La Borde v. Farmers' State Bank of Millard
| Decision Date | 06 October 1927 |
| Docket Number | No. 25100.,25100. |
| Citation | 116 Neb. 33,215 N.W. 559 |
| Parties | LA BORDE v. FARMERS' STATE BANK OF MILLARD ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Under the facts stated in the opinion, the payment of the money, the subject of litigation, into court by the codefendant of appellant did not thereby deprive the appellant claiming such fund of the right of appeal from the decree adverse to her claim thereto.
Where a policy of life insurance provides the manner in which a change of beneficiary can be made and the insured has done all that is required of him thereunder to effect such change and dies before his written change thereof reaches the insurer, but before the policy became payable, the question whether such change is effective ordinarily depends upon the precise wording of the contract, whether the acts of the insurer required in relation thereto are essential parts of the contract or mere ministerial or formal details. Held, that under the provisions of the policies set out in the opinion the acts to be done on the part of the insurer in relation to changing the beneficiary were merely ministerial or formal details, and not essential parts of such contracts.
Where an insured, while insolvent and in contemplation of death, changes the beneficiariesnamed in certain policies of life insurance from his estate to his wife and dies two days after making such change, and the effect thereof was to hinder and delay his creditors in the collection of their debts, such transaction is presumptively fraudulent, and in a suit brought by the executor of the estate of the insured, on behalf of creditors thereof, to have such transaction declared fraudulent and to recover the proceeds thereof, the burden of proof is upon the wife to establish the bona fides of the transaction.
Where a person obtains credit on the faith that he is carrying policies of life insurance on his life payable at his death to his estate, and two days before his death, and in contemplation thereof and while insolvent, changes the beneficiary therein from his estate to his wife without any consideration therefor, same will be held fraudulent as to his creditors, and his wife will not be permitted to claim any part of the proceeds as exempt to her from the claims of his creditors, under section 7881, Comp. St. 1922.
Under section 1329, Comp. St. 1922, an executor is given the authority to commence and maintain an action in equity on behalf of the creditors of his testate to recover the proceeds of insurance on the life of his testate, transferred in fraud of the creditors of such testate.
“A party invoking the provisions of a statute is not in a position to raise the question as to its constitutionality.” Ross v. Lipscomb, 83 S. C. 136, 65 S. E. 451, 137 Am. St. Rep. 794.
Evidence examined, and held sufficient to support the findings and decree of the trial court.
Appeal from District Court, Sarpy County; Begley, Judge.
Suit by E. J. La Borde, executor of the last will and testament of Fred H. C. Suhl, deceased, against the Farmers' State Bank of Millard, Emma Suhl, and others. From a decree for plaintiff, defendant Emma Suhl appeals. Affirmed.
Sears, Horan & Shaw, of Omaha, for appellant.
E. S. Nickerson, of Papillion, and Wm. R. Patrick, of Omaha, for appellee La Borde.
Sears, Horan & Shaw, of Omaha, for appellee Farmers' State Bank.
Heard before GOSS, C. J., DAY, GOOD, THOMPSON, and EBERLY, JJ., and ELDRED and HASTINGS, District Judges.
