East v. Collins

• Decision Date: 01 March 1943
• Docket Number: 35201.
• Citation: 194 Miss. 281,12 So.2d 133
• Court: Mississippi Supreme Court
• Parties: EAST v. COLLINS.

12 So.2d 133

194 Miss. 281

EAST v. COLLINS.

No. 35201.

Supreme Court of Mississippi

March 1, 1943

Lotterhos Travis & Dunn, of Jackson, for appellant.

Stevens Ricketts & Wise, of Jackson, for appellee.

ALEXANDER Justice.

On November 20, 1934, the Chancery Court of Hinds County Mississippi, rendered a decree (1) granting unto Mrs Winifred Causey Collins a divorce from her husband Roy P. Collins, (2) awarding Mrs. Collins the care and custody of their minor adopted daughter Margaret, (3) ordering Mr. Collins to pay Mrs. Collins $140 per month, of which $65 was for her support and $35 for the support of Margaret, and $40 to meet the maturing monthly mortgage installments and the taxes and insurance on the home, which had already been conveyed to Mrs. Collins, "and to continue until further order of court", and (4) further ordered Collins to assign to Mrs. Collins an insurance policy on his life, payable to his estate, in the sum of four thousand dollars, and to make Margaret the beneficiary in another life policy for the same sum, and to keep the premiums paid on both policies, and restrained Collins from changing, or attempting to change, the beneficiaries in said policies, "until and unless otherwise ordered by this court."

On November 22, 1934, Collins, in writing, assigned to Mrs. Collins "all my right, title and interest * * *" in the insurance policy; the Insurance Company agreed to such assignment, and on December 8, 1934, mailed the policy to Mrs. Collins, after making due note on its records and on the policy of such assignment.

Collins also duly complied with the other requirements of the decree until in the year 1941, when he defaulted on the monthly payments and permitted the assigned policy to lapse for failure to pay the premiums thereon, because, as he said, of ill health and adversity.

In September, 1941, he was cited to show why he was not in contempt of court. The cause was continued, and on January 27, 1942, after he had made a payment on the default, there was an agreed decree giving him a stipulated time within which to pay the default and to reinstate the policy. He complied with the terms of that decree.

Thereupon and on March 5, 1942, Mr. Collins filed a petition in the same cause alleging that Margaret, on September 15, 1941, had left the home of Mrs. Collins, who was then residing in Louisiana, and had returned to Mr. Collins in Jackson, Mississippi, where she had been living and by whom she had been supported since her return, and that she would make her permanent home with him, and that on September 26, 1941, Mrs. Collins had married Dr. East and that they resided at Slaughter, Louisiana, and asking that he be relieved of the duty to pay Mrs. East any alimony, including the mortgage installments and insurance premiums, after her marriage to Dr. East, and that she be required to reassign to him the insurance policy on his life.

Mrs. East, in her answer to the petition, admitted her remarriage and the return of Margaret to Mr. Collins, as alleged in the petition, and that Mr. Collins was under no further duty to support her, but asserted (1) that when the policy was assigned to her there was a loan against it of $660, of which she had no knowledge, and that Mr. Collins should be required to pay that debt; (2) that she was the absolute owner of the insurance policy; (3) that the Chancery Court had no power to require her to reassign it, but that if mistaken in that, then (4) she was entitled to the paid up value of the insurance policy, which was $752, and (5) that while she remarried September 26, 1941, the petition of Mr. Collins to be relieved of alimony was not filed until March 5, 1942, and she was entitled to the accrued monthly alimony payments, as provided in the original decree, until the date of the filing of the petition, and, by cross-bill, she prayed for this special relief and for general relief.

Mr. Collins, by answer to the cross-bill, took issue on these contentions.

The Chancellor, in his decree, modified, revised and amended the original decree for alimony by (a) relieving Collins of the duty of making any payments of alimony after the re-marriage of his former wife, including the mortgage installments and the insurance premiums for the benefit of Mrs. East, (b) ordered him to pay Mrs. East $350 and (c) ordered Mrs. East to thereupon re-assign the insurance policy to Mr. Collins.

From this decree Mrs. East has taken a direct and Collins a cross-appeal.

We first deal with the knowledge, or lack of knowledge, of Mrs. Collins of the debt against the policy when it was assigned to her. The record contains no opinion of the Chancellor and the decree makes no mention of this question, but the Chancellor evidently found that Mrs. Collins knew of the existence of that loan. The great weight of the testimony is that she did have knowledge thereof and we approve the finding on that question.

Appellant lays claim to the absolute ownership of the policy, with the right to have it continued on the life of Mr. Collins until his death, citing Couch on Insurance, Vol. 6, p. 5188-90; 29 Am.Jur., Insurance, p. 401,§ 503, and other authorities, to the effect that "where a husband makes an absolute assignment of a policy to his wife for value received, and she predeceases him, her title passes as a part of her estate". We do not think this rule is applicable here. Aside from whether it would be against public policy for Mrs. East to continue this policy on the life of her former husband, which we do not decide, this was not a voluntary assignment for value of this policy by Mr. Collins. It was not a contract or agreement between them. Mr. Collins assigned the policy under compulsion of a decree of the Chancery Court and there was no consideration in the ordinary and usual meaning of that term. This assignment was a part of the decree for alimony. It was conditional and interdependent upon the other provisions of the decree-for instance, the payment of the premiums thereon by Mr. Collins. It was not the absolute property of Mrs. East throughout the future, regardless how the conditions might change. Mr. Collins has, and in the future others may have, a very vital interest in the policy.

This question is intertwined with the power, or lack of power, and jurisdiction of the Chancery Court to deal with this policy. Not only did the original...