Pingrey v. National Life Insurance

C. Allen, J. The objection that the actions ought to have been brought in the name of the legal representative of the assured, if valid, is waived. Bailey v. New England Ins. Co. 114 Mass. 177. Under the agreed facts, it does not appear that there is any statute of Vermont applicable to the ease. The question presented, therefore, is to be decided on general principles, and is an open one in this Commonwealth. Gould v. Emerson, 99 Mass. 154. [382] It appears that, before the first policy was issued, there was an understanding between the assured and his mother and sister that it should be taken out for the benefit of his mother. In pursuance of this understanding, the mother and sister paid the first premium, or contributed money towards it. Afterwards, he told his mother that he had taken out the policy, and one day showed it to her. There appears to have been a full understanding between him and his mother that the policy was to be taken out for her benefit, and afterwards that it had been so done. In point of fact, it was made payable to her, and this was done with the intention of giving to her the benefit of it. This constituted a valid settlement in her favor. Nothing remained to be done by him to complete it. He might, indeed, afterwards fail to pay the annual premiums. This, however, does not prevent it from being a good trust. An unrevoked trust is valid, even though there is an express power of revocation. Stone v. Hackett, 12 Gray, 227. In this case, the assured reserved to himself no power of revocation, or of changing the beneficiary. It is true that he entered into no obligation to continue to pay the premiums; but the omission to do this did not have the effect to give to him an implied power of revocation. His mother might herself continue the payment of the premiums. Moreover, by the terms of the policy, after payment of two full annual premiums, it would not lapse, and certain valuable rights would still exist under it. Under these circumstances, the assured could not legally surrender the policy without his mother’s consent, and her rights are not affected by such surrender. This seems to us to be the true rule, and it is supported by the weight of authority. Chapin v. Fellowes, 36 Conn. 132. Lemon v. Phœnix Ins. Co. 38 Conn. 294. National Ins. Co. v. Haley, 78 Maine, 268. Barry v. Brune, 71 N. Y. 261. Landrum v. Knowles, 7 C. E. Green, 594. Manhattan Ins. Co. v. Smith, 44 Ohio St. 156. Ricker v. Charter Oak Ins. Co. 27 Minn. 193. Wilburn v. Wilburn, 83 Ind. 55. Weston v. Richardson, 47 L. T. (N. S.) 514. It is urged, in behalf of the widow of the assured, that the above rule should not be applied to the case of an endowment policy, like the present, where the whole sum covered' by the policy was to be paid to the assured himself as soon as the [383] premiums and other payments should amount to that sum. But the assured died before the premiums amounted to that sum, and no other payments were made upon the policy, and therefore the amount of the policy did not become payable to him, but by its terms was payable to his mother. The fact that it might have become payable to him in a certain contingency, which did not happen, is immaterial. In Lemon v. Phœnix Ins. Co., ubi supra, the policy was an endowment policy, but this fact was not dwelt upon in the decision, or, so far as appears, in the argument. It is further suggested, that the defendant has incurred a double liability. But the second policy contains a statement that it is a continuation of the original policy. There is nothing to show any estoppel in favor of the widow. She paid nothing towards the premium, and in no way has altered her position in consequence of the issue of the second policy. Indeed, it does not appear that she was aware of its existence. Neither the assured nor the defendant intended to create a double liability. They undertook to do what they could not accomplish, namely, to transfer the benefit from the mother to the wife of the assured. There being no estoppel, the wife gained no rights by reason of what was done. Judgment affirmed.