This action was brought by the executor of the last will and testament of Fred H. C. Suhl, in behalf of the creditors of his testate, against Emma Suhl, the Farmers' State Bank of Millard, Nebraska, et al., to have the change in beneficiary in three certain life insurance policies for $10,000 each from his estate to the appellant Emma Suhl decreed fraudulent as to his creditors, and to have the same canceled and set aside and said defendants enjoined from transferring and disposing of the proceeds thereof and to impound and recover the part of said funds to which said estate was entitled. Plaintiff's cause of action is predicated upon the following undisputed facts:
On the 26th day of November, 1924, Fred H. C. Suhl was carrying life insurance on his own life in the Northwestern Mutual Life Insurance Company in the amount of $50,000. One policy for $20,000 was payable to Emma Suhl, his wife, and three policies, each in the sum of $10,000, were payable to his estate. On said date, in contemplation of death, the insured, in a writing signed by him, on a blank furnished by the insurance company, changed the beneficiary in the three $10,000 policies from his estate to his wife and delivered the same to an agent of the company to be transmitted by such agent to the home office of the insurance company in Milwaukee, Wisconsin. The policies were then in the possession of the insurance company at their home office. He died insolvent two days later and his written change of beneficiaries was not received by the company at their home office until a few hours after his death. The insurance company made an indorsement upon said policies in conformity with the change of beneficiary as made by him. The money due on the four policies, after deducting the loans, thereon, amounting to $46,461.97, was paid to his wife on December 4, 1924, by the insurance company. Upon receipt of the insurance money, appellant deposited same in the defendant bank and said bank issued to her, against said deposit, its cashier's check for $20,000 and a draft for the sum of $10,000 drawn on the Merchants' National Bank of Omaha. The actual funds remained in the defendant bank and were there at the time of the commencement of this action and at the time the decree was entered. At the time the beneficiary was changed, the debts of the insured approximated $90,000, more than $50,000 of which were unsecured. At the time this action was commenced claims had been allowedagainst the estate for the amount of said indebtedness. The assets of the estate other than the proceeds of the insurance are sufficient only to pay a small part thereof. A part of the insured's indebtedness was incurred by the insured upon the representation that he carried the three policies of insurance payable to his estate.
The dates, amounts and annual premiums of said life insurance policies carried by Fred H. C. Suhl at the time of his death are as follows:
One dated April 15, 1918, for $10,000 with an annual premium of $246.36.
One dated April 23, 1918, for $10,000 with an annual premium of $246.30.
One dated March 20, 1919, for $10,000 with an annual premium of $253.40.
One dated October 23, 1919, for $20,000 with an annual premium of $521.80.
The appellant in her answer alleged that she had a separate estate which she received by inheritance from her father, and that in good faith she loaned her husband money derived therefrom, and that shortly before his death, in payment of and to secure payment of said indebtedness, he duly assigned said policies of insurance to defendant, and that defendant accepted the same in good faith and in payment of and as security for payment of said indebtedness. She further alleged that the amount of insurance she had received was less than the amount owing from said deceased and the amount exempt to her under and by virtue of section 7881, Comp. St. 1922. She prayed that the action of plaintiff be dismissed, that so much of said insurance as was purchasable by annual payments of $500 should be decreed to be held exempt from the claims of the creditors of insured, and that the policies be decreed to have been received in satisfaction of and as security of the indebtedness of the deceased to the defendant.
The reply was a general denial.
The trial court found that the change in beneficiaries in the three $10,000 policies was fraudulent as to the creditors of the insured, and that the transfer of such insurance should be canceled and set aside. The court further found that there was exempt to the defendant Emma Suhl, as the beneficiary named in the $20,000 policy, a sum equal to a policy on which the annual premium did not exceed $500, and that the proceeds of all insurance over and above that amount inured to the creditors of Fred H. C. Suhl. The court ordered that the defendants Emma Suhl and the Farmers' State Bank, out of the funds held by them, forthwith pay to the clerk of the court the sum of $27,803.53 to the account of the plaintiff for the benefit of the estate of Fred H. C. Suhl for use in payment of claims and debts against said estate and the administration expenses thereof, with 7 per cent. interest from the date of said decree, and enjoined said defendants from transferring or in any manner disposing of said amount except as ordered.
The defendant Emma Suhl prosecutes appeal from said decree.
[1] Prior to the submission of this case appellee filed a motion to dismiss the appeal of the appellant Emma Suhl. The motion was submitted with the case. The record shows that, after the rendition of the judgment and before an appeal was taken, the defendant bank paid into the district court the sum of $28,029.58 in accordance with the decree, and at that time the defendant Emma Suhl appeared and objected and reserved an exception to said payment by her codefendant. The principal ground of the motion and the only one that merits consideration is that, by the payment of the sum of $28,029.58 into the district court in compliance with said decree, no real issue is presented here for determination. Counsel for appellee filed their affidavit in support of the motion. It appears from the affidavit that the appellant indorsed a cashier's check issued to her on the defendant bank in the sum of $20,000 and a draft on the Merchants' National Bank of Omaha issued by the defendant bank to her for the sum of $10,000, same being part of the proceeds derived from the insurance, and delivered same to the defendant...
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