Oldenburg v. Cent. Life Assur. Soc.

• Decision Date: 13 April 1943
• Citation: 9 N.W.2d 133,243 Wis. 8
• Parties: OLDENBURG v. CENTRAL LIFE ASSUR. SOC. et al.
• Court: Wisconsin Supreme Court

243 Wis. 8

9 N.W.2d 133

OLDENBURG

v.CENTRAL LIFE ASSUR. SOC. et al.

Supreme Court of Wisconsin.

April 13, 1943.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

This appeal is from an order of the circuit court for Dane county, entered on the 10th day of October, 1942, denying plaintiff-appellant's motion for a summary judgment, in an action commenced by plaintiff on February 5, 1942, against Central Life Assurance Society, a foreign corporation, F. G. Tanck, and the Wisconsin State Bank of Delavan, to recover death benefits due upon two policies of life insurance issued by defendant Central Life Assurance Society on the life of Glenn A. Oldenburg, in which plaintiff is the named beneficiary.

During 1922 and 1923 the defendant Central Life Assurance Society issued two policies of life insurance on the life of Glenn A. Oldenburg. Both policies reserved to Mr. Oldenburg the right to change the beneficiary. The policies provided that change in beneficiary may be made “by filing a written notice thereof at the home office of the Company, accompanied by the policy for a suitable endorsement thereon.”

Glenn A. Oldenburg and the plaintiff, Hazel Oldenburg, were married on the 16th day of August, 1926. On October 19, 1926, Mr. Oldenburg effected a change of beneficiary in both policies, naming Hazel Oldenburg, his wife, as beneficiary. No subsequent change of beneficiary has been made. On June 25, 1930, Mr. Oldenburg made an assignment of both policies to the defendants, F. G. Tanck and Wisconsin State Bank of Delavan. On November 29, 1939, the plaintiff, Hazel Oldenburg, procured a judgment of absolute divorce from her husband, Glenn A. Oldenburg. The judgment does not decree any property division between the parties, nor make any mention of the aforesaid insurance policies. Mr. Oldenburg died in September, 1941, leaving surviving the plaintiff and two minor children, issue of said marriage. After Mr. Oldenburg's death, the defendant Central Life Assurance Society made tender of the death benefits provided in the two policies of life insurance. Whereupon, a dispute arose as to whether the assignees or the plaintiff was entitled to the insurance. Thereupon, this action was commenced.

Central Life Assurance Society answered, affirming in all respects the issuance of the policies and the designation of plaintiff as beneficiary. It alleged that it had received notice of the assignment of said policies on or about July 11, 1930, and that the amount due on both policies as death benefits was $3,626. By stipulation of all parties, the proceeds of the two policies were paid into court. Thereupon, defendant Central Life Assurance Society was discharged from further liability. Defendant Tanck answered, disclaiming any personal interest in the avails of the policies. The defendant Wisconsin State Bank of Delavan answered and claimed the avails of the two policies by virtue of the assignment made on June 25, 1930.

Plaintiff moved the trial court for a summary judgment that she be awarded all of the proceeds of the insurance policies. The court denied her motion. Plaintiff appeals.

Hill, Beckwith & Harrington, of Madison, for appellant.

Moran & O'Brien, of Delavan, for respondents.

MARTIN, Justice.

The admitted facts, set out in the foregoing statement, present two questions of law: (1) Is the assignment of the life insurance policies (in view of sec. 246.09 (1), Stats.) valid as against plaintiff, the named beneficiary, she not having joined in the assignment? (2) Does the fact that after the assignment of the policies the husband and wife were divorced and no disposition of the insurance made by the judgment, and no change of beneficiary being made, affect the rights of plaintiff as the named beneficiary? The court below held the assignments valid; and so holding, did not pass upon the second question.

Appellant contends that the assignment of the life insurance policies is invalid, because under the conceded facts the nonjoinder of plaintiff (divorced wife) renders the assignment ineffective as to her, under the provisions of sec. 246.09(1), Stats. The respondent bank contends that where the right to change the beneficiary is reserved the insured may assign the insurance policies as security for a debt without the consent of the named beneficiary. Sec. 246.09(1) provides: “Any married woman may, in her own name or in the name of a third person as her trustee, with his assent, cause to be insured for her sole use the life of her husband, son or other person for any definite period or for the natural life of such person; and any person, whether her husband or not, effecting any insurance on his own life or on the life of another may cause the same to be made payable or assign the policy to a married woman or to any person in trust for her or her benefit; and every such policy, when expressed to be for the benefit of or assigned or made payable to any married woman or any such trustee, shall be the sole and separate property of such married woman and shall inure to her separate use and benefit and that of her children, and in case of her surviving the period or term of such policy the amount of the insurance and all proceeds and avails therefrom shall be payable to her or her trustee for her own use and benefit, free from the control, disposition or claims of her husband and of the person effecting or assigning such insurance and from the claims of their respective representatives and creditors and from the claims of her creditors, whether or not the right to change the beneficiary was reserved or permitted by the terms of the policy. The amount of such insurance, proceeds and avails free from the control, disposition or claims of her creditors shall be limited to five thousand dollars. Nothing contained in this section shall be deemed to affect or impair the right of the insured or person effecting such insurance to change the beneficiary of a policy in accordance with the terms thereof, where such right has been reserved.”

The policy provisions as to change of beneficiary and assignment of policy provide as follows:

“Change of Beneficiary. When the right of revocation has been reserved, or in case of the death of any beneficiary under either a revocable or irrevocable designation, the insured, subject to any existing assignment of the policy, may designate a new beneficiary with or without reserving right of revocation by filing written notice thereof at the home office of the Company, accompanied by the policy for suitable endorsement thereon. If any beneficiary shall die before the insured, and the insured shall not have designated a new beneficiary, the interest of such beneficiary shall be payable to the insured, his executors, administrators or assigns.”

“Assignment. No assignment of this...