Opinion
03-21-1895
MEYERS v. SCHUMAN et al.
Chas. A. Baake & J. J. Crandall, for complainant. C. L. Cole, for defendant Schuman. W. T. Day, for defendant Equitable Life Assurance Society.
Bill in equity by Christina Meyers against Kate Schuman and Equitable Life Assurance Society for the possession of a life insurance policy, and payment of money due thereon. Motion by defendant Schuman to dismiss bill. Denied.
Chas. A. Baake & J. J. Crandall, for complainant.
C. L. Cole, for defendant Schuman. W. T. Day, for defendant Equitable Life Assurance Society.
GREEN, V. C. George Meyers, a married man, on the 30th of December, 1887, procured a policy on his life in the Equitable Life Assurance Society of the United States in the sum of $2,000, to be paid to his executors, administrators, or assigns at his death, in consideration of his payment of an annual pre-mium of $139.64. He assigned this policy to one Kate Schuman, and delivered it over to her on the 28th day of May, A. D. 1888. On the 10th of November, 1894, he demanded the possession of the said policy of the said Kate Schuman, but she refused to give it to him, and thereupon Meyers, in writing, assigned the policy, with all moneys to become due thereon, to his wife, Christina Meyers. George Meyers was married to complainant March 5, 1853, and he departed this life November 24, 1894, at Atlantic City, in this state. The proper proofs of death were made to the assurance society, and Kate Schuman, as assignee of the policy, made a demand upon the said society for the amount of the policy. Like demand was made by Mrs. Meyers. The latter then filed her bill in this court against the society and against Kate Schuman. This bill alleges that the policy was effected by her deceased husband to augment any rights and properties that he might leave, to and for the benefit of his next of kin, at his death. It avers that Meyers "formally assigned and set over the said policy to one Kate Schuman, and delivered said policy to her, who now has possession of said policy, and claims the money due and payable on said policy by virtue of such assignment, and that such assignment was executed on the 29th day of May, 1888"; also avers that "said Kate Schuman had no insurable interest in the life of said George Meyers, and that said Kate Schuman was never related to said George Meyers, either by blood or marriage; and that she was never in any wise a creditor, partner, or in any wise of his household, and held no moral or legal relation to said deceased; and that for the reason that said assignment was purely voluntary, and said Kate Schuman had not the slightest insurable interest in the person of said George Meyers, the said assignment was and is purely fictitious and inoperative." It charges" that George Meyers always paid the premium on the policy himself, out of his own money, to the time of his death; that previous to his death he made and published a last will and testament, and bequeathed all his real, personal, and mixed property to his wife, and appointed her sole executrix of his estate. It prays for answer without oath, particularly that Kate Schuman shall set forth by what right or title she holds the policy, and by what right and how she has, or ever had, any insurable interest in the life of the said George Meyers; that she be decreed to surrender the policy to the complainant, and that complainant have the right to proceeds of the said policy, and for such other and further relief as shall be agreeable to equity and good conscience. The Equitable Life Assurance Society of the United States asked leave to file a bill of Interpleader, on the ground that there was no dispute, on its part, as to the validity of the policy, and no claim by it upon the money, which it was willing to pay to such person as should be legally or equitably entitled to receive the same; and that claim had been made upon it by both the widow, Mrs. Meyers, and the assignee, Mrs. Schuman, as being so entitled. There was a suggestion from the court that it was not necessary, in view of the present practice of the court, to file a bill of interpleader, but that a more simple, expeditious, and inexpensive practice was indicated by Chancellor Walworth in the case of Badeau v. Rogers, 2 Paige, 209. In that case the complainant filed a bill in the nature of a bill of interpleader to redeem a mortgage. A bill was already pending in the court with reference to an assignment of this mortgage, and also one to foreclose the mortgage, and in this suit all of the persons interested were parties. The chancellor says, with reference to the bill of interpleader, showing that it was unnecessary (page 211): "If the complainant had presented a petition to the court in those two suits, there can be no doubt that the chancellor would have authorized him to pay the money into court to abide the event of the litigation between Rogers and Second, and would have stayed all further proceedings against him." In consequence of some proceedings in the suit, however, the chancellor thought he ought not to dismiss the bill. Counsel for the assurance society thereupon presented this petition as a defendant in this cause, in which it sets out that it is a mere stakeholder with reference to this fund, and asks that it may be permitted by an order of the court to pay the money due on the policy of insurance into court, to abide the result of the suit; and that it may, at the proper time, receive back its policy of Insurance, and be discharged from all liability in the premises. Upon the filing of this petition an order to show cause was made requiring the complainant and the defendant Kate Schuman to show cause why an order should not be made in the cause authorizing the society to pay the sum of $2,000, mentioned in the pleadings, into court, to abide the event of the cause, and thereupon to have the bill as to it dismissed, and further proceedings therein against the society stayed, and the complainant, and defendant ordered to interplead, and settle the matter in difference between them, and at the conclusion of the controversy to deliver up and surrender to the society the policy of insurance mentioned in its petition.
