Phillips v. Phillips
| Decision Date | 10 October 1940 |
| Docket Number | 7 Div. 622. |
| Parties | PHILLIPS v. PHILLIPS ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
Bill in the nature of a bill of interpleader by Maude Phillips, a minor suing by her next friend, Alta May Roden, against Mary Phillips and others, and cross-bill by respondent Mary Phillips, to determine ownership of the proceeds of a policy of life insurance. From a decree for cross-complainant (original respondent) the cross-respondent (original complainant) appeals.
Affirmed.
Motley & Motley, of Gadsden, for appellant.
Joe F Duke and Julius S. Swann, both of Gadsden, for appellees.
Bill in equity in the nature of interpleader, Code § 10390.
The subject matter of the suit is $1,250.31, the proceeds of a group policy of life insurance. The bill was filed by a claimant, making the insurer and adverse claimant parties respondent.
The insurer, Metropolitan Life Insurance Company, admitted the sum due on the death of the insured, declined to take sides between the claimants, assumed the position of a stakeholder prayed leave to deposit the fund in court, and be discharged. It was so ordered.
Maude Phillips, the complainant, then filed her amended bill setting up her claim to the fund. The insured, by the terms of the policy, reserved the right to change the beneficiary. Complainant claims under this provision.
Mary Phillips, the adverse claimant, filed her answer and cross-bill, claiming as beneficiary named in the policy, and denying there was any change of beneficiary.
The trial court sustained this latter claim.
One question for consideration is whether the evidence for complainant, taken as true, made out a case of change of beneficiary.
The policy contained the usual provisions requiring change of beneficiary to be in writing executed by the insured and presented to the insurer.
This provision, as we have often held, is for the protection of the insurer, may be waived, and is waived, when the insurer, as in this case, raises no question in this regard, takes the position of a stakeholder, leaving the claimants to litigate their claims as between themselves. Missouri State Life Ins. Co. v. Robertson Banking Co., 223 Ala. 13, 134 So. 25; Whitman v. Whitman, 225 Ala. 113, 142 So. 413; McDonald et al. v. McDonald, 212 Ala 137, 102 So. 38, 36 A.L.R. 761.
A life insurance policy held by the insured on his own life, is a chose in action, which like a chattel may be the subject of a gift. When the right to change the beneficiary is reserved, the named beneficiary has no vested right before the death of the insured, and a change of beneficiary, as between claimants, may be made by gift of the policy to another than the named beneficiary, with the intent to presently pass the title to the donee, and make the donee beneficiary of the policy. Such a gift may be made by words and acts without writing. A completed gift must appear in this as in other gifts of chattels. McDonald v. McDonald et al., 215 Ala. 179, 110 So. 291.
Dealing with the sufficiency of complainant's evidence, the following appears:
William Phillips, colored, the insured took out the policy several months before his death, naming Mary Phillips, with whom he was living as his wife, the beneficiary. He became a sick man, was drawing sick benefits. Some nine days before his death, he was removed to the home of his sister, next friend of complainant in this suit. At whose instance he was removed is in dispute.
His sisters, his brother, his in-laws, with much unity of detail corroborated in part by other evidence, depose to the following facts in substance: On Sunday before the insured died on Thursday Mary came to see him at his sister's residence. While there William, the insured, instructed her to send his policy or policies to him. She sent this policy from their home by a girl who was living with them. When Maude, his youngest sister came in, he handed the policy to her, saying, I want you to have it, to make you my beneficiary, take or send it to the Steel Company, holding the master policy, and have a change of beneficiary made. On the morrow, an older sister and brother did take it to Mr. Durrough, who handled the group...
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