Wilkerson v. Gallahar, 7 Div. 726.

• Decision Date: 19 August 1930
• Docket Number: 7 Div. 726.
• Citation: 24 Ala.App. 62,129 So. 799
• Parties: WILKERSON ET AL. v. GALLAHAR.
• Court: Alabama Court of Appeals

129 So. 799

24 Ala.App. 62

WILKERSON ET AL. v. GALLAHAR.

7 Div. 726.

Court of Appeals of Alabama

August 19, 1930

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action on a policy of life insurance by Lon Wilkerson, as administrator of the estate of Lucy Wilkerson, deceased against the Southern Life & Health Insurance Company, with intervention of claim by Mrs. W. C. Gallahar, as administratrix of the estate of W. C. Gallahar, deceased. From a judgment for claimant, plaintiff appeals.

Affirmed.

Rutherford Lapsley, of Anniston, for appellant.

Blackmon & Carter, of Anniston, for appellee.

SAMFORD J.

The suit was originally brought by Lon Wilkerson, husband of Lucy Wilkerson, deceased, against the Southern Life & Health Insurance Company, as defendant, on a policy of life insurance issued by defendant and insuring the life of Lucy Wilkerson. The beneficiary originally named in the policy was Lon Wilkerson, the husband of deceased, but the policy contained a clause as follows:

"The beneficiary named herein may, at the request in writing of the insured, be changed with the consent of the Company evidenced by endorsement of such change made on this policy, and signed by the President or Secretary of the Company, but no attempted change of beneficiary shall be binding on the Company unless such endorsement be made as herein provided."

The beneficiary under the policy was changed 7-22-28, as evidenced by indorsement on the policy and signed by W. R. Lathrop, secretary; the said Lathrop being secretary and treasurer of the company. Under the change, William C. Gallahar was named as beneficiary. The defendant company admitted liability under the policy, and suggested Lon Wilkerson, Mrs. W. C. Gallahar individually and as administratrix, as claimants of the proceeds, and paid the money into court. Issue was made up by the court, and on issue joined the issues were found in favor of the claimant, Mrs. Gallahar, and judgment was rendered accordingly. Omitting the policy of insurance, not necessary to be set out in full, the facts agreed to were as follows:

"My name is Lon Wilkerson. I was the husband of Lucy Wilkerson at the time of her death. She died on the 2nd day of August, 1929.

"I know about the policy sued on being issued sometime in the year 1927; the paper which you now hand me is the original policy.

"Here the plaintiff offered in evidence an agreed statement of facts in words and figures as follows, to wit:

"In this cause it is agreed that the attached instrument marked 'Exhibit A,' is the original policy on the life of Lucy Wilkerson, deceased, issued by Southern Life & Health Insurance Company, upon which the sum of Three Hundred Sixty-five and 00/100 ($365.00) Dollars has been deposited with the Clerk of this Court by the said Insurance Company, admitting liability under said policy, with the said Company's interpleader in the cause; and that the genuine signature thereon appears in the endorsement on the page of said policy as follows:

"'Beneficiary changed to William C. Gallahar 7/22/28, W. R. Lathrop, Secretary'; and that the consent of the company to the change in beneficiary as so endorsed, was made on said date; and it is further agreed that Lon Wilkerson was the original beneficiary named in the policy, though by mistake his name is written 'Lou Wilkerson,' which is a clerical error in writing his first name:

"W. C. Gallahar was not related in any way to my wife, Lucy Wilkerson, neither by blood or marriage. I saw her body after she was killed, she is dead.

"It was agreed between the Claimants of Record that Lon Wilkerson was the duly qualified executor of Lucy Wilkerson and acting as such in this suit and that Mrs. W. C. Gallahar was the duly qualified executrix of W. C. Gallahar and was acting in her official capacity as such in the suit.

"The foregoing was all the evidence in the cause and all that the evidence tended to show."

There is no evidence in this case of fraud or duress and no evidence tending to prove that the facts are otherwise than above stated.

The public policy which forbids one having no insurable interest to take out insurance on the life of another, with himself as the beneficiary, does not prevent one who himself procures insurance on his own life from naming as beneficiary another who had no insurable interest. In Afro-Am. Life Ins. Co. v Adams, Mr. Justice Sayre says: "The cases are unanimous to the effect that one has an unlimited insurable interest in his own life,...