Goldman v. Moses

• Decision Date: 01 August 1934
• Citation: 191 N.E. 873,287 Mass. 393
• Parties: GOLDMAN v. MOSES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 393

191 N.E. 873

GOLDMAN

v.MOSES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 1, 1934.

Appeal from Superior Court, Suffolk County; J. J. Burns, Judge.

Suit in equity by Harry Goldman against Jennie Moses and others. From a final decree, entered by order of the judge, dismissing the bill, plaintiff appeals.

Reversed, and final decree entered for plaintiff.

M. Krook and H. N. Silk, both of Boston, for appellant.

M. Jacobs, of Boston, for appellees.

LUMMUS, Justice.

The plaintiff, a judgment creditor of the defendant Jennie Moses and her deceased husband Kalman Moses, brings this bill to reach and apply to the payment of the judgment the proceeds of a policy of life insurance on the life of Kalman Moses which was originally payable to Jennie Moses as beneficiary, but which was assigned by Kalman Moses, the insured, to the defendant Lottie Jacobson, the married daughter of Kalman and Jennie Moses, on March 8, 1927, at a time when the insured was insolvent, with intent to prevent the plaintiff from reaching the policy or its proceeds. The only consideration given by Lottie Jacobson was her promise to take care of her father and mother generally, and particularly to take care of her mother, out of the proceeds of the policy, after the death of her father. The insurance company admitted liability, paid into court the amount of the policy, which is less than the amount of the judgment, and was dismissed from the case.

The assignment complied with the provisions of the policy permitting assignment. But Jennie Moses, one of the judgment debtors, was the sole beneficiary at the time of the assignment. A policy may indeed create a right in the insured, such as the right to surrender the policy, which is superior to the right of the beneficiary, and which the insured may convey to an assignee. Blinn v. Dame, 207 Mass. 159, 93 N. E. 601,20 Ann. Cas. 1184;Eldredge v. Mutual Life Ins. Co. of New York, 217 Mass. 444, 446, 105 N. E. 361;Kothe v. Phoenix Mutual Life Ins. Co., 269 Mass. 148, 168 N. E. 737;Frederick v. Fidelity Mutual Life Ins. Co. of Philadelphia, 256 U. S. 395, 41 S. Ct. 503, 65 L. Ed. 1009. See G. L. (Ter. Ed.) c. 175, §§ 142, 144, 147; Anderson v. Northwestern Mutual Life Ins. Co., 261 N. Y. 450, 185 N. E. 696. But unless the policy, expressly or by implication, empowersthe insured to give an assignee a right superior to that of an existing beneficiary who has not released his right, the beneficiary takes precedence of the assignee. Wilde v. Wilde, 209 Mass. 205, 95 N. E. 295;Tyler v. Treasurer & Receiver General, 226 Mass. 306, 115 N. E. 300, L. R. A. 1917D, 633;Witherington v. Nickerson, 256 Mass. 351, 355, 152 N. E. 707;Anderson v. Northwestern Mutual Life Ins. Co., 261 N. Y. 450, 185 N. E. 696. The policy in this case gives no such power to the insured. ‘A reserved right to change the beneficiary does not affect the essential nature of the rights of the beneficiary so long as they last.’ Tyler v. Treasurer & Receiver General, 226 Mass. 306, 309, 115 N. E. 300, 301, L. R. A. 1917D, 633. The provision of the policy allowing a change of beneficiary ‘provided this policy is not then assigned’ does not imply a right of assignment in the insured which may give an assignee a right superior to that of an existing beneficiary. Sullivan v. Maroney, 76 N. J. Eq. 104, 73 A. 842, affirmed 77 N. J. Eq. 565, 78 A. 150;Anderson v. Broad Street National Bank, 90 N. J. Eq. 78, 83, 105 A. 599, affirmed 91 N. J. Eq. 331, 109 A. 205;Douglass v. Equitable Life Assurance Society, 150 La. 519, 534, 90 So. 834. The beneficial interest of Jennie Moses, which under the policy could not be divested by the assignment by the insured, was subject to the claim of the plaintiff, her own creditor. Troy v. Sargent, 132 Mass. 408. If we treat what was given to Lottie Jacobson as an assignment, the plaintiff must prevail.

The defendant Lottie Jacobson argues, however, that the assignment may be construed as a change of beneficiary in her favor under the power reserved in the policy (Atlantic Mutual Life Ins. Co. v. Gannon, 179 Mass. 291, 60 N. E. 933;Merchants' Bank v. Garrard, 158 Ga. 867, 124 S. E. 715, 38 A. L. R. 102), and that as substituted beneficiary she takes free from the claims of creditors, since the protection afforded to ‘a married woman’ by G. L. (Ter. Ed.) c. 175, § 126, extends to any married woman and is not limited to the wife of the insured.

Assuming, but without deciding, that this argument is valid, it depends upon the proposition that the purported assignment, construed as a change of beneficiary, was effective as such. The policy permitted a change of beneficiary,but provided that it ‘must be made by written notice to the Company at its home office, accompanied by the policy for endorsement of the change thereon by the Company, and unless so endorsed the change shall not take effect.’ The assignment which is relied on as a change of beneficiary was not ‘accompanied by the policy,’ and the change was never indorsed on the policy. There was...