Rosenberg v. Robbins
| Decision Date | 09 February 1935 |
| Citation | 289 Mass. 402,194 N.E. 291 |
| Parties | ROSENBERG v. ROBBINS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by Miriam Rosenberg against Henry H. Robbins Barnet I. Siegel, the New York Life Insurance Company, and others. From the second interlocutory decree and the final decree, the named defendants appeal.
Decrees reversed, and final decree ordered to be entered in accordance with opinion.
Daughter of insured has insurable interest in insured's life.
Appeal from Superior Court, Suffolk County; Fosdick, Judge.
S. B. Stein, A. C. Rome, and H. J. Stein, all of Boston, for plaintiff.
A. S. Allen, of Boston, for certain defendants.
J. Barker, Jr., of Boston, for defendant New York Life Ins. Co.
This bill in equity was brought to reach and apply to the payment of a joint and several negotiable promissory note for $3,000 of the defendants Robbins and Siegel and another person, dated February 28, 1929, payable in six months with interest, the cash surrender values of certain policies of insurance in the defendant insurance companies Metropolitan Life Insurance Company and New York Life Insurance Company on the lives of the defendants Robbins and Siegel, herein referred to as the individual defendants. G. L. (Ter. Ed.) c. 214, § 3(7). The case was referred to a master who made a report to which the plaintiff and the defendant New York Life Insurance Company filed objections. An interlocutory decree was entered overruling the objections, treated as exceptions, and confirming the report. No appeal was taken from this decree. Thereafter another interlocutory decree was entered by another judge purporting to sustain the plaintiff's first exception, to overrule the other exceptions and to confirm the report. A final decree was entered adjudging that there was due to the plaintiff from the individual defendants the sum of $3,220, ordering them to pay the plaintiff this amount with interest from the date of the decree, adjudging that the defendant insurance companies had sums of money in their hands or possession, being the cash surrender values of certain insurance policies on the lives of the individual defendants, and that the plaintiff is entitled to reach and apply these sums to the debt of these defendants, ordering them to surrender their policies according to the terms thereof to the insurance companies, and the insurance companies to treat as surrendered under the terms of the policies any policies in their possession, and ordering the insurance companies to pay the amounts of such cash surrender values to the plaintiff to be applied to the amount due from the individual defendants to the plaintiff. From the second interlocutory decree confirming the master's report and from the final decree the individual defendants and the defendant New York Life Insurance Company appealed.
The findings of the master show that when the bill was brought there was a ‘ debt’ from the individual defendants to the plaintiff on the negotiable promissory note described in the bill of complaint within the meaning of G. L. (Ter. Ed.) c. 214, § 3(7), and it is not contended that the decree does not conform to the master's report in this respect. The question for determination is whether these defendants have ‘ any property, right, title or interest, legal or equitable’ in the policies of insurance issued by the defendant insurance companies which can be reached and applied under this statute. The plaintiff does not contend that there is any such ‘ property, right, title or interest’ except the cash surrender values of the policies.
The master's report contains findings with respect to ten policies, in each of which the right to change the beneficiary was reserved by the insured. The policies were issued before April 2, 1928. Two of these policies had no cash surrender value and these policies are not dealt with in the final decree, from which, as already stated, the plaintiff has not appealed. Of the other eight policies, one insured the life of the defendant Robbins in the defendant New York Life Insurance Company for the benefit originally of his minor daughter, but by change of beneficiary January 14, 1930, thereafter for the benefit of his wife, three insured the life of the defendant Siegel, in the same company, for the benefit of his wife, and another insured his life in this company for the benefit of his minor child, and three insured his life in the defendant Metropolitan Life Insurance Company for the benefit of his wife. The master found the cash surrender value of each of these policies as of the due date of the next premium due after the filing of the bill. It does not appear that there was default in the payment of any premium before the suit was brought or that at any time any policy was surrendered to the insurance company issuing it.
The policies of the defendant New York Life Insurance Company contained provisions in substance that the insured after two or three full years' premiums had been paid may ‘ within three months after any default in payment of premium but not later’ -and in some of the policies ‘ at the end of any insurance year’ -surrender the policy and receive the cash surrender value thereof or paid-up insurance, but if the policy is not ‘ surrendered for cash or for paid-up insurance within three months after default in payment of premium, its cash surrender value at date of default’ with certain adjustments shall automatically purchase continued insurance from the date of default without cash surrender value. The insured defaulted in the next premium due after this suit was brought on each policy issued by the New York Life Insurance Company.
The individual defendants contend that the cash surrender value of the policies cannot be reached and applied by the plaintiff to the payment of the note upon which this suit is brought because of the provisions of G. L. c. 175, §§ 125, 126, St. 1928, c. 176, §§ 1, 2, which was approved April 2, 1928, and took effect ninety days thereafter. See now G. L. (Ter. Ed.) c. 175, §§ 125, 126. The defendant New York Life Insurance Company contends, with respect to its policies, that the cash surrender value thereof cannot be so reached and applied because, in accordance with the terms of the policies, the cash surrender value of each policy, by reason of default in payment of premium after the bill was brought and the absence, so far as appears, of any surrender of the policy, automatically purchased continued insurance without cash surrender value.
The provisions of G. L. c. 175, §§ 125, 126, as amended, prevent the plaintiff from reaching and applying to the payment of her note the cash surrender value of the policies.
The material portions of G. L. c. 175, §§ 125, 126, St. 1928, c. 176, §§ 1, 2 (see now G. L. [Ter. Ed.] c. 175, §§ 125, 126), are as follows (material provisions added thereto by St. 1928, c. 176, approved April 2, 1928, being indicated by italics): Section 125.‘ Every policy of life or endowment insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred or in any way made payable to a married woman, or to any person in trust for her or for her benefit, whether procured by herself, her husband or by any other person, and whether the assignment or transfer is made by her husband or by any other person, and whether or not the right to change the named beneficiary is reserved by or permitted to the person effecting such insurance , shall ensure to her separate use and benefit, and to that of her children, subject to the provisions of the preceding section relative to premiums paid in fraud of creditors. * * * No court, and no trustee or assignee for the benefit of creditors, shall elect for the person effecting such insurance to exercise such right to change the named beneficiary .’ Section 126.St. 1928, c. 176, § 3, provides as follows: ‘ This act shall not apply to claims of creditors of any person effecting any life or endowment insurance which arise out of or are based upon any obligation created before this act takes effect.’
The plaintiff does not contend that she can reach and apply to the payment of her note the cash surrender value of the policies if the changes in G. L. (Ter. Ed.) c. 175, §§ 125 126, effected by St. 1928, c. 176, §§ 1, 2, are applicable to her claim. See In re Lang (D. C.) 20 F.(2d) 236,affirmed Dussoulas v. Lang (C. C. A.) 24 F.(2d) 254,certiorari denied 277 U.S. 593, 48 S.Ct. 529, 72 L.Ed. 1004; In re Messinger (C. C. A.) 29 F.(2d) 158, 68 A.L.R. 1205,certiorari denied 279 U.S. 855, 49 S.Ct. 351, 73 L.Ed. 996; Hickman v....
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