Wilde v. Wilde , 209 Mass. 205 ( 1911 )

Braley, J.

The plaintiff by the original bill as amended, and by the supplemental bill, asks to have the cash surrender value of certain policies of life insurance not yet matured applied in payment of the indebtedness of the defendant George F. Wilde, who is the insured. The right to relief is rested on the ground, that the assignments of the policies to the original creditor, to whose rights the plaintiff has succeeded, having been given as security for the debt of the insured, in which his wife, Catharine A. Wilde, who at that time was the “ assured ” joined, the plaintiff is entitled to a decree, ordering that the policies, which never were delivered to the assignee, shall be surrendered to the company and their value paid to him.

It would be a sufficient answer to this claim if the defense had been made that the policies on their face contain no provision for a settlement until the death of the insured, and the bill does not allege that by force of some statute of the State of New Jersey, the company’s domicil, the policies were given a cash surrender value. Haskell v. Equitable Life Assurance Society, 181 Mass. 341.

But, this question not having been raised by the pleadings and the company being willing to pay the cash surrender values if the rights of all parties having an interest therein are released, the validity and effect of the assignments must be considered. These assignments, which having been made and delivered between parties residing here are governed by the local law, depend upon the construction of the policies. Mutual Life Ins. Co. v. Allen, 138 Mass. 24. The plaintiff contends that this question must be decided according to the laws of New Jersey. It being undisputed, however, that the insurance was applied for, the premiums paid, and the policies delivered here where the beneficiary, who was called the “ assured,” and the insured resided and where the company did business, the contracts, even if at maturity the insurance money was to be paid at the home office, are to be construed, and the rights of the parties ascertained, by the laws of Massachusetts. Daniels v. Hudson River Fire Ins. Co. 12 Cush. 416, 422, 423. Thwing v. Great Western Ins. Co. 111 Mass. 93, 108, 109. Millard v. Brayton, 177 Mass. 533, 537.

It consequently becomes unnecessary to consider the effect of the foreign statute, and the decision under it put in evidence by the plaintiff, and we come directly to the terms of the policies. The insurance was effected by the wife on the life of her husband, although the premiums were paid by him until the assignments. By a provision common to both policies the company agreed to pay the amount of the insurance to her or her “ assigns, within ninety days after due notice and proof of the death of ” the insured, “ and in case the said assured should die before the decease of the said George F. Wilde then the amount of this insurance shall be payable to their children or to their guardian if under age, within ninety days after due notice and proof of interest and of the death of the said George F. Wilde. . . .” The right is not reserved to the insured to change the beneficiary with the consent of the company, or to surrender the policies at his option for their value in cash, and he had no pecuniary interest which he could assign. Langdeau v. John Hancock Mutual Life Ins. Co. 194 Mass. 56, 66. Weatherbee v. New York Life Ins. Co. 182 Mass. 342. Blinn v. Dame, 207 Mass. 159.

The language of the company’s obligation to the beneficiary is not uncertain, and should be given its apparent and usual meaning. It agreed to pay the money to the wife if she survived her husband, and this interest passed to the plaintiff by the assignments. Boyden v. Massachusetts Mutual Life Ins. Co. 153 Mass. 544, 546. Sullivan v. Maroney, 6 Buch. 104. But, if she was the primary beneficiary, yet upon her death after the assignments were given, the insured having survived, neither her,personal representatives nor assigns acquired any title to the insurance money. Fuller v. Linzee, 135 Mass. 468. If the wife predeceased her husband, the contract is, then, to pay to their children, who are to be ascertained at this period, and to succeed as beneficiaries. Thomson v. Ludington, 104 Mass. 193. The defendants, George F. Wilde, Jr., and Stella L. Wilde, having been at their mother’s death the only living offspring of the marriage, their rights to the proceeds of the policies at their father’s death not having been defeated by the assignments to which they were not parties, became absolute, and the bill must be dismissed with costs. Millard v. Brayton, 177 Mass. 533. Knickerbocker Life Ins. Co. v. Weitz, 99 Mass. 157. Pingrey v. National Life Ins. Co. 144 Mass. 374, 382.

Decree accordingly.