Garner v. Bemis
| Citation | 81 Fla. 60,87 So. 426 |
| Parties | GARNER v. BEMIS. |
| Decision Date | 20 January 1921 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied March 15, 1921.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by Harriett Kraeer Bemis against Katherine Greer Garner. Judgment for plaintiff, and defendant brings error.
Reversed.
Syllabus by the Court
Proof of delivery of life insurance policy with intent to pass title must be convincing in absence of assignment. Where a life insurance policy is claimed as a gift without assignment to one not the beneficiary designated therein, proof of the actual or constructive delivery of the policy with intent to pass the title irrevocably must be clear and convincing. A sufficient delivery or a complete and absolute surrender of all legal power and dominion over the policy, with an intent on the part of the donor to part absolutely with the title must be affirmatively shown by evidence.
Mere expressed intent to change beneficiary ineffectual. Where the insured has a right to change the beneficiary in a policy on his life, and expresses an intent to make such change, but in fact does not do so, the intent alone is ineffectual. Merely expressing an intent to change the beneficiary and notifying the insurer of such intent is insufficient. Where the policy is not assigned to or duly delivered or surrendered as a gift, the title thereto remains in the assured.
Evidence of delivery by husband of gift to wife with intent to divest himself of dominion must be clear; gift should be sustained by clear evidence where claim not asserted until after donor's death. In the case of an alleged gift from husband to wife, there must be clear and convincing evidence of a delivery of the property by the husband with the intention of divesting himself of all dominion and control of it and of vesting it in the wife, and the evidence of the circumstances of a gift of an unindorsed chose in action should be full, clear, and convincing. When the claim of a gift is not asserted until after the death of the alleged donor, it should be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift.
George M. Powell, of Jacksonville, for plaintiff in error.
W. M Toomer and Stanton Walker, both of Jacksonville, for defendant in error.
The verdict and judgment herein were rendered upon the following count of the declaration:
--together with interest thereon from date of collection.'
Trial was had on pleas of:
(1) 'Never was indebted as alleged,' and (2) 'that the said supposed cause of action, and each of them, in said counts mentioned, as shown by the bill of particulars attached to said declaration, are for the proceeds of certain policies of life insurance policies in which said policies, and each of them, this defendant was named as beneficiary and which said proceeds of said policies of insurance were collected by this defendant as such beneficiary and not otherwise.'
Writ of error was taken to a judgment for plaintiff.
It appears that C. E. Garner, Jr., owned two life insurance policies in which his mother was the beneficiary; that after his marriage he notified the agents of the insurance companies by letters that he desired to change the beneficiary in the policies from his mother to his wife; that he was requested by the agents to forward the policies so the change of beneficiary could be made as he desired; that he did not forward the policies to have the beneficiary changed that the insured went with his wife to the bank vault, where the policies were, and...
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