Farmers & Merchants State Bank of Shamrock v. Helton

■NORTHCUTT, Justice. This is an appeal -from the order of the District Court of Hemphill County, Texas in refusing to transfer this cause to Wheeler County, Texas and overruling the plea of privilege of the appellant, Farmers & Merchants State Bank of Shamrock, Texas, a resident of Wheeler County, Texas addressed to a suit by the appellees Rex Helton and Gene Helton who resided in Hemphill County, Texas, declaring on a life insurance policy which insured the life of their father, M. C. Helton, in which Hazel Valentine Helton, wife of M. C. Helton, was named as beneficiary. Appellees brought this suit in Hemphill County, Texas against Great Southern Life Insurance Company to recover upon Policy No. 870312 and made Hazel Helton, Glen Richardson d/b/a Richardson Funeral [353] Home,.-arid .Farmers '& Merchants State Bank.-of Shamrock, Texas parties to the suit. The Grea-ti Southern Life Insurance Company-answered in thé suit and in said answer admitted liability and tendered certain funds into court and then pleaded all of the interested' parties for the purpose of determining to‘whom the money should be payable. The answer of the Great Southern Life Insurance Company was filed after the Farmers & Merchants State Bank of Shamrock, Texas had filed its plea of privilege. , ' Appellant also filed its plea of privilege to' the 'answer of the Great Southern Life Insurance Company but that plea has not been determined and will not be considered in this opinion any further. Appellees -brought this suit upon the policy in question contending that the beneficiary under the policy, Hazel V. Helton, had forfeited all her rights. in and to the proceeds of such policy because she' had brought about the death' of the insured, M. C. Helton, and that appellees were entitled to =the- proceeds from such policy since they were the nearest relatives of the insured. It is admitted that Mrs. Edna Lester, sister of M. C. Helton, is the qualified administratrix of the M. C. Helton Estate and such administration is pending in Wheeler County, Texas. The only parties interested in this appeal are Rex Helton, Gene Helton and Farmers & Merchants State Bank of Shamrock, Texas. It is appellant’s contention that the cause should be transferred to Wheeler County, Texas where the administration of the M. C. Helton Estate is pending because under the terms of the policy the proceeds of the policy should be paid to the administratrix of the M. C. Helton Estate. Appellees contend they have the right to have the cause tried in Hemphill County, Texas where they reside because they are the nearest relatives of the insured M. C. Helton and that the interest of the beneficiary, Hazel Valentine Helton, has been forfeited because she willfully brought about the death- of the insured M. C. Helton, The trial court sustained the contention of appellees -and overruled appellant’s plea of privilege. to which action, of .¡the,, court, appellant excepted and has 'per£ectpd this appeal. • , • r- - - -,. •,. ■ Appellant presents this appeal upon three points óf error as follows:" “First Point “The error of the trial court in overruling appellant’s plea of privilege and thereby of necessity holding that, the appellees have shown a prima facie cause of action that can be maintained by them’. ■ “Second Point - “The error of the trial court in overruling the appellant’s plea of privilege and thereby necessarily holding that Article 21.23, Insurance Code, Revised Civil Statutes (old Article 5047) supersedes and nullifies the provisions of the insurance contract. “Third Point - “The error of the trial court in overruling the appellant’s plea of privilege and thereby necessarily holding' that the appellees, Rex Helton and Gene Helton, sons of the insured, are entitled- to maintain this action on the insurance policy, although they- are not named as beneficiaries in the policy, and there is an administration pending on the estate of the insured and the policy provides contingently for the payment of the proceeds of the policy to the estate of the insured.” In appellee’s brief at page 4, it states “ApPellant bank stands m the position of being a creditor of the Estate of M. C. Helton (S.F. 6) and also holds an assignment of the policy by the beneficiary, Hazel Valentine Helton (S.F. 11)”. As insurance policy providing for the payment of a certain sum to be paid to a certain beneficiary upon the death of the insured becomes a vested right upon the death of the insured and should be paid to the beneficiary unless from some contingency the beneficiary is not entitled to recover .the. same. If the beneficiary is entitled to receive the pro [354] ceeds of the policy, it does not become a part of the deceased’s estate. Appellant further contends since the insurance policy provides: ' “The insured, may without the consent of any beneficiary, at any