Equitable Life Assur. Soc. of United States v. Campbell

• Decision Date: 27 April 1926
• Docket Number: No. 12402.,12402.
• Citation: 85 Ind.App. 450,151 N.E. 682
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. CAMPBELL et al.
• Court: Indiana Appellate Court

85 Ind.App. 450

151 N.E. 682

EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES

v.CAMPBELL et al.

No. 12402.

Appellate Court of Indiana, in Banc.

April 27, 1926.

Appeal from Posey Circuit Court; H. F. Clements, Judge.

On petition for rehearing. Rehearing denied.

For former opinion, see 150 N. E. 31.

John D. Welman and Phelps F. Darby, both of Evansville, and Lucius C. Embree and Morton C. Embree, both of Princeton, for appellant.

L. B. Osborn and Geo. K. Denton, both of Evansville, and Pickens, Moores, Gouse, Davidson & Pickens, of Indianapolis, for appellees.

NICHOLS, C. J.

Appellees on petition for rehearing complain that we have erroneously stated the provisions of the policy in suit as to the beneficiaries. In order that appellees may have the full benefit of the provisions of both the application and the policy, we state such provisions as follows:

It was provided in the application of the insured, which was made a part of the policy and insurance contract, and which policy was made a part of the complaint by exhibit, that the policy should be payable “to my children T. B. Leonard, Mary C. Campbell, Sally T. and Otto C. Leonard share and share alike, Minnie L. Cabanni if living at my death otherwise to my executor, administrators or assigns-it being expressly understood and agreed that I reserve the right *** to change any beneficiary or beneficiaries named by me,” etc. The policy itself provided that it should be payable “to his children, Mary L. Campbell, Minnie L. Cabanni, Sally T., Otto C., and T. B. Leonard, equally survivors or survivor, should none survive, then to the assured's executors, administrators, or assigns, subject to the right of the assured to change the beneficiary.”

It thus appears that the proceeds of the policy were payable in the alternative to the beneficiaries, if they survive the insured, otherwise to his estate.

Appellees contend with much earnestness that their interest in the policy was a vested interest, and that therefore the acts and admissions of the insured were not binding upon them, citing to sustain their contention Pape v. Pape, 119 N. E. 11, 67 Ind. App. 153, upon which they rely with much confidence. But the facts of that case are so different from the ones here involved that it can have but little weight in determining the questions here presented. In that case, the court says (119 N. E. 15, 67 Ind. App. on page 168) that-

“The policy in suit contained no provision for a change of beneficiary. Caroline therefore took a vested interest therein, which terminated upon her predeceasing.”

Here there is definite provision for change of beneficiaries. In that case the insured, or his estate, in any event, had no interest in...