N.Y. Life Ins. Co v. Davis

• Decision Date: 25 March 1897
• Citation: 94 Va. 427,26 S.E. 941
• Court: Virginia Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. DAVIS et al.

26 S.E. 941

94 Va. 427

NEW YORK LIFE INS. CO.

v.DAVIS et al.

Supreme Court of Appeals of Virginia.

March 25, 1897.

Continuance—Equity—Jury Trial—Appeal.

1. In an action by the personal representative of an insured against the insurance company and an assignee of the policy to adjudicate all rights, it was error to deny the company a continuance, where a vacation decree had been entered appointing a receiver to take possession of the policy and sue thereon at law, and the company, expecting a separate suit, had not prepared its defense in the suit in equity.

2. An insurance company cannot complain, on appeal, of the appointment of a receiver to sue on behalf of the personal representative of insured, where, though served with a rule to show cause against it, it did not resist the appointment.

3. An insurance company is not entitled of right to a jury trial of its defense to the policy in a suit by the personal representative of insured to enjoin payment to an assignee and collect the policy.

Appeal from circuit court, Henry county.

Bill by John W. Davis and another against the New York Life Insurance Company and another. From a decree for complainants, defendant the New York Life Insurance Company appeals. Reversed.

E. W. Saunders, for appellant.

Peatross & Harris and W. M. Peyton, for appellees.

BUCHANAN, J. John W. Davis and his wife filed their bill in the circuit court of Henry county against W. W. Lester and the New York Life Insurance Company, in which they alleged that their son, J. W. T. Davis, had recently died, under 21 years of age, unmarried, without issue, and intestate; that no administration had yet been appointed for his estate, but at the next term of the county court for that county the father would apply for administration, and, when appointed, would ask to be made a party to the bill in his fiduciary capacity. They further alleged that their son had taken out upon his life, for his own benefit two policies in the New York Life Insurance Company; that since his death W. W. Lester claimed to be the assignee and owner of the policies, and as such claimant was preparing to give notices and to furnish proofs of the death of the insured, and doing such other acts as were necessary to enable him to collect the policies which were in his hands; that Lester had induced the deceased to take out the policies upon the representation that he (Lester) would pay the premiums and hold the policies, so that he could get his money back if the insured should die; that Lester, after thedecedent's death, had, upon false representations, induced the father, who was unable to read or write, to make some assignment of the policies, the exact character of which is not known; that Lester had not paid any consideration for the alleged assignment of the policies, other than the premiums thereon, which amounted to a very small sum, and had no other interest in them; that beyond that sum the assignments were void, and the proceeds of the policies in excess of it were due to the decedent's estate; that Lester, unless restrained, would collect the policies, and that if he did, being worth but little, if anything, it would be impossible to recover from him the amount to which the decedent's estate was entitled; that the insurance company had been notified not to pay; and that, while that company desired to pay the policies to the party properly entitled, it had intimated that it might be unable to protect itself against the demands of the pretended assignee.

The prayer of the bill was that Lester and the insurance company be made parties defendant; that the one be enjoined from collecting and the other from paying the insurance policies to him; that all proper accounts be ordered, and the interests of the parties in the policies be ascertained, and the insurance company be required to pay what was due the decedent's estate to his personal representative; and for general relief. The injunction was granted as prayed for, and...