Miller v. Miller's Administratrix

• Decision Date: 11 December 1936
• Parties: Miller v. Miller's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

266 Ky. 539

Miller v. Miller's Administratrix.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided December 11, 1936.

1. Insurance. — Insured's alleged assignment of life policy to wife by naming her as beneficiary of policy when issued prior to divorce held insufficient to take case out of general rule that divorced wife has no interest in proceeds of policy on life of husband merely by reason of having been named beneficiary therein in consideration of or during marriage, nor to constitute assignment after later court decree dissolving marriage relationship (Civil Code of Practice, sec. 425; Ky. Stats., sec. 2121).

2. Executors and Administrators. — Divorced wife held not entitled

to recover proceeds of life policy taken out by husband prior to divorce and in which she was named beneficiary by way of quantum meruit for care and nursing of husband during illness after divorce and when she continued to cohabit with him, remedy being to file verified claim with administratrix (Civil Code of Practice, sec. 425; Ky. Stats., secs. 2121, 3870 et seq.).

3. Executors and Administrators. — Claim asserted by deceased insured's divorced wife to proceeds of life policy as beneficiary on theory of quantum meruit for services rendered could not be set off against claim maturing in favor of deceased's personal representative after his death, notwithstanding deceased may have been insolvent at his death.

Appeal from Jefferson Circuit Court.

LEE S. JONES for appellant.

DODD & DODD for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

Frank Miller died in August, 1935, leaving in full force and effect a policy of insurance, which had been issued him by the defendant Continental Assurance Company upon his life, in the amount of $1,000. The appellant, Jessie Miller, was at the time of the issuance of this insurance the legal wife of the insured, Frank Miller, and was by him named in the policy as beneficiary.

After thus taking this insurance in September, 1933, he later instituted a suit against his wife, the appellant and named beneficiary, for an absolute divorce, which was, in December, 1933, adjudged him, the court making as a part of its decree the further order that "each party shall restore to the other such property * * * as either may have obtained directly or indirectly from or through the other during marriage in consideration or by reason thereof."

Notwithstanding the granting of this divorce, it is pleaded and admitted that Miller and the appellant continued to live together thereafter up until the time of his death in August, 1935.

Following the insured's death, his widow, the appellant, instituted an action against the defendant, Continental Assurance Company, upon the life policy, wherein she was named as beneficiary, seeking as such to obtain the proceeds thereof. Also, about the same time, the appellee, Cecilia McGhee, a sister of the deceased, having qualified as administratrix of his estate, filed a second action against the defendant insurance company, naming the appellant as codefendant therein, whereby she too sought to recover for deceased's estate the proceeds of the policy, predicating her suit upon the ground alleged in her petition, that, by reason of the appellant Jessie Miller having been divorced from the insured after the issuance to him of the life policy sued on (notwithstanding she was therein named as beneficiary), she was thereby divested of all insurable interest and right in the policy.

These two distinct actions, brought respectively against the insurance company upon the policy by the insured's widow and administratrix, were, by order of the court, consolidated and heard together.

The defendant insurance company answered, admitting its full liability for the amount of insurance named in the policy, but alleged that it was unable to determine which of the two plaintiffs, who presented and sued upon conflicting claims as to it, was legally entitled to the insurance or should be paid its amount of $1,000, and asked leave to pay the same into court for distribution between them as their respective rights thereto "should be made to appear" upon adjudication, and that it be allowed to withdraw, with its costs, from the suit, which was so ordered.

To the petition of appellee, suing as administratrix of her brother's estate, the appellant (his widow and named codefendant therein) filed a general demurrer, which was overruled, when she filed her answer, whereby, without traversing the allegations of the petition, she pleaded that, although she (as in the petition alleged) had been divorced from the deceased after this policy, wherein she was named as beneficiary, was issued him, in the settlement of the property rights between her and her husband at the time of their divorce proceedings in December, 1933, he did, for a valuable consideration, assign to her the proceeds of, and name her as his beneficiary in, the insurance policy.

To this answer, a general demurrer was filed and sustained, when appellant filed an amended answer and counterclaim, by the first paragraph of which she again pleaded more specifically an assignment of the policy and its proceeds to her, as made by her husband for a valuable consideration, and further alleged that, in accordance with an agreement, entered into between them in September or October, 1933 (when her husband was in bad health), to nurse him, the said policy of insurance was obtained by him, the premiums paid thereon by him for her use and benefit, and that she was named beneficiary therein by his indorsement of her name on the face of said policy. Also, by the second paragraph of her answer and counterclaim, she alleged that during the intervening period between March, 1933, and August, 1935 (the time of the insured's death), her husband was in bad health, and that during all of this time she, at his special request, did render him personal services, care, and nursing and expend money on him, which were of the reasonable aggregate value of $1,000, and all of which were furnished by her with the expectation on her part of receiving compensation therefor from him, and that the deceased did obtain and maintain in force the life insurance policy here involved for the purpose of paying his obligation to her therefor.

To this amended pleading a general demurrer was again filed and sustained by the court, when a further pleading (entitled a second amended and substituted answer and counterclaim) was filed, reaffirming and combining all the allegations of the former pleadings, to which again a demurrer was filed and sustained.

The appellant declining to plead further, the case was thereupon finally submitted upon the pleadings, whereupon judgment was entered denying appellant any interest in or recovery of any part of the proceeds of the insurance policy, either as beneficiary or assignee thereof.

Appellant appeals from the court's rulings, in holding that none nor all of her several pleadings sufficiently set out facts to constitute a cause of action, contending that same were thereby sufficiently pleaded. In support of such contention as to the legal sufficiency of the facts alleged in the two paragraphs of her answer and counterclaim to state a cause of action, counsel for appellant argues: (1) That an ordinary life insurance policy on a man's life is assignable by him to his wife in settlement of property rights during divorce proceedings; and (2) that a divorcee may recover a judgment on quantum meriuit, for care, nursing, and money expended for her ex-husband at his request during his last illness, against his personal representative, each of which legal proposition he insists was pleaded in paragraphs one and two,...