Imperial Tobacco Group Ltd. v. Peoples Bank & Trust Co.

PARKER, J. When J. A. Taylor died, the pension plan was in full force as a binding contract obligating petitioner to perform its promises as set forth therein. One of these was that “(i)n the event of the death in service of a Member who has been married for more than twelve [205] months and who has completed three years of Pensionable Service, his widow shall be entitled to a pension. . . .” At his death J. A. Taylor met these conditions. The superior court has concluded as a. matter of law that appellant is J. A. Taylor’s widow within the meaning of the pension plan. Petitioner did not except to or appeal from that conclusion, and we agree that it is correct. Zachary v. Trust Co., 4 N.C. App. 221, 166 S.E. 2d 495. Therefore, appellant is clearly entitled to receive the widow’s pension as provided in petitioner’s pension plan, and as third party beneficiary she may enforce her rights, unless she “released, waived, and relinquished” such rights by virtue of the separation agreement. We do not agree that she did. By the separation agreement each party merely contracted away all rights in the property of the “other party.” Petitioner was not a party to the separation agreement. Appellant and her husband were the only parties, and by executing the agreement neither of them relinquished any rights which either then had or thereafter acquired as against the petitioner under its pension plan. The fact that at the date of the separation agreement the husband had certain vested rights under the plan lends no support to the trial court’s conclusion that the wife, by executing the separation agreement, thereby relinquished such separate rights as she either then had or might thereafter acquire against petitioner under the provisions of the plan. Her rights under the pension plan were not included in the property of the “other party,” her husband, which she relinquished by the separation agreement. While we cannot determine with certainty from the record before us whether the husband had the right during his lifetime to designate someone other than his wife to receive the “widow’s pension” provided for in petitioner’s pension plan, we do not consider such a determination necessary to decide the question presented on this appeal. If he had that right, his failure to exercise it would indicate that he did not wish to effect such a change. Although he and his wife had separated, they were never divorced, and nothing in the record indicates he desired to relieve petitioner of the obligation of paying his wife the widow’s pension provided for in its pension plan in the event she should survive him. If he did not have the right to designate any other beneficiary to receive the widow’s pension, then it is even clearer that appellant’s rights to receive the pension were not derived from her husband and could not be considered as being included in the property of the “other party” which she released when she executed the separation agreement. [206] We do not suggest that it would not have been possible for appellant and her husband to have agreed, by appropriate language for that purpose, that she release her rights under the pension plan. We do hold that the language which they did employ was not sufficient to produce that result. Support for our holding can be found in Zachary v. Trust Co., supra, in which this Court speaking through Campbell, J., quoted from 4 Couch on Insurance 2d, § 27:114, p. 655, as follows: “ ‘General expression or clauses in a property settlement agreement between a husband and wife, however, are not to be construed as including an assignment or renunciation of expectancies, and a beneficiary therefore retains his status under an insurance policy if it does not clearly appear from the agreement that in addition to the segregation of the property of the spouses it was intended to deprive either spouse of the right to take under an insurance contract of the other, and while the failure of the husband to exercise his power to change the beneficiary ordinarily indicates that he does not wish to effect such a change, each case must be decided upon its own facts. . . .’” The rights of a wife as beneficiary under an insurance policy on the life of her husband are analogous to the provisions for the widow under the pension plan before us. We hold that respondent Helene Griffin Taylor as the widow of J. A. Taylor is entitled to receive the widow’s pension as provided in petitioner’s pension plan. Accordingly, the judgment appealed from is reversed insofar as it is inconsistent with this holding and this case is remanded for entry of judgment consistent herewith. Reversed and remanded. Campbell and GRAham, JJ., concur.