Blinn v. Dame

• Decision Date: 02 January 1911
• Citation: 207 Mass. 159,93 N.E. 601
• Parties: BLINN et al. v. DAME et al. DAME et al. v. BLINN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 159

93 N.E. 601

BLINN et al. v. DAME et al.

DAME et al. v. BLINN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1911

COUNSEL

Warren, Garfield, Whiteside &amp Lamson, for assignees of Warren S. Dame.

Henry Wheeler, for Warren S. Dame.

Harry Le Baron Sampson, for Irving L. Dame.

Walter L. Van Kleeck, guardian ad litem of Mildred F. Dame.

Arthur H. Brooks, for Penn Mut. Life Ins. Co.

OPINION

SHELDON J.

This policy was issued by the insurance company to Warren S. Dame the contract of insurance was made entirely between him and the company; the general interest, ownership and right of property in the beneficial stipulations of the policy were vested in him; and before the enactment of St. 1894, c. 225 now contained in St. 1907, c. 576, § 73, any action to recover the amount of the policy must have been brought in his name or in that of his personal representative. Wright v. Vermont Life Ins. Co., 164 Mass. 302, 41 N.E. 303; Robinson v. Mutual Life Ins. Co., 170 Mass. 369, 373, 49 N.E. 645. See Brown v. Greenfield Life Association, 172 Mass. 498, 53 N.E. 129; Millard v Brayton, 177 Mass. 533, 59 N.E. 436, 52 L. R. A. 117, 83 Am. St. Rep. 294; Bailey v. Wood, 202 Mass. 562, 89 N.E. 149.

The policy was issued however after St. 1894, c. 522, had taken effect; and under the provisions of section 73 of that act, now included in the same section of the act of 1907 already cited, the limitations made in the policy of its proceeds for the benefit of the children of the insured, who are the plaintiffs in the second suit, are valid and must be enforced in their behalf. If an appointment or settlement has been made upon them by a stipulation in the policy that the amount thereof shall be paid to them, that establishes their right, and their right, once established and brought into being as a vested right, is not to be taken away from them, except as this result shall be found to have been contemplated and provided for by the terms of the appointment itself. We must ascertain therefore the true construction of this policy as to the disposition of the amount insured; that is, the construction, considering all the terms of the policy, of the promise contained therein. By that promise the company, reciting that it insures the life of Warren S. Dame, undertakes to pay the sum of $10,000 to him, 'the insured, his executors, administrators or assigns,' on the 10th day of July, 1918, or if 'he should die before that time then to make said payment to Irving F. Dame and Mildred L. Dame,' his children, 'if they survive the insured (with power to the insured to surrender the policy to the said company at any time), otherwise to the insured's executors, administrators or assigns.' The policy was assignable by the insured; and it contained a statement of what the expected surrender value, or the amount to be paid by the company to the insured or his assigns on his surrender of the policy, would be at the end of the successive years of the proposed insurance.

It thus appears that the elder Dame, the insured, had several valuable rights in the policy; and it is difficult to see why his assignment of the policy would not carry with it all his valuable rights, unless we find some restriction in the language of the policy.

1. If he lived until July 10, 1918, he would be entitled to receive the sum of $10,000.

2. If he died before that time, that sum would be payable to his personal representatives and would go to increase the amount of his estate unless his children survived him.

3. At any time during the term of the proposed insurance he could surrender the policy and receive for his own benefit the amount of the then existing surrender value.

The right of his children was to receive the amount of the policy if he did not live until the appointed time and if they survived him and he had not in his lifetime surrendered the policy. If this right is regarded as contingent, it would not come into existence at all if the father should at any earlier time exercise his absolute right to surrender the policy; if their right was a vested one, it would be completely divested by their father's exercise of his right. Their right, in the opinion of the majority of the court, was strictly subordinate to the prior and superior right of their father. It was so made by the very language which created it. Either it was not to arise at all if the paramount right of their father should be exercised, or it would be completely divested by the exercise of his paramount right to surrender the policy. Whether their interest was vested or contingent, they could have no part of the proceeds of the policy if their father lived until its maturity, or if they did not survive him, or if he had at any earlier time surrendered the policy. Unless these three contingencies concurred in their favor, either their right never would vest, or it would be completely divested and cut off by the very terms of the conditional limitations in their favor. We do not deem it material to determine whether their right was vested or contingent; for, as we have seen, the result would be the same in either event. There is no question here of the attempted revocation of a trust. Such cases as Stone v. Hackett, 12 Gray, 227, and Kelley v. Snow, 185 Mass. 288, 70 N.E. 89, and those cases in which an absolute interest was given to beneficiaries of life insurance policies, have no bearing. We are to construe the language of the policy and to determine what rights it gives to the children. The statute which has been referred to protects these rights when ascertained, but it has no operation to increase or extend them.

Under this state of affairs, the elder Dame made his assignment to the predecessors of the plaintiffs in the first action hereinafter called the plaintiffs. The language of that instrument is broad and sweeping. It passes all his 'estate, property and effects, real, personal and mixed, of whatever name and nature, legal and equitable; * * * also all claims, debts, choses in action owing to him, whether now or hereafter payable, and all evidences thereof; also any and all other property, real or personal, of or belonging to him, of whatever description and wheresoever the same may be; * * * except such property as is exempt from being taken on execution by law.' This exception does not cover property...