Weisert v. Muehl

• Decision Date: 16 October 1883
• Citation: 81 Ky. 336,5 Ky.L.Rptr. 285
• Parties: Weisert, & c., v. Muehl.
• Court: Kentucky Court of Appeals

81 Ky. 336

5 Ky.L.Rptr. 285

Weisert, & c., v. Muehl.

Court of Appeals of Kentucky.

October 16, 1883

1. A party insured his life in the National Benefit Mutual Association for the benefit of his heirs.

2. He cannot, by devising the fund to his widow, prevent his heirs from recovering it.

3. The widow having paid premiums upon the policy to save it from forfeiture, must be reimbursed to the extent of her payments.

APPEAL FROM LOUISVILLE CHANCERY COURT.

BIJUR &amp DAVIE AND WM. REINECKE FOR APPELLANTS.

1. The policy was executed for the benefit of the heirs of F. W Weisert.

2. The authorities are uniformly to the point that where a policy is made for the benefit of the heirs of the assured, it is held to have the same effect as if the names of those who are the heirs of the assured were inserted in the policy. (1 Lea Tenn., 454; Gaugh v. St. Louis Mut. Ins. Co., 88 Ill.; 52 Ala. 52; Robinson v. Duvall, 79 Ky. 83; Duvall v. Goodson, Ib., 224; Bliss on Life Insurance, secs. 345-'6-'7; Stevens' Trust Law Rep., 15 Equity, 114; Davis v. Taut, 6 Dana, 53; Clay v. Clay, Duvall, 296; McConnell v. Brown Litt. Select Cases, 467.)

3. Weisert had no power to will away the fund so created for the benefit of his heirs. (Bliss on Life Ins., 317, 339; 88 Ill. 251; Ky. Law Rep., 224; Ib., 254; 7 New York, 155; 49 Howard, N. Y. Pr. Rep., 504; 99 Mass. 157; 117 Ib., 322; 97 Ib., 359; 11 Allen, 224; 44 N.Y.S. 148; 7 Ohio 292; 38 Conn. 294; 59 N.Y. 587; 71 Ib., 261; 36 Conn. 133.)

No brief for appellee.

OPINION

LEWIS JUDGE:

July 5, 1879, the National Mutual Benefit Association, created a corporation by an act of the general assembly, issued and delivered, duly signed by its proper officers, the following certificate:

" This is to certify that Fred. W. Weisert, of Louisville, Kentucky, in consideration of the representations made in the application, and of the payment by him of ten dollars membership fee, and two dollars annual fee, and the farther agreement to pay all assessments that may hereafter become due under the charter, is duly enrolled as a member of the National Mutual Benefit Association. The said Fred. W. Weisert hereby agrees to pay said association the farther sum of two dollars on each anniversary of his membership, and the farther sum of one and 25-100 dollars within thirty days after the death of any member of the association… . And it is agreed and understood that a failure on the part of said party to pay said sum within thirty days shall forfeit his membership and all benefits accruing therefrom. In consideration of the above, the National Mutual Benefit Association agrees to pay to his heirs, within sixty days after the proof of death is received, and on surrender of this certificate, such sum as may be realized from an assessment on all surviving members of the association, as provided for in the sixth section of the charter."

Afterwards, Fred. W. Weisert executed upon the back of the certificate the following:

" LOUISVILLE, KY., January 15, 1880.

This day appeared Fred. W. Weisert, and says he wishes, at his death, that the amount due on this policy, and directed to be paid to his heirs, shall not be paid as directed, but that he wishes the amount to be paid to Mrs. Ottillie Muehl.

FRED. W. WEISERT.

Signed in presence of GEO. D. SPARKS.

Attest: J. T. PEARSON, Notary Public. "

Weisert having died soon after the execution of the writing upon the back of the certificate, it was duly proved and admitted to record by the Jefferson county court as his last will and testament.

The amount realized, as provided by the charter, from the assessment on the surviving members of the association after his death, was paid to appellee Sparks, appointed administrator of his estate with the will annexed. And this action was brought by appellee, Ottillie Muehl, the devisee, to recover of the administrator the residue of that fund left in his hands after the payment of debts and expenses of administering and settling the estate.

During the pendency of the action appellants filed their petition, claiming the proceeds of the policy in the hands of the administrator as the mother, brother, and sisters, only heirs-at-law of decedent Weisert, and controverting the claims of the plaintiff and the other parties to the action. Whereupon, they were made parties defendants, and their petition ordered to be treated as their answer. Subsequently, however, a general demurrer to their answer was sustained, and though an amended answer and cross-petition was tendered, it was not permitted to be filed, but judgment was rendered directing the payment to Mrs. Muehl, the devisee, the balance of the fund, after paying the demands of creditors reported by the commissioner of court, allowance to the administrator, and costs and expenses of the action.

From that judgment the heirs-at-law of decedent have appealed, contending that neither the devisee under the will, nor the administrator of the estate, are entitled to any part of the fund in dispute.

As this record stands, there can be no question as to the propriety of probating and admitting to record, and now treating the paper mentioned as the last will and testament of Fred. W. Weisert. Nor, admitting appellants to be his mother, brother, and sisters, and that he died without father or child, can there be any question but that, by the appellation " heirs" used in the policy of insurance, they are sufficiently designated as those appointed by law to succeed to the estate of the deceased; for their relation to him is described by the term used with sufficient certainty, because capable of being rendered certain. (Tucker v. Tucker, 78 Ky. 503; Gosling v. Caldwell, 1 Lea, Tenn., 454; Gaugh v. St. Louis M. L. Ins. Co., 88 Ill. 252.)

The main question, therefore, in this case is, whether, having designated in the policy his heirs-at-law as the persons to whom he then elected, and the association, by the terms of the contract, agreed to pay the fund to be realized at his death as provided in the charter, Weisert could afterwards by will, devise the fund to a...