Kurtz v. Dickson
| Citation | 194 Va. 957,76 S.E.2d 219 |
| Court | Supreme Court of Virginia |
| Decision Date | 08 June 1953 |
| Parties | LUCILLE KURTZ v. WILLIAM P. DICKSON, JR., ADM'R., ETC., ET AL |
Gordon E. Campbell, George H. Gray, for appellant.
Jonathan W. Old, Jr., Willcox, Cooke & William P. Dickson, Jr., for appellees.
This is a suit for a declaratory decree to determine who is entitled to the contributions made by the late Daniel E. Hobbs to the Employees' Retirement System of the City of Norfolk, Virginia, while he was a police officer of the said city. The suit was instituted by Ann Clatie Hobbs, the widow of Daniel E. Hobbs, against the City of Norfolk and Lucille Kurtz. Lucille Kurtz was the first wife of the deceased, from whom deceased had obtained an absolute divorce. William P. Dickson, Jr., administrator of the estate of Hobbs, was, at his request, joined as a party defendant. A separate answer to the bill was filed by each of the defendants.
The City of Norfolk, in its answer, states that it is ready and willing to pay the accumulated contributions of the decedent, amounting to $1,527.77, to the person determined to be legally entitled to receive the same.
Ann Clatie Hobbs, in her bill, contends that by virtue of a separation agreement entered into between the deceased and his first wife, an agreement subsequently approved in the divorce decree obtained by Hobbs from his first wife, the first wife released any and all claims to the fund in controversy; and that the complainant, by virtue of her marriage, and her continuance as the wife of Hobbs until his death, was entitled to the same. Upon appeal, however, Ann Clatie Hobbs joins in the contention of the administrator that the fund should be paid to the latter as a part of the estate of her late husband.
Mrs. Kurtz, in her answer, denies that her right to receive the said fund is precluded either by the property settlement she made with her former husband or by the terms of the decree against her.
The cause came on to be heard on the bill, the answers, the general replication thereto, and the testimony of the witnesses heard ore tenus. The trial court decreed that the fund constituted part of the personal estate of Daniel E. Hobbs, deceased, and ordered that it be paid to his administrator. Mrs. Kurtz perfected this appeal.
Daniel E. Hobbs, a member of the police force of the City of Norfolk, became a participant in the Employees' Retirement System of that city, on January 31, 1942. At that time, his wife was Lucille Hobbs, the appellant, now known as Lucille Kurtz.
Section 37-13 of the Norfolk City Code, 1950, makes provision for both accidental death benefits and pensions to those who participate in the Employees' Retirement System of that city. The provisions of the pension plan are not here involved. We are concerned only with the proceeds from the accidental death benefit provision. So far as is pertinent thereto, § 37-13 reads as follows:
'(a) His contributions, together with such interest thereon, not less than one-half of accumulated regular interest thereon, as the board shall allow, to such person, if any, as he shall have nominated by written designation duly acknowledged and filed with the board, otherwise to his estate; * * *.'
Upon his admission as a participant in the System, Hobbs duly made and filed the following written designation of the person who, in the event of his accidental death, should receive the contributions made by him:
'I, the undersigned, do hereby designate Lucille Hobbs, whose address is 2918 Somme Avenue, and whose relationship to me is wife, as the beneficiary to whom I request the Board of Trustees of the Employees' Retirement System of the City of Norfolk to pay in the event of my death before retirement allowance, the total amount of the contributions previously made by me with such interest as is allowable thereon.'
On December 15, 1947, Hobbs was awarded a decree of divorce a mensa against Lucille Hobbs on the ground of desertion. That decree confirmed and approved a property settlement and separation agreement between the parties dated December 9, 1947, and adjudged that the marital rights of each party to the suit 'in and to any property owned by the other party be and the same are hereby extinguished.'
In the agreement, Lucille Hobbs acknowledged receipt of $2,750.00 in full settlement of all her right to any interest in a certain parcel of real property, and of all her claims against Hobbs 'for alimony and/or support.' The agreement also set apart specifically described personal property for each of the parties, and further provided that 'Each party hereby relinquishes his or her marital rights in and to the respective property of the other.'
On November 3, 1948, the decree of divorce a mensa was merged into a decree a vinculo matrimonii, and the marriage between Hobbs and his first wife thereby dissolved. Four months after the date of the final decree, Hobbs married Ann Clatie Hobbs, and they lived together as husband and wife until his death. Subsequent to June, 1949, Lucille Hobbs married again, thereby becoming Lucille Kurtz.
Daniel E. Hobbs died on April 7, 1952, as a natural and proximate result of an accident occurring while he was in the actual performance of duty. At the time of his death, he had not changed the designation of Lucille Hobbs as the person to receive his accumulated contributions.
Over the objection of the administrator, the trial court admitted the testimony of Mrs. Kurtz that Hobbs told her, after he had married his second wife, that he did not intend to change the beneficiary of his contributions in the retirement system; and the testimony of Elizabeth Hobbs, a daughter of the deceased by his first wife, and of a nephew, that Hobbs told them he wanted Elizabeth Hobbs to receive the benefit of such contributions. Inasmuch as we think that the rights of the parties are to be determined by a consideration of the provisions of § 37-13 of the Code of the City of Norfolk, the written designation, the separation agreement, and the divorce decrees mentioned, this testimony was inadmissible. Moreover the testimony lacked the corroboration required by § 8-286, Code of Virginia, 1950.
The law applicable to the facts before us is, we think, the same as that which applies to the rights of a divorced wife in the proceeds of a policy of insurance on the life of her former husband, in which policy she was, as his wife, named as his beneficiary, and the husband failed to change such designation after a divorce and before his death.
But whether the contributions made by Hobbs to the retirement system are analogous to the proceeds from an ordinary life insurance policy with an accidental death benefit, or resemble the proceeds from fraternal or mutal benefit insurance is not material here, in the absence of a controlling statute, or any rule or regulation of the Employees' Retirement System of the City of Norfolk, which automatically changes the designation of the wife of a participant as his beneficiary, in the event her husband subsequently obtains an absolute divorce from her.
It is conceded that Hobbs had the absolute right, under § 37-13 of the Norfolk City Code, without the consent of anyone, to designate any person whom he might desire as the beneficiary to receive his accumulated contributions, in the event of his accidental death. In accordance therewith, Hobbs specifically designated 'Lucille Hobbs,' gave her address, and then stated her relation to him as that of wife. This was the designation of a specific person. The statement of her relationship was not a condition of that designation; that is, the designation of a status. The words 'whose relationship to me is wife' are merely descriptive; they do not name the beneficiary but describe her. On this point, the law seems well settled.
'Ordinarily, where the term 'wife' is used in describing a named beneficiary in an insurance contract, it is considered as being descriptive only. ' Annotation 175 A.L.R., page 1226.
The word 'wife' in the description of the beneficiary is generally regarded as descriptio personae, and not a condition of the designation. Hergenrather v. State Mutual Life Assurance Co., 79 Ohio App. 116, 68 N.E.2d 833, 835; Federal Life Ins. Co. v. Tietsort, (CCA 7th, Ill.) 131 Fed.2d 448 (Cert. den.) 318 U.S. 768, 87 L.Ed. 1139, 63 S.Ct. 762; Pate v. Citizens & Southern National Bank, 203 Ga. 442, 47 S.E.2d 277; 29 Am. Jur., Insurance, § 1292, page 965; 46 C.J.S., Insurance, § 1160, page 44.
The controlling question in this case is whether the right...
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