Barrett v. Barrett
| Decision Date | 17 September 1931 |
| Docket Number | 8045. |
| Citation | 160 S.E. 399,173 Ga. 375 |
| Parties | BARRETT et al. v. BARRETT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Insured's written request and agreement for change of beneficiary executed on forms and transmitted to company effected change of beneficiary; insured's failure strictly to comply with policies by sending in policies themselves with application for change of beneficiary held excusable in view of insured's illness.
Under the allegations in the petition, the insured did substantially all that was required of him under the terms of his policies of insurance to effect the change of beneficiary and to assign the beneficial interest in the proceeds of the policies, as shown by his written requests and agreements executed on the forms prepared by the insurance company and transmitted to them. His failure to comply strictly, and to the letter, with the written requirements as to a change of beneficiary were sufficiently explained and excused. Under the facts pleaded, substantial compliance was sufficient; and under this ruling, the court did not err in overruling the general demurrer to the intervention of the defendant in error.
Error in failing to sustain special demurrer to paragraph of petition does not warrant reversal where not affecting controlling ruling.
While the special demurrer to one paragraph of the petition should have been sustained, it was not of sufficient materiality to cause a reversal of the judgment of the court below, as even if that paragraph had been stricken, it would not have affected the controlling ruling in the case.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Interpleader suit by the Missouri State Life Insurance Company against Sadie C. Barrett, Bertha M. Barrett, and others. There was a decree for the defendant last named, and the first-named defendant and others bring error.
Affirmed.
Insured's written request and agreement for change of beneficiary executed on forms and transmitted to company effected change of beneficiary.
In this case the Missouri State Life Insurance Company filed in the superior court of Richmond county its equitable petition for interpleader against Sadie C. Barrett as guardian, and others, plaintiffs in error, and against Bertha M. Barrett defendant in error. The company's petition admitted indebtedness on two insurance policies, but alleged that conflicting claims had been presented for the proceeds of the two policies. On April 29, 1930, Judge Franklin granted an order or decree of interpleader providing substantially as follows: That the Missouri State Life Insurance Company at all times has been ready and willing to pay the proceeds of the policies to whomsoever is entitled to receive the same but conflicting claims have been filed, and the company is in doubt as to whom it should make payments; that the company is not in collusion with either party, but stands ready to pay the funds into court or according to the direction of the court; that the prayers of the petition are granted, and the adverse claimants must interplead, making their respective claims to the funds in controversy; that whenever the funds in controversy have been paid to the party or parties entitled thereto under final judgment, the insurance company shall be discharged from further liability, and the policies shall be canceled and surrendered; that injunction against any proceedings by either party, except by interpleader, is made permanent; and that "judgment will hereafter be rendered in favor of that claimant who according to the facts above developed herein shall be entitled to prevail by the laws of this State."
Pursuant to the decree of interpleader Mrs. Bertha M. Barrett has filed her petition alleging in detail the facts upon which she relied to establish her claim as the equitable beneficiary and assignee of the policies in question. To this petition Mrs. Sadie C. Barrett as guardian filed general and special demurrers.
The petition of Mrs. Bertha M. Barrett is substantially as follows: That she is the widow of Thomas Barrett, and is the mother of Frank H. Barrett, who died in Augusta on April 2 1929; that in 1923, at the request of Frank H. Barrett, petitioner became guarantor on a note for $50,000, given by Barrett & Company to the Bank of Charleston, indorsed by her son Frank H. Barrett, president of the company, and said note was secured by petitioner's individual collateral to the extent of $70,000; that Barrett & Company was adjudicated bankrupt, and the note was not paid by the company as maker, or by its president, Frank H. Barrett, as indorser, but was paid in full out of the proceeds of the collateral of the petitioner, Bertha M. Barrett, who is now the holder and the owner of the note. The two policies of insurance in the Missouri State Life Insurance Company, for $60,000, were taken out by the insured, Frank H. Barrett, on his own life, and he paid all of the premiums thereon, and reserved the right, from time to time during the continuance of the policies, to change the beneficiary thereunder. The precise method of changing the beneficiary was set forth in the policies as follows: The $40,000 policy originally named Anne C. Barrett and William K. Barrett, children of the insured, as beneficiaries, and this designation remained effective until the insured determined to make a change so that the income should be paid to his mother, Bertha M. Barrett, for life, and so that after her death the principal should be payable to said children in monthly installments on the company's deferred-settlement plan. The beneficiaries originally designated in the $20,000 policy were the executors of the insured, but subsequently the children of the insured were named as beneficiaries, at which time the original policy was lost, and a duplicate was issued by the company, and this designation remained effective until the insured determined to make the income from $10,000 of the face amount of the policy payable to his mother for life, and after her death to make the principal sum payable to the children of the insured on the deferred-settlement plan. Thus the change of beneficiary related to a total of $50,000 of the two policies, but as to the remaining $10,000 the beneficiary remained unchanged, and said sum of $10,000 has been paid over to Sadie C. Barrett, as guardian for Anne C. Barrett and William K. Barrett.
The petition further alleges that Frank H. Barrett, then residing in New York, made a visit home in November, 1928, and upon returning to Augusta found his father in his last illness, and the resources of his father and mother depleted by expenses of illness and their losses in Barrett & Company; and he determined to repay his obligation to his mother and make a provision for her support during her lifetime. He approached his friend and adviser, James M. Hull, Jr., and requested him to effect the necessary changes in his life insurance policies, so that the income from $50,000 might be payable to his mother for her lifetime, and that the entire principal sum should be paid to his children after her death, on the company's deferred-settlement plan in monthly installments; that the company prepared the formal requests for change of beneficiary accordingly on its printed forms used for that purpose, together with form of affidavit which the insured was required to sign, and forwarded these documents through its general agent, H. C. Lorick, to Mr. Hull for transmission to Frank H. Barrett, who executed the affidavits and signed the formal requests and returned them to the company through the same channels in which they were received. In answer to Mr. Hull's request for the policies themselves, the insured replied by letter to Mr. Hull, on December 31, 1928: "I am still in bed and can not get into my box for the two policies reassigned to mother until I can get down town." Frank H. Barrett did not recover from his illness, but returned to Augusta in January, 1929, and, being estranged and living separate and apart from his wife, Sadie C. Barrett, occupied rooms near, and later within, the apartment occupied by his father and mother. In February, 1929, the company, through its agent, H. C. Lorick, asked for the policies, and was advised of Mr. Frank H. Barrett's illness; whereupon the agent, Lorick, reported to his company: "It will be impossible to get these policies until Mr. Barrett returns to New York; and we can not say when that will be, but shall get them to you as soon as possible." At the time the inquiry was made the insured was advised by James M. Hull, Jr., who was known to be division counsel for the Missouri State Life Insurance Company, that the stipulation for indorsing the changes on the policies themselves was primarily for the protection of the company, and could and probably would be waived by the company in view of the illness of the insured and the inaccessibility of the policies at that time.
The petition further alleges that the insurance company received without objection, the explanations offered, acquiesced in the situation, and made no further request that the...
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