Nance v. Hilliard

• Decision Date: 16 March 1939
• Docket Number: No. 11204.,11204.
• Citation: 101 F.2d 957
• Parties: NANCE et al. v. HILLIARD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F.2d 957 (1939)

NANCE et al. v. HILLIARD et al.

No. 11204.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1939.

Rehearing Denied March 16, 1939.

George L. Vaughn, of St. Louis, Mo., for appellants.

Waldo C. Mayfield, of St. Louis, Mo. (Bartley & Mayfield, of St. Louis, Mo., on the brief), for appellees.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This is a proceeding instituted by the Metropolitan Life Insurance Company by the filing of a bill of interpleader pursuant to Act of Congress of January 20, 1936, 28 U.S.C.A. § 41, subd. (26), naming as adverse claimants the appellants and appellees respectively, for the purpose of enjoining the named defendants therein from instituting or prosecuting any suit against the insurance company on account of a life insurance policy issued by said company on the life of Nathan Nance, Jr., who died October 9, 1936, while said policy was in full force and effect, and for the purpose of having determined the ownership of the proceeds of said policy. Upon the filing of this bill of interpleader the insurance company deposited in the registry of the court the sum of $5,012.90, the amount due on the policy, and thereupon an interlocutory decree was entered discharging the insurance company.

Mildred H. Nance, wife of the insured, was named as the beneficiary in the policy. Having died subsequent to the death of her husband, Nathan Nance, Jr., her personal representative, Minnie Lee Hilliard, who was also the testamentary guardian of the minor child, Anita Nance, filed answer, claiming the proceeds on behalf of the estate of the named beneficiary, Mildred H. Nance, deceased. The defendants, Creston Nance, individually and as executor under the will of Nathan Nance, Jr., deceased, and Betty Nance, mother of the deceased, Nathan Nance, Jr., filed a joint answer, alleging that deceased had taken such action in his lifetime as effected a change in the beneficiary named in the policy, and that therefore Creston Nance, as executor under the will of the insured, was entitled to the proceeds; that the policy reserved to the insured the right to change the beneficiary "by filing written notice at the home office accompanied by this policy for indorsement of the change thereon by the company;" that the insured applied to the local office of the insurance company in St. Louis, Missouri, to have the beneficiary changed from Mildred H. Nance to the estate of the insured, and that this request was repeated from time to time; that shortly after the 15th of June, 1936, the date at which it is alleged request for change of beneficiary was made at the local office of the insurance company, the insured wrote a letter to the company at its home office in New York City, requesting change of the beneficiary, and informing the company that the policy was in the hands of the named beneficiary, Mildred H. Nance, and for that reason the insured was unable to surrender it; that despairing of securing a change in the beneficiary, he executed and published his will on July 16, 1936, wherein he made provision that the proceeds of the policy should be divided, $500 to go to his brother, Creston Nance, $1,000 to his mother, Betty Nance, $2,000 to his daughter, Anita Nance, and the residue, after the payment of all debts and funeral expenses, to his wife. They prayed that the court decree a change in the beneficiary "in accordance with the said desire and request of the insured," and that the proceeds be awarded to Creston Nance as executor, to be distributed in accordance with the provisions of the will of the insured.

The lower court made findings of fact and conclusions of law resolving the issues in favor of the appellees and entered decree awarding the proceeds of the estate to Minnie Lee Hilliard as executrix under the will of Mildred H. Nance, deceased, and also as testamentary guardian of Anita Nance.

Appellants seek reversal on the ground that the insured had disclosed his intention and desire to change the beneficiary and that he had done all that was in his power, under the disclosed circumstances, to effect such change, but that the consummation of his purpose was thwarted by the acts of the beneficiary, and hence, the court should have decreed as done that which ought to have been done and awarded the proceeds in accordance with the direction of the insured, as expressed in his will.

As the policy reserved to the insured the right to change the beneficiary, she had no vested interest in the policy, but a mere expectancy. Supreme Council of Royal Arcanum v. Behrend 247 U.S. 394, 38 S.Ct. 522, 62 L.Ed. 1182, 1 A.L.R. 966; McKinney v. Fidelity Mutual Life Ins. Co., 270 Mo. 305, 193 S.W. 564; Robinson v. New York Life Ins. Co., 168 Mo.App. 259, 153 S.W. 534; Morgan v. Penn Mutual Life Ins. Co., 8 Cir., 94 F.2d 129; Andrews v. Andrews, 8 Cir., 97 F.2d 485. On the death of the insured, however, she became vested with the absolute right of recovery unless in the meantime a change in the beneficiary had been effected. Cohen v. Samuels, 245 U.S. 50, 38 S. Ct. 36, 62 L.Ed. 143; Andrews v. Andrews, supra. The policy provided the manner in which a change might be effected. Ordinarily, the mode prescribed by the policy must be substantially complied with. McKinney v. Fidelity & Mutual Ins. Co., supra; Carter v. Thornton, 8 Cir., 93 F.2d 529; Grand Lodge v. McFadden, 213 Mo. 269, 111 S.W. 1172.

It is conceded that the insured did not follow the method prescribed by the policy in an attempt to secure a change in the beneficiary. It can not be said that he filed a written notice at the home office definitely requesting a change, and confessedly, the policy was not sent to the home office with request that endorsement of the change be made thereon. But it is here claimed that the insured did everything in his power to effect a change of beneficiary. Had he in fact done all that was in his power to effect the change, equity would recognize the change as effected, notwithstanding the fact that all of the provisions for change had not been literally complied with. Grand Lodge v. McFadden, supra. The lower court, however, specifically found not only that he had not made application for the change as provided in the policy, but that he had not "done everything within his power to effect the change in accordance with the terms...