Carter v. First Nat. Bank

• Decision Date: 22 December 1938
• Docket Number: 4 Div. 58.
• Citation: 185 So. 361,237 Ala. 47
• Parties: CARTER v. FIRST NAT. BANK OF OPP ET AL.
• Court: Alabama Supreme Court

185 So. 361

237 Ala. 47

CARTER v. FIRST NAT. BANK OF OPP ET AL.

4 Div. 58.

Supreme Court of Alabama

December 22, 1938

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Bill of interpleader by the Commonwealth Life Insurance Company against Lovie Carter, the First National Bank of Opp, as guardian of Lorenzo Gardner, a minor, and others. From a decree for equal division of the fund involved between the ward and respondent Carter, the latter appeals.

Affirmed.

E. O Baldwin, of Andalusia, for appellant.

Simmons & Simmons, of Opp, for appellees.

FOSTER Justice.

T. T Gardner executed his will August 25, 1927, in which it is provided: "Paragraph 4. I have applied for $2,000 in insurance with my daughter as beneficiary, and it is my will that she receive the proceeds thereof in lieu of any other bequest by me."

This daughter is appellant here, and was then the testator's only child. The policy of insurance was dated August 3, 1927 and in it appellant was named as sole beneficiary. Another child was born to testator, but he made no change in his will, which in no way provided for such a contingency. The policy of insurance contained a clause as follows: "The insured may at any time change the beneficiary or beneficiaries, by filing with the company a written request accompanied by this policy, such change to take effect when endorsed by the company."

The testator and insured made a request on September 25, 1931, that the beneficiary be changed so that it would be both appellant and his after born son, Lorenzo Gardner, who is appellee and represented by his guardian. The change as requested was endorsed on the policy as of the date of September 30, 1931. No further change of beneficiary was made, nor requested, and no change in the will was made, as we have said, and the testator and insured died April 2, 1937, and his said will was duly probated on April 26, 1937.

The controversy here is between appellant, claiming the whole amount of the insurance, and Lorenzo Gardner, represented by his guardian, claiming an equal share with appellant in the insurance. The suit originated with a bill of interpleader by the insurance company. The interpleader was decreed, and the suit progressed between appellant and appellee as claimants of the fund in court. The decree of the court was that appellee as a joint beneficiary with appellant was entitled to an equal share with her.

It is noted that the will bequeathing the policy to appellant was made at a time when she was the sole beneficiary in the policy and only child of testator. Subsequently, his wife died and he remarried, and had another child born, and then he had a change made in the policy so as to include him as a beneficiary jointly with appellant, but made no change in his will to accomplish the same result.

It is argued by appellant that the probation of the will is conclusive and controlling over the terms of the policy in determining the persons entitled to its benefits. It is quite true that the will as probated is conclusive that it is the will of the testator, not revoked, and has such effect as the law ascribes to it. 68 Corpus Juris 1233, note 63; Frederick v. Wilbourne, 198 Ala. 137, 73 So. 442; Cone v. Barganier, 218 Ala. 292, 118 So. 342; Baker v. Chastang's Heirs, 18 Ala. 417; 19 Alabama Digest, Wills, + 423, p. 513.

But it cannot be more effective by its operation than the law allows. It cannot operate upon property not subject to devise or bequest. It therefore cannot serve to designate death benefits under an insurance policy on the life of the testator, if he has so contracted that those benefits are not subject to bequest.

We are then confronted with the question of whether by designating appellant as sole beneficiary, and then by authority of the policy changing the beneficiary so as to include appellee as a cobeneficiary with appellant, the testator has so acted as to remove the death benefits from the field of operation of the will. That question is controlled by a principle applicable called ademption, which is stated as follows in 28 R.C.L. 345, section 341: "The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator's estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee's rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption. This may result from a variety of causes, such as a gift during the lifetime of the...