Hawkes v. Mobley
| Decision Date | 23 February 1932 |
| Docket Number | 8318. |
| Citation | 163 S.E. 494,174 Ga. 481 |
| Parties | HAWKES v. MOBLEY, Superintendent of Banks, et al. |
| Court | Georgia Supreme Court |
Rehearing Denied March 3, 1932.
Syllabus OPINION.
Insured may assign ordinary life policy in payment of debts, without beneficiary's consent.
Insured could change beneficiary under policy without consent of beneficiary, where policy provided for change by written request filed at insurer's home office.
Insurer's receipt and noting of record of change of beneficiary held substantial compliance with provision permitting change by written request filed at home office and indorsed by insurer.
Insured could change beneficiary and assign policy without beneficiary's consent, where policy provided for change by insured's written notice to company subject to company's approval.
Written change of beneficiary mailed to insurer, followed by notation of change on policy card, held substantial compliance with provision for change by written notice with insurer's approval and policy indorsement.
Paper executed by insured reciting that he sold, transferred, and assigned life policy, held valid assignment, though insurer did not enter assignment on policy (Civ. Code 1910 §§ 2498, 3653).
Changes of beneficiaries and assignments of life policies by insured to creditor without consent of beneficiary, who was insured's wife, held valid.
Statutory definition of duress, as other means coercing will of another, should be construed in restricted sense (Civ. Code 1910, § 4116).
Allegations should be construed most strongly against pleader.
In plea of duress, facts relied on must be specifically set forth.
Honest intercession and persuasion is not "undue influence," but there must be unlawful importunity.
That bank president executed changes of beneficiaries and assignments of life policies to bank, as result of pressure and promise to lighten punishment on plea of guilty to embezzlement charge, held not to show "duress" invalidating transfers (Civ. Code 1910, § 4116).
General allegations as to mental incapacity of bank president resulting from duress exercised in obtaining assignments of policies from him to bank, following charge of embezzlement held insufficient.
Changes of beneficiaries and assignments of life policies made by officer to bank in partial restitution for defalcations held not void, where promise of aid to lessen punishment referred only to aid following plea of guilty (Civ. Code 1910, § 4491).
Petition charging that advances were made as security on pre-existing debt does not raise question whether conveyances were void for want of new consideration.
In Florida, wife can transfer dower interest in payment of husband's debt (Comp. Gen. Laws Fla. 1927, §§ 5493, 5674 5675).
Law of state where land is located determines married woman's authority to convey interest therein.
Error from Superior Court, Bibb County; Henry A. Mathews, Judge.
Suit by R. L. Hawkes against A. B. Mobley, Superintendent of Banks, and others. Judgment of dismissal was entered, and petitioner brings error.
Affirmed.
Assignments of life policies made by officer to bank in partial restitution for defalcations held not void, where promise of aid to lessen punishment referred only to aid following plea of guilty. Civ.Code 1910, § 4491.
