Upton v. Ames & Webb Inc

• Decision Date: 19 January 1942
• Citation: 18 S.E.2d 290
• Court: Virginia Supreme Court
• Parties: UPTON . v. AMES & WEBB, Inc., et al.

18 S.E.2d 290

UPTON .

v.AMES & WEBB, Inc., et al.

Supreme Court of Appeals of Virginia.

Jan. 19, 1942.

Appeal from Circuit Court of City of Norfolk; Allan R. Hanckel, Judge.

Bill by Ames & Webb, Incorporated, and others against Birdie Whitehurst Upton and others to enforce an alleged equitable assignment of the interest of a beneficiary in a life policy. From an adverse decree, named defendant appeals.

Affirmed.

Before CAMPBELL, C. J, and HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

James G. Martin & Son and Richard B. Kellam, all of Norfolk, for appellant.

William G. Maupin and William L Parker, both of Norfolk, for appellees.

SPRATLEY, Justice.

This proceeding was instituted to enforce an alleged equitable assignment of the interest of a beneficiary in a life insurance policy. The bill of complaint was filed by Ames & Webb, Incorporated, Trego Stone Corporation, Southern Materials Corporation, K. C. Johnson and R. Lee Page, on behalf of themselves and all other creditors of E. Lee Williams, deceased, against E. Virginius Williams, administrator of the estate of E. Lee Williams, deceased, Birdie Whitehurst Upton, and the Provident Mutual Life Insurance Company of Philadelphia.

The bill alleged that E. Lee Williams died on June 18, 1940, and that his son, E. Virginius Williams, promptly and duly qualified as administrator of the estate of the decedent, giving bond in the sum of $2,500, with surety, conditioned for the faithful performance of his duties; that at the time of his death, E. Lee Williams was indebted to the complainants in several sums amounting approximately to $4,300; that in addition to that amount he was indebted to various other persons and firms; that his estate was insufficient to pay his debts unless the proceeds of apolicy of insurance, therein described, be recovered by or for the administrator of the estate for the benefit of his creditors; that in 1924, E. Lee Williams had taken out a policy of insurance upon his life in the sum of $10,000 with the Provident Mutual Life Insurance Company of Philadelphia, upon which, at his death, there was approximately the sum of $8,000 payable to the proper beneficiary; that the beneficiary named in the policy was Birdie Whitehurst Williams, the same person as Birdie Whitehurst Upton, who was formerly the wife of E. Lee Williams; that Birdie Whitehurst Williams, prior to the death of the intestate, for a valuable consideration promised and agreed to execute a paper, the effect whereof would be to substitute E. Lee Williams and his estate as the beneficiary in the policy; that she had not, in fact, executed the said paper although she had been requested so to do; that E. Virginius Williams, the administrator, had declined and refused to make any effort to possess himself as administrator of the proceeds of the policy or to prevent the proceeds from being paid to Mrs. Upton; and that, on the contrary, he had directed the insurance company to pay the proceeds to Mrs. Upton. The bill prayed that the insurance company be directed to pay the proceeds of the policy into the registry of the court for the benefit of the estate of the decedent and for such disposition thereof to the creditors as the court might direct.

E. Virginius Williams, administrator, and Birdie Whitehurst Upton filed their separate answers. Each answer averred that they thought it "probable" that the assets of the estate would be sufficient to pay the debts of the intestate without the proceeds from the insurance policy; that, while they believed the estate was indebted to the plaintiffs in some amount, they did not admit either "the validity or propriety" of the claims or that the claimants had "any rights as to said insurance policy;" that although Mrs. Williams had promised to consent to a change of beneficiary, if Williams would relieve her and her son of all liability as makers or endorsers on certain notes, he had not relieved them; that Mrs. Williams had not received valuable consideration for any promise made by her; that Mrs. Upton having an insurable interest in the life of her former husband and having advanced him large amounts of money and being an endorser for him in large sums, she was entitled to the proceeds of said policy; and that the administrator had properly consented and directed that the proceeds thereof be paid to her.

The Provident Mutual Life Insurance Company appeared and deposited to the credit of the court the sum of $7,778.71, representing the amount due and payable under the policy, and was dismissed as a party to the suit.

The policy named Mrs. Williams as the sole beneficiary and provided that the beneficiary could not be changed without her consent.

The evidence was taken ore tenus. Upon the completion of the plaintiffs' evidence, the defendants moved to strike it on the ground that the promise of Williams not to proceed with his action for divorce against his wife was not a valid consideration for the assignment of the insurance policy, and because Williams had not complied with his contract to release Mrs. Williams from liability on certain notes. The motion was overruled, and the defendants then presented their evidence.

At the conclusion of all the evidence the trial court entered its decree holding that there had been an equitable assignment of the policy of insurance, and that the estate of E. Lee Williams was entitled to the proceeds thereof for the benefit of his creditors and beneficiaries. From that decree Mrs. Upton, formerly Mrs. Williams, secured this appeal.

The assignments of error are that the plaintiffs had no right to institute this suit, and that there was no valid consideration to sustain an agreement for a change of beneficiary.

The former contention is made in this court for the first time. No demurrer or plea in abatement was filed. The answers merely refused to admit the "validity or propriety" of the claims against the estate and denied that the estate was entitled to the insurance money. The answer of the administrator called for strict proof of the claims. The right to maintain the suit was not challenged, and no objection was made on the part of anyone to its hearing in the trial court. It is now too late to raise that question. Harris v. Shield's Ex'r, 111 Va. 643, 69 S.E. 933; Jeffries v. Antonsanti, 142 Va. 218, 128 S.E. 510.

It is, therefore, unnecessary for us to consider whether the special circumstances of this case are sufficient to take it out of the general rule that a legatee or creditorof a decedent's estate cannot maintain a suit against the personal representative of a decedent and another who is a debtor to the estate. Harris v. Shield's Ex'r, supra.

The second contention relates principally to the sufficiency of the evidence.

The appellant, now Birdie Whitehurst Upton, was for thirty years the wife of E. Lee Williams. She separated from him in May, 1938, and in the following month brought a divorce suit against him in Norfolk, Virginia, on the grounds of adultery and cruelty.

Williams was greatly distressed at being charged with adultery. He immediately contacted his attorney and intimate friend, Earl W. White, of the city of Norfolk bar. He filed an answer stoutly denying the allegations of his wife's bill and also a cross-bill charging his wife with desertion. At the same time, he instructed White, who had known Mrs. Williams for many years, to use his utmost endeavors to effect a reconciliation. White arranged a meeting with Mrs. Williams at the office of her attorney and used his best efforts to bring about a reconciliation between the parties. He told her that she could not prove her charges against her husband; that Williams would never submit to being divorced upon the grounds alleged in her bill; and that if a reconciliation was impossible, he intended to proceed with his cross-bill...