Montgomery v. Mutual Life Insurance Co. of New York

• Decision Date: 20 March 1916
• Docket Number: 17981
• Citation: 71 So. 162,111 Miss. 6
• Court: Mississippi Supreme Court
• Parties: MONTGOMERY SHERIFF ET AL. v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK

71 So. 162

111 Miss. 6

MONTGOMERY SHERIFF ET AL. v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK

No. 17981

Supreme Court of Mississippi

March 20, 1916

APPEAL from the chancery court of Lincoln county, HON. P. Z. JONES Chancellor.

Suit by T. H. Montgomery, sheriff and administrator and another against the Mutual Life Insurance Company of New York. From a decree dismissing the bill, complainants appeal.

The facts are fully stated in the opinion of the court.

Case affirmed.

M McCullough, for appellants.

R. H. &amp J. H. Thompson, H. Cassedy and J. W. Cassedy, for appellees.

OPINION

POTTER, J.

On the first day of March, 1892, William R. Kennedy insured his life in the Mutual Life Insurance Company of New York for two thousand, five hundred dollars and the policy was made payable to himself, his executors, administrators, or assigns. The annual premium on the policy was ninety-seven dollars. One premium was paid at the time the policy was issued, and future payments of the same amount were to be made each year after that date until 20 payments should be made. On August 1, 1892, Mr. Kennedy assigned the policy of life insurance above mentioned to his wife, Mrs. Amanda E. Kennedy, and the insurance company was notified of the assignment. Mrs. Kennedy died intestate in the year 1895 and left surviving her her husband, William R. Kennedy, and her six children, all adults, as her heirs. After the death of Mrs. Kennedy, Mr. Kennedy paid two premiums on this policy, one March 1, 1897, and one March 1, 1898.

The policy contained a provision that:

After "three full annual premiums having been paid on this policy, the company will, upon the legal surrender thereof before default in the payment of any premium or within six months thereafter, issue a nonparticipating policy for paid-up insurance payable as herein provided, for the proportion of the amount of this policy which the number of full years premiums paid bear to the total number required."

On March 18, 1898, within the six months definitely specified in the paid-up policy provision, Mr. Kennedy, the insured and one of the heirs of his deceased wife to whom the original policy had been assigned, mailed an application to the company for a paid-up policy, and the same was issued in conformity with the terms of the original policy. The amount of the paid-up policy was seven hundred and fifty dollars. In other words, at the death of Mr. Kennedy the estate of Mrs Kennedy would be paid seven hundred and fifty dollars by the insurance company. On June 4, 1904, Mr. Applewhite, at that time the sheriff of Lincoln county, was appointed the administrator of the estate of Mrs. Kennedy, and the United States Fidelity & Guaranty Company became surety on his bond as administrator, and on June 15, 1904, Applewhite, the administrator, and William R. Kennedy, the payee in the policy, surrendered the policy in question to the insurance company and executed a joint receipt to the insurance company for two hundred and thirty-three dollars in full settlement and surrender of the policy. That the amount received by the administrator was the full cash surrender value of the policy is not controverted; in other words, the administrator was paid all the policy was worth at the time of the surrender of same was made. This money was paid by...