Freund v. Freund

• Citation: 75 N.E. 925,218 Ill. 189
• Parties: FREUND et al. v. FREUND.
• Decision Date: 24 October 1905
• Court: Supreme Court of Illinois

218 Ill. 189

75 N.E. 925

FREUND et al.

v.FREUND.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Bill of interpleader by the New York Life Insurance Company against Henry Freund and another and Bertha Freund. From a judgment of the Appellate Court, reversing the decree rendered by the superior court, defendants Henry Freund and another appeal. Reversed.

Rehearing denied December 13, 1905.

Max Robinson, for appellants.

Castle, Williams & Smith (Arista B. Williams, of counsel), for appellee.

This is a bill of interpleader filed on July 17, 1902, in the superior court of Cook county by the New York Life Insurance Company against appellants and appellee, setting forth that on June 10, 1901, the New York Life Insurance Company of the state of New York issued a policy of insurance upon the life of Josef Freund of Chicago in the sum of $5,000, payable to Bertha Freund, the wife of the insured, or to such other beneficiary as may have been duly designated at the home office of the company in the city of New York, immediately upon receipt and approval of proofs of the death of Josef Freund, the insured, of Chicago, Cook county, Ill.; that on January 10, 1902, by written notice to the company, the insured changed the beneficiary in the policy to Karl Freund, his son; that afterwards, on January 22, 1902, by written notice to the company, the insured changed the beneficiary in said policy to Bertha Freund, his wife, the first beneficiary; that afterwards, on May 16, 1902, by written notice to the company, the insured changed the beneficiary to Karl Freund, his son; that afterwards, on June 16, 1902, the insured presented the policy at the office of the New York Life Insurance Company in Chicago, together with another written statement or order of change, changing the beneficiary in the policy to Bertha Freund, his wife; that on June 17, 1902, Josef Freund died, and the policy ripened into a claim against the company by his death for $4,891.30, $108.70 being due to the company for premiums; that the complainant life insurance company is willing to pay said sum to the parties entitled to the same; that appellee, the wife of the deceased, claims the payment of said fund to her as beneficiary, and that the appellants, as legally appointed guardians of the estate of the minor child, Karl Freund, claim said sum as belonging to said minor, and not to Bertha Freund. The bill asks that the sum be brought into court to be applied as the court shall direct, etc. The bill prays that the defendants may interplead, and settle, and adjust their demands between themselves; the complainant agreeing to pay said sum to such of the parties as the court may decree that it rightfully belongs to. The bill was answered by Bertha Freund, claiming the fund in her own right, and by the appellants, as guardians of the minor child, claiming the fund for him. The company paid the money into court. On April 4, 1903, the superior court entered a decree finding that the fund belonged to appellants, as guardians of the estate of the minor, and ordering that the money be paid to them, and that the company, the complainant below, be discharged and released from further liability, and the suit be dismissed as to the appellee for want of equity, and denying all relief prayed. An appeal was taken from the decree of the superior court to the Appellate Court for the First District, where the decree below was reversed, and the Appellate Court entered a judgment, reversing the decree of the superior court, and remanding the cause to that court, ‘with directions to that court to enter a decree awarding the fund mentioned in the bill to Bertha Freund individually.’ The present appeal is prosecuted from the judgment so entered by the Appellate Court.

MAGRUDER, J. (after stating the facts).

The question in this case is whether the fund in controversy belongs to the appellants, as guardians of the estate of the minor child, Karl Freund, son of the deceased, Josef Freund, the insured party named in the insurance policy, or whether it belongs to the appellee, Bertha Freund, the widow of the deceased, Josef Freund.

The instrument of insurance in this case was a policy of insurance issued by the New York Life Insurance Company, and not a benefit or endowment certificate. The matter to be determined is whether the last change of the beneficiary, attempted to be made by the insured party on June 16, 1902 was valid, and had the effect of making the wife the beneficiary, or whether the son, who was theretofore the beneficiary, still remained so after the death of the insured on June 17, 1902. The laws of New York-the state where the contract of insurance was made-were introduced in evidence, and section 211 in the article on insurance in the Code of New York (Laws 1892, p. 2015, c. 690) is as follows: ‘Membership in any such corporation, association or society shall give to any member thereof the right at any time, with the consent of such corporation, association or society, to make a change in his payee or payees, or beneficiary or beneficiaries, without requiring the consent of such payee or beneficiaries.’

