Ogletree v. Ogletree

55 S.E. 954, 127 Ga. 232, 1906 Ga. LEXIS 811

• Court: Supreme Court of Georgia
• Decided: November 13, 1906
• Status: Published

Opinion

Evans, J.

(After stating the facts.) The petition as amended presented two theories as a basis of recovery. The first is dependent upon the effect to be given to the assignment of the policy by the insured. to the plaintiffs, wherein it is stipulated that the assignor reserves to himself “the right of revocation by giving written, notice to the Home Life Insurance Company and returning the assigmnent for cancellation,” and that the “assignment is made ■subject to all the terms and conditions expressed in said policy.” It is contended that this reservation was inoperative and of no •effect, because at variance with the express terms of the policy. The second theory relied on for a recovery was that the release exe-cuted to the insured by Mrs. Edna E. Ogletree of all of her rights under the policy was made upon the consideration that the policy ■of insurance should be unconditionally transferred to the plaintiffs, and that the insured, in fraud of the rights of the plaintiffs, •subsequently transferred the policy to the defendant, who had notice of the- fraud. The grounds of the demurrer which the court .sustained related to the validity of the oral agreement between Mrs. Ogletree and the insured, relative to the assignment of the policy to the plaintiffs, and to their right 'to invoke this agreement, to which they were not parties. There is no complaint as to the •correctness of the judgment sustaining these special grounds of the •demurrer, the plaintiffs having acquiesced therein, instead of suing ■out a cross-bill of exceptions.

1. The order sustaining these grounds of the demurrer recites ■that “all reference to the contract or agreement mentioned is .stricken.” The contract or agreement referred to. in the order is that between Mrs. Ogletree and her husband, the insured, by which ■she was to surrender her rights as the nominated beneficiary in consideration that the plaintiffs be made the assignees of the policy. The’ fraud relied on by the plaintiffs was that this contract had been ignored and the defendant had been fraudulently .substituted ns beneficiary. The effect of the ruling of the court, which is un-excepted to, was to eliminate from the plaintiffs’ petition the see-ond theory relied on by them for a recovery.

When a demurrer embracing several grounds is sustained in part and overruled in part, and one of the parties, desiring a review of the ruling adverse to him, sues out a bill of exceptions, the correctness of so much of the judgment as is in his favor does not come under review; and if the adverse party desires to bring the same under review, he must sue out a cross-bill of exceptions.

2. As the policy was not before the trial judge, he was bound to take as true the allegation of the plaintiffs that the policy as originally issued stipulated that there could be no change of the beneficiaxy therein named without her consent. But she did consent, and in writing released all her interest, present and prospective, to the-insured. He thus became the sole and absolute owner and holder of the policy. The insured then assigned it to the plaintiffs on condition that he reserved the right to change the beneficiaries, and the company assented .to this assignment. The contract may reserve-to the insured the right to change the beneficiary at will; and when this is done, the nominated beneficiary acquires no vested interest-in the policy or its proceeds, and, until the death of the insured,, has a mere expectancy. Elliott on Ins. § 355; Nally v. Nally, 74 Ga. 669. Accordingly the plaintiffs, who acquired an interest in the policy only by virtue of the written assignment to them, took it subject to the right, of the insured during his lifetime to substitute another beneficiary in their stead.

As the theory of fraud was eliminated from the case by the judgment sustaining two of the grounds of the demurrer, and as the-plaintiffs, under the assignment to them, took no vested interest in the policy or its proceeds, the judgment overruling the general demurrer to their petition must be set aside.

Judgment reversed.

All the Justices concur.