Appeal of Corson

• Decision Date: 04 October 1886
• Docket Number: 303
• Citation: 113 Pa. 438,6 A. 213
• Parties: Appeal of Corson, Executor of McLean
• Court: Pennsylvania Supreme Court

6 A. 213

113 Pa. 438

Appeal of Corson, Executor of McLean

No. 303

Supreme Court of Pennsylvania

October 4, 1886

Argued January 20, 1886

APPEAL from the Court of Common Pleas No. 4, of Philadelphia county In Equity: Of January Term 1885, No. 303.

This was an appeal by Robert Corson, executor of Ellen M. McLean deceased, from a decree of said Court ordering the proceeds of a policy of life insurance on the life of Ellen McLean to be paid to James Garnier. The parties to the bill were Robert Corson, executor of Ellen McLean, deceased, plaintiff, and The Provident Savings Life Assurance Society of New York and James Garnier, defendants. After issue was joined, G. W Arundel, Esq. was appointed Examiner and Master, who took the testimony in the case and made the following report:

The bill sets forth that Ellen McLean, of the city of Philadelphia, being indebted to the defendant, James Garnier, in the sum of five hundred and nine dollars, in order to secure him in the payment thereof, made application to the Provident Savings Life Assurance Company of New York, one of the defendants, and obtained a policy upon her life for the benefit of the said James Garnier in the sum of two thousand dollars, which policy was duly issued by the company defendants on the seventh day of March, 1883, and numbered 10,674. That subsequently the full amount of the indebtedness above mentioned was paid to the said defendant, James Garnier, and that on the eighteenth day of August, A.D. 1883, the said Ellen McLean died, leaving issue, one son and a daughter, the latter being a minor, and also leaving a last will and testament dated August 6th, 1883, by which she appointed Robert Corson, the complainant in this case, one of the executors; that letters testamentary were subsequently granted to him, and that after due proofs of the death of the said Ellen McLean were made to the company aforesaid, the said Robert Corson, complainant, demanded from said James Garnier, defendant, the assignment of the aforesaid policy for two thousand dollars, inasmuch as the debt for which it was intended as collateral security had been fully paid and satisfied, and that the said Garnier refused to make the assignment, and further that the said plaintiff has demanded payment also of the company defendant, and that the said company declines to pay the same without the surrender of the policy. The complainant prays the Court that the defendant, James Garnier, be ordered and decreed to assign and surrender to the complainant the above described policy, and that the Provident Savings and Life Assurance Company be ordered and decreed to pay the said complainant the above mentioned sum of two thousand dollars, being the amount of said policy No. 10,674, issued on the life of the said Ellen McLean.

The Provident Savings and Life Assurance Company, defendants, interpose no defence and disclaim any interest in the matter, and to avoid liability for costs have paid the amount of said policy, to wit: Two thousand dollars into Court to await the decision in this suit. The answer of James Garnier, defendant, admits the death of Ellen McLean and the execution of her last will and testament whereby the said Robert Corson was appointed her executor, but denies that the indebtedness of the said Ellen McLean to him has ever been settled or paid, and also further denies that the said policy for two thousand dollars in the Provident Savings and Life Assurance Company of New York, was ever issued, executed or accepted as collateral security for any debt, but that the policy was issued to him by the said company on the life of the said Ellen McLean on the ground of her relationship to him, she being his aunt, and that all costs of the policy and subsequent premiums hereon were paid by him.

From the testimony adduced before the Examiner the Master found the following facts:

James Garnier, the defendant, was a nephew of Ellen McLean, who, prior to the spring of 1880 lived with her two minor children at Lawrence, Massachusetts, where she was employed in a mill. At the instance of Mr. Garnier she came to Philadelphia with her children, he having sent her money for that purpose. After her arrival in this city Mr. Garnier bought a grocery store at Tenth and Manilla streets, fitted it up and stocked it at his own expense, and placed Mrs. McLean in charge; he replenished the stock from time to time, and Mrs. McLean paid him as she got money from the receipts of the store.

