned a life-insurance policy to the defendant as security for a loan, and that after the death of the insured the defendant was paid the proceeds and became a trustee for the amount in excess of money advanced by him for the insured, and count two — alleging that the assignment of the policy to the defendant for the full amount of the proceeds was a wagering contract, and that he became trustee for the amount of the proceeds of the policy received by him in excess of money advanced by him for the insured — sufficiently alleged the creation of a constructive trust and a cause of action good against the general and special grounds of demurrer.
2. Error, if any, in admitting over objection testimony relating to conversations between the defendant and the deceased insured was rendered harmless by similar testimony of another witness afterwards admitted in evidence without objection.
3. The charge of the court, "If you should find the policy of insurance . . lapsed because of the nonpayment of premiums, and that [the insured] voluntarily caused the same to be reinstated, and in good faith had [the defendant] named as beneficiary, intending in the event of his death that [the defendant] should have the proceeds of the policy, and this was not done simply to permit [the defendant] to speculate on the life of the [insured], then the defendant would be entitled to prevail, and that would be true even though it appeared that [the defendant] was [to pay?] and did pay the premiums necessary to reinstate and keep the policy in force," correctly stated the applicable principles of law and was not error for any reason assigned.
4. The record not disclosing any contention that the relationship of the defendant to the insured as half first cousin constituted an insurable interest, the court did not err in failing to give the requested charge that a cousin or half cousin has no beneficial interest in the life of the insured simply by reason of that relationship; that is, the fact that the defendant is the half first cousin of the insured would not give the defendant an insurable interest in the life of the insured.
5. The evidence was sufficient to support the verdict.
The prayers in count one were: 1. That the defendant account to the petitioner for the proceeds of the policy. 2. That the court decree that the defendant is a trustee of the funds which he received as proceeds of the policy on the life of the insured, and as trustee must account to the petitioner. 3. That the court decree that the proceeds of the policy constitute money had and received by the defendant for the benefit of the estate of the insured, and that the petitioner as the personal representative of the estate is entitled thereto. 4. That a judgment be entered awarding to the petitioner all of the proceeds of the policy which remain after the deduction of the indebtedness secured by the policy. 5. That because of his stubborn litigiousness the defendant be required to pay all of the expenses to which the petitioner has been put in order to obtain an accounting, including the cost of this proceeding and a reasonable attorney's fees. 6. That process issue. 7. That the petitioner have such other and further relief as to the court seems meet and proper.
Count two contained allegations similar to those in count one, except that, instead of alleging that the policy was delivered as collateral security, and that the insured was induced to sign the two endorsements in favor of the defendant to protect an advance of *158 approximately $489.89, it was alleged: At the time the request was made, the policy had lapsed by reason of the insured's failure to pay the premiums and the same was reinstated by the defendant with the understanding that he would be named beneficiary and pay the premiums on the policy as they became due and pay all costs or amounts necessary to reinstate the policy, and in the event of the death of the insured the defendant should receive the proceeds of the policy. The defendant paid no other consideration for the assignment of the policy and the change of the beneficiary. The assignment and change of beneficiary were made to circumvent the law against wagering policies. The defendant at the time of the assignment and change of beneficiary intentionally entered into a speculation upon the life of the insured, wagering the premiums to be paid by him against large profits which he would receive on the death of the insured, the defendant having no insurable interest in the life of the insured. Therefore, the assignment of the policy and change of beneficiary constituted a wagering contract, which is illegal and void, and the defendant holds the proceeds received from the policy as trustee for the petitioner. Count two contained prayers similar to those in count one, except that there was no prayer for general relief, and instead of praying that the court decree that the proceeds of the policy constituted money had and received, it was prayed that the agreement under which the defendant received and held the policy be declared a wagering agreement prohibited by law.
The defendant filed to the original petition a demurrer on general and special grounds. After the petition was amended, the defendant filed a second demurrer renewing his original grounds and adding additional grounds. The defendant also filed an answer admitting that the insurance company issued a $5000 policy to the insured; that the insured died intestate; that the defendant was a cousin of the insured and was not dependent upon him for support, but denied other material allegations. The court overruled all of the grounds of demurrer, and the defendant filed proper exceptions pendente lite.
On the trial there was uncontroverted evidence showing the following facts: The insurance policy in question was issued in 1925. The insured carried it for about twelve years, at which time, because of physical and financial reverses, he became unable to pay *159 the premiums. In 1938 the policy which had become lapsed was reinstated upon the payment by the defendant, who was a half first cousin of the insured, of the premiums that were in arrears. Thereupon the insurance company, at the request of the insured, changed the beneficiary so as to make the policy payable to the defendant. The policy was delivered to the defendant, and he paid the premiums until the insured died on August 29, 1943, and then collected from the insurance company $4381.86, representing the proceeds from the policy. The insured was survived by a widow and three small children. The widow, who is the petitioner, was appointed temporary administratrix upon the insured's estate.
