Whitridge v. Barry

• Decision Date: 12 March 1875
• Citation: 42 Md. 140
• Parties: HORATIO L. WHITRIDGE v. ROSALIE C. BARRY.
• Court: Maryland Court of Appeals

42 Md. 140

HORATIO L. WHITRIDGE v. ROSALIE C. BARRY.

Court of Appeals of Maryland

March 12, 1875

APPEAL from the Circuit Court of Baltimore City.

This was a bill of interpleader, filed by the National Life Insurance Company of the United States of America, chartered by Act of Congress, to have determined the respective rights of Rosalie C. Barry and Horatio L. Whitridge, trustee of William H. Brune, to the proceeds of a policy of insurance effected on the life of John S. Barry, husband of said Rosalie. The policy was made at Washington, D. C., August 28th, 1868, for $5,000, in favor of Rosalie C. Barry, to her sole use if living, and to her executors, administrators and assigns, if dead; with a provision authorizing its assignment by way of security or absolutely; and made payable at Philadelphia.

About the beginning of August, 1871, Rosalie C. Barry assigned this policy for a valuable consideration, to William H. Brune; who received said assignment from Jno. S. Barry, August 3rd 1871, and subsequently on the 13th of February, 1872, made a general assignment of all his estate and effects, including the policy of insurance, to Horatio L. Whitridge, for the benefit of his creditors.

The assignment to Brune grew out of the following facts:

At several times prior to the assignment, Brune, trading under the name of F. W. Brune & Sons, at the solicitation of said Barry, for his accommodation, and upon the pledge that the notes should be held sacred and certainly paid, and the loan secured by an assignment of policies of insurance on the life of said Barry, and of other property, loaned to Barry the promissory notes of F. W. Brune & Sons, to the amount of about $80,000, all of which notes Brune had ultimately to pay, which so seriously embarrassed him as to compel his failure, and the deed in trust to Whitridge. After the maturity and non-payment by Barry and the payment by Brune of a portion of the notes so loaned, Barry, in partial fulfilment of his promise to secure him, sent to Brune in August, 1871, an assignment, executed by Rosalie C. Barry, in favor of Brune, with power of attorney annexed, of certain policies of insurance on her husband's life, in her favor, among which was the policy in question in this suit and Brune thereafter renewed certain of the matured notes which he afterwards paid. The policies covered by the assignment were subsequently to its transmission to Brune also handed him.

This assignment was executed by Rosalie C. Barry, in blank, and filled up with the transfer of the policies aforesaid, by the direction of John S. Barry, to whom she had given it so signed by herself.

John S Barry died in the City of New York, on the 9th of March 1872, and the Insurance Company having refused payment under said policy to Whitridge, because of the claim and suit therefor of said Rosalie, instituted at Philadelphia, Whitridge brought suit against the company in the Superior Court of Baltimore City, which was afterwards discontinued.

Other facts in the case are stated in the opinion of this Court.

The appeal is taken from the decree of the Circuit Court awarding the amount of the policy to Rosalie C. Barry.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ALVEY, J.

J. Morrison Harris and Fred. W. Brune, for the appellant.

This is to be construed as a Maryland contract; and a Maryland Court adjudicating the administration of a fund under its own jurisdiction, is bound to maintain and enforce an assignment valid under Maryland law, even if such assignment might be held invalid under the laws of New York, where said Rosalie C. Barry was living at the time of its execution. Wilson vs. Carson, 12 Md., 75; Smith vs. McAtee, 27 Md., 438, 439; Story's Confl. of Laws, sec. 28.

The execution of the assignment, an unsealed instrument, by Mrs. Barry, in blank, and the subsequent filling up by the direction of her husband to whom she had given it, do not affect its validity; the rule being, that the execution and delivery of an assignment of personal property, in blank, authorizes the person to whom it is delivered, to fill up the blank so as to make it an efficient transfer of such property. Kent vs. Somerville, 7 G. & J., 265, 279; Shriner vs. Lamborn, 12 Md., 174; Van Duzer vs. Howe, 21 N. Y., 534-5; Brainerd vs. N. Y., & H. Ri. Rd., 10 Bosworth, 334; Chesley vs. Taylor, 3 Gill, 255; White vs. Vermont and Mass. R. R. Co., 21 Howard, 575; McNeil vs. Tenth National Bk., 46 N. Y., 329, 331; Leitch vs. Wells, 48 N. Y., 637; Edgerton vs. Thomas, 5 Selden, 40; Preston vs. Hull, Law Register, Nov., 1873.

A life policy, like any other chose in action, is assignable by the person in whose favor the contract is made. New York Life Insurance Company vs. Flack, 3 Md., 341, Affirmed by Emerick vs. Coakley, 35 Md., 190.

