Bendet v. Ellis
| Decision Date | 09 April 1908 |
| Parties | BENDET v. ELLIS et al. (four cases). SAME v. ILLINOIS MUT. LIFE INS. CO. et al. |
| Court | Tennessee Supreme Court |
Page 795
v.
ELLIS et al. (four cases).
SAME
v.
ILLINOIS MUT. LIFE INS. CO. et al.
Appeal from Chancery Court, Davidson County; John Allison, Chancellor.
Suits by Mrs. Ella Bendet, administratrix of Solomon Bendet, deceased, against I. B. Ellis and others, against Chas. P. Ellis and others, against Isaac B. Ellis and others, against Morris Ellis and others, and against the Illinois Mutual Life Insurance Company and others. From decrees dismissing the bills, complainant appeals. Reversed and remanded.
Brown & Akers and John R. Aust, for appellant. J. J. Vertrees, W. O. Vertrees, and J. M. Anderson, for appellees.
NEIL, J.
This case involves the ownership of a fund of $7,730.82 and interest thereon, in the hands of trustees, heretofore paid over to the defendants Ellis, in settlement of certain insurance policies. The fund is claimed by Mrs. Bendet, as administratrix of her deceased husband, Solomon Bendet.
Page 796
The defendants Ellis insist that the fund belongs to them. Pending the settlement of the controversy this money was paid over into the hands of the trustees referred to, to await the decision of the cause.
The facts on which the controversy turns are as follows:
On the 10th day of September, 1898, application was made, in the name of Solomon Bendet, to the Security Trust & Life Insurance Company, for insurance on the life of said Bendet, in the sum of $10,000. On this application three policies of insurance were issued, as follows: No. 8,838, for $6,000; No. 8,839, for $2,000; No. 8,840, for $2,000. On the 8th day of October, 1898, policy No. 8,838 was assigned to Charles P. Ellis, and No. 8,839 and No. 8,840 were assigned to I. B. Ellis.
On the 26th day of May, 1900, another application was made in the name of Solomon Bendet for an additional insurance on the life of said Bendet to the Kansas Mutual Life Insurance Company for the sum of $10,000. On this application four policies of insurance were issued June 25, 1900, as follows: No. 21,259, for $1,000; No. 21,260, for $2,000; No. 21,261, for $2,000; No. 21,262, for $5,000.
All these policies in the Kansas Mutual Life Insurance Company were reinsured by the Illinois Mutual Life Insurance Company.
On the 11th day of August, 1900, policy No. 21,259 was assigned to I. B. Ellis; on the 27th day of June, 1900, policy No. 21,262 was assigned to Morris Ellis; and on the 11th day of August, 1900, policies No. 21,260 and 21,261 were assigned to Charles P. Ellis.
Bendet, the insured, died in December, 1903, and in due time proofs of his death were furnished by the Ellises to the two companies in which his life was insured, as alleged in the various bills filed by the complainant.
Soon thereafter the original bills were filed — that is, on June 2, 1904 — asserting ownership of the policies in the estate of Bendet, and that the various Ellis defendants, who were made parties thereto, were entitled to retain only so much as might be owing to them by the estate of Bendet for any indebtedness incurred by him to them.
Amended bills were filed July 26, 1904, praying judgment against the insurance companies for the amount of the policies.
On December 15, 1904, the Ellis defendants answered, setting up the assignment of the policies to secure certain specified debts, and amounting in the aggregate to almost the face value of the policies, which they averred were just and owing, and admitting that complainant, as administratrix, was entitled to the residue of the proceeds.
The defendant insurance companies answered, December 13, 1904, admitting the issuance of the policies sued on and the payment of premiums, but denying liability thereon upon the grounds of misstatement as to age and condition of health; that the assignee had no insurable interest in the life of the deceased; and, therefore, that said policies were void as wagering contracts.
About the time that the original bills were filed in the chancery court, the Ellises, assignees of the various policies, brought suit on said policies in their own name against the defendant insurance policies in the circuit court of Davidson county. The style of these suits being as follows: "Charles P. Ellis v. Illinois Mutual Life Insurance Company;" "Charles P. Ellis v. Security Trust & Life Company;" "Morris W. Ellis v. Illinois Mutual Life Insurance Company;" "Isaac B. Ellis v. Illinois Mutual Life Insurance Company;" "Isaac B. Ellis v. Security Trust & Life Company."
As observed from what has already been said, the only controverted question between the complainant, upon the one side, and the Ellises, upon the other side, was as to the extent or amount of the indebtedness of Solomon Bendet to the defendants Ellis; it being the theory and contention both of the complainant and of the defendants Ellis, as the case was originally projected, that all of the various insurance policies were valid and subsisting obligations against the companies issuing them.
Upon the issues thus made up, much proof was taken, as a result of which it was established that, while all of these policies appear on their face to have been issued directly to Solomon Bendet, payable to his executors, administrators, or assigns, and were all of them thereafter assigned in due form to the Ellises, yet as a matter of fact said policies were applied for by Solomon Bendet in pursuance of an express agreement, entered into between him and the Ellises, to whom the policies were subsequently assigned, that when said policies were issued they should be assigned to the said Ellises, in consideration of which the Ellises agreed to pay all premiums on said policies during the lifetime of the said Bendet, and at Bendet's death to pay to his estate 10 per cent. of the amount that they (the Ellises) should realize on the same.
As the statement of the witness Vaughn is short and complete, we will quote it in full.
It was agreed by the parties that, if Frank Vaughn were called to testify, he would state in substance as follows:
"That, at the time the various policies sued on in the above-entitled causes were issued on the life of Solomon Bendet, he, the said Frank Vaughn, was the partner of J. M. Ragan; that the business of said partnership was that of general insurance agents, and as such they solicited and wrote the policies in suit; that he was present during certain of the negotiations between Ragan and Bendet and the Ellises for the issuance of all said policies; that it was agreed in advance of the issuance of said policies that, when issued
Page 797
upon the life of Solomon Bendet, they should be respectively assigned to Charles P. Ellis, Morris Ellis, and I. B. Ellis; that it was a part of said agreement that the said Ellises were to pay all the premiums to become due upon the policies assigned to them, respectively; that, in consideration of the taking out of these policies by the said Bendet and the assignment of them to the said Ellises, the said Ellises were to pay to Mrs. Bendet, or to the estate of Solomon Bendet, upon his death, 10 per cent. of the proceeds of said policies. It was further agreed between the said Bendet and the said Ellises that he would execute his promissory notes to them for certain sums of money. These notes did not represent any actual indebtedness to the said Ellises, and there was no further consideration for their execution, except to support and give color to the assignment of the policies to be made to the said Ellises by the said Bendet, as hereinbefore stated."
All the premiums were paid by the Ellises.
During the time that the evidence in this case was being taken by which the above facts were established, it seems that the matters...
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