Schauberger v. Morel's Adm'r

• Decision Date: 09 February 1916
• Citation: 168 Ky. 368,182 S.W. 198
• Parties: SCHAUBERGER v. MOREL'S ADM'R.
• Court: Kentucky Court of Appeals

182 S.W. 198

168 Ky. 368

SCHAUBERGER v. MOREL'S ADM'R.

Court of Appeals of Kentucky.

February 9, 1916

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Edward J. Morel's administrator against the Metropolitan Life Insurance Company, which interpleaded and filed a cross-petition against Arrahvola Schauberger. From a judgment in favor of the administrator, Schauberger appeals. Affirmed.

Robt. L. Page, and L. D. Greene, both of Louisville, for appellant.

L. S Leopold, of Louisville, for appellee.

SETTLE J.

April 12, 1907, the Metropolitan Life Insurance Company issued a policy to Edward J. Morel insuring his life for $1,000. When the policy was issued the appellant, Arrahvola Schauberger then Arrahvola Morel, was the wife of Edward J. Morel, and was named in the policy as the beneficiary, but it was provided therein that, in the event of the death of the beneficiary before that of the insured, the amount due thereunder should, at the latter's death, be payable to his executor or administrator, and by a further provision of the policy the insured was given the right to change the beneficiary. In June, 1911, the appellant, Arrahvola Schauberger, then Arrahvola Morel, instituted an action in the Jefferson circuit court, chancery branch, First division against Edward J. Morel, in which she sought a divorce a vinculo from the latter, and on August 23, 1911, such divorce was granted her by judgment of the court, which also restored to each of the parties such property not disposed of at the commencement of the action as either might have obtained, directly or indirectly, from or through the other during marriage or by reason thereof. On the 28th day of January, 1914, Edward J. Morel died in Jefferson county, the place of his residence, intestate, and shortly thereafter the appellee, Emile L. Morel, was appointed by the Jefferson circuit court and duly qualified as the administrator of the decedent's estate. On the 28th day of August, 1914, he, as such administrator, brought this action in the Jefferson circuit court, chancery branch, Second division, against the Metropolitan Life Insurance Company, to compel the payment to him, by it, of the amount of the policy in question, alleging that by the terms of the policy the same was due and should be paid to him as the administrator of the decedent's estate.

The Metropolitan Life Insurance Company, by answer, which it made a counterclaim and cross-petition against the appellant, Arrahvola Schauberger, admitted its indebtedness upon the policy to the amount of $994, which sum represented the face value of the policy, less an indebtedness of $6 due thereon from the insured, that the above amount of $994 it was willing to pay to whomsoever the court might adjudge entitled thereto, but alleging that it was claimed both by the appellee, as administrator of the decedent, and the appellant, Arrahvola Schauberger, and that the latter had threatened to bring suit against it for same, for which reasons the answer was made a counterclaim against appellee and cross-petition against appellant; it being asked that the latter be made a party to the action and required to assert whatever right she might have to the proceeds of the policy. The answer, counterclaim, and cross-petition expressed the willingness of the Metropolitan Life Insurance Company to pay into court the amount due upon the policy, that it might be relieved of further liability therefor, and shortly thereafter, with the consent of the parties, and by order of the court, the amount due on the policy was by it paid into court.

On December 19, 1914, the appellant, Arrahvola Schauberger, entered her appearance in the action, both to the petition and cross-petition, by the filing of a pleading styled an answer and counterclaim to the appellee administrator's petition and a cross-petition against him, and also an answer and counterclaim to the cross-petition of the Metropolitan Life Insurance Company, in which it was denied that appellee, as administrator of the estate of Edward J. Morel, or otherwise, was entitled to the proceeds of the policy in question or any part thereof, and, in substance, alleged her right thereto as the beneficiary named in the policy, which was issued upon the life of the decedent while he was her husband, in consideration of the premium of $22.20 required at the time to be paid therefor and an annual premium of a like amount, to be paid each year thereafter by the insured to the insurance company, that she, with money belonging to her, paid the first premium of $22.20 and each subsequent annual premium that became due thereon in the years 1908, 1909, and 1910, but that she borrowed of the insurance company on the policy $6, which was applied in part payment of the last premium, paid in April, 1910, and that all of the premiums referred to, aggregating $88.80, were paid by her prior to the institution of her action against the decedent for a divorce. It was further alleged in the answer, counterclaim, and cross-petition that by the terms of the policy issued by the Metropolitan Life Insurance Company upon the life of the decedent it was provided that, after four annual premiums had been paid, after default of any subsequent premium the policy would be automatically extended and kept in force for a period of four years, that before August 23, 1911, the day upon which she was divorced from the decedent, she became vested with an absolute right in and to the proceeds of the policy contingent upon the death of the decedent within the four years next following the payment of the last premium that was made, covered by the extended insurance, and that the decedent's death occurred within that time and without his having made any change in the beneficiary of the policy. By reason of the foregoing alleged facts appellant asked that she be adjudged entitled to the $994 proceeds of the policy paid into court by the Metropolitan Life Insurance Company, but that, if the court should be of opinion that she was not entitled to the $994, she recover, to be paid out of the fund, the aggregate amount of the annual premiums paid by her on the policy, with interest on each from the time it was paid.

The answer and reply filed by appellee to the counterclaim and cross-petition of appellant traversed the averments thereof and pleaded as a bar to the claim asserted by her to the proceeds of the policy, the judgment of the Jefferson circuit court divorcing her from the decedent, and alleged that, as it was thereby adjudged that each of the parties to the action for divorce should restore to the other such property not disposed of at the commencement of the action as either might have obtained directly or indirectly from or through the other during marriage or in consideration thereof, such judgment divested appellant of all interest in the policy in question.

Following the taking of proof by the parties and submission of the case the court rendered the following judgment: "This action having been heard and submitted in chief, and the court being sufficiently advised, it is considered, ordered, and adjudged that by virtue of the divorce granted to the defendant and cross-plaintiff, Arrahvola Schauberger, from plaintiff's decedent, Edward J. Morel, on the 23d day of August, 1911, the said defendant and cross-plaintiff was divested of all her right, title, and interests, except as hereinafter set out, in the proceeds of the policy of insurance issued by the defendant Metropolitan Life Insurance Company upon the life of plaintiff's decedent on the 12th day of April, 1907, and that upon the death of plaintiff's decedent, the assured, which occurred on or about the 28th day of January, 1914, the proceeds of said policy, except as hereinafter set out, became the property of the estate of the plaintiff's decedent, Edward J. Morel, deceased.

The records herein showing that the defendant Arrahvola Shauberger did on the 24th day of April, 1907, and on the 12th day of April, 1908, on the 12th day of April, 1909, and on the 12th day of April, 1910, pay the annual premium of $22.20 upon each occasion, said sum being the amount...