Allen v. Cent. Wis. Trust Co.

• Decision Date: 04 October 1910
• Citation: 143 Wis. 381,127 N.W. 1003
• Parties: ALLEN v. CENTRAL WISCONSIN TRUST CO.
• Court: Wisconsin Supreme Court

143 Wis. 381

127 N.W. 1003

ALLEN

v.CENTRAL WISCONSIN TRUST CO.

Supreme Court of Wisconsin.

Oct. 4, 1910.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Edith L. Allen against the Central Wisconsin Trust Company, trustee. From the judgment, both parties appeal. Reversed and remanded, with directions, for judgment.

Action of replevin to recover a policy of insurance issued by the Northwestern Mutual Life Insurance Company, of Milwaukee, upon the life of Philip Allen, Jr., February 21, 1888, for the sum of $2,000. The policy provided for the payment of an annual premium of $118.34 for 10 years. At the end of 20 years, and prior to the time plaintiff was made the beneficiary, the insured exercised an option to withdraw in cash the accumulated surplus, then amounting to $705.31, apportioned by the company to this policy, and it was then continued as a fully paid-up life insurance policy for the sum of $2,000, and became entitled to annual dividends until all contributions to the surplus fund had been returned. The annual dividend for 1910 amounted to $11.40. The value of the policy at the time of the commencement of the action was $1,159.83.

From the time the policy was issued until February 23, 1908, it was payable to the executors, administrators, or assigns of Philip Allen, Jr. On that day, at the request of the insured, the plaintiff was made the beneficiary, and the following indorsement placed upon the policy by the company: “Milwaukee, Wis., Feb. 27, 1908. At the request of the insured, dated February 23, 1908, Edith L. Allen, wife of the insured, is hereby made beneficiary in this policy, subject to the right of the insured to change beneficiary as provided on the second page of this policy. If no beneficiary survive the said insured, payment shall be made when due to the executors, administrators, or assigns of the said insured.” The second page of the policy contained this provision: “The insured may, subject to the rights of any assignee, change the beneficiary or beneficiaries at any time during the continuance of this policy by filing with the company a written request accompanied by this policy; such change to take effect under the indorsement of the same on the policy by the company.” On November 20, 1909, said Allen was adjudged a voluntary bankrupt, and thereafter the defendant was duly elected the trustee of the bankrupt estate, and is still acting as such trustee.

The trial court held that the policy did not pass to the Central Wisconsin Trust Company as trustee in bankruptcy of Philip Allen, Jr., as a part of the assets of said bankrupt, but that upon the death of said Philip Allen, Jr., if the same shall occur during the life of the plaintiff, the latter will be entitled to recover the insurance provided for in said policy. It further held that the Central Wisconsin Trust Company, as trustee, was entitled to recover the insurance provided for in said policy upon the death of said Philip Allen, Jr., if he shall die after the decease of Edith L. Allen, the plaintiff, and that said trustee in bankruptcy was also entitled to collect each year the annual dividends that shall be paid on said policy, and is entitled to retain possession of said policy until the death of said Allen, and that, in case the plaintiff shall still be living, the defendant is to deliver said policy to the plaintiff, and dismissed the complaint, with costs.

The plaintiff appeals from that portion of the judgment which provides that the defendant will be entitled to recover the insurance provided in said policy upon the death of said Philip Allen, if he shall die after the decease of Edith L. Allen, the plaintiff, and from that portion of the judgment which adjudges that the defendant is entitled to collect the annual dividends which shall be paid on said policy, and from that portion of the judgment which adjudges that defendant is entitled to retain possession of said policy until the death of said Allen, and from the dismissal of the plaintiff's complaint. The defendant appeals from the judgment on the ground that the trial court should have decreed that the policy of insurance in question, as to the trustee in bankruptcy of Philip Allen, Jr., is a part of the assets in bankruptcy.Rufus B. Smith, for plaintiff.

Richmond, Jackman & Swansen, for defendant.

VINJE, J. (after stating the facts as above).

1. Counsel for plaintiff contends that, when the plaintiff became the beneficiary of the policy, she thereby became vested with the sole, absolute, and indefeasible title thereto by virtue of the provisions of section 2347, St. 1898, notwithstanding the reservation in the policy of the right of the insured to change beneficiary at any time during the life of the policy. In the view the court has taken of this case, it does not become necessary to...