If the bill can be maintained, there is no reason why the order to show cause should not be made absolute. Notice was given by counsel for defendant Schuman, under rule 213, of a motion, to be made at the same time the order to show cause was returnable, to strike out the bill of complaint, "on the ground that it shows no ground for the interposition of a court of equity, and states nothing which requires the defendant Kate Schuman to answer." This motion takes the place of a demurrer, and admits all facts stated in the bill which are well pleaded. The bill admltsan assignment of the policy, and its delivery to the defendant Schuman, but it does not aver that this was an assignment of the moneys due and to grow due thereon. Its attack on the assignment is largely based on the ground that it was voluntary, and that the assignee had no insurable interest in the life of the insured. This motion, being in effect a general demurrer, must fail, if there is any ground on which the bill can be retained. It is said in Vail's Ex'rs v. Railroad Co., 23 N. J. Eq. 466: "A demurrer will lie wherever it is clear that, taking the charges of the bill to be true, the bill would be dismissed at the hearing; but it must be founded on this: that it is an absolute, certain, and clear proposition that it would be so. Where the demurrer is general to the whole bill, and there is any part, either as to the relief or the discovery, to which the defendant ought to put in an answer, the demurrer, being entire, must be overruled." In Drummond v. Westervelt, 24 N. J. Eq. 30, it is held that a general demurrer will not be allowed to a bill if it presents a case in which the legitimate proof may be such as to call for a decree in favor of the complainant. The bill in this case is for relief and discovery. It must, as against a general demurrer, present such a case as will entitle the complainant to same part of the relief independent of the discovery. Miller v. Ford, 1 N. J. Eq. 365; Little v. Cooper, 10 N. J. Eq. 273; Metler's Adm'rs v. Metler, 18 N. J. Eq. 270, affirmed 19 N. J. Eq. 457. The suit is against an insurance society and another, to recover the money due on a policy of insurance on the life of the husband of the complainant. She claims this money, on the decease of her husband, by virtue of an assignment to her, by her husband in his lifetime, of the policy, and all moneys to grow due thereon, as well as sole legatee and executrix of her husband, the insured. She does not have, and never had, possession of the policy. She says her right to the moneys due is denied by the society because the defendant Schuman also claims to be entitled thereto. She alleges that George Meyers, the insured, did, prior to the assignment to her, formally assign and set over the policy to said Schuman, and deliver the policy to her, and that she still retains possession of it. There is no admission in the bill that Meyers did more than make a formal assignment of the policy to Schuman. A formal assignment of such an instrument does not necessarily carry a right to the money it may secure. There may be a right to the formal possession of the paper in one and a right to the money secured in another. Lord Cairns, in Rummens v. Hare, 1 Exch. Div. 169, which was an action in detinue for a policy of insurance, says (page 171): "This is an action not involving any question with regard to the money secured by the policy of Insurance, but for the detention of the paper writing only;" and at page 172: "We have nothing to say as to the money which is secured by it This is one of those cases in which the plaintiff may not be able to recover the document which is the evidence of the debt, while the person who holds that evidence may not be able to recover the debt itself." The legitimate evidence in this case may show that this assignment was not absolute, that it was only for safe-keeping, or on a condition since executed, or as collateral for an undertaking since discharged; either one of which facts would fall within the allegation that it was only formal. It is true, the assignment is principally attacked on the ground that Schuman had no Insurable interest in the life of Meyers, but by the distinct allegation that the assignment to Schuman was only formal the pleader has brought the possible legal effect of the assignment within the four corners of the case. The assignment questioned is in the possession of the defendant Schuman. Complainant has never had it, and has no notice of its contents. If it is merely formal, and the reason for its assignment has ceased, complainant may be entitled to the aid of this court, by its decree, to secure the money due on the policy. The motion must be denied, with costs.