Conyne, Stone & Co. v. Jones

Me. J ustice Sample delivebed the opinion of the Cohet. The material question for determination is, as to the act of. the appellee in assigning the insurance policy in the Mutual Benefit Insurance Company of Blew Jersey, to her son and daughter, which had at the time a cash surrender value to her of $1,198.18 over and above the $740 which the company had advanced to her husband thereon, and the surrender for cancellation and exchange of the certificate of membership in the Masonic Pythian Association of Chicago, so that her son and daughter might be made the beneficiaries therein, instead of herself. It is conceded that these transfers were made without any consideration, the effect of which inevitably would be to hinder and delay creditors, if that so transferred was appellee’s property, which the creditors were entitled to and could claim for the purpose of applying toward the satisfaction of their debts. While it is true that the fraud, as well as the act, must be proven in order to justify a judgment in attachment in rem on the ground of a fraudulent transfer of property (Shove v. Farwell, 9 Brad. 256), yet if a transfer is made without consideration by an insolvent, the fraud may be inferred, as every one is presumed to intend the natural consequences of a voluntary act. It is not a defense to say that it was not known that such property could be made subject to such party’s debts, if in fact and law they could be so made subjecfc. Ignorance of the law is no defense, even where intent is essential to be established to constitute crime, and it is not competent to aver such ignorance. Brown’s Legal Maxims, pp. 253, 267. This case, however, in the arguments of counsel, is made to hinge upon the question as to whether appellee had a vested interest in the insurance so transferred on merely an expectancy. The policy is in the regular line of insurance, while the certificaté is, as held in the case of Martin v. Stebbings, 126 Ill. 403, in the nature of regular mutual life insurance, and therefore, as a contract, is subject to the law of such insurance, except as modified by the objects and policy of such associations. In the arguments of counsel this distinction between the two evidences of insurance is not noted as being of any consequence. The appellants’ counsel broadly asserts that the interest of a beneficiary is vested at once on the issue and delivery of the policy or certificate to the insured, although the contract is between the insured and the company, and claims, as to the regular policy, that when it was assigned to the appellee, she then held the relation to it of a beneficiary, with such vested rights as neither the insured nor the insurer could revoke or destroy without her consent. The appellee’s counsel, on the contrary, asserts that her rights rested merely in expectancy, with the right in the insured—as both contracts were made with him—to revoke and change the beneficiary at his pleasure. It will be observed, from the statement of facts, that the record does not contain any of the by-laws, rules or regulations of either company in regard to the right of the insured to change the beneficiary; that the regular policy is not in the record, so that its terms and conditions are not known, and that the certificate of membership itself, which is in the record, makes no provision for such change. In the case of Martin v. Stebbings, 126 Ill. 404, it is held that the beneficiary named in a certificate of membership, in a mutual benefit association, acquires no vested right to the benefit to accrue upon the death of the member until such death occurs, and therefore the member’s right to change is only limited by the restrictions imposed by the association itself. True, as a reason, it is suggested that the right of the member to revoke the certificate or surrender the same for cancellation—of which act the wife could not complain— carries with it the right to change the beneficiary (ibid. 407). This ground of the right to change is not merely based, as understood, upon the law of the association giving such right, but upon a common-law right; for it is said (ibid. 404), cases where a different rule has been announced seem to be confined to those where the organic law of the society prohibits a change in the first beneficiary. The additional reason, as understood, is also given that the association in the Martin case had expressly reserved in its constitution the right of the member to make such change. But the reason is not understood to be exclusive of or paramount to the other reasons given for so holding. The right of one making a contract with an insurance company of any kind, insuring his life for the benefit of another, at his own expense, to change the beneficiary by the consent of the insurer, is broadly stated in the case of Johnson et al. v. Van Epps, 14 Brad. 209, and the case of Glanz v. Gloeckler, 104 Ill. 573, is clearly distinguished. The position there taken as to the effect of the Glanz case is approved by the Supreme Court in the same case, 110 Ill. 558. The able review of the decided cases in the opinion of Johnson et al. v. Van Epps, 14 Brad. 206, et seq., upon which the law, as laid down in Bliss and May on Insurance, was based, and of the decisions based upon those works, shows that the origin of the rule of law, that the insured could not change his beneficiary, grew out of special statutes or contracts made between the beneficiary and the insurance company, at least in terms, as in the Glanz case, 104 Ill. That the Supreme Court in the Johnson v. Van Epps case, 110 Ill., was favorably inclined to the rule of law as laid down by the Appellate Court, is clearly indicated by the language used on page 558 of that opinion. It is there said that this position is supported by many analogies of the law, as well as by express adjudication, it must be conceded, and the cases of Clark v. Durand, 12 Wis. 223, Kennan v. Howard, 23 Wis. 108, Foster v. Gile, 50 Wis. 603, and Gambs v. Mutual Life Insurance Company, 50 Mo. 44, are cited as so holding. In the cases of Hubbard v. Stapp, 32 Ill. App. 541, and Sauerbier v. Union Central Life Ins. Co., 39 Ill. App. 620, the rule of law contended for by appellants seems to be asserted on authority of the Glanz case in the Appellate and Supreme Courts; Johnson case, 110 Ill. 551; Bank of Washington v. Hume, 128 U. S. 204; Gould v. Emerson, 