Hazelton v. New York Life Insurance ( 1910 )

KeewiN, J.

It is to be regretted, on account of the small amount involved, that the case cannot be finally disposed of upon this appeal without further litigation and expense. But in view of the condition of the record we feel this cannot be done. We cannot find from the record that the questions involved have been tried and so presented as to enable this court to order the proper judgment without further evidence respecting the interest of the plaintiffs in the funds as evidenced by the certificate in question. Nor do we think the findings •and evidence warrant the judgment, although upon the evidence produced the interest of the plaintiffs, if any, is left uncertain. The certificate upon its face lacks certainty in the particular that it is not plain from it whether the beneficiary had a proportionate interest with other policy-holders in the fund to the extent of $12, or whether the $12 was segregated from the accumulation fund and held for the benefit of the beneficiary and kept accumulating. No explanation as to the proper construction of the certificate is made in the evidence, but the claim is that the plaintiffs are entitled to the $12 and interest upon it, either upon the theory of a trust or a repudiation of a trust From the language of the certificate to the effect that the beneficiary is entitled to $12 in the accumulations of the defendant, subject to the rights of the company under its charter and redeemable at the discretion of the trustees, it would seem that the interest was intended to be an undivided interest in the accumulation fund in the ratio which $12 bore to the interest of other policy-holders in such fund. But what the rights of the company are 'do not appear from the record. Since the interest of the beneficiary is redeemable under the certificate only at the discretion of the board of trustees, no amount probably would be payable until such discretion was exercised. The defendant, however, having offered to pay $12, admitted interest in the accumulation, and it would seem to follow that the amount of a twelve-dollar interest would be recoverable, whatever that interest might prove to be by computation of profits accruing to the fund in the proportion of the beneficiary’s interest therein. Wharton v. Masterman, [1895] A. C. 186, 197. The court found upon sufficient evidence that it is customary to keep the funds of the company at interest, except such surplus as in the judgment of the trustees is required to .meet the current demands and maintain solvency, and that the assets of the company on December 31, 1907, were $490,408,807, and that the defendant is a purely mutual company without capital stock or stockholders to share in the profits. So it would seem, from the findings, in the absence of evidence to the contrary, that the accumulation fund must have increased during the time the beneficiary held the certificate. We therefore think the amount of plaintiffs’ interest was not calculated upon a correct basis, as indeed it was difficult, if not'impossible, to do upon the evidence presented, and therefore, in order that the amount due the plaintiffs be properly determined, a new trial must be had to the end that it may be ascertained whether the plaintiffs’ interest accumulated, and, if so, the amount thereof.

It is contended by the defendant that the certificate is a scrip dividend merely, simply to be rebated on premium when called for, and not to draw interest. But, if so, why put in the form of an interest in the accumulations and make its payment conditional as specified in the certificate? It is difficult to find on the face of the certificate evidence of an intention to make it a scrip dividend. The word “accumulation” in the certificate gives character to it and implies a “rolling up” or the adding of the interest or income to the principal. 22 Am. & Eng. Ency. of Law (2d ed.) 727, and cases cited.

The plaintiffs further claim that the $12 was left with the company to procure additional insurance, and that the company, having repudiated this agreement, thereby became liable for interest on the fund. But the evidence as to this agreement seems to have" been ruled out as incompetent .on the ground that it was conversations had by plaintiff O. W. Hazelton with a deceased agent of the defendant. The principal difficulty with the case lies 'in the uncertainty of the character of the plaintiffs’ interest in the certificate and whether the money or interest of the plaintiffs was so- used as to charge the defendant with 'interest or profits, and the amount thereof. Evidence upon another trial should be directed to these points.

On the defendant’s appeal it is contended that the action cannot be maintained by the plaintiffs, but should have been brought by the representatives of Martha Hazelton, deceased, to whom the certificate was issued. This contention is unsound. The money belonging to the plaintiff G. W. Hazelton, the issuance of the certificate in the name of his wife did not transfer the title to the money to her, since at that time a married woman could not acquire title to a chose in action from her husband by transfer from him. Carpenter v. Tatro, 36 Wis. 297. The action was properly brought by the plaintiffs.

It is also insisted that the statute of limitation is a bar to the plaintiffs’ claim. . But the difficulty with this contention is that even if any statute of limitation would bar the claim, if pleaded, it must be the twenty-year statute, because the action is upon a sealed instrument, and that statute was not pleaded, •so the defense of the statute of limitation must fall. '

We therefore conclude that the defendant take nothing by its appeal, and that upon the plaintiffs’ appeal the judgment must be reversed, with costs, and the cause remanded for a ■new trial.

By the Court. — It is so ordered.

TimliN, J., dissents.