Fleming v. Grimes

• Decision Date: 01 March 1926
• Docket Number: 25310
• Court: Mississippi Supreme Court
• Parties: FLEMING et al. v. GRIMES. [*]

107 So. 420

142 Miss. 522

FLEMING et al. v. GRIMES. ^[*]

No. 25310

Supreme Court of Mississippi

March 1, 1926

(In Banc.)

1. DEATH. There is no presumption one of persons dying in common disaster survived other.

Where insured and beneficiaries under policy all died in a common disaster, there is no presumption that any one of deceased parties survived the other.

2. INSURANCE. Interest in beneficiaries does not vest except by death of insured, where policy reserves right in insured to change beneficiary.

Under insurance policy, reserving the right to insured to change the beneficiary, interest in beneficiaries does not vest except by death of insured.

3 INSURANCE. Heirs of insured are entitled to proceeds of policy reserving right in insured to change beneficiary where insured and beneficiaries died at the same time.

Where beneficiaries and insured died at the same time in common disaster, the heirs of insured would be entitled to proceeds of policy, which gave insured right to change beneficiary.

4. INSURANCE. Interest of beneficiaries in policy reserving in insured right to change beneficiary never became vested where insured and beneficiaries died at same time.

Interest of beneficiaries, under policy reserving right in insured to change beneficiary, was contingent and personal and never became vested where insured and beneficiaries died at same moment.

5 COURTS.

Where insurance policy involved in suit is a New York contract, the decisions of that state are pertinent.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Clarke county, HON. G. C. TANN, Chancellor.

Bill by Mrs. Effie Grimes, administratrix, against the Metropolitan Life Insurance Company of New York, wherein Archie Fleming, administrator, and others were interpleading. From a decree for plaintiff, Archie Fleming and others appeal. Affirmed.

Decree affirmed.

Neville & Stone, J. D. Fatheree and H. L. Miller, for appellants.

The following provision of the insurance policy is the determining factor in this case; to-wit: "If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured." The insured reserved the right to change the beneficiary, but he never exercised this right, and all died in a common disaster. The question is whether the heirs of the insured or the heirs of the beneficiary are to take the proceeds of the policy.

The question involved has never been decided by this court. Our contention is that the administratrix of the insured cannot recover until she prove that both beneficiaries died before the insured. The vesting in the insured is made dependent upon the beneficiaries dying before the insured. We are here concerned with the simultaneous death of the insured and the beneficiaries.

It is conceded that under the common law there is no presumption of survivorship in case of the death of two or more persons in a common disaster. This being true, then, necessarily, the rights of the parties are to be determined by the provisions of the policy and not by presumption of law. The Supreme Court of Arkansas in the recent case of Watkins v. Home Life & Accident Co., 208 S.W. 587, 5 A. L. R. 791, had before it the identical question here involved. The provisions of the policy in the Watkins' case were the same as the provisions in the policy in this case. Judge HART in writing for a unanimous court said:

"It is well settled at common law that when two or more persons perish in the same disaster, and there is no fact or circumstance tending to prove which survived the other, there is no presumption whatever on the subject. The law treats the case as one to be established by evidence and, in the absence of proof tending to show which one died first, all will be considered to have perished at the same moment, not because that fact is presumed, but because from failure to prove it the actual survivorship is unascertainable, and property rights must be settled as if death occurred to all at the same time."

In support of this proposition Judge HART cites the following cases: 8 R. C. L., p. 716; Young Women's Christian Home v. French, 187 U.S. 401, 47 L.Ed. 233, 23 S.Ct. 184; 1 Greenl. Ev. (16 Ed.), 30, p. 126; Lawson Presumptive Ev., p. 298; U. S. Casualty Co. v. Kacer, 169 Mo. 301, 58 L. R. A. 436, 69 S.W. 370, 92 Am. St. Rep. 641; Re Wilbor, 51 L. R. A. 863, and note 20 R. I. 126, 78 Am. St. Rep. 842, 37 A. 634; and St. John v. Andrews Institute, 191 N.Y. 254, 83 N.E. 981, 14 Ann. Cas. 708.