99 Mass. 154, and Bliss on Insurance. In the Johnson case, 14 Brad. 297-8, these authorities from which emanate this rule are all reviewed except the Hume case in 128 U. S., where, as heretofore suggested, it is clearly shown that they are made to depend upon special statutes or contracts made by and on the part of the beneficiary. An examination of the Hume case will show it is no exception. The vesting of the interest in the policy in the beneficiary at once on its issue, is there made to depend upon the statutes and charter regulating these insurance companies as to a part of the insurance, and on the fact as to the residue, that the contract was made between the insurance companies and the wife, who was the beneficiary, and the Glanz case, 104 Ill. 573, is there cited. In addition to this, the bill was filed in the Hume case by the Bank of Washington, after the death of Thos. L. Hume, and the interest had actually thereby, in any view, vested in the beneficiary. The purpose of the bill was to reach the fund—which by the death of Hume under the contract, had vested in his wife, who survived him—on the ground that .Hume, being insolvent at the time the contracts of insurance were made, a fraud had been perpetrated on the creditors that entitled them to the fund, or at least to the premiums he had paid thereon. In no view does this case seem to be an authority against the right of an insured person to change the beneficiary daring his lifetime, as that question was not involved. In so far, however, as general principles are there discussed? relating to that right, the care with which the statutes of the different States wherein the insurance companies affected were located, as well as the charters of some of such companies, are set out in the opinion, and the conclusions thereon, seem to be in fine with the rule of law announced in the' Johnson case, 14 Brad. 201. The Supreme Court of this State, so far as opinions have been announced, has not unequivocally passed upon the question as to the common law right of an insured, who makes the contract in his own name with an insurance company, and thereby obligates himself to pay the premiums or assessments for the benefit of another, to change the beneficiary, with the consent of the company. In the Johnson case, 110 Ill. 558, this rule of law seems to be found, while in the case of Catholic Knights of America v. Franke, 137 Ill. 123, it is said that in such case, in an ordinary fife insurance policy, it may be that no valid change can be made without the consent of the beneficiary. Therefore we feel free to pass upon the question according to our views of the law on the subject, from a common-law standpoint. We think the right of property in appellee is not the same in the certificate of membership in the Masonic Pythian Association, as in the Mutual Benefit Life policy. The original purposes of the two corporations were in a distinct sense different. The object of the former corporation is not for the pecuniary profit of its members insured (Sec. 1, Chap. 73) by an investment of money or otherwise; which is a distinct and an important feature of regular fife insurance. Its primary purpose is to furnish cheap insurance for the benefit of those dependent upon the insured, although its benefits may be extended to a class called in said section “ devisees or legatees.” It is expressly provided that, its “members shall receive no money as profit.” Its policy, therefore, is not commercial, or its object gain, but humane. The words “ devisees or legatees ” are technically applicable to a will, denoting the person or persons to whom a gift is made. The central thought is protection for dependents on the insured, as widows, orphans or relatives, against the accidents of life, especially by those of small means. Practically it is known that this class, as a rule, avail themselves of this kind of life insurance. Its small assessments, though frequent, it is considered brings the advantages of life insurance within their reach, so that they may provide for their families or others dependent upon them. Therefore the statute and the contract should receive a liberal interpretation in the spirit of the purpose to be accomplished. They should not receive the strict and rigid construction as applied to the law of descent, but rather the free construction as applicable to the law of wills. The head of the family, or one who has others depending upon him, will as a rule, take out such life insurance, and as he is intrusted in the first instance with the bestowal of his little bounty—knowing best to whom it should go, he also best knows when changes of circumstances, which are continually occurring in almost every family, require a change of his beneficiary. As, for instance, if one child becomes crippled, or its health permanently impaired by disease, after the certificate of insurance is taken out, while the other is healthy and robust, or one child becomes disobedient, wayward, a deserter of his home and a spendthrift, after the insurance is taken out, while the other child or children of the family are obedient, loving and promise to be a joy and support instead of a sorrow and burden to the parents, and such instances are not rare in the best regulated families—should not the one who makes the contract and pays all the consideration have the right to change the beneficiary under such circumstances, if the other party to the contract consents, although such right was not originally reserved % These instances are only given for illustration; many others will suggest themselves where the reasons for change will arise that are equally potent. These suggestions, it is true, are applicable to regular life insurance, and as to it we think the law is, and ought to be, that such change can be made; but the force of them, it seems to us, is accented by the fact that these mutual benefit insurance associations are not for pecuniary profit, as are regular life insurance corporations, and primarily, are not commercial but charitable in their objects and policy. So far as the naming of a beneficiary is concerned, such a certificate partakes of the nature of a will, and without consideration, like a will, is a mere declaration of a purpose to bestow a bounty which, until death, vests no rights of property in the legatee or beneficiary. Why should it not be so on the principles of the common law % Where the assured