Stephenson v. Westbrook, 6 Div. 787

• Decision Date: 23 December 1970
• Docket Number: 6 Div. 787
• Citation: 286 Ala. 620,244 So.2d 569
• Parties: Irene B. STEPHENSON v. Mary L. WESTBROOK and Provident Life and Accident Insurance Company, a Corporation.
• Court: Alabama Supreme Court

Page 569

244 So.2d 569

286 Ala. 620

Irene B. STEPHENSON v. Mary L. WESTBROOK and Provident Life and Accident Insurance Company, a Corporation.

6 Div. 787.

Supreme Court of Alabama.

Dec. 23, 1970.

Rehearing Denied March 4, 1971.

Francis H. Hare, Jr., and James J. Thompson, Jr., Birmingham, for appellant.

McCollough & McCollough, Birmingham, for Mary L. Westbrook.

A. W. Jones, Birmingham, for Provident Life and Accident Insurance Co.

HARWOOD, Justice.

The Provident Life and Accident Insurance Company filed a bill in equity in the nature of interpleader.

Mary L. Westbrook and Irene B. Stephenson were named as respondents.

The bill asserted that Provident in 1950 had issued to Joseph S. Westbrook, Jr., a certificate of insurance under a group insurance policy carried by Westbrook's employer; that Westbrook had died on 22 March 1969 while the policy was in force, and death benefits in the amount of $4,000.00 and disability benefits of $164.20 were due and payable under the policy.

The bill further averred that on 26 March 1969, Mary L. Westbrook filed with Provident a claim for the proceeds of the policy, and on 27 March 1969, Irene B. Stephenson filed her claim to the proceeds of the policy.

The bill averred that Provident being uncertain as to which of the two claimants were lawfully entitled to the benefits under the policy, and being desirous of being relieved of its obligation under the policy, did pay into the Registry of the court with the filing of the bill the total sum due under the policy.

It was prayed that process issue to the named respondents, and that the court determine and declare to whom the benefits were payable, and that Provident be released from its liability under the policy.

The respondent Irene Beasley Stephenson filed an answer to the bill of interpleader asserting that as Irene Beasley, she was named as beneficiary under the policy. This was before her marriage on 21 September 1968 to Robert H. Stephenson.

Mary L. Westbrook filed her answer and cross-bill. Therein she asserted that Irene B. Stephenson had been a friend of her son, the insured; that subsequent to Irene's marriage her son, the insured, 'did make an oral gift of the proceeds' of the policy in question to her, Mary L. Westbrook.

The cross-bill further asserted that in December 1968 and January 1969 the insured did express an intent to change the beneficiary of the proceeds of the policy to the respondent Mary L. Westbrook, his mother.

At the hearing below various exhibits were received in evidence, and several witnesses were presented by each respondent.

Notes of testimony were filed by the respective parties on 15 January 1970, and the cause was submitted for final decree on that date.

On 28 January 1970, the Chancellor entered a final decree in the cause.

The Chancellor first discharged Provident from liability under the policy, the amount due under the policy having been paid into court.

It was further decreed that the respondent Westbrook was entitled to the proceeds of the policy and the Register was ordered to pay the balance of the monies paid into court after deducting all costs and a solicitor's fee of $250.00 allowed Provident. There was no finding of facts made by the Chancellor.

We, of course, will confine our review to the errors properly assigned and properly argued in brief.

Assignments of error 1, 2, 3, and 8, are joined for argument. These assignments question the sufficiency of the evidence to support the decree rendered.

The pleadings and the evidence presented below show that in 1950 Joseph Westbrook was issued a certificate of group life insurance by Provident. His mother, Mary L. Westbrook, the appellee here, was named as beneficiary.

On 16 June 1967, Joseph Westbrook filed with Provident a written request that the beneficiary under the above mentioned policy by changed to Irene Beasley. On that same day he also filed a request for a duplicate policy or certificate, asserting that the original policy had been lost, misplaced, or destroyed.

It appears that the insured had dated Irene Beasley for some time. Irene owned a tract of land in Jefferson County and she and the insured had engaged jointly in raising cattle. Irene apparently contributed about 45 head of cattle and the insured about 6 head at the beginning of this enterprise. Eventually the cattle were all sold and Irene insisted on dividing the proceeds equally regardless of the original contributions.

In late December 1968, the insured entered a hospital for tests because of a throat condition. This examination revealed that the insured had a malignancy of the throat, and on 7 January 1969, he was operated on for this condition. After his operation he left the hospital and returned to the home of his mother with whom he had lived for a long number of years. His recuperation was progressing but on 22 March 1969 he died, possibly of a heart attack. It is clear that at the time of his death Irene Beasley (now Stephenson) was the named beneficiary under the policy in question insofar as records of Provident disclose.

It is the contention of counsel for the appellee, Mrs. Westbrook, that the insured again changed the beneficiary from Irene Beasley Stephenson to Mrs. Westbrook, either by a parol change of beneficiary, or by a gift inter vivos.

Witnesses testifying in behalf of Mrs. Westbrook were Mrs. Mary Westbrook Moody, daughter of Mrs. Westbrook, and also administratrix of Joseph Westbrook's estate, her husband, Otis N. Moody, and Mrs. Elizabeth Peacock, who had been a friend of Joseph Westbrook for a number of years. Mrs. Westbrook also testified by deposition.

Their testimony was directed toward showing that Joseph Westbrook, prior to his death, and in particular shortly after his operation, had made statements to the effect that he wanted his mother to have the balance in his account in the Guaranty Savings and Loan Company, his balance in his credit union, the balance in his checking account, and the proceeds of his insurance policy.

Mrs. Moody and Mr. Moody testified that at a meeting in Mrs. Westbrook's home after his operation the insured had stated that his mother was the beneficiary under his insurance policy, and all the assets he left were for his mother.

On cross examination Mrs. Moody testified she found the policy in a chest drawer under some ties in insured's room after his death.

When she filed the claim for her mother with insured's employer she was informed that he had changed the beneficiary named in the policy.

In her deposition Mrs. Westbrook also testified that her son had told her on several occasions that she was the beneficiary of his insurance policy.

Mrs. Peacock testified that she had been with the insured the night before he died, and had discussed his business affairs with him. He had said that all he left was to be used to take care of his mother and the insured had told her the location of the insurance policy.

On cross examination Mrs. Peacock testified that the insured had mentioned his insurance policy to her over the years, and the only beneficiaries she knew about were his mother and father. She did not know that the insured had changed the beneficiary under the policy at any time.

All of appellant's witnesses testified that at no time did the insured produce any policy, or give or deliver any policy to Mrs. Westbrook.

Irene (Beasley) Stephenson...