1026 PEDRON V. 'OLDS. [193 •PEDRON OLDS. 4-4618
Opinion :delivered . April 19, 1937. INSURANCECHANGV OF BENEFICIARY.—In a controversy between wife .J and daughter of insured over the proceeds of insurance Policies , in which the wife was mamed as beneficiary, but under which she bad no vested interest, the insured'& will,. executed after he and wife had seinirated, desigriating • the dnugbter a beneficia 'ry wai effective, and entitled her fo the preceeds of the poliCiei . ; since the will conflicted with the provision in the policy, and was the ; insured's last expression on the subject, it,was held to control. Appeal from Clark Circuit . Court; Dexter- Bush, Judge; affirmed. • G. B. Oliver, Jr., for appellant. -J H. Ldokadoo, for apiOellee. MaliNt y , J. "In Iii§ , lifetime; J. F: Pedron held "two policies Of life insnrance on his life, 'each for:the sum* of $2,000, one issued by the New York Life Insurance Corn-pany; and dated Novemb'e'r 20; 1920, 'and the other exe cuted bY the PacifiC Mirttial Life In§utairce 'Company; and dated FebrUary 2, 1924, -both payable on hi§ death to the apPellant; whO was his 'Wife.' "The New YOrk Life pólicY provided for a change in b• enefiCiary as ThlloWs : "Change of Beheficiary. The insured May at any tiine, and from time to time, .ohange: the beneficiary; ptovided this 'poliCy is nOt then 'assigned. Every 'Change of beneficiary must be made by written notiCe tO the corn-, pany at its home Office accoMpanied by the policy for indofsement of the change thereon by the company,' and unless so indorSed the change shall not take effea2 After shall relate 'back to; and §-Lich indotAement the 'change take effect as of the date the insured signed said Written notice of change whether insured be living at the time of such indorsernent or .not. In the event of the death 'of
ARK J PEDRON V. OLDS. .1027 any.beneficiary before the .insured the interest .of such beneficiary . shall. vest in the insured." - , • ,• :The . Pacific • Mutual policy contained a . similar . prb-vision. in. the .f011owing :language :• • "Change .. of ;Ben eficiary. Subject to • the. rights •. of --any .assignee, the insured may frOm time to - time, while this policy is in force, designate a, new , beneficiary :by :filing a written notice thereof. at, the_home office . of the company, accompanied by this :policy : for indorsement. Such change shall . take effect on the , indorsement of :the, same , on this policy . by the company ' , and not:before. . Should there .be .no beneficiary living at . the .time, this , policy becomes: a claim *by . death, the . _ proceeds thereof shall be . paid: to the executor, : administrators or . assigns .of the• insured," .: Prior to . June4933, the . insured . suffered A; s-trolcp of paralysis, became,,in poor health,. And; the.appellant, his wife, .separated frOm:him and pontinued to live .separate and apart from .him until his:death, ,the• date • of which is not shown in. this record... • We.assnme that: he; is .dead, .although 'there is, .no : allegation -to that . effect in the, complaint or . in . the answer, .except that.the -answer sets .out that Pedron : left a will which.has been probated,-and that .the appellee has . been issued letters-. testamentary; •exhibited with the answer, and there was exhibited with the testimony : of appellee, the will. The . will, After providing for . the payinent of his . fnneral 'expenses . and: debts, . aud for two . specific bequests . 6f : 0N: each, reads as follows : "After . -all . my ;debt,s,.funeral expenses and the . 'two above aniounts of five hundred .($500.) each have,been paid, giVe,. devise And bequeath . unto . my, beloved• daughter, JaMie Pedron, all . the balance:of my .personal,.property, consisting Principally 'of life ,. insurance, to-wit "Policy NO 6860428 issued by .New• York rUfe ,Insurance Company. on November .16;.1920,. i in : the- suro,of VP* • , • *- i • " Policy No.. 53.2552issued . by the Pacific!Mutual- Life InsUrance Company . and , dated February 2, .1924, in the amount -of $2,000. * .* *" ; There...was never! any . attempt to change the: beneficiary in . the manner provided in .said policies; This 'ac-
1028 PEDRON /). OLDS. [193 tion was begun by appellant in replevin seeking to recover said policies, in which it was claiined that she Was the owner and entitled•to possession thereof. The appel-lee defended under the terms of the Will. The questiOn presented to the lower court, and to this court on appeal is : • Did the will have the effect of changing the beneficiary? The lower court decided that it did. It is conceded by both parties that the beneficiary nained in the policies had no vested interest, because under the provisions of the policieS, he had the Undoubted right to change the beneficiary in the Manner therein provided. Under •such circiunstances, it is generally held that the beneficiary has no vested interest in the insurance during the lifetime Of the insured, and such is our own holding. We do not appear : to have heretofore decided the exact question here presented, that is, whether the insured may change the beneficiary, where the power to change 'is given in the policy, without the consent of the beneficiarY, 1:;37 a testamentary 'provision,. or Must he pursue the method preseribed in the policy. . The cases from other jurisdictions are in hopeleSs conflid, but seems to uS that the 'better rule is with the cases that hold that the instired may change hiS beneficiary by valid will. Underhill on Wills, page 71, lays down the folloWing rule :" ' The Cases' whiCh Support the rule that the . insured may disr■ose of the preeeeds Of , a policy upon 'his life, 'though the beriefiCiarY is specifically Mentioned in the policY are based uPon the theorY that the latter during the life of the insured, haS, no vested right Which the laW protects. The majority. Of cases . Sustain this view and hold that in the absenee of 'any speCial provision to the contrary . betWeen the , instired and 'the inSurer, the name of the beneficiar ' yinaY be changed by the" former without the consent of the beneficiary, and without notice to him. This would seem to be the correct VieW, for if the insured may, by ceasing to pay premiumS; deprive the beneficiary of the proceeds of the t)Olicy altogether, why may he not do so as well -while keeping the 'policy alive bY bequeathing the :proceeds to another? The in-
