Pippen v. Mut. Ben. Life Ins. Co

• Decision Date: 04 March 1902
• Parties: PIPPEN v. MUTUAL BEN. LIFE INS. CO.
• Court: North Carolina Supreme Court

40 S.E. 822

130 N.C. 23

PIPPEN

v.MUTUAL BEN. LIFE INS. CO.

Supreme Court of North Carolina.

March 4, 1902.

LIFE INSURANCE—INFANTS—SURRENDER OF POLICY—RIGHT TO DISAFFIRM.

1. Where an infant procured a life insurance policy, and afterwards, while it was in force, surrendered it to the company, pursuant to a provision therein contained, in consideration ol the then cash value of the policy, the administrator of insured was not entitled, upon insured's death during infancy, to recover on tho policy on the ground that the surrender was a voidable contract which he was entitled to disaffirm, but the policy of insurance was itself a contract voidable at the infant's election, andthe surrender constituted a voluntary annulment and cancellation of the contract by the infant, so that it could not be resuscitated or reaffirmed by him or his personal representatives.

2. The fact that the infant did not receive the full amount to which he was entitled by the terms of the policy upon surrender thereof did not give him or his representatives a right to reaffirm the policy, but the surrender rendered it void ab initio, only entitling the insured to be restored to his original status.

3. The surrender of the policy was not a sale which insured or his representatives were entitled to disaffirm, but the interest of insured was a contingency not susceptible of delivery, and hence not the subject of sale.

4. If the surrender of the policy were considered as an assignment, the transfer of insured's interest to the company rescinded the contract.

Appeal from superior court, Halifax county; McNeill, Judge.

Action by F. L. Pippen, as administrator of the estate of J. H. Pippen, deceased, against the Mutual Benefit Life Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Day & Bell, for appellant

Thos. N. Hill, for appellee.

COOK, J. This is an action brought by the administrator of Joseph H. Pippen to recover the sum of $1,000, alleged to be due upon the death of said Joseph by reason of a certain life insurance policy issued by defendant company to said Joseph. It appears from the facts agreed that Joseph was an infant when he applied for and obtained the policy, and died during his infancy. The application was made on the 4th day of February, 1897, and the policy was issued to him on the 10th day of said month. It was agreed in its policy by the defendant company that in consideration of $40.54 to it in hand paid, and of the annual premium of $40.54, to be paid on the 10th day of February in every year until 20 full years' premiums shall have been paid, it would on the 10th of February, 1917, pay to the assured $1,000, or, should he die before that time, then, upon his death, and proof thereof, to pay said amount to his executors, administrators, and assigns. After the issuance of the policy, and while the same was in force, plaintiff's intestate, pursuant to a provision contained in said policy, in consideration of the sum of $54.40 (the then cash value of said policy) paid to him by the company, fully surrendered and delivered the said policy to the defendant company, and thereafter, to wit, on the 17th day of February, 1S99, died. The good faith and fairness of these transactions with the infant (intestate) is not questioned; and it is expressly stated in the case agreed that "the said surrender was voluntarily made and executed in writing by the said intestate, bona fide, and without compulsion or undue influence on the part of the defendant."

The main contention of the plaintiff is that the surrender of the policy by his infant in testate was a voidable contract, which he....