The assignment was valid in that it dealt with property which Mrs. Barry in her own right was fully competent to transfer; the said policy being a chose in action legally created and settled to the sole and separate use of the said Rosalie C. Barry, with an absolute right of disposition under the contract of settlement, which she was competent to deal with as a féme sole. Act of Congress, 1868, ch. 239; Price vs. Bigham, Excts., 7 H. & J., 318-9; Tiernan vs. Poor, 1 G. & J., 224, 227; Brundige vs. Poor, 2 G. & J., 13; Cook vs. Husbands, 11 Md., 492, 506; Buchanan vs. Turner, 26 Md., 5, 6, 7; Schull vs. Murray, 32 Md., 15; Schley's Ex. vs. McCeney, 36 Md., 273, 275; Sugden on Powers, sec. 907.

Nor were technical words necessary to create a separate use, when adequate words shew that the husband was not to enjoy what the law would otherwise give him. Hutchins vs. Dixon, 11 Md., 37, 38; Prout vs. Roby, 15 Wallace, 474. The test being the intention to carry the title to the fund beyond the period of the wife's death, and to exclude the husband. Marshall vs. Beall, 6 Howard, 70; Carroll vs. Lee, 3 G. & J., 504-8; Prout vs. Roby, 15 Wallace, 474; Waters vs. Tazewell, 9 Md., 301-303; Townsend, Adm'r vs. Matthews, 10 Md., 255.

And being so settled to her separate use, without any restriction, on the face of the instrument creating it, of her power of disposition, she had a right to dispose of it by deed or will, without the assent of her husband, and her power of disposition is not affected by the provision of the Code, Art. 45, section 11, which applies only to her disposition of her general property, belonging to her as a féme covert and not to property settled or given to her separate use as a féme sole; and the assignment in question was made by her in execution of the right of disposition contained in the instrument itself, which she was competent to execute, both before and since the Code, without the joinder of her husband. Price vs. Bigham's Excts., 7 H. & J., 318-9; Cook vs. Husbands, 11 Md., 492; Buchanan vs. Turner, 26 Md., 5, 6, 7; Schull vs. Murray, 32 Md., 15; Schley's Ex'x vs. McCeney, 36 Md., 273-5; Sugden on Powers, sec. 907.

But any obscurity on this point from the language of the Code is relieved by the ruling of the Court in the case of Hall & Hume vs. Eccleston, 37 Md., 510; see also Leitch vs. Wells, 48 N. Y., 637; Edgerton vs. Thomas, 5 Selden, 40.

This assignment of a chose in action created and settled to the sole and separate use of Mrs. Barry, voluntarily signed by her in blank, handed to her husband, by his direction filled up, with a transfer among other things of the policy in question, was transferred to and held by Brune, under circumstances that made him a holder for value and vested in him a legal and sufficient title to the proceeds of the policy.

It is not necessary to constitute a bona fide holding that the value should have been paid at the time of receiving the security--a part consideration is sufficient. Sawyer vs. Prickett and Wife, 19 Wall., 166; Swift vs. Tyson, 16 Pet., 1; Goodman vs. Simonds, 20 How., 343.

Brune being in possession bona fide of the assignment, and a holder for value, cannot be affected in his rights by the assumed misrepresentations by which the husband is said to have procured it from his wife; because he was not cognizant of the means used and in no way aided or abetted them. Corbett vs. Brock, 20 Beaven, 524; Van Duzer vs. Howe, 21 New York, 535; Hall vs. Hinks, 21 Md., 416, 417; Powell vs. Bradlee, 9 G. & J., 220.

She handed the assignment to her husband in blank, which gave him the right to fill it up; and her act held him out as the owner of, or as having power of disposition over, the property, and parties innocent of the fraud, dealing with him for value, are protected against her claim. Van Duzer vs. Howe, 21 N. Y., 535; N.Y. & N.H. R. R. Co. vs. Schuyler, 34 N. Y., 59; McNeil vs. Tenth National Bank, 46 N. Y., 329; White vs. Vermont & Mass. R. R., 21 Howard, 576; McHenry vs. Davis, 10 Equity Cases, ( Law Rep.,) 88. See also Carr vs. Le Fevre, 27 Penn., 413; Mechanics' Bank vs. N.Y. R. R., 4 Duer, 480-539-582; Carpenter vs. Longan, 16 Wall., 273.

The appellee is estopped from disavowing the legitimate consequence of her act, in thus allowing her husband to hold himself out as the owner of, or having full power of disposition over, the property, because Brune was misled by it to his prejudice; this constitutes an estoppel in pais. Freeman vs. Buckingham, 18 Howard, 182; Funk vs. Newcomer, 10 Md., 301; for admissions acted on by others, whether true or false, are conclusive against the party making them in all cases between him, and the party whose conduct he has thus influenced. McClellan and Wife vs. Kennedy, 8 Md., 230. See also McClellan vs. Kennedy, 3 Md. Ch. Dec., 247; Hall vs. Hinks, 21 Md., 416, 417.

John P. Poe and I. Nevett Steele, for the appellee.

Between Brune and the appellee, and...