Hunt, Pub. Admr. v. Mutual L. Ins. Co. of New York

Opinion op the Court by Creal, Commissioner— Affirming. Ou August 3, 1922, tie Mutual Life Insurance Company of New York issued to William A. Marshall a $2,000 insurance policy on Ms life in which Ms wife, Bertha Marshall, was, made beneficiary. On July 30, 1929, Mrs. Marshall died intestate, survived by her husband, the insured, and their three children, Charles G-., *512 Clarence La Mar, and Dorothy Elzora, all infants. On August 10, 1930, William A. Marshall died intestate, and left surviving a wife, Mrs. Yada Skaggs Marshall, whom he married subsequent to the death of Mrs. Bertha Marshall, and the three children of his first marriage. A. L. Scott, appointed as administrator of his estate, made the necessary proof and collected from the insurance company the $2,000 due under the policy. Thereafter, this action was instituted in the McCracken circuit court by Mrs. Mae Hunt, administrator of Mrs. Bertha Marshall, and by Anna Berry, guardian of the three infant children, ag'ainst the company which issued the policy, the administrator of the insured, and Mrs. Vada Skaggs Marshall, his widow. In addition to the facts hereinbefore enumerated, the petition alleged that the proceeds of the policy belonged to the estate of Mrs. Bertha Marshall for the use and benefit of her three children. A photostatic copy of the insurance policy in question was filed as an exhibit with an amended petition. A general demurrer to the petition, as amended, was sustained, and, plaintiffs declining to further plead, it was adjudged that their petition be dismissed. They have appealed. The policy contained the following provisions relating to the change of the beneficiary: “If any beneficiary die before the Insured, the interest of such beneficiary shall vest in the Insured unless otherwise provided herein. “If the interest of a beneficiary shall have .vested in the Insured, or if the right to change the beneficiary has been reserved, the Insured if there be no existing assignment of this Policy, may from time to time, while this Policy is in force, designate a new beneficiary, with or without reserving the right to change the beneficiary, by filing written notice thereof at the Home Office of the Company, accompanied by this Policy for suitable endorsement hereon. Such change shall take effect upon the endorsement of the same on the Policy by the Company. “The right to change this beneficiary has . . . been reserved.” *513 It is contended by counsel for appellant tbat tbe quoted provisions of the policy merely vested tbe interest of tbe deceased beneficiary in tbe insured for tbe purpose of enabling bim to designate a new beneficiary, and, having failed to do so, tbe three surviving children of tbe designated beneficiary, at bis death, were entitled to receive tbe proceeds of the policy against bis estate and against any claims of the widow. It is further argued tbat, under tbe provisions of section 655, Kentucky Statutes, tbe interest of tbe beneficiary could not and did not vest in tbe insured, but at her death passed to her surviving children, subject only to tbe right reserved by insured to change tbe beneficiary, a right which be never exercised. In tbe recent case of Hamblin’s Admx. v. Hamblin’s Admr. 241 Ky. 447, 44 S. W. (2d) 299, similar contentions were made with reference to a policy containing a provision whereby tbe beneficiary might be changed, and which also provided tbat, if there was no beneficiary living at tbe death of tbe insured, tbe amount of insurance should be paid to bis executors, administrators, or assigns. Tbe wife of insured who was made beneficiary in tbe policy died, survived by her husband, tbe insured, and one child. Insured died without ever having exercised tbe right to change tbe beneficiary, and was survived by tbe wife of a second marriage. In reversing tbe lower court’s judgment in favor of tbe personal representative of tbe first wife for tbe full amount of tbe policy, it was pointed out tbat neither tbe statute (sections 654 and 655) nor tbe cases cited in support of tbe judgment were applicable, since they dealt with policies in which there was no provision automatically shifting tbe beneficiary in tbe event tbe one designated in tbe policy should die before tbe insured, while, in tbe policy under consideration, tbe designated beneficiary bad no vested interest, since it might be defeated by her death before tbe insured or by bis changing tbe beneficiary. While tbe provisions of tbe policy in tbe Hamblin case and tbe one here are not identical in phraseology, they are identical in effect. Clearly, under tbe stipulations of tbe policy, any interest of tbe designated beneficiary at her death passed to and vested in tbe insured with tbe rig’ht reserved to bim to designate another beneficiary, but, failing to exercise tbat right, tbe policy was *514 in effect the same as if it had by express terms been made payable to his estate. The case of Conn v. White, 189 Ky. 185, 224 S. W. 764, and other authorities cited by appellants, involve policies payable to a named beneficiary without reservation or condition, or policies payable to a designated beneficiary subject to the rigfit reserved to insured to change the beneficiary, but without stipulation for automatic change in the event of the death of beneficiary before insured. So it is át once apparent that they have no application here. The Hamblin case and authorities therein cited so effectually dispose of every question involved here as to render further elaboration or citation of authorities unnecessary. Judgment affirmed.