Grego v. Grego , 78 Miss. 443 ( 1900 )

Whitfield, C. J.,

delivered the opinion of the court.

The demurrer, being to the whole bill, was properly overruled, since it was a good bill for divorce. The decree recites expressly that the oral proof was taken by agreement, and there is no bill of exceptions. This recital is conclusive, and makes the case of Cox v. Kyle, 75 Miss., 667, s.c. 23 South., 518, inapplicable. Besides, under sec. 1571, code 1892, oral testimony is always proper in divorce cases, and as to that feature of this case no notice or agreement was necessary, under § 1764. The decree as to the divorce is affirmed.

It was, however, manifest error to award the policy to the appellee. The contract (the policy) by its terms conferred a vested interest on Mrs. Grego, irrevocable by appellee or by any court. The court had no more power to take from appellant this policy — her property vested by contract— than to take from her anything else that was her sole property. This is an ordinary life policy. Divorce has no effect upon that property, which is the wife’s solely. 3 Am. & Eng. Enc. L. (2d ed.), p. 980, par. 4, and notes; Bank v. Hume, 128 U. S., 195, s.c. 9 Sup. Ct., 41, s.c. 32 L. Ed., 370. This is not a policy in a benefit association whose constitution and laws expressly authorize the member to change the beneficiary at will, as were the policies in Tyler v. Association, 145 Mass., 134, s.c. 13 N. E., 360, and Schonfield v. Turner, 75 Tex., 324, s.c. 12 S. W., 626, s.c. 7 L. R. A., 189. This is an ordinary life policy, under the express terms of which the whole beneficial interest was vested solely in the appellant. Neither the appellee nor the courts could take that which was hers solely from her. That would be depriving her of her property without due process of law. The law as to this is well settled, and is quite independent of any statutory basis, resting upon the terms of the contract itself. Bank v. Williams, 77 Miss., 398, s.c. 26 South., 965, and authorities therein cited.

We do not think the case one to be remanded for amendment, on the theory of reforming the contracts so as to show that the policy was to be the wife’s only while she was wife.. The policy and the testimony in Goldsmith v. Insurance Co., 18 Abb. (N. C.), 325, well warranted reformation. But there is no hint in the policy or the testimony here of any such purpose. The parties here made their case and framed their issues on no such theory, and it is too late to ask, in this court, for the first time, that the case be remanded for an amendment for a purpose the existence of which is not only not hinted at in the record, but in the face of the contract and of the construction put upon it by all parties in their pleadings. An amendment to that end should have been asked below on proper showing, and then, if denied, we might have remanded, allowing the amendment. But in the attitude of this case we think the request comes too late. The decree as to the divorce is affirmed. As to the ■ relief sought touching the policy of insurance, the decree is reversed, and the bill as to that relief dismissed, without prejudice to any right appellee may have to file an original bill on the line of reforming the contract.