Luckey v. Luckey

• Decision Date: 28 May 1959
• Docket Number: No. 14688.,14688.
• Citation: 267 F.2d 680
• Parties: Albert B. LUCKEY, Jr., Appellant, v. Arline Mae LUCKEY et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

267 F.2d 680 (1959)

Albert B. LUCKEY, Jr., Appellant, v. Arline Mae LUCKEY et al., Appellees.

No. 14688.

United States Court of Appeals District of Columbia Circuit.

Argued April 21, 1959.

Decided May 28, 1959.

Mr. Paul F. McArdle, Washington, D. C., for appellant.

Mr. Leo Howard Kerns, Washington, D. C., was on the brief for appellant.

Mr. Henry H. Paige, Washington, D. C., with whom Messrs. Arthur P. Drury, John M. Lynham, and John E. Powell, Washington, D. C., were on the brief, for appellee Luckey.

Mr. John L. Laskey, Washington, D. C., with whom Mr. Dyer Justice Taylor, Washington, D. C., was on the brief, for appellee Aetna Life Ins. Co.

Before WASHINGTON, DANAHER and BURGER, Circuit Judges.

BURGER, Circuit Judge.

This appeal presents issues relating to the steps necessary to effect a change in beneficiary of an allegedly lost life insurance policy which, by its terms, prescribed that such a change would not become effective until it was endorsed by the insurer on the original policy or on a duplicate policy issued after proof of loss of the original. The District Court entered summary judgment in favor of appellee Arline Mae Luckey, the person in whose favor the change was sought to be made, and awarded attorney's fees and costs to the insurer, Aetna Life Insurance Company, on its bill of interpleader.

Albert B. Luckey, the deceased, was the owner of two life insurance policies issued by Aetna for $5,000 and $2,500 respectively. Only the $2,500 policy is in issue here, and it is undisputed that every transaction with respect to this policy, from application to death claim, including the application to change beneficiary was initiated and consummated in Florida; the insured died while resident in Florida. It follows that Florida law applies.

When issued on April 19, 1942, the $2,500 policy named as beneficiaries Elsie Luckey, then the wife of the insured, and Albert B. Luckey Jr., his son, equally, or to the survivor. On May 4, 1942, the insured effected a change in beneficiary of the policy in strict accordance with its terms to Albert B. Luckey Jr., his son, provided he survived the insured, otherwise to Elsie Luckey, his wife. On or about March 26, 1954, the insured and his first wife, Elsie, were divorced and within a month he married Arline Mae Luckey, appellee herein. On June 3, 1956, the insured died while this policy was still in force.

Prior to his death, the insured applied at the Miami office of Aetna to change the beneficiary on both the $2,500 policy in issue and the $5,000 policy.¹ This application was made November 24, 1954. With respect to the $2,500 policy the insured executed a request for a change of beneficiary form and also an affidavit of loss of that policy on a form provided by the company. This lost policy affidavit, which included a request for the issuance of a duplicate policy, contained a series of questions for answer by the insured. It provided on its face that it was to be executed by the insured and by beneficiaries of legal age and also by any other person of legal age in interest.

The loss affidavit was, however, signed only by the insured. In response to a question about the whereabouts of the policy when it was lost or destroyed, the insured answered: "In hands of former wife, now divorced. Want to change beneficiary to present wife." He stated that the policy was last in his possession in 1949. He did not answer questions calling for details, dates, manner of loss, whether it was burned or stolen, what efforts had been made to find the policy, or whether there had been any assignment, transfer or change in title of the policy.²

On the same day as the insured executed these forms, November 24, 1954, the Miami office forwarded the insured's requests to the insurer's home office. Six days later the home office advised the Miami branch that in view of the situation described in the cover letter sending the forms from Miami

"all we can do is to hold the beneficiary forms on file until such time as the insured can recover his policy so that the change of beneficiary can be completed. * * * In all probability no settlement of the policy can be made without a release from the former wife and the present wife and son."

At the same time the Miami office wrote to the insured advising him that the beneficiary had been changed with respect to the $5,000 policy, not here in issue, but as to the $2,500 policy merely quoted the above statement from the home office letter, saying in conclusion: "If we can be of further service please let us know." It is therefore clear that the insured was promptly notified that the company did not accept either of his requests with respect to the $2,500 policy.

The parties have stipulated that, from the time of the insured's divorce from his first wife until his death, there was no communication of any kind between the insured and his first wife, and the record indicates that at no time did he demand from her or from the son the insurance policy which the insured had said in his affidavit to Aetna was lost while in her possession.

After the insured's death on June 3, 1956, appellant and appellee both claimed proceeds of the $2,500 policy as beneficiary. The insurer promptly advised appellee that "the...