National Bank of Commerce in Denver v. Appel Clothing Co.

• Decision Date: 04 December 1905
• Citation: 35 Colo. 149,83 P. 965
• Parties: NATIONAL BANK OF COMMERCE IN DENVER v. APPEL CLOTHING CO. et al.
• Court: Colorado Supreme Court

83 P. 965

35 Colo. 149

NATIONAL BANK OF COMMERCE IN DENVER v. APPEL CLOTHING CO. et al.

Supreme Court of Colorado

December 4, 1905

Appeal from District Court, Arapahoe County; Calvin P. Butler Judge.

Action by the National Bank of Commerce in Denver against the Appel Clothing Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

The purpose of this action, commenced by appellant as plaintiff in the court below, is to subject certain life insurance policies issued upon the lives of debtors of the plaintiff to the payment of a judgment in favor of the plaintiff and against such debtors. The material averments of the bill necessary to consider are to the effect that these policies provided for the payment of certain sums of money to the insured within specified periods, but in the event of their death before the expiration of such periods then certain sums would be paid the wife or daughters of each debtor, and that these policies, by virtue of their terms, had certain values which could be obtained from the companies issuing them upon the surrender thereof without the consent of the beneficiaries. To this action the judgment debtors beneficiaries and insurance companies, were made parties defendant. A general demurrer was interposed to the complaint, which was overruled. Thereafter answers were filed and a trial had on the issues made. The policies were issued or assignments thereof made prior to the rendition of plaintiff's judgment. It is claimed on behalf of plaintiff that these policies, either by their express terms or under the terms of the assignments, vest the insured with full authority to change the beneficiaries without their consent. Judgment was rendered in favor of the defendants from which the plaintiff appeals.

H. S. Silverstein and T. J. O'Donnell, for appellant.

D. V Burns, M. B. Carpenter, Talbot, Denison & Wadley, and Muller & Summerfield, for appellees.

GABBERT, C.J. (after stating the facts).

Counsel for plaintiff say that this action is in the nature of a creditors' bill. Their theory upon which they claim this action can be maintained is that where a debtor takes out a policy of life insurance upon his own life by the terms of which, should he survive a certain definite period, the company undertakes to pay him a certain sum of money, with the contingency that upon the death of the insured during this period the company will in that event pay certain sums of money to a beneficiary named in the policy or by assignment, and where such policy by its terms has a value which the insured can obtain by surrender of the policy without the consent of the beneficiary, such a policy is an asset of the insured which can be reached by his creditors. In other words, they claim that what he himself may do under such a policy a court of equity will compel him to do for the benefit of his creditors. This suit being in the nature of a creditors' bill, the elements necessary to maintain it must be present. Conceding, but not deciding, that the contention of counsel for...