Ex parte Boddie

• Decision Date: 14 June 1941
• Docket Number: 15273.
• Parties: Ex parte BODDIE. JEFFERSON STANDARD LIFE INS. CO. v. SCOTT et al. SAME v. BODDIE et al.
• Court: South Carolina Supreme Court

15 S.E.2d 122

197 S.C. 251

Ex parte BODDIE.

JEFFERSON STANDARD LIFE INS. CO. v. SCOTT et al.

SAME v. BODDIE et al.

No. 15273.

Supreme Court of South Carolina

June 14, 1941

Thomas Cain & Black, of Columbia, and Lee & Shuler, of Kingstree, for appellant.

M L. Meadors, of Florence, for respondent.

STUKES Justice.

D.C Scott, Jr., now deceased, procured separate loans secured by mortgages of real estate from Jefferson Standard Life Insurance Company in 1926, and 1927, and at the same times obtained insurance policies upon his life in the amounts of $3,500 and $2,500, respectively. He was then unmarried and the policies were made payable to his estate, but at the time of their delivery he assigned each of them to the Company upon forms prepared by the latter whereby it was fully empowered as assignee and among the agreements thereabout it was provided that upon the maturity of the policies or death of the insured, the entire proceeds, or so much thereof as should be necessary, "may be applied" to the payment of the indebtedness and the surplus, if any, paid to the assignor or beneficiary.

Thereafter the insured, the mortgagor, was married and the beneficiary of the policies was on March 3, 1932, changed from his estate to his wife, Harriett T. Scott, subject to the assignments to the Company. Then, in 1937, the insured executed his will by which he devised the lots subject to the mortgages to the children of his sister. After his subsequent death, on June 16, 1939, one of them, W. W. Boddie, Jr., was appointed and qualified in the Court of Probate as administrator, cum testimonio annexo, of the estate of the insured.

Meanwhile, on November 23, 1937, the Company commenced separate actions of foreclosure of the mortgages, making as defendants, in addition to Scott, the tenants in possession of the property and a judgment creditor. By amended answers, the mortgagor, Scott, alleged that he became totally and permanently disabled under the terms of the policies in January, 1933, whereby he was entitled to waiver of the payment of premiums and the payment by the Company of certain monthly benefits to him. His death occurred before trial and the devisees, testator's Boddie nephews and nieces, were substituted for him as defendants.

The issue of disability was framed for submission to a jury, but the presiding Judge directed a verdict for the Company, and that controversy is now on its way to this court under appeal. We are not now concerned with it.

The administrator, individually and as one of the devisees of the property, then brought his petition in the Court of Common Pleas whereby he sought an order requiring the Company to apply the proceeds of the policies to the payment of the respective mortgage debts and for satisfaction and surrender for cancellation of the mortgage papers, and obtained a rule against the company to show cause why this relief should not be granted and the Company's efforts to foreclose the mortgages discontinued.

Upon the hearing on October 2, 1940, the court adjudged the return of the Company insufficient, denied its prayer that the widow of the deceased insured, Harriett T. Scott, the beneficiary of the life policies, be made a party and ordered that the face amounts of the policies be applied as of the date of the death of the insured to the payment of the respective mortgage debts, for the security of the payment of which they had been assigned, including interest, costs and attorney's fees, and that if the amount of the proceeds in either case is sufficient to pay such indebtedness, etc in full, the mortgage or mortgages be satisfied by the Company and surrendered for recording of the...