Nally v. Nally

• Decision Date: 02 April 1885
• Citation: 74 Ga. 669
• Parties: NALLY v. NALLY et al.
• Court: Georgia Supreme Court

74 Ga. 669

NALLY v. NALLY et al.

Supreme Court of Georgia.

April 2, 1885

February Term, 1885.

1. An unmarried man took out a policy of insurance on his life, one condition of which was: " This policy is issued and accepted upon the express condition that the assured may with the consent of the company, at any time assign it, or before assignment, change the beneficiaries therein, or make any other change." The person named as the beneficiary was the sister of the assured, and to her he delivered the policy, and paid the premiums to that time. Subsequently he married, and, as an inducement thereto, he agreed that if the woman would marry him, she should be made the beneficiary of the policy. After the marriage, and when the next semi-annual premium fell due, the assured paid it, on condition that the beneficiary should be changed from his sister to his wife. The sister had the policy and would not give it up. The agent was uncertain whether the change could be made without the policy, but promised to notify the company and have the change made if possible. The officers agreed to attend to the matter but overlooked it. After the death of the assured, the company filed a bill to require the wife and sister to interplead and have the question determined as to who was entitled to the money.

Held, that the gift to the sister was not perfected so as to be absolute and irrevocable, and the assured had the right to change the beneficiary of the policy.

2. Marriage is a valuable consideration, and an innocent purchaser on such a consideration will be protected.

( a. ) There is no condition in this policy requiring the consent of the beneficiary named therein to a change of any of its terms or of the parties entitled to claim under it; and whether such change was to be effected by parol or in writing was matter entirely between the assured and the company; and if the latter chose to dispense with any of the modes of effecting this purpose, this concerned no third party; nor could the company capriciously refuse the change.

( b. ) The marriage having been consummated on the inducement of the promised change of the beneficiary under the policy, equity considers that done which ought to be done, and will give relief accordingly.

Insurance. Husband and Wife. Contracts. Gifts. Equity. Consideration. Before Judge HAMMOND. Fulton Superior Court. September Term, 1884.

Reported in the decision.

SPEAIRS & SIMMONS; HILLYER & BRO.; HOKE SMITH, for plaintiff in error.

MYNATT & HOWELL; J. R. SAUSSY; J. M. MCAFEE, for defendants.

HALL Justice.

The contest, in this case is between a gratuitous beneficiary named in a policy of insurance, and one who claims that she was entitled, for a valuable consideration, to-wit, an agreement with the assured entered into prior to her marriage with him, to its benefit, in lieu of the volunteer named therein as such beneficiary. Among other conditions upon which the policy issued was this:

" Eighth. This policy is issued and accepted upon the express condition that the assured may, with the consent of the company, at any time assign it, or, before assignment, change the beneficiaries therein, or make any other change."

The assured was an unmarried man when he took out the policy; the person named as beneficiary therein was his sister, to whom he delivered the policy; he paid the premiums. Subsequent to this, he married the other claimant of the fund, with whom, before their marriage, he agreed that, if she would marry him, she should be made the beneficiary thereof, and it was satisfactorily shown, and not controverted, that this contract, which was an inducement to the marriage, was made. After this, and on the day before the second semi-annual premium on the policy fell due, the marriage was solemnized. The assured sought out the agent of the company, and paid this premium, upon the condition that the beneficiary should be changed from his sister to his wife. The sister had the policy and would not give it up, because she was angry with the assured for having married. Without the policy, the agent was uncertain whether the desired change could be made, but promised to report this direction to change the beneficiary to the officers of the company, and if possible to have the change made. He complied with his promise so far as to communicate the direction of the assured to the officers of the company, and requested them to attend to the matter, which they agreed to do. They, however, overlooked it, and nothing further seems to have been done until the death of the assured, which occurred before the next premium fell due; both the wife and the sister claimed the amount specified in the policy. The company filed its bill, calling upon them to interplead; it paid the money into court, and they were decreed to litigate the matter between them; this issue was by consent tried by the judge without a jury, and he decreed the fund to the sister. The wife excepted to the decree, and brought the case to this court by writ of error. The controversy between the parties turns mainly upon the questions whether the sister, though a volunteer, held under a completely executed gift, and whether the change as to the beneficiary could be made without her consent and that of the company, expressed in writing, although the agreement to make it was founded upon a consideration of the highest value

1. Was the gift to the sister perfected by the delivery of the policy to her, together with the receipts for the premiums paid prior to the contract entered into between the assured and his wife, which was an inducement to their marriage? Was the donation to the sister, under all these circumstances irrevocable? Did the assured thereby deprive himself of the power either of assigning the policy, or of substituting for her another beneficiary? Was such his intention;...