Towne v. Towne

• Decision Date: 24 October 1901
• Citation: 191 Ill. 478,61 N.E. 426
• Parties: TOWNE v. TOWNE et al.
• Court: Illinois Supreme Court

191 Ill. 478

61 N.E. 426

TOWNE

v.TOWNE et al.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, First district.

Bill by Charles A. Towne and others against Annie Mary Towne to reform a life insurance policy by making one-half payable to complainants. From a judgment of the appellate court (93 Ill. App. 159) affirming a judgment in complainants' favor, defendant appeals. Affirmed.Fred H. Atwood, Frank B. Pease, and Charles O. Loucks, for appellant.

Muir & Horgan, for appellees.

CARTWRIGHT, J.

On December 13, 1884, Allan W. Towne obtained a certificate from the Chicago Guaranty Fund Life Society for the sum of $2,000, payable by assessment, at his death, to the appellant, Annie Mary Towne, his wife. On May 12, 1887, said certificate was exchanged by him for another one of the same amount, date, and number, and with the same beneficiary. The first certificate for which the new one was substituted was surrendered, and was marked canceled on said date,-May 12, 1887. On April 12, 1892, the second certificate was exchanged for a third one of the same amount, date, and number, and said second certificate was canceled and marked: ‘Surrendered for change of beneficiary. 4-12-92.’ The purpose of this exchange was to make a change in the beneficiary, and for that purpose Allan W. Towne made a written request, dated April 11, 1892, for the new certificate, with beneficiaries as follows: ‘Payable to Annie Mary Towne, wife, one-half, and one-half to my heirs equally.’ Afterwards the society reincorporated, and provided for a change of policies from an assessment to what was called a ‘natural life policy,’ and provided for an exchange of old policies for new ones. On August 30, 1898, Allan W. Towne, desiring to make such an exchange, signed an application therefor, setting forth that he was the holder of certificate 932 on the post mortem assessment plan, and wanted to exchange it for a natural life policy. The application provided, among other things, that the new policy should be for the same amount and with the same beneficiary or beneficiaries as the original certificate. Towne did not deliver his certificate to the society before the new one was made out. A clerk took the papers relating to the risk of Towne, which were in the possession of the society, and all pasted together, and filled up the new certificate. He did not notice the letter directing the change in the beneficiary, or that such beneficiary had been changed in the original certificate, but followed the first application, and inserted the name of appellant, Annie Mary Towne, as the beneficiary. The clerk mailed the new policy to Towne, with a letter stating that it was inclosed therewith, together with a receipt for the premium, and that he hoped Towne would find the same satisfactory. He added a postscript, as follows: ‘We inclose stamped addressed envelope, and will ask you to return your original certificate for cancellation.’ Upon the receipt of the new certificate, Towne mailed the old one to the society, and it was canceled. He placed the new certificate in a box in a safety deposit vault, where it remained until a short time before his death, when, by his direction, appellant went to the safety deposit vault and got it, and retained it until after his death. Towne died April 11, 1899, leaving appellant, his widow, and the appellees, Charles A. Towne, Alvin G. Towne, and Katie M. Jones, his children and heirs at law. Appellees filed this bill against the society and appellant, praying for a reformation of the certificate so that it might read the same as the one for which it was exchanged, and be payable one-half to appellant and one-half to appellees, equally. The society paid the money into court, and was dismissed from the suit. The court ordered $1,000 paid to Annie Mary Towne and $300 to Katie M. Jones, and on final hearing a decree was entered that the remaining $700 be paid to appellees, as follows: ‘To Charles A. Towne, $333.33; to Alvin G. Towne, $333.33; and to Katie M. Jones, $33.34.’ The appellate court affirmed the decree.

No certificate of importance having been granted by the appellate court, appellees have moved to dismiss the appeal on the ground that the amount involved in the suit is less than $1,000. By statute the judgment of the appellate court is final in all cases determined therein in actions ex contractu when the amount involved is less than $1,000, exclusive of costs. The construction given to this statute is that the amount involved is the amount to be disposed of by the judgment or decree of the court, and not the amount affected by the error assigned. In this case the...