Glenn v. Burns

• Decision Date: 02 February 1898
• Parties: GLENN et al. v. BURNS et al.
• Court: Tennessee Supreme Court

45 S.W. 784

100 Tenn. 295

GLENN et al. v. BURNS et al.

Supreme Court of Tennessee.

February 2, 1898

Interpleader by one Glenn and others against one Burns and others to determine the respective rights of heirs of an assured to the fund accruing on a life insurance policy.

Vertrees & Vertrees, for Glenn. C. D. Berry and Hamilton Parks, for Burns. J. M. Williams, Jr., for guardian ad litem.

BEARD J.

In 1869, M. Burns, Sr., took out two policies of insurance on his own life of the respective amounts of $10,000 and $5,000. In the policies it was provided that this insurance should be paid to his wife, Margaret, if living at the time of his death; but, in the event she should die before his decease then "to their children, for their use, or to their guardian, if under age." At the date of their issuance Mr. and Mrs. Burns had nine living children, three of whom died before their mother. In 1885 she died, leaving surviving her husband and six children. Upon the death of Mr. Burns (which occurred several years thereafter) the insurance was paid to the complainant Glenn, when, a controversy having arisen as to a proper distribution thereof, this bill of interpleader was filed. The record presents a single question, and that is, did the children of Mr. and Mrs. Burns take each an interest in these policies, immediately upon their delivery, and, if so, were the interests of the three whose deaths antedate that of the mother transmitted to their distributees and representatives? This question seems first to have been considered by the supreme court of Connecticut. In the case of Insurance Co. v. Palmer, 42 Conn. 60, upon a policy similar in its provisions to those issued to Mr Burns, and in a controversy between the representative of a child which predeceased its mother and children who survived both the mother and father, that court, in an able and exhaustive opinion, held that each child, upon the delivery of the policy, took a transmissible interest in it; and that the mother having died before the father, at his death the distributee of the dead child stood in the place of its parent, and was entitled to share with the living children in the insurance fund. On this point the court said: "The moment this policy was executed and delivered, it became property, and the title to it vested in some one. It will not be claimed that it vested in the person whose life was insured. It must have vested, then, in all or in a part of the payees. The payees consist of two parties, the wife and the children. As only one could take and enjoy the property ultimately, it did not vest in all as tenants in common, nor did it vest in either so as to give a right to the present enjoyment of it. It was not, however, a mere expectancy, nor a naked possibility, but it was a possibility, coupled with a present interest. It was visible, tangible property, and like any other insurance policy, it was capable of assignment, and had an appreciable value. Each party took a conditional, not an absolute, right to the whole policy. It was not a condition precedent, but subsequent. *** The right to the policy, in a strict sense, was not contingent. The possession and enjoyment of the fund thereby created were postponed to the future, and were contingent. This contingency applied to both parties,--to the wife as well as to the children. *** In respect to each it was then a present right to the future enjoyment of property, but it was liable to be defeated by a subsequent contingency, and was certain to be defeated as to one of them. That such a right is recognized as property, and is transmissible to heirs, is a proposition abundantly sustained by the authorities." This rule, thus announced, and re-enforced with so much vigor of statement, has been adopted, either upon the authority of that case or else upon consideration of a similar character, in Re Conrad, 89 Iowa, 396, 56 N.W. 535; Sugg v. Hooker, 102 N.C. 115, 8 S.E. 919; Conigland v. Smith, 79 N.C. 303. On the other hand, the supreme court of New York rejects this view, and applies the class doctrine to such policies, so that under the rule there recognized only such children take as are alive at the death of the insured. United States Trust Co. v. Mutual Ben. Life Ins. Co., 115 N.Y. 152, 21 N.E. 1025; Walsh v. Insurance Co., 133 N.Y. 408, 31 N.E. 228. In this latter case the justices of the general term in distributing the proceeds of such a policy had applied the Connecticut rule, but on appeal their judgment was reversed, and the "class doctrine" was adhered to; evidently on the ground of stare decisis. In delivering the...