California Western States Life Insurance v. Marsters , 145 Or. 640 ( 1933 )

Petition for rehearing denied January 30, 1934 ON PETITION FOR REHEARING (28 P.2d 878) Respondent has filed a very earnest petition for rehearing which calls the court's attention to what counsel deems its erroneous rulings in having held that one of the questions involved was the jurisdiction of the Douglas County court to appoint a guardian for the ward without notice to the ward.

This cause came before this court on a demurrer to an answer and cross-complaint in which it was alleged that the guardian was appointed without notice to the ward. Counsel now contends that the allegation does not state the true facts. Possibly that is so, but that is a matter to take advantage of by answer.

Counsel next complains that this court held that the jurisdiction of the Marion County court was not called in question. Again we say the answer and cross-complaint alleged the death of the ward and that "defendant, Ladd Bush Trust Company was duly appointed administrator of the estate by the Marion County court". That allegation is admitted by demurrer. An answer or reply may show that the Marion County court had no jurisdiction over the matter, but we cannot anticipate.

Counsel next complains that the court stated that the brief of respondent laid stress on the statement that the change in the beneficiary was made at the request of the ward during a lucid interval. Whether it was stressed or not, that was one of the reasons given for making the change. In the order making the change of the beneficiary, the county court recited that the petitioner conferred with the ward and that in her (the petitioner's) opinion "he converses and talks very intelligently and that it is his desire and wish that the beneficiary in said policy be changed to his mother, the petitioner". The intended beneficiary would naturally think that such conversation on the part of the ward showed that he talked "very intelligently".

Counsel next complains of our holding that such change in the beneficiary was a transfer of the ward's estate.

The insurance policy in question was one in which the insured retained complete control over who should be the beneficiary. Without consulting the named beneficiary, he could make a change to any one else or could surrender the policy and receive its cash value or he could make it payable to his estate. This was a property right that, so long as he was competent mentally, he could control. While he lived, it was part of his estate and in our judgment, the county court would have no more authority to authorize a transfer from one beneficiary to another than it would have to authorize the guardian to make a last will and testament for the ward.

Counsel next complains that the court failed to consider or pass upon what he designates as Points 8 and 9 of his original brief.

No one disputes the proposition of law laid down in Point 8, and as to Point 9 that, in determining the sufficiency of the amended cross-complaint, matters arising after the commencement of the cross-suit, set out in the amended complaint, cannot be considered. With that proposition of law we cannot agree as being applicable in this state to this kind of a suit. Until the issues are finally made up, defendant has a right to set up in his answer or cross-complaint anything occurring up to that time that would constitute a defense or cross-bill.

We are still of the opinion that our decision is right and that it is a good and wholesome rule to follow: that guardians of those who are insane or mentally incompetent should not benefit financially by reason of the guardianship beyond just compensations for services actually rendered and that no property rights of the ward should be transferred except in strict compliance with the statute.

The petition for rehearing is denied.