T. W. Hawkes was owner of certain policies of insurance upon his life, in which his wife Rubie L. Hawkes was the designated beneficiary. One of the policies was issued by the Equitable Life Assurance Society of the United States (a corporation), for $5,000. The others were issued by other companies for different amounts. The sum total of all the policies was $20,340. Each policy contained a clause authorizing the insured to change the beneficiary by complying with certain specifications. On August 29, 1930, the insured, being president of the Merchants' & Mechanics' Bank of Macon, was ascertained to be a defaulter to that institution, in the amount of $91,000. The bank was taken over by the state superintendent of banks, as an insolvent institution, for liquidation. On the night of the same day the insured executed to the bank written assignments of each of the policies. In each instrument of assignment a change of beneficiary was made by designating the bank as beneficiary. These instruments were executed in duplicate, and were delivered to the bank, and one of the duplicates was filed at the home office of the respective insurers, issuing the policy to which the duplicate related. Two of the companies received the assignments, but required them to be made on forms furnished by such companies. Such assignments and changes of beneficiary were re-executed on such forms and forwarded to those companies on November 25, 1930, and were accepted. T. W. Hawkes owned certain realty in the state of Florida of the supposed value of "several thousand dollars," and certain other realty in the state of Georgia of unstated value, which he also conveyed to the bank. Mrs. Hawkes joined in the deed to the realty in Florida in order to comply with the laws of that state. T. W. Hawkes died December 27, 1930. Four days after his death Mrs. Hawkes instituted suit against the superintendent of banks, the bank, and all the insurance companies to require them to interplead, and for a decree awarding the proceeds of the insurance policies to the petitioner, and to set aside the deeds to the realty in order that petitioner might apply to have a year's support set apart from such realty; and for general relief. The insurers answered, and paid into court the amounts due on their respective policies; and they were discharged from all further liability. The petition as amended alleged all the foregoing and other facts which sufficiently appear in the decision. The superintendent of banks and the bank filed a joint demurrer. The Equitable Life Assurance Society filed separate demurrers to the petition and to the petition as amended. All the insurance companies, having answered and having paid the amount of their respective policies into court, were discharged from further liability, and by consent were dismissed as parties to the case, except the Equitable Life Assurance Society of the United States, which was permitted to remain a party solely for the purpose of sustaining the right of the insured to assign, without the assent of the beneficiary, the policy issued by that company. The petitioner excepted to the sustaining of the demurrers and the dismissal of her action.
R. Douglas Feagin, of Macon, for plaintiff in error.
Park & Strozier and Jones, Jones, Johnston & Russell, all of Macon, for defendants in error.
1. In an ordinary life insurance policy, where power to change the beneficiary or to assign the policy is reserved to the insured, the issuance of the policy does not confer upon the beneficiary a vested right or interest or more than an expectancy, Nally v. Nally, 74 Ga. 669, 58 Am.Rep. 458; Ogletree v. Ogletree, 127 Ga. 232, 55 S.E. 954, and the insured may assign the policy in payment of his debts without the consent of the beneficiary, although the beneficiary be his wife, Farmers State Bank v. Kelley, 155 Ga. 733-737, 118 S.E. 197.
(a) The request to review and overrule the decision in Farmers State Bank v. Kelley, supra, in so far as it supports the principle ruled above, is refused. Merchants' Bank v. Garrard, 158 Ga. 867, 124 S.E. 715, 38 A.L.R. 102.
(b) Where the right of the insured is reserved to change the beneficiary, the insured may change the beneficiary.
(c) A different ruling is not required by the decision in Smith v. Head, 75 Ga. 755, in which the life insurance policy involved did not reserve to the insured the right to change the beneficiary, and the insured died without having assigned the contract or changed the beneficiary.
(d) In the instant case the policy issued by the Equitable Life Assurance Society of the United States designated the wife of the insured as the beneficiary. The policy provided that the insured may change the beneficiary "by a written request *** filed at its home office, but such change shall take effect only upon the endorsement of the same hereon by the society"; also that the insured "may, without the consent of the beneficiary, surrender, assign, or pledge this policy and receive, exercise, and enjoy every benefit, right and privilege conferred upon the insured by the terms hereof also that The petition alleged that the insured executed an assignment of the policy to the bank as a creditor, embodying in said assignment a clause that the name of the beneficiary therein should be changed to the bank, also that "the attempted change of beneficiary and *** assignment" is null and void, because petitioner, as designated beneficiary, had a property right in the policy which could be legally divested only in the specific manner provided for in the policy and by strict compliance with the law. The particular ground of complaint alleged is that "no entry whatever of any change of the beneficiary, or of any assignment thereof has ever been entered on, or attached to the said policy by the company, or by any one else." The further allegation was made that the attorneys for the bank mailed to the company the assignment in question, and that the company "acknowledged receipt and noted it of record." Held: (1) In view of the rights reserved to the insured, the petitioner obtained under the policy of insurance only an expectancy, and the insured could change the beneficiary and assign the policy,...
To continue reading
Request your trial