Box v. Lanier

• Citation: 79 S.W. 1042,112 Tenn. 393
• Parties: BOX v. LANIER.
• Decision Date: 19 March 1904
• Court: Supreme Court of Tennessee

79 S.W. 1042

112 Tenn. 393

BOX v. LANIER.

Supreme Court of Tennessee.

March 19, 1904

Appeal from Chancery Court, Humphreys County; J. W. Stout Chancellor.

Suit by T. L. Lanier, administrator of Bettie W. Justice, deceased against M. O. Box, administrator of A. E. Justice, deceased. From a decree of the Court of Chancery Appeals in favor of complainant, defendant appeals. Affirmed, and petition for rehearing dismissed.

H. C Carter and B. R. Thomas, for appellant.

J. F Shannon, J. E. Tubb, and Jno. B. Bowman, for appellee.

BEARD C.J.

This is a contest between complainant, as administrator of Mrs. Bettie W. Justice, deceased, and the defendant, who is administrator of her late husband, A. E. Justice, over the proceeds of an insurance policy upon the life of the husband. These proceeds were paid over to the defendant administrator upon an agreement between him and the complainant that this was to be without prejudice to the rights of the latter, and that they were to be held by him to await the determination of this suit.

The facts out of which this controversy grows are that on the 8th of February, 1900 --about two years after the marriage of the two deceased parties--the husband obtained an insurance policy on his life in the sum of $10,000, which was made "payable to the wife of the assured should she survive; otherwise to his executors, administrators, or assigns." Immediately after its issuance the husband delivered the policy to his wife, with the statement that it was her policy, and that she must pay the premiums accruing on it. This was done by her, so that out of her own estate all of the premiums were paid by her, and the policy from the time it was so delivered to her until her death was in her possession and under her exclusive control.

The Court of Chancery Appeals finds that the assured took out this policy for the benefit of his wife in view of her means received and used by him, and "with the intention that she should keep it alive, *** and that it should belong to her." As confirmatory of the purpose of the husband, both with regard to the issuance and delivery of the policy to the wife, that court finds that the husband on different occasions and to different parties said that it belonged to his wife, and that these declarations, "coupled with the delivery to and the payment of all premiums by her at his request, clearly indicated an assignment by him of the policy to her; so as, under our authorities, to constitute it thereafter her separate estate."

Subsequently to these transactions, to wit, in May, 1902, so obnoxious had the husband, by reason of his conduct, become to his wife, she filed in the chancery court of Humphreys county, in this state, a bill for divorce, alleging as ground therefor cruel and inhuman treatment, drunkenness, and unfaithfulness to his marriage vows. It was also averred by her that he had squandered large sums of money belonging to her estate in immoral dissipation, and an injunction was prayed restraining him from disposing of certain property of which he had then possession, and also from coming to her home, or in any way interfering with her.

This bill was filed during the temporary absence of the husband from the town of Waverly, where the parties resided. On his return, and after the service of process, he made ineffectual efforts at a reconciliation with his wife. Disappointed in these efforts, on the 19th of May, 1902, having armed himself with a pistol, he entered a place of concealment near the home of his wife, where he remained until he saw her come out, when, rushing upon her, he shot her to death, and then turning the pistol upon himself, he inflicted a mortal wound, from the effect of which he died some four hours later.

Upon this state of facts the present controversy arises. The complainant, for the estate of Mrs. Justice, insists that the policy in question was a right existing in his intestate at the time of her death, and that while, under ordinary or normal conditions, it would have vested in her husband surviving jure mariti, yet, inasmuch as this survivorship was brought about by his felonious act, his estate will not be permitted to make profit out of it, but the policy or its proceeds will be preserved to the representative of her estate for the benefit of her children, who are her distributees.

On the other hand, it is contended by the defendant that the representative of the husband had, by the words of the policy, a fixed right in the same, defeasible only upon the wife surviving, and, if this is not so, then the husband's right accrued to him jure mariti, and that this right should not be forfeited by the murder of his wife.

