Bank v. Williams

• Decision Date: 18 December 1899
• Citation: 26 So. 965,77 Miss. 398
• Court: Mississippi Supreme Court
• Parties: JACKSON BANK v. LULA B. WILLIAMS

26 So. 965

77 Miss. 398

JACKSON BANK v. LULA B. WILLIAMS

Supreme Court of Mississippi

December 18, 1899

December 1899

FROM the circuit court, first district, of Hinds county, HON ROBERT POWELL, Judge.

Lula B Williams, the appellee, was the plaintiff in the court below the Jackson Bank, the appellant, was defendant there. The suit was an action of replevin for a life insurance policy. The policy was upon the life of plaintiff's husband; it designated the plaintiff, as beneficiary, to receive the money to become due upon it; it was procured by the husband, who paid the premiums, and who retained its possession until he hypothecated it to the bank. The wife saw the policy soon after its date, and knew of its issuance, but never had its custody. The husband deposited it, without the wife's knowledge or consent, with the bank, as collateral security for a debt due by him to the bank. After the death of the husband the wife demanded the policy, and upon refusal of the bank to surrender it began replevin for its possession. By the terms of the policy, if the wife died before the husband, it was then to be payable to the husband's legal representatives.

The case was tried in the court below before the judge, the parties waiving a jury. The judgment there was for the plaintiff', and the defendant, the bank, appealed to the supreme court.

Judgment affirmed.

Calhoon & Green, for appellants.

The position of plaintiff, when the policy was executed, was that of a proposed voluntary donee of the husband. He intended, when he had the policy drafted, to give it to the wife, and, therefore, he had the policy recite a promise by the company to pay to her, if living, the money. In effect, just as if he had drawn his own promissory note payable to her for that amount. Such an instrument, or promissory note, in order to have effect, must be delivered. Delivery is essential to the validity of the contract.

The interest of the wife claimed is by gift--a mere voluntary donation, without any valuable consideration whatever, but presumably for love and affection.

A gift of personal chattels, made by deed, in consideration of love and affection, is voluntary, and confers no title upon the grantee unless there is delivery of the chattels. McWillie v. Van Vacter, 35 Miss. 447.

In Wheatly v. Abbott, 32 Miss. 345, it is said: "There can be no valid parol gift of a chattel, unless there be an actual delivery of possession to the donee, or an absolute parting of all dominion or ownership over it by the donor for the use and benefit of the donee, and without this a mere intention to make the gift, however strongly manifested, will not divest the donor's title." 2 Kent's Commentaries, 438; Carradine v. Collins, 7 Smed. & M., 428; Anderson v. Baker, 1 Kelly (Ga.), 595; Carradine v. Carradine, 58 Miss. 292; Thompson v. Thompson, 2 How. (Miss.), 745; Young v. Power, 41 Miss. 197; 1 Daniel Neg. Insts., sec. 63. Contracts of insurance "are to be regulated and determined by the same rules that govern ordinary agreements." Co-operative Association v. LeFlore, 53 Miss. 15; Goodrich v. Neal, 3 Col., 410; Bishop v. Curphey, 60 Miss. 22; Jones v. Patty, 73 Miss. 185; Cables v. Prescott, 67 Me., 582; Simmons v. Biggs, 99 X. C., 236; Coningland v. Smith, 79 N.C. 303; 2 Warner's Law of Admin., 647; In re Dernion, 42 How. (N. Y.), 326.

Whether issued under § 1261, code of 1880, or § 1964, code of 1892, the effect would be the same. It was contended below that this statute vested title in the wife. This is unsound, because this statute does not purport to dispense with the legal requirements to constitute a contract, nor with the rights of a purchaser of the policy from the assured, but only to define an exemption from seizure or sale by creditors. Clark v. Durand, 12 Wis., 223; Foster v. Giles. 50 Wis., 605; Kernan v. Howard, 23 Wis., 108; Gambs v. Covenant Mutual, etc., Co., 50 Mo. 44; Union Mutual Ins. Co. v. Stephens, 19 F. 675; Sanderson v. Knowles, 22 N. J. Eq., 594; Simmons v. Ingram, 60 Miss. 899; Coningland v. Smith, 79 N.C. 303; Goodrich v. Neal, 3 Colo., 410; Phelps v. Harris, 51 Miss. 792; Stokes v. Payne, 58 Miss. 614; Banking Company v. Humphries, 64 Miss. 258; 1 May on Ins., sec. 391; Joyce on Ins., sec. 2343; Rictcer v. Charter Oak Ins. Co., 38 Am. Rep., 289.

Williamson, Wells & Croom, for appellee.

The general rule, as announced by the text-book writers, supported by the great weight of judicial decisions, is: "That a policy, and the money to become due under it, belongs, the moment it is issued, to the person named in it as beneficiary, and that there is no power in the person procuring the insurance, by any act of his, by deed or by will, to transfer to any other person the interest of the person named. An irrevocable trust is created." Bliss on Life Ins., p. 517, sec. 337; Cooke on Life Ins., p. 123, sec. 74.

In the case of Bank v. Hume, 128 U.S. 206, the supreme court of the United States, referring to the general rule, supra, says: "This must be so, where the contract is directly with the beneficiary, in respect to policies running to the person insured, but payable to another having a direct pecuniary interest in the life of the insured, and where the proceeds are made to inure by positive statutory provisions." 24 F. 770; 26 La. Ann., 326; 77 Va., 163; 11 Bush, 567.

The case here falls within two of the classes of eases mentioned by the supreme court of the United States in the Hume case. The policy here (a) is one running to the person insured, but payable to his wife, who has a direct pecuniary interest in the life of the insured: and (b) by § 1964 of the annotated code, the proceeds of the policy are made to inure to the beneficiary named in the policy, by positive statutory provision. Our code settles the case, but aside therefrom, if by the act of procuring the policy of insurance, payable at his death to his wife, the insured perfectly created an irrevocable trust, then by the settled doctrine in equity it becomes wholly immaterial whether the insured had ever delivered the policy to his wife or not. Fortescue v. Barnett, 3 Myl. & K., 36; Otis v. Beckwith, 49 Ill. 121; Welborn v. Welborn, 83 Ind., 207; Harley v. Hurt, 86 Ind., 196; Gault v. Trumbo, 17 B. Mon. (Ky.), 682; Chapin v. Fellows, 36 Conn. 132; Ricker v. Charter, etc., Co., 38 Am. Rep., 293, note; Bliss on Life Ins., sees. 317 and 350; Cooke on Life Ins., note; 125; Ib., 123; Richer v. Ins. Co., 27 Minn. 198; Pence v. Makepeace, 65 Ind., 345.

OPINION

TERRAL, J.

The policy of life insurance issued by the Equitable Life Association of the United States upon the life of Charles D Williams, payable to his wife, Lula B. Williams, became, upon its delivery to the insured, a vested interest in the wife, and such interest was thereafter irrevocable by the assured except with the consent of the beneficiary. The express terms of the contract as written in the policy make the proceeds of it payable to the wife, and this gives her in law the absolute title to the policy, and she alone could sue upon it in a court of law; and there could be no remedy upon it in equity for any supposed interest of the insured or of his assignee, for no such interest could be...