Blackman v. Praetorians , 1952 Tex. App. LEXIS 2346 ( 1952 )

BOND, Justice.

This is a second appeal from a judgment entered on trial to the court without a jury in an interpleader action instituted by The Praetorians, a fraternal benefit association, against Eunice Blackman and the heirs of Sam T. Kaufman, deceased, to determine who is entitled to a fund deposited in court, —the proceeds of a life insurance certificate issued on the life of Dora Gottlieb.

The first appeal, Kaufman v. Blackman, 239 S.W.2d 422, was from a summary judgment under Rule 166-A, T.R.C.P., in favor of Eunice Blackman which was, on original submission, reversed and rendered in favor of the Kaufmans, and on motion for rehearing the cause was remanded (opinion by the majority, the writer here dissenting), to enable the appellee therein, if she may, establish aliunde in the trial court issuable facts that the assignee, Sam T. Kaufman, was a creditor-assignee of the insured, and if in fact he was such creditor, the assignment being security for debt not subsisting at the time of the death of the insured, the fund deposited by the interpleader was free of any such encumbrance. In this second appeal the record evidence shows, and it is admitted as a fact by appellant, that no evidence was introduced by Eunice Blackman or the Kaufmans that the assignment in question was executed as collateral security for debt as in the first appeal, nor was there any evidence introduced that any debtor-creditor relationship existed. between Sam T. Kaufman and Dora Gottlieb at the time of her death.

This appeal hinges solely on plaintiff Eunice Blackman’s claim to the fund as a designated beneficiary in the certificate and daughter of Dora Gottlieb; and the ap-pellees, heirs of Sam T. Kaufman, deceased, claim the fund under the “Absolute assignment of policy” from the insured to Sam T. Kaufman. The certificate named Eunice Blackman beneficiary, at the death of the insured, subject, however, to the right of change of beneficiary by the insured by her making “written request on forms furnished by the Praetorians and filing the same at its Home Office and furnishing the certificate for endorsement of such change thereon.”

The certificate was dated April 6, 1931.

On or about March 10, 1941 the insured Dora Gottlieb executed, signed, and notarized (caption in capital letters “Absolute assignment of policy”) the assignment of the policy to Sam T. Kaufman in the manner and on form as furnished her by the insurer, and on March 12, 1941 the assignment was accepted by the Praetorians, filed in its Home Office, and attached to the certificate of insurance. Such was its condition at the time The Praetorians filed its interpleader, attaching the policy and assignment to its bill.

The provisions of the certificate as to change of beneficiary were for the benefit of the insurer, subject to such future disposal as the insured may direct. Thus the control of the certificate so far as the beneficiary named therein was concerned, vested in the insured. In this respect an insurance policy does not differ materially from any other.contract authorized by law, and is subject to the same interpretation. A policy for the benefit of another reserving the right to change the beneficial designation by whatever means agreed upon, the law will respect any change the insured may make as to the beneficiary interest therein. Splawn v. Chew, 60 Tex. 532. The policy, as any contract, being property, is assignable and on the death of the assignee all rights thereunder descend to the assignee’s heirs as other property.

This being the second appeal, 239 S.W.2d 422, the historical background and issuable facts are fully related in our former opinions, not materially different from the record evidence here. We therefore by reference adopt our former opinion and the record there related without repetition or quoting therefrom more than we deem necessary in the disposition of this appeal. The benefit certificate having been made to Eunice Blackman, as beneficiary, subject to the right of change by the insured, Dora Gott-lieb, — one of the provisions being: “The beneficiary or beneficiaries named in the certificate have no vested interests in same, and may be changed at any time by the insured making written request on The Praetorian’s Form therefor and filing the same at its Home Office and furnishing this certificate for endorsement of said change thereon”; and the insured having made the assignment to Sam T. Kaufman, as she had the right to do, vested in “the above named assignee, his heirs, executors, administrators, successors or assigns”, indefeasible right as provided therein to “all moneys due or to become due and payable under the same, together with full and complete authority to exercise any and all options, benefits and rights as provided in said policy, and all benefits accrued or to accrue under and by virtue of the terms, covenants, or conditions thereof, * *

The claim of appellees, children of the assignee Sam T. Kaufman, being based on the assignment which had. the effect of changing the beneficiary under the applicable terms of the insurance certificate and the Constitution and Laws of the society in absence of evidence contrary to the terms, tenor, effect and reading of the assignment, the claim of appellant is subordinated' to that pf appellees; hence the judgment of the court below is affirmed. All costs of appeal taxed against appellant.

YOUNG, J., dissents.