Judge HART then states that: "The burden is always upon him who has the affirmative; and if he fails to discharge it with evidence legally sufficient for the purpose, he must suffer defeat . . . The authorities are divided upon the question of where the burden of proof lies in cases like this. In some of the cases it is held that the contract in policies like the one in the present case is made conditional on the beneficiary surviving, and that, there being no presumption in the case of death from a common disaster, that the beneficiary has survived the insured, the burden of proof is upon the representatives of the beneficiary because the conditional benefit becomes absolute only upon proof of actual survivorship. Middeke v. Bolder, 198 Ill. 590, 59 L. R. A. 653, 92 Am. St. Rep. 284, 64 N.E. 1002, and Males v. Sovereign Camp W. O. W., 30 Tex. Civ. App. , 70 S.W. 108.

"Other cases hold that the result is the same as though the insured died first, on the theory that the beneficiary did not die in the lifetime of the insured. Cowman v. Rogers, 73 Md. 403, 10 L. R. A. 550, 21 A. 64; U. S. Casualty Co. v. Kacer, 169 Mo. 301, 58 L. R. A. 436; 92 Am. St. Rep. 641, 69 S.W. 370, and Faul v. Hulick, 18 App. D. C. 9."

Until it is shown that the beneficiary died in the lifetime of the insured, we think, according to the terms of the policy of insurance, the fund is payable to the representative of the beneficiary, because it is only in the event of the death of the named beneficiary in the lifetime of the insured that the heirs of the insured can take."

We submit that the reasoning of Judge HART in the Hawkins case is sound and that this Arkansas decision is supported by the decisions of the other courts cited.

Wyatt Easterling and Victor W. Gilbert, for appellee.

The representatives of the beneficiaries contend that under the policy the burden of proof is on the representative of the insured to show that he outlived the beneficiaries named in the policy, or that he outlived the beneficiaries named in the policy, or that he survived them in the tornado.

The sisters of the insured contend that when the facts and circumstances are considered, it was the clear intent and purpose of the insured in taking out the policy that his wife and child should not have the right to take thereunder unless they survived to enjoy and use his benefaction; that unless they did survive to take and enjoy the proceeds of the policy, it should then revert to him and through him to the natural objects of his bounty, his own blood, his heirs at law.

The courts practically agree that an insurance policy is testamentary in its nature and should receive that liberal construction that is applied to wills.

All life insurance policies have one primary and fundamental purpose and object: the protection of those for whose benefit the insurance is procured after the death of the benefactor or insured.

The courts unanimously hold that where the right is reserved to change the beneficiary or to designate another as cestui que trust, the beneficiary has no vested interest until after the death of the insured. The policy in this case reserved that right; and hence, the beneficiaries never acquired a vested interest in the proceeds of the policy unless they survived the insured. Therefore, since the beneficiaries cannot claim under the policy a vested interest prior to the death of the insured and since under the record in this case they did not survive him, the question of a vested interest is eliminated from the case and the court must arrive at the intention of the insured in taking out the policy and enforce that intention.

The only right a beneficiary has in an insurance policy is a "mere expectancy." This expectancy is also contingent upon other considerations and those are, as expressed by Judge MCLAUGHLIN in the McGowen case hereinafter reviewed, "subject to be defeated by the insured's designating another beneficiary or failure on her part to survive him."

The problem before the court is to arrive at the intention of the insured in taking out the insurance; and this is a matter of construction of the contract, as only by construing the contract can the intention be determined. And that is why the Arkansas case is an Ishmaelite among the decisions of the courts. The court there refused even to consider the real intention of the insured in procuring the insurance.

The insurance policy was a New York contract; and while under our statute the policy must be construed as a Mississippi contract, yet since the purpose of construction is to arrive at intentions, it follows that the courts of the state where policies are written must be consulted in reaching that intention, since the policy is written under the law of that state and in the light of the construction placed on similar language in other like contracts. See, therefore, 36 Cyc. 1156; Dunn v. Amsterdam Casualty Co., 126 N.Y.S. 229; McGowin v. Menken, 223 N.Y. 509, 119 N.E. 877; Fuller v. Linzee, 135 Mass. 468; Hildenbrandt v. Ames, 27 Tex.Civ.App. 377, 66 S.W. 128. The court will also find other New York cases cited in the note in 5 A. L. R. 797.

As to whether the beneficiary has a vested interest in a life insurance policy reserving the right to...