Bach v. Nagle

Thacher, J. This action was brought by the committee of an incompetent person against the incompetent’s brother for a judgment declaring that disability benefits received and to be received by the brother, as the beneficiary named in a life and disability insurance policy issued to the incompetent, are for the use and benefit of the incompetent. The policy in question was issued by the New York Life Insurance Company in 1923 for the face amount of five thousand dollars. The beneficiary designated at that time was Virginia K. Nagle, the wife of the insured, William Nagle. The policy provided that the insured might at any time and from time to time change the beneficiary and this he did on May 31, 1929, naming his brother, the defendant, -John Nagle, who is now the designated beneficiary. This change was the voluntary act of the insured. The policy contained the following disability provisions: ‘ ‘ And the Company Agbees to Pay to the I'nsubbd One per cent of the face of this policy ($10 per $1,000) each month during the lifetime of the insured and also to waive the payment of premiums, if the insured becomes wholly and permanently disabled before age 60, subject to all the terms and conditions contained in Section 1 hereof. * * * 2. Income "Payments. The Company will pay the Insured, or if such disability results from insanity will pay the beneficiary in lieu of the insured, a monthly income of one per cent of the face of the Policy during the lifetime of the Insured and the continuance of such disability.” After having designated his brother as the beneficiary, and before attaining the age of sixty, the insured became totally and permanently disabled by reason of insanity within the meaning of the policy, and in accordance with its terms the New York Life Insurance Company has paid to the defendant disability *154 benefits of fifty dollars a month since May, 1938. It is alleged that the incompetent’s brother has used none of these payments for the benefit or in behalf of the insured except the sum of $270 and has retained the balance to his own use and benefit and intends to continue to use future monthly benefits to be received by him for his own use and benefit. The complaint contains the folloAving conclusory allegations relating to the plaintiff’s contention: “ Seventeenth: Disability benefits due under the terms of the policy of insurance are for the sole use and benefit of the insured, and for the benefit of no other person Eighteenth: The defendant, John Nagle, has no interest in and to the disability benefits due under the policy, except the right conferred upon him to receive payments of disability benefits ‘ in lieu of the insured ’.” Upon these allegations plaintiff demands judgment declaring that the disability benefits were received by the defendant for the use and benefit of the incompetent; that the defendant, by retaining benefits received by him in accordance Avith the terms of the policy of insurance, has become unjustly enriched, and that the defendant account .for and pay over to the plaintiff benefits heretofore received or hereafter to be received. There is nothing in the policy, or in any circumstances alleged, to support the conclusory allegations quoted above that the disability benefits due under the terms of the policy are for the sole use and benefit of the insured and that the defendant has no interest therein. There is no suggestion in the policy, nor any possible implication from any circumstances alleged, that these payments were intended for the use and benefit of the incompetent or that the defendant should be under any legal obligation so to use them. The payments directed in the policy are absolute and unqualified by any suggestion of a fiduciary relationship. Not even precatory words are used and the policy simply provides that such benefits, when disability arises from insanity, are to be paid to the beneficiary. Nor is any fiduciary relationship between the parties alleged in derogation of which it might be said that these benefits have been used. Indeed, if we assume — as we must — that the insured read the policy, it cannot be doubted that it was his purpose that the beneficiary should receive payment of the disability benefits -without direction as to their use. Aside from the conclusory allegations *155 quoted above, there is not a word in the complaint even to suggest a basis for concluding that the insured did not intend to give his beneficiary full power to do as he pleased with the payments he has received and will receive. We are constrained to conclude upon the bare allegations of this complaint that, although in some other setting circumstances might be imagined which could give rise to a trust affecting such payments, it is entirely clear that no such circumstances are here alleged and that the complaint was properly dismissed. The judgment should be affirmed, without costs.