La Borde v. Farmers State Bank
| Decision Date | 06 October 1927 |
| Docket Number | 25100 |
| Parties | E. J. LA BORDE, EXECUTOR, APPELLEE, v. FARMERS STATE BANK, APPELLEE: EMMA SUHL, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sarpy county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
Sears Horan & Shaw, for appellant.
E. S Nickerson and William R. Patrick, contra.
Heard before GOSS, C. J., DAY, GOOD, THOMPSON, and EBERLY, JJ., 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 made 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 Merchant's 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 allowed against 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 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 defendant 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 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.
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 bank, and that the cashier of defendant bank thereupon placed said money in a special fund in said bank and drew a check on said fund payable to the clerk of the court and delivered the same to him pursuant to the decree of the court. It is contended, under the facts stated, that payment by the bank amounted to a confession or recognition of the correctness or validity of the judgment by appellant, and that her objection to the payment of the money into court by her codefendant was only a pretext on which to base her appeal to this court, and that by such compliance with the decree there is nothing left upon which a judgment of reversal can operate. The defendant bank at no time claimed any interest in the money, the subject of litigation; it was simply the custodian of the fund and only a nominal defendant. The bank might well desire to pay the money into court and thus be relieved of any further liability. The appellant has shown no intention of abandoning her appeal, and we are satisfied that she did not intend that the payment of the money by the defendant bank into court should be regarded as a compliance on her part with the judgment of the court so as to deprive her of the right of appeal. So far as the record shows, the money has never been disbursed and is still in the district court subject to any disposition that this court may order made thereof. The only parties who have any interest in the money in question who can be affected by this appeal are the appellee and the appellant and their rights thereto can as well be determined with the money in court as it could be if the defendant bank was still the custodian thereof. We conclude that the payment of the money, the subject of litigation, into court by the defendant bank under the facts stated did not thereby deprive the appellant claiming such fund of the right of appeal from the decree adverse to her claim thereto. Sanford v. First Nat. Bank, 94 Iowa 680, 63 N.W. 459. The cases cited by appellee are not applicable to the facts herein. The motion is overruled.
The appellant assigns as error the finding of the trial court "that the change in beneficiaries in said three policies from the estate to the appellant is fraudulent as to creditors and should be set aside." It is the contention of counsel for appellant that the evidence establishes that the insured was indebted to appellant at the time of the transfer of said policies in about the sum of $ 20,800 for money loaned to him by her from her separate estate, and that she was entitled to have set off to her so much of the proceeds of said insurance as would pay the indebtedness due her and as would be exempt to her under section 7881, Comp. St. 1922.
In this connection it is claimed by counsel for appellee that...
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