Berg v. Damkoehler

88 N.W. 606, 112 Wis. 587, 1902 Wisc. LEXIS 13

• Court: Wisconsin Supreme Court
• Decided: January 7, 1902
• Status: Published

Opinion

Bardeen, J.

Under the policy in suit the insured had a right to change the beneficiary named therein by filing with the company a written request, duly acknowledged, accompanied by the policy. He attempted to make such change, but neglected to acknowledge his written request. The insurance company refused to recognize such request. It sent to its local agent in Milwaukee a blank form it had prepared for such cases, with instructions to have it signed and properly acknowledged. Before this could be done, the insured died.

The general rule is that the change in beneficiaries must be made in the manner required by the policy. McGowan v. Supreme Court, 104 Wis. 173. This rule, however, in this state, is subject to several exceptions, one of which is that the insured may dispose of the policy by will, to the exclusion of the beneficiary, when he has paid the premiums and kept control of the policy. Foster v. Gile, 50 Wis. 603; Estate of Breitung, 78 Wis. 33. See Clark v. Durand, 12 Wis. 223; Kerman v. Howard, 23 Wis. 108; Strike v. Wis. O. F. M. L. Ins. Co. 95 Wis. 583; Alvord v. Luckenbach, 106 Wis. 537. Other exceptions are where the company has waived strict compliance with the rules; where it is beyond the power of the insured to comply with all the rules, and he has done all that is possible to secure the change; and also when he has pursued the rules and done all in his power to change the beneficiary, but .dies before the new policy is issued. McGowan v. Supreme Court, supra; Supreme Conclave v. Cappella, 41 Fed. Rep. 1.

The defendant insists that the facts of this ease bring it within the exception last mentioned. The difficulty with his contention is that it is not supported by the facts. The unacknowledged request was not in compliance with the requirements of the policy. The company refused to recognize it. The proper authentication of the written request was of importance to all concerned. It was material because made so by the contract. It was a protection to the company as against payment to persons who might fraudulently secure possession of the policy. It was a safeguard of the insured and his beneficiary for the same reason. Mellows v. Mellows, 61 N. H. 137. See Rollins v. McHatton, 16 Colo. 203; Grand Lodge v. Fisk (Mich.), 85 N. W. Rep. 875. The beneficiary had an actual, subsisting interest in the policy, subject to the right of the insured, who had paid the premiums, to vest it elsewhere. Until such action by the insured, the interest of the beneficiary is such a vested, subsisting interest as would pass to her administrator in case of her death. Foster v. Gile, 50 Wis. 603; Patterson v. Hatural Premium M. L. Ins. Co. 100 Wis. 118. Upon the death of the insured her interest became an absolute property interest in the proceeds of the policy. The payment of the money into court by the company did not change the legal position of either party. Ballou v. Gile, 50 Wis. 614; Ireland v. Ireland, 12 Hun, 212. Unless the change of beneficiaries had been properly made before the death of the insured, or something done equivalent thereto under the exceptions mentioned, the company was bound absolutely to pay the amount of the policy to plaintiff. After the death of the insured, the company could not change the legal rights of the person entitled to the money by payment into court. See Wendt v. Iowa Legion of Honor, 72 Iowa, 682; Shuman v. A. O. U. W. 110 Iowa, 642.

By the Court.— Judgment affirmed.