Eversole v. Eversole's Adm'x

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Eversole v. Eversole's Adm'x, 169 Ky. 234, 183 S.W. 494 (Ky. Ct. App. 1916)
• Decision Date: 17 March 1916
• Parties: EVERSOLE v. EVERSOLE'S ADM'X.

183 S.W. 494

169 Ky. 234

EVERSOLE v. EVERSOLE'S ADM'X.

Court of Appeals of Kentucky.

March 17, 1916

Appeal from Circuit Court, Perry County.

Action by M. C. Eversole against the Mutual Life Insurance Company of New York, revived upon death of plaintiff in the name of administratrix, to which Mahala Eversole was a party. The defendant paid the proceeds of the policy into court, and from a judgment for the plaintiff administratrix, Mahala Eversole appeals. Reversed and remanded, with directions.

Napier & Turner, of Hazard, and John C. Eversole, of Booneville, for appellant.

Hogg &amp Johnson and F. J. Eversole, all of Hazard, for appellee.

CLAY C.

On May 14, 1901, the Mutual Life Insurance Company of New York issued a policy, insuring the life of M. C. Eversole, in favor of his wife, for the sum $1,000. On January 18, 1912 M. C. Eversole and his wife separated, and on the 24th day of September of the same year he obtained a divorce. On January 27, 1912, he wrote a letter to the insurance company, asking that the beneficiary of the policy be changed. This request was not acted on. On February 27, 1913, he brought suit in the Perry circuit court for the purpose of having the policy made payable to his estate instead of his divorced wife. While this suit was pending M. C. Eversole died, and thereafter the suit was revived in the name of his administratrix. The company paid the proceeds of the policy into court. Mahala Eversole was a party to this suit, and filed an answer, setting up a claim to the proceeds of the policy. On final hearing, judgment was rendered in favor of the administratrix, and Mahala Eversole appeals.

Section 425 of the Civil Code provides:

"Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the other has failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing."

In construing this provision it has frequently been held that the judgment of divorce operates to restore to the divorced parties the title to such property as either may have obtained from or through the other, during marriage, "in consideration or by reason thereof; and this is true whether the return of the property is ordered by the judgment of divorce, or in a subsequent proceeding. If the order of restoration be, as is often the case, merely formal, or none is made when the divorce is granted, any question as to what property shall be restored by either party to the other may be settled by subsequent proceedings. Williams v. Gooch, 3 Metc. 487; Smith v. Smith, 56 S.W. 968, 22 Ky. Law Rep. 255; Bennett v. Bennett, 95 Ky. 545, 26 S.W. 392, 16 Ky. Law Rep. 72; Johnson v. Johnson, 96 Ky. 391, 29 S.W. 322, 16 Ky. Law Rep. 660.

It is also held that a policy of insurance is property within the meaning of the Code, and if the husband himself takes out a policy, insuring his own life in favor of his wife and the parties are thereafter divorced by a...