33 S.W. 937 (Ky.App. 1896), Wirgman v. Miller

Citation:33 S.W. 937, 98 Ky. 620
Opinion Judge:DU RELLE, J.
Party Name:WIRGMAN v. MILLER et al.
Attorney:Joseph A. Sanders, for appellant. Barnett, Miller & Barnett and Tyler Barnett, for appellees.
Case Date:January 25, 1896
Court:Court of Appeals of Kentucky

Page 937

33 S.W. 937 (Ky.App. 1896)

98 Ky. 620

WIRGMAN

v.

MILLER et al.

Court of Appeals of Kentucky.

January 25, 1896

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...

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