Kress v. Kress

• Decision Date: 05 March 1921
• Docket Number: 65-1920
• Citation: 75 Pa.Super. 404
• Parties: Kress, Appellant, v. Kress
• Court: Pennsylvania Superior Court

75 Pa.Super. 404

Kress, Appellant, v. Kress

No. 65-1920

Superior Court of Pennsylvania

March 5, 1921

Argued October 22, 1920

Appeal by plaintiff, from judgment of C.P. No. 5, Phila. Co., Sept T., 1917, No. 3458, sustaining demurrer in favor of defendant in the case of Sadye G. Kress v. Rebecca Kress.

Interpleader to determine to whom to pay benefits of life insurance policy. Before Martin, P. J.

The facts are stated in the opinion of the Superior Court.

The fund was paid into court and an issue framed to determine the right thereto, with Sadye Kress, as plaintiff, and Rebecca Kress, as defendant.

A rule was granted on the defendant in the interpleader to show cause why the fund in court should not be paid to petitioner. After argument and reargument, the court entered judgment in favor of the plaintiff in the interpleader.

Error assigned, among others, was the judgment of the court.

Michael Barnett, for appellant. -- The substitution of the beneficiary was complete: Schoales v. Order of Sparta, 206 Pa. 11; Noble v. Police Beneficiary Assn., 224 Pa. 298; P.R. R. v. Wolfe, 203 Pa 269.

Joseph Gross, for appellee. -- Endorsement by the company on the policy of the change in the beneficiary was essential Shepperd v. Crowley, 61 Fla. 735; Johnson v N.Y. Life Ins. Co., 56 Colo. 178; Joyce on Insurance, vol. 2, par. 740B, (2d Ed. 1917, page 1674); Provident Sav. Life Assur. Co. v. Deeds, 120 Ky. 285; Anderson v. Broad Street National Bank, 105 A. 599; Freund v. Freund, 218 Ill. 189.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

Per Curiam

The Metropolitan Life Insurance Company issued a policy upon the life of Israel C. Kress, in the sum of $ 1,000 in which Rebecca Kress, the mother of the insured was named as beneficiary. The policy contained a clause entitled " Change of Beneficiaries," viz: " When the right of revocation has been reserved, the insured, if there be no existing assignment in the policy, may as herein provided, while the policy is in force, designate the new beneficiary with or without reserving the right of revocation, by filing a written notice thereof at the home office of the company accompanied by the policy for suitable endorsement thereon, such change shall take effect upon the endorsement of the same on the policy by the company." Subsequently to the issuing of the policy, which authorized the insured to change the beneficiary without the consent of the beneficiary designated therein. Israel C. Kress, the insured, married Sadye G. Kress, and on July 1, 1917, wrote a letter to the insurance company as follows: " Please change the beneficiary named in my policy from my mother Rebecca Kress to my wife Sadye G. Kress. Please acknowledge this letter and send necessary rider to be attached to the policy."

To which the company replied on July 9, 1917, " The Metropolitan Life Insurance Company begs to acknowledge receipt of your favor of recent date, which will receive prompt attention. In any further communication please state policy number and address correspondence Division, Ordinary Department." The insured was drowned on July 22, 1917. Suit against the insurance company was instituted by Sadye G Kress, the widow, and a demand for payment was also made upon the company by Rebecca Kress, the mother, on the petition of the insurance company, the fund was paid into court and an issue was framed to determine the right thereto, with Sadye G. Kress, the widow, plaintiff, and Rebecca Kress, the mother, defendant. To expedite the proceedings a rule was granted on the defendant in the interpleader to show cause why the fund in court should not be paid to the petitioner. A full hearing was had, and after argument and reargument the court entered judgment in favor of Rebecca Kress, the defendant in the interpleader. The valid substitution of the beneficiary depended upon a full compliance with the terms provided in the contract of insurance, and special declaration at the time when the substitution should be effective, as follows: " Such change shall take effect upon the endorsement of the same on the policy." The insured showed an intention to change the beneficiary by writing the letter of July 1, 1917, of which intention the company had notice,...