The evidence was conflicting on the question as to what was the purpose of the insured in requesting the change of beneficiary and in delivering the policy to the defendant. As to this issue, there was evidence for the petitioner that the name of the beneficiary had been changed and the policy delivered as security for $489.89, which the defendant had loaned to the insured for the purpose of reinstating the policy, and of which amount $406.19 represented a loan on the policy and $83.70 represented premiums that were in arrears; it having been agreed that, in the event the insured died, the defendant should deduct the amount of the loan and the premiums from the total amount of the insurance, and the balance would go to the petitioner and the children. There was evidence for the defendant that he was reared in the home of the insured and grew up with him. He had frequently been called upon to assist the insured in financial ways, and the insured told the defendant that he wanted to give him the policy, and that, if he would not take it, the insurance was going to be dropped because the insured could not carry it. Other facts will be stated in the opinion.
At the conclusion of the evidence the jury returned a verdict in favor of the defendant. The petitioner's motion for a new trial as amended was overruled, and she excepted. The defendant filed a cross-bill of exceptions assigning error on his exceptions pendente lite. 1. The defendant demurred to the original petition and to the petition *160 as amended on the grounds: It set forth no cause of action, either legal or equitable; it shows on its face that the plaintiff, as well as the insured, was guilty of laches, and the suit is barred as a result thereof; the plaintiff as named therein is not the proper party plaintiff.
This is not a suit against the insurance company, making material for consideration the provisions of the policy, but is an action by the administratrix of the estate of the insured against one alleged to be illegally withholding funds belonging to the estate. and no question arises as to the provisions of the policy. The petition shows that the insured died on August 29, 1943, and the suit was filed on May 5, 1945.
In Quillian v. Johnson,
It has also been held: "As a general rule the proceeds of a policy in which a third person is named as beneficiary belong exclusively to such beneficiary as an individual, and are not subject to administration as an estate of the insured (DoodyCo. v. Green,
Trusts are implied, "1. Whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase-money or other circumstances, is either wholly or partially in another." Code, § 108-106. "Constructive trusts are such as are raised by equity in respect of property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it should be retained by him who holds it." O'Neal v. O'Neal,
The allegations of the petition as contained in counts one and two were sufficient to allege the creation of a constructive trust, and a cause of action good against the general grounds of demurrer.
The defendant also demurred on numerous special grounds. These have been carefully examined but have been found to be without merit, and no extended discussion is deemed necessary, especially in view of the ruling on the merits in the fifth division of the opinion.
2. Special grounds 1 to 6 inclusive of the motion for new trial complain of the admission in evidence of conversations between the defendant and the deceased insured, to the effect that the insured had given the policy and its benefits to the defendant. Substantially the same testimony, from an agent of the insurance company, was afterwards admitted without objection; and, under repeated decisions of this court, the previous error, if any, was thereby rendered harmless.
3. The 7th special ground complains of the following charge: "If you should find the policy of insurance in question in this case lapsed because of the non-payment of premiums, and that [the insured] voluntarily caused the same to be reinstated, and in good faith had [the defendant] named as beneficiary, intending in the event of his death that [the defendant] should have the proceeds of the policy, and this was not done simply to permit [the defendant] to speculate on the life of [the insured], then the defendant would be entitled to prevail, and that would be true even though it appeared that [the defendant] was [to pay?] and did pay the premiums necessary to reinstate and keep the policy in force."
While numerous objections are stated in this ground, they are found upon examination to be without merit, and no extended discussion is deemed necessary. The charge fully presented to the jury the respective contentions of the parties, correctly stated the applicable principles of law, and was not in conflict with another portion of the charge, as insisted by the movant. *164
4. The 8th special ground complains that the court erred in failing to give the following requested written charge: "A cousin or half cousin, simply by reason of that relationship, has no beneficial interest in the life of the insured. That is, the fact that the defendant, Marvin Wages, is the half first cousin of the deceased, John T. Wages Jr., would not give Marvin Wages an insurable interest in the life of John T. Wages Jr."
Since the court sufficiently charged the jury that the defendant would not be entitled to a verdict in his favor unless it was shown that he had an insurable interest in the life of the insured under the facts of the case, and the record does not show any contention that the fact that the relationship of the defendant to the insured as half first cousin constituted an insurable interest, the court did not err in failing to give the requested charge.
5. It could not be said under the evidence in this case that a finding was demanded as a matter of law that the policy was assigned solely to secure the defendant for the money advanced by him, or that the agreement constituted a wagering contract. The insured, as he had a right to do, procured a policy on his own life, in which he manifestly had an insurable interest, and for a period of about 12 years paid the premiums out of his own funds. Although, at the time the defendant advanced money for payment of an outstanding loan, the policy had lapsed, yet the insured still had the right to control the policy and to cause the company to reinstate it. The defendant could not originally have caused the policy to issue with himself as beneficiary, but it would be unreasonable to say that, though the insured procured the policy himself, he did so with an intention to place its benefits in the defendant 12 years later and thus circumvent the law. Certainly, after maintaining the policy 12 years, the insured, as the rightful owner thereof, could legally agree for the defendant to become the beneficiary in consideration of money advanced by him and his agreement to pay future premiums on the policy.
The evidence, though sharply conflicting as to whether it was the intention of the insured that the defendant retain the total proceeds of the policy or only the amount of the money advanced and paid by him, was sufficient to support the verdict in favor of the defendant for the full amount of the proceeds of the policy, and the court did not err in overruling the plaintiff's motion for a new trial. *165 Judgment affirmed on both the main and cross-bill ofexceptions. All the Justices concur.