Wright v. Rever

Adkins, J., delivered the opinion of the Court. This case grows out of a dispute between executrices of Robert J. Kearney and the administrator of James Kearney as to which estate was entitled as beneficiary of policy Ho. 136, for $10,000, in the Maryland Assurance Corporation, on the life of the said James Kearney, and dated July 8th, 1919. The Eureka-Maryland Assurance Corporation, which has taken over the business of the Maryland Assurance Corporation, filed a bill of interpleader. A decree requiring the parties to interplead was passed, and the case was heard with Anna K. Wright and Jennie K. Greenfield, executrices of" Robert J. Kearney, as plaintiffs, and Carroll H. Rever, administrator of the estate of James Kearney, as defendant.

Pending the trial Mrs. Greenfield died, and the case proceeded with the surviving executrix as plaintiff. In the policy Robert J. Kearney was named as beneficiary, but the policy provided that the insured should have the right to change the beneficiary at any time during the continuance of the policy, subject to the written consent of the assignee, if any, and that, if no beneficiary should survive the insured, the amount under the policy should be payable to the insured’s executors, administrators, or assigns. On January 19th, 1920, all the right, title and interest in this policy, and in a policy in the Provident life & Trust Company, and in one in the Sun Life Insurance Company of Canada, was assigned by Robert J. Kearney to the Hamil ⁵⁶⁰ ton Bank. In November, 1921, the bank notified the insurance company by letter that it held said policy No. 736, under an assignment from Mr. Robert J. Kearney of his beneficial interest therein, in response to which notice the bank was advised that the insured should join in the assignment and the company should have a record of the assignment.

A proper form was furnished and, on November 17th, 1921, a joint assignment to the bank was executed by James Kearney and Robert J. Kearney, a duplicate of which was filed with the company on January 18th, 1922. During the life of Robert J. Kearney he paid all the premiums on this policy. When he paid the premium due July 8th, 1922, he advised the company that James J. Kearney was in poor health, and requested the waiver of the payment of the premium under the disability clause of the policy, and there was some correspondence about it, but it was not arranged. Robert J. Kearney died December 18th, 1922.

When the next premium came due, notice was sent to the R. J. Kearney Co.’s office, and Mrs. Anna K. Wright, one of the executrices of Robert J. Kearney, being under the impression that there had been a waiver of premiums, inquired why the notice had been sent. The matter was explained to her and the check, signed by Anna K. Wright and Jennie K. Greenfield (Mrs. Greenfield being the other executrix) for this ■premium, was sent to the company. In a letter replying to Mrs. Wright’s inquiry as to why the notice was sent, after an explanation of the notice, Charles E. Stein, the then actuary of the company, says: “We may say, however, in passing, that the policy was originally made payable to Mr. Robert J. Kearney, brother of the assured, and notwithstanding the fact that Mr. Robert J. Kearney has since passed away, the beneficial interest under the policy has not been changed, though the policy itself has been assigned to the Hamilton Bank, as security, we presume, for a loan obtained from that bank.” The testimony shows that the company was not notified of an assignment claimed to have been made by James to Robert. ⁵⁶¹ After paying the premium above mentioned, Mrs. Wright, who was the active executrix, took up with the company the matter of the waiver of premiums, had the necessary blanks filled out, and received back the premium paid by her and her co-executrix, giving a receipt for it dated October 2nd, 1923, signed Anna K. Wright, executrix. The policy was withdrawn at this time temporarily from the Hamilton Bank in order that the waiver might be endorsed on it by the company.

Mrs. Wright testifies that while the policy was in her possession at this time, she saw attached to it an assignment of it by James Kearney to Robert J. Kearney. She had previously talked with Robert Kearney, “when he had this assignment put on the policy.” On April 22nd, 1924, the executrices paid the bank the balance of the note of Robert J. Kearney ($7,528.75) and the policy was delivered to them. On April 23rd, 1924, Charles P. Burger, cashier of the Hamilton Bank, wrote the company: “The claims of the Hamilton Bank to the right, title and interest to the above mentioned policy having been satisfied, the Hamilton Bank relinquishes all claims to said right, title and interest, hereby reassigning all right, title and interest in the policy to J ames Kearney and Anna K. Wright and Jennie K. Greenfield, executrices of the estate of Robert J. Kearney, as their respective interests may appear. If you have a form for the purpose of releasing claims instead of the above letter, we will execute such further papers as are necessary to establish the sole right of the Kearney estate to the proceeds of the policy.” In response to this letter the company sent the bank the company’s form of release, which was executed by the bank in duplicate, and both copies returned to the company with the request that the company send one copy to Mrs. Wright to be attached to the policy which was in her possession.

Robert J. MacGregor, a witness for appellant, was counsel for the executrices of Robert J. Kearney. He testified on cross-examination that he did not see the policy before it was assigned by the bank, but he advised Mrs. Wright to pay the amount due the bank on Robert J. Kearney’s note “because ⁵⁶² Mrs. Wright told me that there was an assignment on these of all James’ rights to Bob and I said, ‘if that assignment is on there yon have a perfect right to pay the money.’ ” Testifying- in chief this witness said that, after the policy was assigned and came into Mrs. Wright’s possession, the executrices were uncertain as to whether the form of assignment from the Hamilton Bank protected the estate, and consulted witness about the matter. It was in this connection that the policy was first seen by him. When he received the policy there was, with the other assignments, one attached to it from James to Eobert.

