Harde v. Germania Life Ins. Co.

• Decision Date: 24 January 1913
• Citation: Harde v. Germania Life Ins. Co., 153 S.W. 666 (Tex. App. 1913)
• Parties: HARDE v. GERMANIA LIFE INS. CO. et al.
• Court: Texas Court of Appeals

153 S.W. 666

HARDE v. GERMANIA LIFE INS. CO. et al.

Court of Civil Appeals of Texas. El Paso.

January 24, 1913.

Rehearing Denied February 19, 1913.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by J. S. Rice, as trustee in bankruptcy of the estate of T. W. House, against the Germania Life Insurance Company, which paid the money into court and impleaded Emma Harde, who claimed the policy. From a judgment awarding the fund to Andrew Dow and others, assignees of all the rights of the plaintiff, Rice, Mrs. Harde appeals. Affirmed.

Fisher, Sears & Campbell, of Houston, for appellant. E. P. & O. K. Hamblen, Lane, Wolters & Storey, and Baker, Botts, Parker & Garwood, all of Houston, for appellees.

McKENZIE, J.

This suit was instituted by J. S. Rice, as trustee of the estate of T. W. House, bankrupt, against the Germania Life Insurance Company to recover upon a $5,000 life policy issued to Louis Harde. The insurance company answered, admitting liability to the extent of $5,000 upon the policy, and tendered the amount into court, and prayed that Emma Harde, who had qualified as independent executrix under the will of Louis Harde, and was claiming the amount due under the policy and had made demand for such payment, be made a party to the suit, and that the sum so tendered into court be paid to the party entitled thereto.

Emma Harde filed her answer, setting up her claim to the amount due under the policy as executrix of the estate of Louis Harde and individually; she being the wife of the said Louis Harde.

Andrew Dow, Henry Albrecht, and Kate Scanlan intervened in the suit, and by permission of the court were substituted for the plaintiff, J. S. Rice, the trustee, alleging in their petition for intervention that they had acquired all the rights of the said trustee, and that they adopted the pleadings of the trustee in said suit.

A trial by jury was waived, and the cause was submitted to the court upon an agreed statement of facts, made out and signed by counsel for the respective parties, in accordance with the statute. The agreed facts are as follows:

"It is agreed by and between the undersigned interested parties to this suit, through their respective attorneys of record, that the following facts are true, and that proof thereof is hereby waived, and this agreement may be read in evidence and entered in the record in said cause as establishing such facts, to wit:

"(1) That Louis Harde, the person who applied for and to whom was issued policy No. 21709 by the Germania Life Insurance Company, as the same is described and referred to in plaintiff's original petition herein, died in the city of Houston, Harris county, Texas, in April, 1908, testate, and by his will left his wife, Mrs. Emma Harde, sole devisee and legatee of his property and estate and, as such, independent executrix without bond of his will and estate.

"(2) That the will of the said Louis Harde has been duly probated in the probate court of Harris county, Texas, and that said Mrs. Emma Harde has qualified as the executrix under such will, and is now the duly qualified and acting independent executrix of the estate and will of said Louis Harde, deceased.

"(3) That the said Louis Harde was not related to T. W. House by either consanguinity or affinity, and the said T. W. House was not in any way dependent upon the said Louis Harde for support, and was not the adopted child of the said Louis Harde.

"(4) That for many years prior to and up to October 17, 1907, T. W. House was engaged in the banking business in the city of Houston, Harris county, Texas, conducting a private bank as sole owner thereof.

"(5) That on September 27, 1895, said Louis Harde borrowed $2,000 from said T. W. House, and executed and delivered his note therefor to said House, together with the insurance policy involved in this suit, as security for such debt, to effectuate which said Harde indorsed said policy as follows:

"`Endorsements.

"`Houston, Texas, September 27, 1895.

"`I hereby assign and transfer the within policy to T. W. House as collateral security for a loan made me this day for $2,000.00 as is evidenced by my note to him for said loan, for value received.

                 "`[Signed] Louis Harde
                

"`Witness: S. M. McAshan. R. H. Cabaniss.'

"(6) That said Harde thereafter continued indebted to said House on account of loans in increasing amounts until same reached the total hereinafter stated on the date hereinafter mentioned.

"(7) That as holder of said policy as security for such indebtedness said House paid to said insurance company, on the dates and up to the date hereinafter set forth, the following amounts as premiums on said policy of insurance, being the amounts necessary to preserve and keep said policy in force, and paid same at the request of said Harde and for the protection of said House in said indebtedness, to wit: July 28, 1900, $139.28; July 6, 1901, $138.58; July 5, 1902, $137.22; July 2, 1903, $136.34; July 6, 1904, $135.71; July 6, 1905, $133.08.

"(8) That on September 16, 1905, said Harde was indebted to said House on account of such loans (exclusive of such premiums paid) in the sum of $4,977.50, evidenced by two notes of said Harde to said House, to wit, one for $4,149.50, due June 10, 1903, and the other for $828, due September 9, 1905; that on said September 16, 1905, said $4,977.50 was fully owing by said Harde to said House, as well as said sums paid for premiums as above stated, making a total on said date of said notes and premiums for insurance (exclusive of interest) of the sum of $5,797.71.

"(9) That on September 16, 1905, said Harde not having paid said indebtedness due said House, he assigned said insurance policy to said House, in consideration of said House canceling and surrendering said notes to said Harde, and assigned said policy by the following written assignment thereof, to wit:

"`For $1.00 to me in hand paid and for other valuable considerations, the receipt of which is hereby acknowledged, I hereby assign, transfer and set over all my right, title and interest in policy No. 21709 on the life of Louis Harde of Houston, Harris county, Texas, issued by the Germania Life Insurance Company, and all money which may be payable under the same to Thomas William House, of 203 Main street, Houston, Harris county, Texas, and for the consideration above expressed I do also, for my heirs, executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above-named assignee, his successors, administrators and assigns, and their title to said property will forever warrant and defend. In witness whereof I have hereunto set my hand and seal at Houston, Texas, this the 16th day of September, 1905. [Signed] Louis Harde, in presence of [Signed] A. S. Dyer.

"`State of Texas, County of Harris:

"`On this __ day of September, in the year 1905, before me personally came Louis Harde, to me known to be the individual described in and who executed the foregoing instrument, and he acknowledged that he executed the same for the purposes therein mentioned.

"`[Signed] E. N. Mills, Notary Public, in and for Harris County, Texas.

"`My time of office expires June 1, 1907.'

"And said House thereupon canceled and surrendered to said Harde said two notes, together with stock that had been placed by Harde with House as collateral security for said $828 note, and closed out the account of said Harde upon the books of said House with an entry to the effect that said notes had been `paid'; and said House opened an account on his books entitled `Louis Harde Insurance Account,' to which account were charged the premiums paid by said House on said policy of insurance, and in which account this entry was made, dated September 16, 1905, `Note and interest, $4,977.50,' on the debit side thereof.

"(10) That said House thereafter paid the following premiums on said policy at the dates stated hereinafter, same being necessary to preserve and keep said policy in force, to wit: July 6, 1906, $132.41; July 5, 1907, $131.73—which were charged...