Howe v. Fidelity Trust Co. of Louisville

• Decision Date: 23 November 1905
• Parties: HOWE v. FIDELITY TRUST CO. OF LOUISVILLE.
• Court: Kentucky Court of Appeals

89 S.W. 521

HOWE v. FIDELITY TRUST CO. OF LOUISVILLE.

Court of Appeals of Kentucky.

November 23, 1905

Appeal from Circuit Court, Montgomery County.

"Not to be officially reported."

Action by Emma K. Howe against the Fidelity Trust Company of Louisville, as trustee under the will of Charles W. Howe deceased. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Beckner & Jouett, for appellant.

John G Winn, for appellee.

O'REAR J.

Chas W. Howe had taken out a policy of life insurance with the Mutual Life Insurance Company of Kentucky, in which appellant, Emma K. Howe, wife of assured, was named as the beneficiary. The policy contract contained this clause as one of its conditions: "This policy is issued and accepted upon express condition that the said Charles W. Howe may with the consent of the company at any time assign it, or before assignment change the beneficiary therein or make any other change. No assignment, however, shall take effect until written notice thereof shall be given to the company, and under no circumstances shall the company assume any responsibility for the validity of such assignment." A few days before his death the assured, Charles W. Howe, by a writing which he signed and delivered, changed the beneficiary in the policy by creating a trust, nominating Fidelity Trust Company of Louisville as trustee for the two infant children of assured, to whom he gave the use, subject to certain restrictions and contingencies, of two thirds of the fund to be derived from the policy, and the other third to appellant. This writing, which was called an "assignment," was accepted by the trustee, but was not delivered to the insurance company and consented to by it till two days after the death of the assured. Appellant contends by this suit that she took an absolute and vested estate in the policy after the death of her husband, as he had never assigned it with the consent of the insurer; that such consent, to be effective, must have been given in the lifetime of the assured and before her estate in the fund vested.

The clause quoted from the policy treats of two conditions, or privileges, which were secured to the assured. One was his right to assign the policy. The other was his right to change the beneficiary. The first named was conditioned that the insured should have notice of and consent to the assignment. The second was without condition. It is not...