Witness went to the company’s office to confer with them about the assignment from the bank and saw there Mr. Zimmerman, who was connected with the office and showed him the policy with the papers attached to it. Witness seems to have been reassured and reported to Mrs. Wright orally. Subsequently he wrote her a letter (the contents of which were not admitted in evidence) returning the policy. Mr. and Mrs. Wright and Mrs. Greenfield all testify that they saw the assignment from James to Eobert attached to the policy a short time after it was returned by MacGregor.

Mrs. Wright and her husband testified that, a few days before the death of James Kearney and when his death seemed imminent, Mrs. Wright took this policy with others out of a safe in their house where they were kept, and was looking over the policies with her husband. He read the policy in question and noticed its provisions, and differed with her as to the effect of them. It was during this discussion that she showed him the assignment from James to Eobert. Mrs. Wright described the paper on which this assignment was written as being yellow and smaller in size than the other ■ assignments.

She said as far as she could remember, after reading it quite a good many times, it said, “I, James Kearney for my heirs and assigns, assign all right, title and interest to the policy to Eobert J. Kearney, his heirs and assigns.” Mr. Wright said: “As near as I recollect, the assignment read something like ‘In consideration’ — some word about consideration — ‘all my right, title and interest,’ or something of ⁵⁶³ the sort, were assigned to Robert J. Kearney. I can very distinctly remember the signature, because I believe I remarked at the time it looked like it had been written with a match stick. Mr. Kearney wrote very thick. As near as I can remember, it was a general assignment from James to Robert Kearney.” As near as he could remember the paper was about two-thirds the size of the assignment from the Hamilton Bank to James and Robert Kearney.

The witness said it was his discussion with Mrs. Wright at the time of the examination of this policy that fixed the fact of the assignment from James to Robert in his mind. Mrs. Greenfield said: “The paper read, as far as I can remember, Tor one dollar, I and my heirs and assigns assign to Robert J. Kearney and his heirs and assigns all rights to this policy.’ Of course I don’t just know the words, I had no reason to remember word for word, I was just curious to see an assignment and when it came home I said, ‘Let me see what an assignment looks like.’ I never saw one before and I read it, but that is the only reason I read it.” “Mrs. Wright and all of us talked over the policy when it came back, we just did not like the way it read.” MacGregor described the assignment as follows: “My recollection now is that it was a very similar assignment to the others from the Maryland Assurance Company to the Hamilton Bank and from Robert and J ames Kearney to the Hamilton Bank. I do not think it was long, but the way I explained that length proposition is this, * * * This policy had been handled a great deal and some of them papers in that policy had been folded, and I would say that this assignment had been folded partially and therefore did not look as long as a regular assignment.” He said the color of the paper was white, and he does not understand how Mrs. Wright got the idea it was yellow. As against the direct and positive testimony of these witnesses, who say they saw the assignment, the defendant offers no witness who is able to say there was no such assignment attached to the policy while it was in the possession of the Hamilton Bank, or when it was received by Mrs. Wright ⁵⁶⁴ from the bank and while it remained in her possession, or when it was delivered to the insurance company by Mr. Wright, or at any time pending the submission of required proofs by the executors of Robert J. Kearney.

After the proofs were in, Dr. Plummer, who had charge of the claim department, took up the case as a matter of routine, and seeing the assignment from the Hamilton Bank, “and the condition as to who the amount of the policy should be paid to,” he thought there was a legal question, and he turned the policy over to Mr. Hew, the company’s legal adviser. When asked “Are you positive you have never seen an assignment from James to Robert Kearney?” he answered, “Yes, Sir, I am positive of that, I have never seen it personally.” But it is apparent from his whole testimony that the policy had been in the company’s office nearly three weeks before any such examination was made as would have revealed any assignments that might have been attached, and the witness does not recall that even then he saw the assignment from Robert J. and James Kearney to the Hamilton Bank, about which assignment there is no dispute. Mr. Hew testifies that when the policy was turned over to him, he examined it and, on April 16th, 1925, wrote Mrs. Wright that, as Robert J. Kearney did not survive the insured, he had advised the company it could not make payment to the executors of Robert J. Kearney, but the company was willing in pay the administrator of James Kearney. In response to this letter MacGregor went to see Hew, and told him there was an assignment from James to Robert on the policy at the time it was delivered to the company.

Hew testifies that, in response to that statement,, he made an investigation at the company’s office, by interviewing everybody whose hands it could have gotten into, as to whether they had ever seen the assignment, and they said they had not; that Mr. and Mrs. Wright also- told him this assignment was on the policy; Hew further testified that the assignment was not on the policy when he examined it, ⁵⁶⁵ but he also said he did not remember seeing the assignment to' the Hamilton Bank attached to the policy. “It may have been, but I don’t remember, I haven’t any recollection of it.” The learned chancellor held that plaintiffs had failed to