Wirgman v. Miller
Citation | 98 Ky. 620,33 S.W. 937 |
Parties | WIRGMAN v. MILLER et al. |
Decision Date | 25 January 1896 |
Court | Court 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: 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: ...
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