Taylor v. Coburn, 202 N.C. 324 (1932)

March 2, 1932 · Supreme Court of North Carolina

202 N.C. 324

R. E. TAYLOR, W. A. EVERETT, Jr., MARY LOUISE EVERETT, and WILLIAM C. TAYLOR, By His Next Eriend, J. SAM GETSINGER, v. ROBERT L. COBURN, Administrator of MAC G. TAYLOR, Deceased, and CHLOE TAYLOR, Widow.

(Filed 2 March, 1932.)

1. Gifts A a — Choses in action may he subjects of valid gifts where sufficient delivers' to donee is made.

Choses in action may now be the subjects of valid gifts and their delivery by the donor is sufficient if the donor’s surrender of the property is complete and his dominion and control of it relinquished, but delivery may be actual, constructive, or symbolic, and no absolute rule as to the sufficiency of delivery, applicable to all cases, may be laid down.

2. Same — Insurance policy may he given away by parol, and its actual delivery to donee is not indispensable to the gift.

Where an administrator of a deceased is sued for the amount of an insurance policy paid into his hands by the insurer, the plaintiffs claiming that the policy had been given them by the deceased with instructions to pay the premiums thereon as they matured which they had done, and it appears that the deceased had deposited the policy with the insurer to secure money borrowed thereon: Held, the administrator’s motion as of nonsuit was properly refused, since an insurance policy may be given away by parol and its actual delivery is not indispensable to the gift, and the provisions of the policy relative to assignment are for the benefit of the insurer whose rights are not involved, the amount of the policy having been already paid, and the court properly submitted the question of the sufficiency of the delivery to the jury under instructions which are free from error.

Appeal by defendants from Barnhill, J., at November Term, 1931, of MARTIN.

Tbe Union Central Life Insurance Company of Cincinnati issued two life insurance policies to Mac G. Taylor, eacb in tbe sum of $1,000, in botb of wbicb Bettie Taylor, bis wife, was named as beneficiary. Tbe policies were numbered respectively 242203, and 495306. Tbe beneficiary, Bettie Taylor, died in August, 1918, and in December, 1919, Mac G. Taylor intermarried with tbe defendant, Cbloe Taylor. After tbe latter marriage Taylor made Cbloe Taylor tbe beneficiary in iiolicy 495306. In tbe other policy no change of beneficiary was made except as affected by tbe terms of tbe policy.

Taylor borrowed from tbe Union Central Life Insurance Company of Cincinnati tbe sum of $280 and deposited with tbe company tbe policy numbered 242203 as security for its payment.

After tbe death of Mac G. Taylor tbe insurance company paid to bis administrator tbe sum of $1,256.38 on account of policy 242203 and tbe money is now on deposit for disbursement according to law.

The plaintiffs brought suit against tbe defendants for tbe recovery of tbe amount paid on tbe policy alleging tbat Mac G. Taylor during bis lifetime gave tbem tbe policy in question and instructed them to keep tbe premiums paid as tbey matured. Tbey allege tbat in obedience to tbe instructions of tbe insured' tbey, with tbe assistance of tbe defendant Cbloe Taylor, paid tbe premiums and tbat tbe plaintiffs other than W. A. Everett, Jr., are entitled as against, tbe administrator of Mac G. Taylor to tbe amount paid on such policy. On tbe pleadings filed and tbe evidence introduced tbe jury returned tbe following verdict:

1. Did Mac G. Taylor, deceased, give and assign policy of insurance on bis life with tbe Union Central Life Insurance Company No. 242203 to tbe plaintiffs, other than W. A. Everett, on condition tbat tbe plaintiffs pay tbe accruing installments thereon? Answer: Yes.

2..If so, did tbe plaintiffs, other than W. A. Everett, in compliance with said gift thereafter pay or procure to be paid said accruing installments? Answer: Yes.

3. Is tbe defendant, Gbloe Taylor, now estopped to assert any interest in said policy as tbe distributee of tbe estate of Mac G. Taylor, deceased? Answer: Yes (by consent).

It was thereupon adjudged tbat tbe plaintiffs, other than W. A. Everett, Jr., recover of tbe defendant Robert L. Coburn, administrator, tbe sum of $1,256.38 with interest from 23 November, 1931, and tbe cost of tbe action. Tbe defendants excepted and appealed.

Elbert S. Peele and Cobum & Cobum for appellants.

A. R. Dunning for appellees.

Adams, J.

Tbe defendants have abandoned all assignments of error except tbat of the court’s refusal to dismiss tbe action. Tbe motion is founded on tbe theory tbat a person whose life is insured cannot make a voluntary gift of a policy without delivering tbe policy or reducing tbe transaction to writing or conforming to tbe stipulations contained in tbe policy.

It was stipulated tbat if tbe policy should be assigned or given as security a duplicate of tbe assignment should be filed at once with tbe company and tbat due proof of interest should be produced when tbe policy became payable. Tbe evident object of these provisions was tbe protection of tbe company; but as tbe policy has been paid and tbe company relieved of liability tbe controverted point is whether tbe plaintiffs or tbe administrator is entitled to tbe fund. Tbe contest between these parties raises tbe two questions whether a policy of insurance can be given away by parol and whether its actual delivery to tbe donee is indispensable to tbe gift.

By tbe early common law gifts of ¿hoses in action were not permitted, the theory being that they were not susceptible of delivery; but the rule is now established that choses in action may* be the subject of a valid gift. Accordingly it is generally held that a gift of an insurance policy may be made by delivery without a written assignment. Because delivery of an article may be actual, constructive, or symbolic, no absolute rule, applicable to all cases, can be laid down. It is a settled principle, however, that the donor’s surrender of the property must Be complete and his dominion and control of it must be relinquished. The principle was clearly stated in the instructions given the jury and has the general support of the authorities. 28 C. J., 645, sec. 39, 657, sec. 60; 12 R. C. L., 935, sec. 12, 943, sec. 20; Opitz v. Karel, 99 A. S. R., 1004 and 62 L. R. A., 982; Gledhill v. McCoombs, Ann. Cas., 1914D, 294 and annotation; Wilson v. Featherston, 122 N. C., 747; Parker v. Mott, 181 N. C., 435.

No error.