Nw. Mut. Life Ins. Co. v. Wright

• Decision Date: 08 April 1913
• Citation: 140 N.W. 1078,153 Wis. 252
• Parties: NORTHWESTERN MUT. LIFE INS. CO. v. WRIGHT ET AL.
• Court: Wisconsin Supreme Court

153 Wis. 252

140 N.W. 1078

NORTHWESTERN MUT. LIFE INS. CO.

v.WRIGHT ET AL.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Milwaukee County; James Wickham, Judge.

Action by the Northwestern Mutual Life Insurance Company against Lillian G. Wright and another, as executors of Charles A. Wright, deceased, and others. From a judgment in favor of the other defendants, the executors appeal. Affirmed.

Equitable action to determine ownership of the proceeds of a $10,000 policy of insurance on the life of Charles A. Wright.

Lillian E. Hester, sister, and Emily S. Keller, mother of the deceased, claimed the fund as assignees of the policy, while the personal representatives claimed the same upon the ground that, assuming the deceased attempted to assign the policy, it was not effective for failure to part with dominion over the same. Plaintiff paid the money into court, and was discharged from liability. The mother assigned her interest to the daughter and the litigation proceeded to a termination between the personal representatives and Lillian E. Hester, resulting in the latter prevailing.

The evidence was this, in substance: July 13, 1896, plaintiff issued the policy. It was on the semi-tontine plan, payable to the personal representatives or assignees of the assured. It contained a stipulation permitting him, at the expiration of 15 years, the policy then being in force, to exercise either of five options as to the surplus, also this condition: “If this policy shall be assigned a duplicate of the assignment shall, within thirty days, be given to the company and due proof of interest shall be produced upon making claim.”

April 21, 1899, the assured made, in due form, an assignment in duplicate, purporting to convey the policy to Emily S. Keller, his mother, and Lillian E. Hester, his sister, reserving the right to exercise any of the options for his own benefit, without consent of the assignees, providing for a right of survivorship as between them and for the policy to go to his estate in case of neither of the assignees surviving until maturity of the policy. The consideration expressed was “love and affection.” One of the papers was marked “original” and the other “duplicate.” The forms were prepared by plaintiff for such matters and sent to agents to enable them to accommodate policy holders. The forms were in sets, one to be regarded as the original and the other a duplicate. At the foot of the former there were these words of instruction: “This original should be attached to the policy,” and at the foot of the latter: “This duplicate must be sent to the home office to be filed.” The executed paper marked “duplicate” was so sent by the assignor, placed on file and duly receipted for to him. Mrs. Keller, in January, 1912, was 77 years of age. In 1905, the assured said to a friend that he had provided for his mother and sister with the insurance policy. In 1907, in the presence of his sister, his mother and her husband, the assured's stepfather, he made a like declaration. In 1910, he applied to plaintiff for a loan on the policy; but, upon being informed that consent of the assignees would be necessary, abandoned the matter. At about this time he was solicited by plaintiff's agent to take additional insurance and asserted that his mother and sister were provided for by the insurance he had, and that, as to the rest of the family, there was enough. He died testate May 17, 1911. The will, in terms, exhausted all his property in provisions for his wife and children. The insurance policy with the assignment aforesaid, executed with all formalities, including government revenue stamps to the amount of $8, was found in his safety deposit box. There was found in the same box stock certificates belonging to Lillian E. Hester. The findings of fact were in accordance with the foregoing.Ball & Stone, of Houghton, Mich., and Doerfler, Green & Bender, of Milwaukee, for appellants.

Geo. H. Noyes, F. L. McNamara, and Flanders, Bottum, Fawsett & Bottum, all of Milwaukee, for respondents.

MARSHALL, J.

This appeal is governed by a few elementary principles,--principles so firmly established and so frequently applied that they need but to be stated. Therefore, we shall not discuss the numerous authorities cited to our attention, except in a general way, or refer to any considerable extent to precedents, other than to cite them.

[1] In every transfer of title from one person to another there must be an actual or constructive delivery of the thing or paper title thereto from one to the other, with intention to pass title, and an actual or constructive acceptance, completing mutuality so as to end dominion on the one side and create it on the other.

[2][3] In order to pass title, no physical transition of the thing involved, or paper representing it, from the old to the new owner is necessary; a tradition, good in law, is sufficient. A delivery and acceptance may be good in law and there not be any physical circumstances of change direct from the old to the new one, or even present knowledge on the part of the latter. The transition may be accomplished by acts or words, or both, showing intention to part with title and deprivation of dominion over the thing or paper calling therefor. No particular act on the part of the vendee or assignee is necessary to complete the mutuality, disabling the vendor or assignor from recalling the title he intends to part with. The instrument of transfer may be delivered to a third person, with intention not to recall it, and the transaction be complete, even as indicated, without the new owner having present knowledge thereof. The delivery to the third person and acceptance by him for the purposes of the transaction is a delivery to the new owner,--where such transaction is beneficial to the new owner, the law supplies the rest; acceptance by such new owner is presumed until the contrary is shown,--thus ending the dominion of the old owner and initiating that of the new one. The following adjudications amply illustrate the foregoing: Cooper v. Jackson, 4 Wis. 537;Tisher v. Beckwith, 30 Wis. 55, 11 Am. Rep. 546;Bogie v. Bogie, 35 Wis. 659;McPherson v. Featherstone, 37 Wis. 632;Kittoe v. Willey, 121 Wis. 548, 99 N. W. 337;Wells v. Wells, 132 Wis. 73, 111 N. W. 1111;Whiting v. Hoglund, 127 Wis. 135, 106 N. W. 391, 7 Ann. Cas. 224;Bates v. Winters, 138 Wis. 673, 120 N. W. 498;Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep. 291;Eastham v. Powell, 51 Ark. 530, 11 S. W. 823;Shoptaw v. Ridgeway's Adm'r (Ky.) 60 S. W. 723.

[4] It will be observed that the dominant circumstances in a case involving the question of whether, in a case of this sort, there was an efficient delivery, is whether the acts or words or both, evince an intent to pass title, and whether dominion over the subject was surrendered in favor of the new owner. Here those circumstances and the ultimate fact were found in favor of respondent. So the question is, are the findings in that regard warranted by the evidence?

[5][6] There is no difficulty as to whether there was a sufficient consideration to support the transfer. The two papers were duplicate originals. The fact that one was denominated by a printed notation thereon “duplicate” and the other “original,” does not give any particular significance to the latter over the former. The intention to pass title by delivering one of the papers to the insurance company and attaching one to the policy, thus fully complying with all the regulations in the insurance contract, is quite manifest. That is reinforced by the fact that the deposit of one with the company was made rather as evidence to it of a transfer having already occurred than as an essential step in making such transfer. That is to say, such circumstance involved a written declaration of a consummated act. From the beneficial character of such a transaction, acceptance is presumed until the contrary is shown. Manual keeping of one of the papers was consistent with...