ARk.] PEDRON V. OLDS. .1029 terest of the beneficiary under the policy assimilates closely to the expectation of the legatee under a will. The legacy vests upon the death of the testator, but until that date it may be revoked or adeemed." The above statethent is quoted in Benson v. Benson, 125 Okla. 151, 256 Pac. 912, where a will changing the beneficiary iri a War Risk policY was sustained, In Wana-maker v. Stroman, 167 S. C. 484, 166 S. E. 621, the Supreme Conit of South Carelina took the contrary vieW, but in that case _there Was a strong dissenting opinion, based largely upon a previons decision of the Supreme Court of South Carolina, Hunter v. Hunter, 100 S. C, 517, - 84 S. E. 180, and Antley v: New York Life Insurance Co., 139 S. C. 23, 137 S. E. 199, 60 A. L. R. 184. In the Hunter case referred to, the insured • entered his home and surprised his wife and her paramour , who shot him,.inflicting a mortal wound. Prior to his death the next day, he Made a will changing the 'beneficiary in his policy of life insurance frorn 'his wife to his mother: The Supreme Court of South Carolina sustained the testamentary change in the beneficiary.. The Antley case held, to quote a syllabuS : ' "Under life policy providing . that insured, Without consent of benefiCiary, might receive every benefit and exercise every right and enjoy every privilege conferred on insured by policy, insured had absolute unquestioned right to . asSign policy and to subject interest of beneficiary there-eel:" This , case, hOwever, is not exactly in point, since there is question* of assignment involved in the instant case: It appear's to us that the provisions in the policies aboVe set out relating to change in beneficiary were made .for the benefit" and protectien Of the inSUrer, as well as for the benefit' ofthe insured. -The pnrpose was to make certain and definite the perSon to whom the proCeeds of the policy were to go upon the death of the insured, and it does not appear to us that any serious consequences could result adversely to the insurer's interest- by permitting a change in beneficiary to be made by will, although it wag *Anted out to the contrary in Wanamaker v. Stroman, supra, in the following language : "To hold
1030 PEDRON v. OLDS. [193 that a change in beneficiary may be made by testamentary disposition alone would open , up a•serious question as to payment of life insurance policies. It is in the public interest that an insurance company may pay a loss to the beneficiary designated in the policy as promptly after the death of the insured as may reasonably be done. If there is uncertainty as to the beneficiary upon the death of insured, in all cases where the right to change the beneficiary had been reserved there would always be a question as to whom the proceeds of the insurance should be paid. If paid to the beneficiary, a will might later be probated designating a different- disposition ,of the fund, and it would be a risk that few companies would be willing to take, unless some specified time had elapsed after the death of insured, or that there had been some court adjudication as to whom the proceeds should; be paid." The insurer would not pay. , the beneficiar-y without .the surrender of the policy or some evidence of its loss or destruction, and we do not. apprehend that any court would require the insurer to pay the proceeds of the policy under a testamentary. provision of the insured after payment had been made to . the designated beneficiary ‘ and the policy surrendered.. There are numerous cases holding. that a 'policy may, be assigned by the , insured without the consent of the beneficiary where there is -no vested interest in the beneficiary, and if the insured quits paying the premiums and the policy lapses, the beneficiary loses his interest therein along with the insured, and we can perceive no valid reason why, under similar conditions, a testamentary provision- may not have the effect of changing' the beneficiary. In the case before.us , the beneficiary had no vested interest during the lifetime of the insured, and neither did the legatee under the' will. Both provisions became effective on his death. The provision in the will conflicted with the provision in the policy designating appellant as .beneficiary, and this being the insured's -last expression on the subject, it ought to control.
'Attk:] 1031 Neither insUrance-company is a . party to this litigation. So far as this record disclOses, no proof of death has ever been made; and, of course, what we have here said is not conclusive as against the insurance companies, aS only the rights of the parties to this litigation are here decided. We think the court correctly determined the issue as to. who was entitled to the possession of the policies, and its jUdginent is accordingly affirmed. GRIFFIN :RMITH, C. J., dissents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.