New York Life Ins. Co. v. Chittenden & Eastmen

• Decision Date: 04 June 1907
• Citation: 112 N.W. 96,134 Iowa 613
• Parties: NEW YORK LIFE INSURANCE COMPANY, Appellant, v. CHITTENDEN & EASTMAN and C. W. WALDECK
• Court: Iowa Supreme Court

112 N.W. 96

134 Iowa 613

NEW YORK LIFE INSURANCE COMPANY, Appellant, v. CHITTENDEN & EASTMAN and C. W. WALDECK

Supreme Court of Iowa, Des Moines

June 4, 1907

Appeal from Des Moines District Court.--HON.W. S. WITHROW, Judge.

ACTION to recover back the money paid on a life insurance policy under mistake as to the death of the insured. On trial without a jury the court rendered a judgment for defendants from which plaintiffs appeal.

Affirmed.

Seerley & Clark and James H. McIntosh, for appellant.

Blake & Wilson and Power & Power, for appellees.

OPINION

MCCLAIN, J.

Two policies were issued by plaintiff to one Jarvis on the 9th day of September, 1889, each for $ 1,350, payable on his death to his wife, or, if not living, to his children, or, if no children should survive, then to the executors administrators, or assigns of the insured. Prior to the 25th day of December, 1894, the wife of the insured had died, and he was without children, and he had assigned the policy of the defendants Chittenden & Eastman, a partnership to whom he was indebted, and forwarded a copy of this assignment to the plaintiff. It appears, also, that prior to the assignment to Chittenden & Eastman there had been another assignment by way of security to the Iowa State Savings Bank which had not been forwarded to the plaintiff, and was not known to it when the assignment to Chittenden & Eastman was received and recognized. On the last above date Jarvis, the insured, disappeared from his home in Burlington, and was not heard of for more than seven years. At the April term, 1902, of the district court of Des Moines county, the Iowa State Savings Bank applied as creditor for the appointment of an administrator for the estate of Jarvis, alleging his disappearance, and that his whereabouts had continued unknown to his friends and the members of his family, and that he had not been heard from. Proper proceedings were had, under which defendant Waldeck was appointed administrator of the estate of Jarvis, and a claim was then made jointly by Waldeck as administrator and Chittenden & Eastman as assignees for payment of the policies held by Jarvis in the plaintiff company; and proofs of death were furnished by Waldeck, in which were the following statements: "(7) Date of death: During Christmas week, 1894. (8) Place of death: The assured disappeared, and since that date he has not been heard from. There was nothing in his family or business relations to explain his absence. His brother at the time of his disappearance was a resident of Burlington, Iowa and has ever since continued to reside there and the most pleasant relations existed between them. . . . (10) In what capacity, or by what title, do you claim this insurance? As administrator of the estate of the assured." Negotiations were had between attorneys representing the administrator and an agent of the insurance company in which it was insisted for the administrator that the insurance money was due and payable, and that, unless it was paid, suit would be instituted on the policies. Subsequently two drafts for the amount specified in the policies payable jointly to Chittenden & Eastman, assignees, and C. W. Waldeck, administrator, were tendered to the attorneys for the administrator by the agent of the plaintiff, with the condition that the administrator and assignees should give a bond of indemnity to the company for the return of the money in case it should be subsequently discovered that Jarvis was not dead at the time of this settlement. The attorneys for the administrator refused in behalf of their client to furnish such bond, and thereupon the drafts were delivered without further insistence upon this condition. The proceeds of the drafts were paid in part to the Iowa State Savings Bank, and in part to Chittenden & Eastman. It is conceded that after this payment and the distribution of the proceeds thereof by the administrator Jarvis was alive, and, on the discovery of this fact in April, 1905, the company tendered back the policies of insurance and demanded the return of the money paid, and on refusal this suit was instituted. As the payment of the insurance was by drafts made jointly to Chittenden & Eastman and Waldeck, this suit is no doubt properly instituted against them jointly, although the money has been in part distributed to the Iowa State Savings Bank, which is not a party to this action; but, as our conclusions in the case are not dependent on the extent of the liability, respectively, of Waldeck and Chittenden & Eastman, we shall give that subject no further consideration.

I. If Waldeck as administrator was entitled to maintain a suit against plaintiff under the authority given him in the administration proceeding and to recover the insurance money which was in fact paid, plaintiff had no right to recovery as against him individually, for he had done what by law he was authorized to do, and could not be held individually liable. The first question, then, as we think, is whether the proceedings for administration on the estate of Jarvis were valid. It seems to be conclusively settled by adjudications that a probate court acquires no jurisdiction by proceeding to administer on the estate of a person on the ground that he is dead if in fact he is alive, and such proceedings are entirely invalid, and any judgments or orders made in pursuance thereof, and any action taken thereunder, are absolutely void as against the person who is erroneously adjudged to be dead. Without citing the many authorities supporting this proposition, it is sufficient to say that any such proceeding, if sustained, would result in depriving the person erroneously adjudged to be dead of his property without due process of law. Scott v. McNeal, 154 U.S. 34 (14 S.Ct. 1108, 38 L.Ed. 896).

But, in the exercise of its jurisdiction over property within the State, it may be provided by the legislature that after the absence of the owner unheard of for a specified period such property may be administered upon in the same form of proceeding as is provided for administration upon the property of a person deceased, and such administration will be valid as against the absentee and all persons interested, although he is in fact not dead. Cunnius v. Reading School District, 198 U.S. 458 (25 S.Ct. 721, 49 L.Ed. 1125). Section 3307 of our Code provides for such an administration on the estate of one who has absented himself from the State and concealed his whereabouts from his family for a period of seven years, and under the decision last above cited we have no doubt that this section is constitutional and provides for a proceeding which may properly be resorted to in such cases, and which is conclusive on the absentee and those claiming under him. The administration granted as to the property of Jarvis was in accordance with the provisions of this section, and we think it was valid.

Waldeck as administrator had the right, therefore, to receive from the plaintiff the proceeds of the policies on Jarvis' life so far as such proceeds were payable to his administrator, and, as Chittenden & Eastman assented to such payment and to the distribution of the proceeds by Waldeck as...