East v. Collins

The court below may have erred in its decree of November 20, 1934, in directing the appellee to assign this insurance policy to the appellant, but that error, if such it is, could be corrected only on a direct appeal from that decree to this court, and therefore it is not for consideration here. The appellee having assigned the policy with the approval of the insurance company to the appellant, it became her property, and no interest therein remained in the appellee. Murphy v. Red, 64 Miss. 614, 1 So. 761, 60 Am. Rep. 68; Grant v. Independent Order, etc.,97 Miss. 182, 52 So. 698; Lamar Life Ins. Co. v. Moody, 122 Miss. 99, 84 So. 135; Lincoln v. Equitable Life Assur. Soc., 124 Miss. 153, 87 So. 6; Bank of Belzoni v. Hodges, 132 Miss. 238, 96 So. 97; Christian v. Merchants Nat. Bank Trust Co., 188 Miss. 586,195 So. 485. These cases are in accord with all of the modern authorities, as will appear from 6 Couch Cyc. of Insurance Law, Section 1458; 29 Am. Jur. "Insurance," sec. 492; 32 C.J. 1240.

The opinion in chief herein proceeds on the theory that the court below awarded this insurance policy to the appellant in its decree of November 20, 1934, as a security for the payment by the appellee of the monthly installments of alimony, also awarded her, in the language of the opinion, "to guarantee . . . her against the failure of alimony payments by the death of appellee." This, I think, is a misconception of the decree; moreover to so have awarded the policy would have been a patent error. A divorced husband is under no obligation to provide for the support of his former wife after his death, and no court has the power to impose such an obligation on him. Alimony may be awarded in part in specific property, and in part in continuing payments, at intervals, of specific amounts of money. That was what the court below here did. The policy was property owned by the appellee, and the decree directing him to assign it to the appellant contains no word limiting the effect of the assignment, without which it vested the ownership of the property in the assignee. But it is said that the chancellor knew his own purpose in rendering the decree of November, 1934. We may presume that he did, but that purpose must be ascertained from the words used by him in the decree to express it. Again, it is said that the appellee received no consideration for the assignment by him of the policy to the appellant. But consideration vel non to the husband does not enter into the decree of a court of equity in a divorce proceeding awarding his wife alimony, and, therefore, its absence here is of no consequence.

Having awarded this policy to the appellant as a part of the alimony decreed her on November 20, 1934, the court below was without power to thereafter take it away from her, and return it to the appellee; and that a consideration was decreed to be given her therefor did not cure this error. Lee v. Lee, 182 Miss. 684,181 So. 912, does not conflict herewith, for that case dealt only with monthly payments decreed to be made to the wife by her divorced husband.

The assignment of the policy to the appellant did not, of itself, carry with it any obligation on the part of the appellee to continue to pay the premiums thereon. Consequently, no error was committed by the court below in relieving the appellee from the provision in its former decree directing him to pay these premiums.