Ormond& v. Conn. Mut. Life Ins. Co

• Decision Date: 10 October 1907
• Citation: 145 N.C. 140,58 S.E. 997
• Court: North Carolina Supreme Court
• Parties: ORMOND。 v. CONNECTICUT MUT. LIFE INS. CO.

58 S.E. 997

(145 N.C. 140)

ORMOND。

v.CONNECTICUT MUT. LIFE INS. CO.

Supreme Court of North Carolina.

Oct. 10, 1907.

1. Trial—Submission of Issues.

No particular form is required in the submission of special issues to the jury, and, if they substantially present the issues as raised by the pleadings, it is sufficient.

2. Insurance—Right to Proceeds—Actions to Determine—Parties.

In an action to recover of an insurance company testator's share of a policy, beneficiaries to whom the insurance company had paid the policy in full were properly made parties defendant.

3. Parties—Nonjoinder of Necessary Parties—Effect.

Failure to join a necessary party is error, to which exception lies.

4. Same—Joinder of Unnecessary Parties.

Joinder of unnecessary parties either plaintiffs or defendants is immaterial, save only as it may affect the matter of costs.

5. Insurance—Assignment op Policy.

No particular form of words is essential to effect an assignment or surrender of a policy of insurance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 479.]

6. Evidence—Admissions—Declarations op Testator—Admissibility Against Executor.

In an action to recover of an insurance company testator's share of a policy, declarations of testator are admissible against the executor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 983-985.]

7. Same—Assignment of Policy.

In an action by an executor against an insurance company to recover testator's share of a policy, evidence held to show an assignment of testator's interest in the policy" to his children, barring any recovery by his executor.

Appeal from Superior Court, Lenoir County; Long, Judge.

Action by Y. T. Ormond, executor of A. R. Miller, deceased, against the Connecticut Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff sues to recover one-fifth of a policy of insurance on the life of his testator, issued by defendant. The court submitted the following issues: "(1) Did the plaintiff's testator, * * * after the death of his wife, relinquish any rights and interest he might have had in the policy from his wife, and surrender said policy to his children to be kept alive for their benefit as alleged in the answer? Ans. Yes. (2) Did the defendants Hyatt, Luce, and E. L. Miller, agreeably to such an understanding with A. R. Miller, keep alive the said policy and pay the premiums according thereon from year to year and until the death of A. R. Miller (plaintiff's testator), as alleged in the answer? Ans. Yes." From the judgment rendered, plaintiff appealed.

Y. T. Ormond and Geo. V. Cowper, for appellant.

W. S. O'B. Robinson and F. H Busbee & Son, for appellee.

BROWN, J. The evidence in this case tends to prove that in 1868 plaintiff's testator, A. R. Miller, insured his life in the defendant company in the sum of $10,000 for the benefit of his wife, Delia M. Miller, and their four children, Sybil Hyatt, E. L. Miller, Maude Luce, and W. R. Miller. In 1884 Mrs. Delia M. Miller died intestate, leaving her husband, A. R. Miller, and the four children above named. No administration was granted upon her estate. In 1003 W. R. Miller assigned his interest in the policy to Mrs. Sybil Hyatt, and soon thereafter died, before the death of A. R. Miller. In June, 1005, A. R. Miller died, leaving a will in which Mrs. Luce was named as residuary legatee. The policy was presented to the insurance company for payment by the three children and by Mrs. Hyatt, as assignee of W. R. Miller, and the amounts due were paid by the company, as" appears by the receipts and releases of the beneficiaries. The rights and interest of A. R. Miller having been relinquished and surrendered as claimed to the four children, the company paid to them as beneficiaries the amount of the policy in full, without deduction. The plaintiff brings this action as executor of A. It. Miller to recover one-fifth of the amount of the policy, alleging that the interest of Mrs. Delia M. Miller in the policy had not been relinquished or surrendered to the other beneficiaries by Dr. Miller, the insured, who, it is admitted, acquired such interest upon the death of his wife in 1884.

1. The objection made by the plaintiff to the form of the issues submitted by the court to the jury is without merit No particular form is prescribed by law, and, If the issues submitted substantially present the issues as raised by the pleadings,...