This store Mr. Garnier sold at a good price, and Mrs. McLean received the price. Thereafter Mr. Garnier bought another store for her on Fitzwater street, and fitted it up in the same way, and subsequently sold it for Mrs. McLean's benefit. And thereafter another store was bought by Mr. Garnier on Fifth street below Christian, and fitted up for Mrs. McLean, and the stock replenished from time to time by him. This store was also sold at a good profit and Mrs. McLean received the price. The relationship between Mrs. McLean and Mr. Garnier was most intimate. He was her friend and adviser, and in the language of one of the witnesses was more like a son to her than a nephew. At the instance of Samuel, the son of Mrs. McLean, she had her life insured in the Provident Savings and Life Assurance Society of New York, in two policies -- one of them in her own favor, and the other in favor of her nephew, James Garnier, the latter policy was for $2,000, and neither it nor the application for it had any reference to any indebtedness from Mrs. McLean to Mr. Garnier, or that it was taken to secure any indebtedness. In fact, the defendant Garnier, in his answer and his counsel on argument, disclaimed that it was taken out to secure an indebtedness, and avowed that there never had been a settlement between Mrs. McLean and Mr. Garnier, and from the nature of their intimacy could not be, and stated to the Master that if his right to the proceeds of the policy was not otherwise absolute, he would not, and did not, claim it by reason of any indebtedness.

Mrs. McLean died in August, 1883, and the proof of death was made. The insurance company, recognizing their liability on the policy, were about to pay it to Mr. Garnier when the bill in this case was filed. By agreement between the parties, which stands without prejudice to their rights in any respect, the amount of the policy was paid into Court to await the issue of this suit, and the company was relieved as active defendants.

At the time of the preparation of the proof of death, it is testified on the part of the plaintiff that Garnier stated his interest to be that of a creditor to the amount of $500. This Garnier denies, and states that the commissioner who made out the papers told him that it was necessary, under the laws of the state of New York, that he should put in some debt to support his claim as beneficiary. The Master, however, does not think this matter at all material in view of the positive disclaimer of Garnier as aforesaid. The premiums and charges on this policy appear to have been paid by Garnier.

Mrs. McLean made a will just prior to her death, in which she made disposition of the proceeds of her own policy, but makes no reference whatever to that issued to Garnier.

From a careful consideration of the only question presented in this case by the bill and answer, namely: whether the defendant Garnier had an assurable interest recognized by the law in the life of the said Ellen McLean, and from the evidence adduced before him which fails to establish that the said defendant, James Garnier, had any pecuniary interest in the life of the said Ellen McLean, either by virtue of his relationship or otherwise, in view of the current of decisions in Pennsylvania the Master's decision must be for the complainant. The Master, therefore, recommends to your Honors that a decree be made that from the fund in Court the defendant be reimbursed for the cost of policy and subsequent premiums paid thereon, with interest, and that the remaining portion of said fund be paid to the complainant with costs.

The defendant filed, inter alia, the following exceptions to this report:

1. The learned Master has erred in his statement of the case and the law, in this: From a careful consideration of the only question presented in this case by the bill and answer, namely: whether the defendant, Garnier, had an assurable interest recognized by the law in the life of the said Ellen McLean, and from the evidence adduced before him which fails to establish that the said defendant, James Garnier, had any pecuniary interest in the life of the said Ellen McLean, either by virtue of his relationship or otherwise, in view of the current of decisions in Pennsylvania, the Master's decision must be for the complainant.

2. Because the learned Master erred in not finding for defendant and recommending a decree in his favor.

The Court, ARNOLD, J., filed the following decree:

We therefore sustain all his exceptions to the Master's report except the third, and award the sum in Court to him; the costs, since the fund was ordered to be paid into Court, to be paid by the plaintiff, and the costs prior to that time to be paid out of said fund.

The plaintiff thereupon took this appeal, assigning the decree for error.

The decree is affirmed, and the appeal dismissed at the cost of the appellant.

N DuBois Miller (John Sparhawk, Jr., with him), for appellant. -- It is contended that the defendant is not entitled to the fund, either as nephew of the insured or as creditor. It will be recollected that it was stated before the Master by counsel for the defendants, and the Master so reports, that the defendant claimed nothing by virtue of his being a creditor; and if his right to the proceeds of the policy was not...