Wirgman v. Miller

Citation98 Ky. 620,33 S.W. 937
PartiesWIRGMAN v. MILLER et al.
Decision Date25 January 1896
CourtCourt of Appeals of Kentucky

Appeal from chancery court, Jefferson county.

"To be officially reported."

Action by H. Wirgman against Mancil G. Miller, Virginia P. Miller and others. Demurrers to the petition were sustained, and plaintiff appeals. Reversed.

Joseph A. Sanders, for appellant.

Barnett Miller & Barnett and Tyler Barnett, for appellees.

DU RELLE, J.

The appellant brought suit against the appellees upon a note executed since the act of March 15, 1894, as to the property rights of husband and wife, went into effect. Two of the appellees, the makers of the note sued on, are alleged to be husband and wife, and the other appellees are their children. The first paragraph of the petition seeks a personal judgment against both husband and wife. In the second paragraph it is alleged that, to secure the payment of the note, the husband and wife pledged to plaintiff a policy and its proceeds in the Northwestern Mutual Life Insurance Company, payable, on the death of the husband, to the wife, if she shall be then alive, and in case of her death prior to that of her husband then to the executors, administrators, or assigns of the husband; that the note contained an agreement that, in case of default in the payment thereof at maturity, the makers would request the company to pay the cash surrender value of the policy to the payee of the note, to the extent of the debt and interest. This paragraph also alleges that the other appellees, the children of the makers of the note, claimed that the makers had no authority to pledge the policy of insurance, and that, in the event of the death of the wife prior to that of her husband, the proceeds of the policy would pass to the children. The petition prayed that the makers of the note be compelled to request the payment of the cash surrender value of the policy. The note sued on is as follows: "$500.00. Lancaster, Kentucky, July 2d, 1894. One year after date we promise to pay to the order of H Wirgman the sum of five hundred dollars, with interest from date until paid at the rate of six per centum per annum. And as security for said debt, we hereby pledge policy No 137,135, or its proceeds, in the Northwestern Mutual Life Insurance Company, dated September 25, 1885, for $10,000, issued to Virginia H. Miller on the life of her husband, Mancil G. Miller; and if we fail to pay said note at maturity, we agreed and bind ourselves to request said insurance company, in writing, to pay to said Wirgman the cash surrender value of said policy to the extent of said debt and interest, and the balance to us. Mancil G. Miller. Virginia P. Miller." The wife demurred to both paragraphs of the petition, and the other appellees demurred to the second paragraph, and both demurrers were sustained.

It is contended for appellees that section 654, St. Ky. which is in substance, sections 30 and 31 of the act of March 12, 1870, gives to the children of the wife a vested interest in the policy which cannot be divested by the act of the husband and wife. The section is as follows: "A policy of insurance on the life of any person expressed to be for the benefit of or duly assigned, transferred, or made payable to any married woman, or to any person in trust for her, or for her benefit, by whomsoever such transfer may be made, shall inure to her separate use and benefit, and that of her children, independently of her husband or his creditors, or any other person effecting or transferring the same as his creditors. *** When a policy of insurance is effected by any person on his own life, or on another life in favor of some person other than himself, having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds against the...

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33 cases
  • Johnson v. New York Life Ins. Co.
    • United States
    • Colorado Supreme Court
    • November 3, 1913
    ... ... Cal. 373, 42 P. 32; Charch v. Charch, 57 Ohio St. 561, 49 ... N.E. 408; Kentucky Masonic Mutual Life Ins. Co. v ... Miller's Adm'r, 76 Ky. (13 Bush) 489; Eastman v ... Association, 62 N.H. 555; National Mut. Aid Soc. v. Lupold, ... 101 Pa. 111; McLaughlin v ... 470; Supreme Conclave v. Capella ... (C. C.) 41 F. 1; Mut. Ass'n v. Montgomery, 70 Mich. 587, ... 38 N.W. 588, 14 Am.St.Rep. 519; Wirgman v. Miller, 98 Ky ... 620, 33 S.W. 937 ... In this ... jurisdiction there is no difference in this respect between ... policies held in ... ...
  • Lamar Life Ins. Co. v. Moody
    • United States
    • Mississippi Supreme Court
    • April 12, 1920
    ... ... Insurance Company, 122 Ky. 472; Hopkins v. Hopkins ... Admr., 92 Ky. 324, 13 Law Rep. (Ky.) 707, 17 S.W. 864; ... Wirgman v. Miller, 98 Ky. 620, 17 Ky. Law Rep. 1174, ... 33 S.W. 937; Wrather v. Stacy, 82 S.W. 420, 26 Ky ... Law Rep. 683, 89 S.W. 178, Ky. Law Rep ... ...
  • Mercer Nat. Bank of Harrodsburg v. White's Ex'r
    • United States
    • Kentucky Court of Appeals
    • November 18, 1930
    ... ... Mutual ... Benefit Life Ins. Co. v. First National Bank, 160 Ky ... 538, 169 S.W. 1028; Wirgman v. Miller, 98 Ky. 620, ... 33 S.W. 937, 17 Ky. Law Rep. 1174; N.Y. Life Ins. Co. v ... Miller, 56 S.W. 975, 22 Ky. Law Rep. 233; Irons v ... ...
  • Farmers' State Bank v. Kelley
    • United States
    • Georgia Supreme Court
    • June 7, 1923
    ... ... Humphrey v. Copeland, 54 Ga. 543; Chappell v ... Boyd, 61 Ga. 662; Windsor v. Bell, 61 Ga. 671 ... (1); Grant v. Miller, 107 Ga. 804, 806, 33 S.E. 671 ... Accordingly the petition set forth a good cause of action, ... and was not subject to the demurrer. If the case ... Hopkins v. Hopkins, 92 Ky. 324, 17 S.W. 864; ... Mente v. Townsend, 68 Ark. 391, 59 S.W. 41; ... Wirgman v. Miller, 98 Ky. 620, 33 S.W. 937; ... Mutual L. Ins. Co. v. Twyman, 122 Ky. 513, 92 S.W ... 335, 97 S.W. 391, 121 Am.St.Rep. 471; Nally v ... ...
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