makes the contract and pays the premiums or assessments it exists as a contract between him and the insurer alone. If the assured failed or refused to pay the premium or assessment, the beneficiary could not compel the assured by a proceeding in law or equity, to continue the payment, on the ground of an original promise as evidenced by the certificate or policy. Such beneficiary would have no legal ground of complaint of a failure to make such "payment, or of the insured’s surrender of the certificate or policy for cancellation. Martin v. Stebbings, 126 Ill., at page 407. Such beneficiary could not require the company or association to receive such payment from him to prevent a forfeiture, for the reason there was no contract for payment by such beneficiary. Neither could he pay in the name of the insured? and thereby make himself voluntarily the creditor of the insured. How can the right of property in such a policy be said to vest in the beneficiary immediately upon its issue, when the law affords such beneficiary no remedy for its protection from destruction ? To destroy a vested right of property in another willfully is to commit a wrong. It is the boast of the common law that there is no wrong without a remedy, and yet the insured in such a policy can surrender it for cancellation without the consent of the beneficiary, or refuse to continue payments, which will work a forfeiture, although thousands of dollars in premiums have been paid. This is not consistent with the legal idea of a, vested right. It comports more nearly with the legal idea of a proposed or unexecuted gift, in which case there is a right of revocation at pleasure. The fact that the beneficiary has an interest in and the right to insure such life on his own contract, and for his own benefit, does not of itself work any estoppel or afford a consideration as proceeding from the beneficiary. He is left free to insure such life on his own contract, as in the Glanz case. As is said in the case of Johnson v. Van Epps, 110 Ill., at page 558, the right of an insured under such a contract to change his beneficiary at pleasure, is supported by many analogies of the law, as well as by express adjudications. We suggest further that the insured ought to have such right, for the reason that to deprive him of it, is to force him to forfeit his policy in order to change chis beneficiary, and thereby lose what has been paid, as well as to increase the rate of insurance on a new policy on account of increased age. He can not be deprived of this right,' although it results to the benefit of the insurer, whose profits, in the regular line especially, are largely made up of lapsed policies. Our conclusion, therefore, is based upon the law and considerations of public policy, that when the contract is made, and consideration paid by the insured for the benefit of another, the beneficiary may be changed by the agreement of the contracting parties, though no reservation therefor was originally made. The Mutual Benefit Life policy for $3,300 was, as shown by the statement, assigned to Lucinda M. Jones, with the consent of the company, on August 17, 1885, by Gabriel S. Jones, who had, many years before, taken out the policy for his own benefit. There was this clause in the assignment: “ In the event of her death before the said Gabriel S. Jones, Sr., to revert to him, the said assured, the same as if no assignment had been made.” This policy was, by the assignee, Lucinda M. Jones, on the 8th day of March, 1892, assigned, without consideration, to her son and daughter. On January 26,1892, this policy had a cash surrender value of $1,191.18. We think the right of property in this policy was in Lucinda M. Jones, with only the naked legal title in her husband, Gabriel S. Jones. U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305. The effect of such a transaction was the same as if the policy in the first instance had been taken out by the wife on the life of her husband in a contract made between the company and her personally. After the assignment was made and assented to by the company, it could not be repudiated by Gabriel S. Jones or the company, but under the assignment the policy was held by Lucinda M. Jones for her sole use and benefit, subject to the limitation in the assignment itself. Cole v. Marple et al., 98 Ill. 58, 66. This authority is conclusive on this question. The limitation in the assignment gave Gabriel S. Jones no right to revoke the policy or in any way change it during her life. Under the statute on insurance (Sec. 19, Chap. 13, par. 111, Star and C., p. 1345), she had the right to provide in the policy that in case of her death before it became due or- before the death of her husband, the amount of the insurance should be payable to his, her or their children, and the provision in the assignment that the husband should have the benefit of the policy in case of her death before his, contravenes no law and is not against public policy. Johnson et al. v. Van Epps, 110 Ill. 562. So this policy, before its last assignment to the children, was the same as if it had provided for the payment of the insurance to her husband in case of her death before his. Such a provision, however, would not have given him any more control over the policy, or interest in it, than it would the children, if it had been so made payable to them as pro: vided by the statute, on the happening of the event of her death before his. The property in the policy would rest and vest in her, subject to be divested on the happening of a contingent event. The husband would only be a contingent beneficiary and have no present or vested interest in the policy. A policy is property, and in general terms is called a chose in action. U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305. If fraudulently disposed of to defeat creditors, it may be reached by a creditor’s bill. Cole v. Marple et al., 98 Ill. 58. It is a fraud within the meaning of the attachment act, to dispose of any kind of property to hinder or delay creditors, that might be used by the creditors to satisfy their debts, if done fraudulently. A policy of insurance is such kind of property, the same as a note. Ionia Bank v. McLean (Mich.), 48 N. W. Rep. 159. If the views herein expressed are correct, then the proof sustained the attachment and the court erred in quashing .the writ. The judgment is reversed and the cause remanded.