Leftwich v. Wells

• Decision Date: 09 February 1903
• Citation: 101 Va. 255,43 S.E. 364
• Parties: LEFTWICH. v. WELLS.
• Court: Virginia Supreme Court

43 S.E. 364

101 Va. 255

LEFTWICH.

v.WELLS.

Supreme Court of Appeals of Virginia.

Feb. 9, 1903.

MUTUAL, BENEFIT INSURANCE — BENEFICIARIES—VOLUNTEER PAYING ASSESSMENTS—RIGHTS ACQUIRED.

1. Where, in an action to recover on a certificate of insurance, plaintiff claimed an agreement with deceased for mutual insurance, but there was no evidence that he had ever taken out a certificate in favor of the insured, and he failed to produce such a certificate, the evidence justified a finding that he had never taken out such insurance.

2. In the absence of contract, payments by a third person on a certificate of insurance of another are gratuitous, creating no equities in his favor.

3. Where one insured in a benevolent society has no property in the policy, but only the power of appointing a beneficiary, and he exercises such power by indorsement on the certificate, the delivery of the certificate to the beneficiary is unnecessary to vest title in her.

4. Where a mother appointed her daughter as her beneficiary under a certificate of insurance, the fact that her husband thereafter paid some of the assessments due thereunder, did not place his wife under a contractual obligation to exercise the power of appointment in his favor.

Error to corporation court of Lynchburg. Action by Samuel Leftwich against the Grand Fountain United Order of True Reformers and Ora A. Wells. Judgment for defendant Wells, and plaintiff brings error. Affirmed.

James E. Edmonds and Leon. Goodman, for plaintiff in error.

John H. Christian, for defendant in error.

WHITTLE, J. The ownership of the proceeds of a $500 benefit certificate issued by the Grand Fountain United Order of True Reformers, a corporation chartered by the circuit court of the city of Richmond, to Annie C. Leftwich, constitutes the subject of this litigation. The rival claimants of the certificate are plaintiff in error, Samuel Leftwich. the husband, and Ora A. Wells, the daughter of Annie C. Leftwich. The purposes for which the society was formed are declared in the charter to be "to provide a place of burial for deceased members, and to defray the expenses of their funerals; to assist in the support and education of their widows and orphans, and in this connection to provide what is known as an endowment or mutual benefit fund; and to give aid and assistance to its members in times of sickness and distress, and for such other benevolent objects as may be necessary."

Section 34 of the constitution provides for payment of the amount of the certificate "to the widow, orphan or orphans, or assigns of the deceased whose names appear in the policy."

And section 2 of the by-laws enlarges the beneficiary class so as to embrace the "heirs" of deceased members.

In the certificate issued to Annie C. Left wich the society promises "to pay the heirs or assigns of the deceased member above named the whole assessment of the benefited membership of class E, not to exceed $500.00."

The prescribed form for designating a beneficiary under the certificate is a printed assignment annexed thereto. In the case under consideration it was filled out as follows:

"I, Annie C. Leftwich, do hereby assign all my claim above mentioned in this certificate at my death to Ora A. Wells, my daughter, of Lynchburg, state of Virginia, who bears to me the relationship of daughter.

"Done at Lynchburg, this 8th day of February, A. D. 1898.

"[Signed] Annie X C. Leftwich.

"Witness: E. M. Thompson.

"Witness: W. D. Thompson."

"Members will please fill out the above, and sign in the presence of two witnesses."

Annie C. Leftwich departed this life on the 29th day of August, 1901, and defendant in error proceeded by motion against the society in the corporation court of the city of Lynchburg to recover the $500 due on the certificate.

The society is not an active party to the litigation, and claims no interest in the subject-matter; but it filed an affidavit in usual form in the trial court, setting forth the fact that plaintiff in error asserted title to the fund, and asked that he be summoned to appear and required to interplead in the manner prescribed by section 2998 of the Code.

Thereupon the court, having summoned plaintiff in error, directed the following issues to be tried by a jury, to wit: "Whether or not the assignment of the policy of insurance in the Grand Fountain of the United Order of True Reformers on the life of Annie C. Leftwich to Ora A. Wells is fraudulent and void as to Samuel Leftwich, and whether or not the proceeds, or any part thereof, are the property of said Samuel Leftwich." There was a verdict and judgment in behalf of defendant In error, which judgment is before this court for review.

The grounds upon which plaintiff in error bases his right to demand the proceeds of the certificate are: (1) An alleged agreement between himself and Annie C. Leftwich, by the terms of which each was to take out a certificate for the benefit of the other; (2) payment by him of $250 of dues and assessments on the certificate in question; (3) that the assignment to defendant in error was fraudulent and void; and (4) that said assignment was inoperative, for the reason that neither it nor the certificate was ever delivered to Ora A. Wells.

It is not needful to invoke the rule that this case is here as on a demurrer to evidence in order to sustain the verdict and judgment complained of. The testimony onbehalf of pl...