Barry's Estate, In re
| Decision Date | 02 December 1952 |
| Docket Number | No. 35154,35154 |
| Citation | 252 P.2d 437,208 Okla. 8 |
| Parties | , 35 A.L.R.2d 1052 In re BARRY'S ESTATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. An 'insurance policy' is a contract whereby the insurer in return for a stated consideration agrees on the happening of a specified event to pay the insured a fixed or ascertainable sum of money.
2. Where testatrix by her will makes a bequest of specific personal property and the property is damaged prior to her death the legatee will take the property bequeathed in the condition in which it existed at the time of the death of testatrix.
3. The proceeds of an insurance policy insuring against damage to certain specifically bequeathed personal property which property was damaged prior to testatrix' death are payable to testatrix' personal representative rather than the individual to whom the property was bequeathed.
W. E. Green, J. C. Farmer, Robert J. Woolsey, Ohio Flippo and J. B. Bailey, Tulsa, for plaintiff in error.
Thurman S. Hurst and Edwin S. Hurst, Tulsa, for defendant in error.
O'NEAL, Justice.
In this case it appears that Mary Louise Barry prior to her death was the owner of a Chrysler automobile. She had executed a will bequeathing the automobile to Sadye Risley. On the evening of June 3, 1948, testatrix, while driving the automobile on the highway, lost control thereof, which caused it to overturn causing considerable damage to the automobile and severe injuries to her person, and as a result thereof she died about eight hours thereafter. Some time prior to her death she obtained an accident insurance policy indemnifying her for personal injury damage and damage to the car resulting from accident. The policy covered among other things damage caused by upset.
The policy contained certain options among which was the option of the insurance company to settle any damage that might be caused to the automobile by either repairing the same or taking possession of the automobile and paying to insured the appraised or agreed value thereof at the time of the accident. Insurer exercised the option to take possession of the automobile and to pay the value at the time of the accident which the record shows was the sum of $2,600. The insurer thereafter sold the automobile for the sum of $350 which the parties agreed was the reasonable salvage value thereof. The policy was in full force and effect at the time of the death of testatrix.
It is stipulated by the parties that the facts above detailed are the facts in the case. No other evidence was introduced except documentary evidence. It appears from this evidence that the legatee to whom the automobile was bequeathed is a stranger to the inheritance and that specific bequests and devises were made to others. The will does not appear in the record, and it cannot therefore be ascertained from the record whether the will contains a residuary clause. Counsel however seem to concede in the briefs that it does contain such clause.
It is also stipulated that after the death of testatrix, William Green was appointed executor of her estate. He proceeded to administer upon the estate and when it was ready for distribution Sadye Risley, legatee herein, filed an application in the county court requesting that the insurance money received by the executor under the terms of the insurance policy in the sum of $2,600 be distributed to her in lieu of the automobile. The county court denied the contention of the legatee and held that she was only entitled to have distributed to her the automobile in its damaged condition, and that the executor had converted the automobile to the use and benefit of the estate; that the then value of the car was $350 and ordered that in lieu of the automobile there be distributed to her the sum of $350.
The legatee appealed to the district court. The district court reversed the judgment of the county court and entered judgment ordering the executor to distribute to the legatee in lieu of the automobile the amount of insurance received for the damage thereto or the sum of $2,600.
The executor appeals to this court and relies for reversal on the ground that the judgment is contrary to the stipulated facts and contrary to law. It is argued by the executor that the insurance policy constituted a contract between the insurance company and the insured; that the policy indemnified insured against damage to the automobile caused by accident; that such contractual right consisted of no more than a chose in action belonging to deceased at the time of her death, 60 O.S.1951 § 312; that the proceeds derived...
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State Ins. Fund v. GREAT PLAINS CARE CENTER, 96,024.
...consideration agrees on the happening of a specified event to pay the insured a fixed or ascertainable sum of money." In re Barry's Estate, 1952 OK 439, 252 P.2d 437, 438, (syllabus by the Court). See also Young v. Stephenson, 1921 OK 164, 200 P. 225, 227. An authority explains that after p......
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