time and from time to time during the continuance of this policy, provided the policy has not been assigned, change the beneficiary by written notice to the company at its home office. ■“If any beneficiary should die before the insured, the interest of such beneficiary shall vest in the contingent beneficiary, if any; if there is no contingent beneficiary, the interest of such primary beneficiary shall vest in the insured and the proceeds of1 this policy as a valid death claim shall then be paid to the executors or administrators of the estate of the insured.' “The policy also contained a family protection rider which reads in part as follows (Paragraph 2 of last page of policy): . “The amount shown in Column 2 is the additional amount of insurance required to provide a monthly income of $10.00 for the number of- months indicated in .Column 3. This supplemental contract will provide a monthly income of $200. Therefore the amounts quoted in Column 2 are to be multiplied by 20. Such income shall be payable to Hazel Valentine Helton— wife — Primary Beneficiary, if living, otherwise to — None—Contingent Beneficiary, if living, otherwise the amount shown in Column 2 shall be paid in a lump sum to the estate of the insured.” if Hazel Valentine Helton was not entitled to receive the proceeds of the policy the proceeds should be paid into' M. C. Helton’s Estate. The appellees contend that because of V.A.T.S. Insurance Code, Article 21.23, Hazel Valentine Helton has forfeited all her rights under the policy and that appellees are entitled to receive the proceeds of such policy as- the next relatives of M. C. Helton and that they are entitled to maintain this suit in Hemphill County, Texas, the place of their residence, under Subdivisions 28 and 29a of Article 1995, Vernon’s Annotated Civil Statutes of Texas. Article 21.23 is as follows: “The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive said insurance. Acts 1951, 52nd Leg., ch. 491.” Subdivisions 28 and 29a of Article 1995 are as follows: “28. Insurance. — Suits against fire, marine or inland insurance companies may also be commenced in any county in ■ which the insured property was situ-áted. Suits on policies may be brought' against any life insurance company, or accident-insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides. * * * ⅛ * * “29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. As added Acts 1927, 40th Leg., 1st C.S., p. 197, ch. 72, § 2.” Hazel Valentine Helton is living and is entitled to the proceeds of the insurance policy here in question unless she has forfeited all her rights under the policy because she willfully brought about the death of M. C. Helton. If she willfully brought about the death of M. C. Helton, under Article 21.23, the nearest relatives are the [355] only ones entitled to receive the proceeds of such insurance. If Hazel. Valentine Helton forfeited all her rights to the beneficiaries from said insurance policy, she had nothing to assign to this appellant and all of appellant’s rights would be determined by. its being a creditor of M. C. Helton. Under the policy, Hazel Valentine Helton, was the sole beneficiary if living — and she is living. Under the policy Hazel Helton was the only one entitled to receive the insurance as long as she was living — then if by virtue of the statute forfeiting her rights, the statute also determines who is to receive the proceeds and the'statute states the nearest relative which we construe as meaning the nearest relative takes the place of the designated beneficiary. If the beneficiary willfully caused- the death of the insured, she was deprived of receiving the benefits by statute and nearest relatives take by statute and have the same rights as the original beneficiary. We are of the opinion and so hold if it be shown that Hazel Valentine Helton willfully brought about' the death of M. C. Helton then under Article 21.23 above-quoted, the nearest relative of M. C. Helton would be entitled to receive such insurance, and there is no dispute or contention made about appellees not being the nearest relatives. Hazel Valentine Helton although she was made a party to this suit, in no way contested the samé and did not appear and testify and offer any excuse for killing M. C. Helton. Appellant, in its brief, admits M. C. Helton is dead and that he was shot and killed by Hazel Valentine Helton but contends there was no' competent proof that such killing was willful. We are not passing upon the question at this time as to the rights of the parties to receive the proceeds from such insurance but we think the evidence in this case is sufficient to raise a reasonable doubt as to who is the rightful owner thereof and that Hazel Valentine Helton willfully brought about the death of M. C. Helton and that the trial court correctly overruled the appellant’s plea of privilege. Judgment of the trial court is affirmed.