Tivis v. Hulsey

• Decision Date: 10 December 1938
• Docket Number: 34053.
• Parties: TIVIS v. HULSEY.
• Court: Kansas Supreme Court

84 P.2d 862

148 Kan. 892

TIVIS v. HULSEY.

No. 34053.

Supreme Court of Kansas

December 10, 1938

Syllabus by the Court.

A beneficiary may acquire a vested interest in life policy by a contract made with insured on valuable consideration notwithstanding that policy gives insured right to change beneficiary.

Where beneficiary by contract with insured on valuable consideration acquires vested interest in life policy proceeds of policies become trust fund which may be followed by the rightful claimant as against other claimants to the proceeds of the policy, notwithstanding that policy gives insured right to change beneficiary.

Where insured designated cousin as beneficiary of life policies to extent of $2,000 pursuant to contract under which cousin performed services for insured as his housekeeper, cousin was entitled to recover proceeds of policies in amount less than $2,000 from third wife of insured who had been designated as beneficiary in place of cousin notwithstanding that policy gave insured right to change beneficiary and provided that payment should be made to the last-named beneficiary.

Even though an insurance policy gives the assured the right to change the beneficiary one may acquire a vested interest in the policy by a contract made with the assured upon a valuable consideration. In such a case, and as between rival claimants of the proceeds of the policy, such proceeds become a trust fund which may be followed by the rightful claimant.

Appeal from District Court, Wyandotte County, Division No. 3; Harvey J. Emerson, Judge.

Action by Dolly Tivis against Daisy Hulsey for a part of the proceeds of insurance policies. Judgment for plaintiff, and defendant appeals.

Wm. H McHale and Thomas H. Finigan, both of Kansas City, for appellant.

A. J Herrod, of Kansas City, for appellee.

HARVEY Justice.

This was an action to recover a part of the proceeds of certain insurance policies. A jury trial resulted in judgment for plaintiff. The principal defendant has appealed.

The facts may be summarized as follows: Thaddeus Hulsey hereinafter called the assured, was an employee of Swift & Co. for many years. Under a group insurance plan of that company he took out two policies of $2000 each in the Aetna Life Insurance Company and named as his beneficiary his wife, Maggie Hulsey. Thereafter and in October, 1928, Maggie Hulsey died, and in April, 1930, the assured had his niece, Ruth Hulsey, designated as beneficiary. In December, 1930, the assured married, and soon thereafter had his second wife, Mattie Hulsey, designated as beneficiary. Mattie Hulsey died November 11, 1933, and on December 20, 1933, the assured had the plaintiff, Dolly Tivis, his cousin, designated as beneficiary for one half of the proceeds of the policies and William Hulsey, Jr., his nephew, for one half. On January 3, 1935, the assured married again, and on January 16, 1936, had the beneficiaries changed in his policies, naming his third wife, Daisy Hulsey, defendant here, as beneficiary for one half the proceeds, his nephew, William Hulsey, Jr., for one fourth, and his stepdaughter, Magdalene Reeves, for one fourth. These were the beneficiaries named in the policies when the assured died, February 17, 1936. Daisy Hulsey collected $2000 of the proceeds of the policies, of which $930.36 was on deposit in a bank when this action was brought, and this fund has been impounded by a court order pending the outcome of this action. William Hulsey, Jr., and Magdalene Reeves each received $1000 of the proceeds of the policies.

Plaintiff brought this action against the three last named beneficiaries. As a basis for her claim she alleged that her home is in Wichita, that beginning in 1927 and continuing until the fall of 1934, at the request of the assured, she went to his home at Kansas City repeatedly and remained there, doing his house work, mending his clothes, preparing his meals, and waiting upon him, and on many occasions would take the assured, who was an aged man, to her home at Wichita, where she would provide him with food, lodging and the conveniences of life; that in December, 1933, the assured agreed with plaintiff that he would name plaintiff as a beneficiary in his insurance policies to the extent of $2000, and that he would not cause the beneficiaries to be changed to any other person; that this was to be in payment of the many services performed for the assured by plaintiff; that soon thereafter the assured did name as beneficiary the plaintiff, and that the designation of plaintiff as such beneficiary remained in full force and effect until January 16, 1936, when some person, unknown to plaintiff, caused the names of the beneficiaries to be changed to Daisy Hulsey, William Hulsey, Jr., and Magdalene Reeves, in violation of assured's agreement with plaintiff; that the agreement was oral and relied upon by plaintiff...