Brown v. Powell

• Decision Date: 02 January 1923
• Docket Number: 22913
• Citation: 130 Miss. 496,94 So. 457
• Court: Mississippi Supreme Court
• Parties: BROWN v. POWELL

94 So. 457

130 Miss. 496

BROWN v. POWELL

No. 22913

Supreme Court of Mississippi

January 2, 1923

1 INSURANCE. Insured must state, in notice of change of beneficiary, reservation of right of revocation to again exercise right.

Where the name of the beneficiary in a life insurance policy is followed by the words "with right of revocation," and the policy provides that, "When the right of revocation has been reserved... the insured... may designate a new beneficiary, with or without reserving right of revocation, by filing written notice thereof at the home office of the company accompanied by the policy for suitable indorsement thereon," the insured, when designating a new beneficiary, must state in the notice thereof filed with the insurance company that he reserves the right of revocation if he desires to again exercise such a right.

2 INSURANCE. Meaning must be determined from terms of unambiguous insurance policy, irrespective of construction by parties.

Where the language of an insurance policy is plain and unambiguous its meaning must be determined therefrom without reference to any construction which may seem to have been placed upon it by the parties thereto as evidenced by acts thereunder.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Bolivar county, HON. G. E. WILLIAMS, Chancellor.

Suit by Edgar Brown, executor, against Frances Lax Powell. From a decree of dismissal, plaintiff appeals. Affirmed.

Affirmed.

Shands, Elmore & Causey, for appellant.

Appellee concedes in her brief, that Ben Powell, the insured, had the right, under the policy, to change the beneficiary from his estate to Willie V. Powell. This was the first change of beneficiary made in the policy; but appellee contends through her counsel that the insured exercised this right, and made this first change of beneficiary. The insured was thereafter powerless as long as Willie V. Powell lived to again change the beneficiary without the consent of Willie V. Powell. It is further conceded by appellee, that when Willie V. Powell, the appellee therein, took a vested interest in the policy, her consent was necessary to divest her of this right. It is argued that all subsequent changes thereafter made of the beneficiary, were null and void and do not divest appellee of her right to the proceeds.

It being conceded that the insured had the right to make the first change of beneficiary, then we ask, where did the insured get such right? There is only one answer, and it is, because the insured is given the right to make such changes by the provision written in the very face of the policy.

That provision giving the insured the right to revoke the beneficiary is now in the policy, and has remained there, from the time the policy was first issued. Where each change of beneficiary was made the rights existing in the old beneficiary, and no more, were transferred to the new beneficiary. We see this in each instrument attached to the policy, changing the beneficiaries. If the insured had seen fit to deny himself of the right to change any beneficiary, he could have certainly said so, but he, and all beneficiaries named in the policy, have permitted the terms in the face of the policy to remain unchanged, and each beneficiary has accepted the designation "with right to revocation" written in the face of the policy. Counsel for appellee argues that because the insured did not say, in each instrument changing the beneficiary, that he reserved the right to change the beneficiary, that it must be inferred that the insured did not retain such right. The answer to such argument is that the insured had the right to change the beneficiary written in the face of the policy and such right by that provision was never changed, altered or stricken from the policy, by any act or deed of the insured. If the insured had the right to make the first change of beneficiary, and such is conceded, he had the right to make any subsequent change. This is the only conclusion that can be reached when the language of the parties as expressed in the policy is given its ordinary meaning, and the provisions of the policy are construed together.

No denial is made in appellee's brief of our proposition, that if the insured had a right to displace the appellee as beneficiary, such change will be deemed by the court to have been made by unequivocal acts of the insured, when he made demand of her for the policy, and upon her refusal to surrender the policy, this suit was filed to perfect the change. Counsel for the appellee does not insist that proof exists in the record showing the mental incapacity of the insured or that undue influence was used on him, to cause him to make the last change of beneficiary. In fact, no undue influence is shown, nor is mental incapacity shown to exist, at the time the insured named the appellant the beneficiary in the policy.

The only question to be decided by this court, is whether or not the appellee took a vested interest in the policy, when she was named beneficiary therein, and a decision of that proposition will determine the rights of all parties to this litigation. We insist that a decision of that proposition for us or against us, will cause, in any event, a decree to be entered, in this court, and we respectfully insist that such decree should be entered in favor of the appellant.

Sillers, Clark & Sillers, for appellee.

Did Ben Powell, having taken out a policy payable to his estate, reserving the right unto himself to change the beneficiary and having exercised that right and designated appellee in strict accordance with the terms of the policy as the beneficiary thereunder, without reserving in such designation the right to revoke it, have a right to divest appellee of her vested interest in this policy?

The chancellor held: "That the said Frances Lax Powell having been named as beneficiary in the said policy of insurance by the deceased, Ben Powell, and the said change having been regularly and legally made and noted on the policy by the company, became and was vested with a right to the proceeds of the said policy; and that the said Ben Powell, not having reserved the right to change the beneficiary so designated by him in accordance with the terms of the policy, had no right thereafter to change the beneficiary or to assign or dispose of the proceeds of the said policy unless by the consent of the said Frances Powell, the beneficiary named therein, either by changing the beneficiary or attempting to change it, by will or otherwise, and the court further finds that the said Frances Lax Powell is entitled to the proceeds of the said policy and that the said executor and trustee, Edgar Brown, is entitled to the proceeds of the said policy and that no other person than Frances Lax Powell has any interest whatever in the proceeds of said policy."

There being no testimony in the case proving or tending to prove that the appellee consented to the change in beneficiary whereby Bernice Powell was sought to be given a one-half interest in the policy, we respectfully submit that this decision of the chancellor was absolutely correct and in accordance with the weight of authority in this and other states.

The argument set up by learned counsel for the appellant in their brief, that because in the form of the policy the printed form reads: "with . . . right of revocation" that it was clearly the intention of the parties that whenever a beneficiary...