McNeill v. Chinn

• Decision Date: 18 March 1907
• Citation: 101 S.W. 465
• Parties: McNEILL v. CHINN.
• Court: Texas Court of Appeals

101 S.W. 465

McNEILL v. CHINN.

Court of Civil Appeals of Texas.

March 18, 1907.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Action by Mary L. Chinn, as guardian of Gertrude M. S. Chinn, against J. C. McNeill. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Bryan & McRae, for appellant. J. C. Kindred, for appellee.

REESE, J.

This suit was instituted in the district court by Mary L. Chinn, guardian of Gertrude M. S. Chinn, to recover the possession of a certain paper writing, denominated a "policy of life insurance," procured to be issued by the Provident Savings Life Assurance Society of New York for $2,000, by H. W. Chinn, the father of said Gertrude, upon his life, in favor of said Gertrude. The life insurance society stands ready to pay the amount due upon the policy to whomsoever may be determined, by final judgment in this cause, to be the owner of the policy. The case was tried in the court below upon an agreed statement of facts, upon which the court rendered judgment for plaintiff, from which defendant appeals.

The trial court adopted as its findings of fact the agreed statement of facts upon which the case was tried. The policy in question was an ordinary life insurance policy for $2,000, issued by the Provident Savings Live Assurance Society of New York to H. W. Chinn, and payable at his death to his daughter, Gertrude M. S. Chinn, or her legal representatives or assigns, "subject to the right of the assigned to change the beneficiary." The following provisions of the policy, upon which the controversy turns, are copied in full:

"This policy is issued in favor of the beneficiary or beneficiaries specified in the first page hereof, with the express understanding that, if this policy shall not then be assigned, the assured may change the beneficiary at any time during the continuance of this policy by filing with the society a written request, duly acknowledged, such change to take effect upon its endorsement on this policy by the society.

"Any assignment of this policy must be in writing, and a duplicate thereof must be furnished the society. Any claim arising under an assignment shall be subject to satisfactory proof of insurable interest existing at the death of the assured, and the society shall be liable to the assignee to the extent of that interest only; but the society will not assume any responsibility for the validity of any assignment."

Other facts agreed upon are as follows:

The plaintiff, Mary L. Chinn, is the duly appointed, qualified, and acting guardian of the estate of her minor child, Gertrude M. S. Chinn, under and by virtue of the appointment of the probate court of Colorado county, Tex. Henry Withers Chinn was the father of said minor, Gertrude M. S. Chinn, and the husband of the plaintiff, Mary L. Chinn. The said Henry Withers Chinn died April 2, 1905, and that there is no administration pending upon his estate. The said Henry Withers Chinn was indebted to the defendant, J. C. McNeill, in the sum of $2,500 upon promissory note of date February 17, 1903, and was so indebted at the time of his death, subject only to the said credits of two years' interest as alleged in the defendant's (McNeill's) answer and cross-bill. The said H. W. Chinn, the insured in said policy, for the purpose of securing the defendant, McNeill, in the payment of his note for $2,500, delivered to McNeill the said policy of insurance, together with a written transfer thereof, reading as follows: "Cameron, Texas, February 21, 1903. In consideration of the use of $2,500.00 to me paid by J. C. McNeill, of Brazoria, Tex., same being by me due, and evidenced by my note of date February 17, 1903, I hereby transfer, and by these presents do deliver and transfer to said J. C. McNeill, his heirs and assigns, all right, title and interest in and to a certain life insurance policy, for the sum of $2,000.00, and issued by the Mutual Reserved Fund Insurance Company of New York, the number of said policy being 84,493, and the same being now in the hands of said J. C. McNeill, having been delivered by me to him. In the event of my death I hereby authorize and empower said J. C. McNeill, his heirs and assigns, to collect said policy, and to apply the same, or so much as may be necessary, to the payment of my said note, or any part thereof, the balance, if any, to be paid to my wife, Mary L. Chinn. I also hereby instruct the officers of said insurance company to pay the same as above directed to said J. C. McNeill, or his assigns, hereby acknowledging said J. C. McNeill's right to collect same, and authorizing him to sign all necessary papers in so doing. I further agree to keep all premiums paid up as they shall fall due. ...