The policy of insurance upon the life of Josef Freund for $5,000 contained the following provisions:

‘Change of Beneficiary.-The insured may at any time during the continuance of this policy, provided the policy is not then assigned, change the beneficiary or beneficiaries by written notice to the company at its home office, accompanied by this policy, such change to take effect on the endorsement of the same upon the policy by the company. If there is no beneficiary living at the death of the insured, the amount then insured by this policy shall be paid to the executors, administrators, or assigns of the insured,’ etc.

‘General Provisions of Policy.-No. 1. Only the president, a vice president, the actuary, or the secretary has power in behalf of the company to make or modify this or any contract of insurance, or to extend the time for paying any premium; and the company shall not bound by any promise or representation heretofore or hereafter given by any person other than the above.’

Indorsed on the policy, also, was the following: ‘Each selection, change, or revocation of a selection shall be made by the insured in writing, and shall not take effect until endorsed on this policy by the company at the home office.’ The first written notice, signed by the insured, Josef Freund, at Chicago on January 10, 1902, and addressed to the insurance company at Broadway, N. Y., recites as follows: ‘The beneficiary under the accompanying policy, * * * in accordance with the change of beneficiary clause thereof, is hereby changed from Bertha Freund, wife, to Karl Freund, son. The policy is not now assigned.’ There was a witness to this written notice of change, and it was forwarded from the branch office at Chicago to the home office in New York on January 11, 1902. The next notice, signed by the insured, dated at Chicago, January 22, 1902, and addressed to the insurance company, was of the same tenor and effect, and changed the beneficiary from Karl Freund, son, to Bertha Freund, wife, and was forwarded from the branch office in Chicago to the home office in New York, and received by the latter on January 24, 1902. The third written notice, signed by the insured and dated May 16, 1902, witnessed and addressed to the insurance company, was of like tenor and effect, except that the beneficiary was changed from Bertha Freund, wife, to Karl Freund, son, and was forwarded from the Chicago clearing house of the company to New York, and received in the latter city by the home office on May 19, 1902. The company at its home office in New York, upon receiving the first notice of change dated January 10, 1902, made a written indorsement upon the original policy of that date, signed by its assistant secretary, in the following words: ‘By written notice to the company the insured has changed the beneficiary of this policy to Karl Freund, his son.’ After the receipt at its home office in New York of the second notice of change dated January 22, 1902, the company made a written indorsement upon the original policy, signed by its assistant secretary, as follows: ‘By written notice to the company, the insured has changed the beneficiary of this policy to Bertha Freund, his wife.’ After the receipt of the third notice of change dated May 16, 1902, by the company at its home office in New York, it made a written indorsement upon the policy, signed by its assistant secretary, in the following words: ‘By written notice to the company, the insured has changed the beneficiary of this policy to Karl Freund, his son.’

It is conceded that by the written notice of May, 16, 1902, and by the written indorsement of that day upon the original policy as above set forth, Karl Freund, the son, was made, under the terms of the policy, the beneficiary then entitled to the fund. Upon the death of the insured, Josef Freund, Karl Freund was the legal beneficiary and entitled to the fund, unless the next change, sought to be made on June 16, 1902, was effectual in making the appellee, wife of the insured, the real beneficiary. When the deceased Josef Freund, the insured party, took the policy to the local office of the company in Chicago and left there the written notice dated June 16, 1902, signed by himself, for a change of beneficiary from Karl Freund, son, to Bertha Freund, wife, he received the following receipt: ‘Chicago, Ill., 6/16/1902. 1118 New York Life Building. Received of Joseph Freund the papers listed below for transmission to the New York Life Insurance Company for change of beneficiary. Policy No. 3,157,265. F. A. Jackson, per Hunt, Cashier.’

As has been before stated, the assured died on the next day, to wit, June 17, 1902. The policy and the written notice of June 16, 1902, were forwarded from the Chicago clearing house branch office by F....