Before considering these respective contentions, it is proper to arrive at a true interpretation of the policy with the view of ascertaining the respective rights of these parties at the time of the commission of the felony in question. As has already been stated, the policy was upon the life of the husband, payable to the wife upon condition that she outlived him; in other words, the title to the proceeds of the policy, if kept alive by the payment of the premiums, would have been the property of the wife in the event she outlived her husband. This right was defeasible alone upon her dying first. It was only upon the happening of this contingency that either he or his assigns or representatives would be entitled to those proceeds. It is insisted, however, that no interest by the terms of the policy accrued to the husband, but that his administrators or executors, as a special class, were to take in the event the contingency happened in the interest of his estate, but independent of him. This contention, we think, is unsound.

Mr. Biddle, in volume 1, § 287, of his work on Insurance, says: "Usually a policy taken by the insured payable to the insured's heirs, administrators, and assigns goes to the estate of the insured, and, of course, may be assigned by him in his lifetime." In support of this context the author cites the following cases which more or less go to sustain it: Rawson v. Jones, 52 Ga. 458; Swift v. Rwy. Passenger, etc., Ass'n, 96 Ill. 309; Pilcher v. N.Y. Life Ins. Co., 33 La. Ann. 322; New York Life Ins. Co. v. Flack, 3 Md. 341, 56 Am. Dec. 742; Winchester v. Stebbins, 16 Gray (Mass.) 52; Wason v. Colburn, 99 Mass. 342; Conn. Mut. Life Ins. Co. v. Ryan, 8 Mo. App. 535; Edington v. Ætna Life Ins. Co., 13 Hun, 543; Williams v. Corson, 2 Tenn. Ch. 269.

In Mutual Life Insurance Company v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 29 L.Ed. 997, it seems that an endowment policy was issued upon the life of one Armstrong, in which it was agreed that the company should pay to the assured or his assigns, on the 8th of December, 1897, or, if he should die before that time, to his legal representatives, the amount of the policy. It was issued at the instance of one Hunter, who paid the premium upon it, and took an assignment thereof from the assured. Soon after its issuance, Armstrong was murdered. Suspicion falling upon the assignee, Hunter, as the perpetrator of the murder, he was indicted and convicted. Subsequently he was hung. The administratrix of Armstrong instituted suit upon the policy. Upon the trial of the case, upon the assumption that the insurance money was payable, in case that death occurred before the expiration of the endowment term, to the legal representatives of the assured, and that the policy was not assignable by him, certain evidence was rejected by the court, and its action in that respect was assigned as error in the Supreme Court of the United States. With regard to this that court said: "The ruling cannot be upheld. The position that the assignment did not take effect because the assured died before the expiration of the policy is untenable. The provision for payment in such case to his legal representatives was intended to meet the contingency of his dying without having disposed of his interest, and not to limit his power over the contract during his life, and pass the insurance to those who should represent him after his death."

We think, upon the authorities, there can be no doubt of the absolute control of the assured over this policy to the extent, at least, of the contingent interest which he had in it, and that an assignment made by him, or a disposition of it by his will, would convey to his assignee or to his legatee whatever interest might accrue to him from this policy; and we are further satisfied that his assignment by parol of the policy to his wife divested him of all contingent interest in it, and vested this interest, in addition to that she already had by its terms, in his wife, and that upon her death leaving him surviving he would take, not under the terms of the policy, but by virtue of his right as surviving husband.

That a parol assignment accompanied by delivery of the policy to the wife was sufficient to vest her with the sole interest in this policy is settled by the authorities. In Chapman v. McIlwrath, 77 Mo. 38, 46 Am. Rep. 1, it appears that the policy was made payable to the assured, his executors or his assigns. After his marriage he said to his wife that it was taken out for her benefit, and he delivered it to her, saying that it was his purpose to vest her with the title, to her sole and separate use. After this delivery it was kept by the wife in her possession until her husband's death. In a contest between the creditors of the husband and the widow it was held that this was a good assignment.

Mr Phillips, in volume 1 of his work on Insurance (4th Ed.) § 880, says: "Policies are usually assigned in writing, but a mere verbal assignment and delivery of the policy gives to the assignee an equitable right to the proceeds where the policy...