Stephenson, Ira G.

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University of Kentucky

Kentucky Law JournalVolume 33 | Issue 1 Article 61944Insurance Payable to a Married Woman--Effect ofK.R.S. 297.140Ira G. StephensonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Insurance Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationStephenson, Ira G. (1944) "Insurance Payable to a Married Woman--Effect of K.R.S. 297.140," Kentucky Law Journal: Vol. 33 : Iss. 1 ,Article 6.Available at: https://uknowledge.uky.edu/klj/vol33/iss1/6STUDENT NOTESproper remedy in such a case could be secured by means of a manda-tory injunction. As far as can be found, this was the last pro-nouncement by the Kentucky Court on the matter. The court hasstated, by way of dictum in a later case involving an application fora mandatory injunction against a circuit judge, that a mandatoryinjunction is equivalent in legal effect to a mandamus.'It is submitted that the law in Kentucky on this question is con-fused because of an unfortunate decision in the Orr case. Theobjections to that case have been previously noted. The main objec-tion to that case is that it does not in any way consider the Code.It would be a strained interpretation, to say the least, to holdthat an executive or ministerial officer and a private corporationcharged with not even a quasi public duty are one and the samething. The latest case on the subject reaches the proper resultunder the Code and declares the proper remedy to be used.Therefore, it would appear that the court should overrule the Orrcase to remove this unfortunate decision and its successors as a lineof authority. It may well be argued that Kentucky should followthe general rule of other states and the common law. The factremains, however, that so long as this Code provision with its pecu-liar wording is retained, that result cannot be reached. The law inKentucky today is, and should remain, so long as section 477 of theCode remains in its present form, that mandamus will not lie againsta private corporation, the proper remedy being by means of themandatory injunction.SCOTT REED.INSURANCE PAYABLE TO A IIARRIED WOIIAN-EFFECT OFK.R.S. 297.140K.R.S. 297.140 provides: "A policy of insurance on the life ofany person expressed to be for the benefit of . . . any marriedwoman . . . shall inure to her separate use and benefit and that ofher children. .. ."Where the married woman beneficiary survives the insured nodifficulty arises. The statute is inoperative and the beneficiary takesthe proceeds of the policy under the terms of the contract. No casehas been found that questions her right to the entire proceeds, and itis very clear that in such a case the statute neither creates a lifeestate in the mother with a vested remainder to her children, nor ajoint tenancy. A child takes nothing by virtue of the contract.Where the beneficiary predeceases the insured and leaves nochildren, the statute is also inoperative. Her personal representa-tive takes the proceeds to be distributed according to her will orthe statute of descent and distribution.' But where she predeceases'5 Hargis v. Swope, 272 Ky. 257, 114 S. W. (2d) 75 (1938). *'Bradley v. Bradley's Administrators et al, 178 Ky. 239, 198S. W. 905 (1917); Buckler et al v. Supreme Council Catholic Knightsof America et al, 143 Ky. 618, 136 S. W. 1006 (1911); Finn et al v.64 KENTUCKY LAw JOURNALthe insured and leaves children, the statute operates and the childrentake the proceeds, not by descent, but under the policy by virtue ofthe statute thus eliminating any claim of the insured's creditors, andlikewise any claim by creditors of the named beneficiary. It hasbeen so held even where the wife died before the policy was issuedpursuant to an application made before her deathAt the time of the death of the mother her interest as bene-ficiary vests in.her children then living and a subsequent death of achild, also before the death of the insured, does not divest thatinterest. In Conn v. White' the wife predeceased the insured,leaving two children, one of whom died intestate before the insured,leaving surviving him his widow. The insured attempted to devisethe entire proceeds of the policy to his daughter. After the deathof the insured it was held that the statute protected the interest ofthe widow of the deceased child and she was awarded one-fourthof the proceeds of the policy. However, the statute was held not tooperate in favor of one who claimed through a child that pre-deceased the beneficiary.'The mere reservation of the right to change the beneficiary isnot in itself sufficient to prevent the operation of the statute, norwill an attempt to substitute beneficiaries in a manner other thanthat provided by the policy affect the right of the wife or children.'It is agreed that where the privilege to change beneficiaries isreserved, the named beneficiary does not have a vested right duringthe life of the insured. However, the beneficiary has a right whichis more than a mere expectancy, and he may be cut off only by theexercise of the reserved power in the manner provided in the con-tract. In Parks' Ex'r v. Parks7 the court held that a change in thebeneficiary of an insurance policy cannot be made by will where thepolicy prescribes the method of changing beneficiaries. However,it is sufficient if the insured does all in his power to comply with theprovision.' Where the husband takes out a policy on his own life inEminent Household of Columbia Woodmen, 163 Ky. 187, 173 S. W.349 (1915); Neal's Adm'r. v. Shirley's Adm'r., 137 Ky. 818, 127 S. W.471 (1910); Hall v. Ayer's Guardian, 32 K. L. R. 291, 105 S. W. 911(1907).'Conn v. White, 198 Ky. 185, 224 S. W. 764 (1920); Mutual LifeIns. Co. of N. Y. v. Spohn, 170 Ky. 721, 186 S. W. 633 (1916).3 Lee v. Murrel, 7 K. L. R. 589 (1886).'189 Ky. 185, 224 S. W. 764 (1920).'Mutual Life Ins. Co. v. Spohn, 170 Ky. 721, 186 S. W. 633(1916); Bell v. Kinner, 101 Ky. 271, 40 S. W. 686 (1897).'Parks' Ex'r. v. Parks, 288 Ky. 435, 156 S. W. (2d) 288 (1941);Sturges v. Sturges, 126 Ky. 80, 102 S. W. 884, 31 K. L. R. 537 (1907).288 Ky. 435, 156 S. W. (2d) 288 (1941).'Parks' Ex'r. v. Parks, 288 Ky. 435, 156 S. W. (2d) 288 (1941);Pikeville Nat. Bank and Trust Co. v. Shirley, 281 Ky. 158, 135 S. W.(2d) 431 (1939); Farley v. First Nat. Bank, 250 Ky. 150, 61 S. W.(2d) 1059 (1933); Hoskins v. Hoskins, 231 Ky. 5, 20 S. W. (2d)1029 (1929); Twyman v. Twyman, 201 Ky. 102, 255 S. W. 884 (1907).STUDENT NOTESfavor of his wife a subsequent divorce will divest her of all rightsunder the policy? But where the wife is the moving party, securesthe insurance on the husband's life, and pays the premiums, thecontract is her personal property and a subsequent divorce will notdisturb her right to the proceeds."Some very interesting results have been reached in cases involv-ing fraternal and mutual benefit insurance where the statute washeld applicable and the proceeds of the policies ordered paid to thedeceased beneficiaries, even where the right to change the bene-ficiary was reserved and there was a further provision that in casethe named beneficiary predeceased the insured the proceeds wereto be paid to the insurer or to the estate of the insured.1 ' However,these decisions have not been followed in later cases involving othertypes of jife insurance, and the courts will give effect to a provisionin the contract providing for payment to the beneficiary only uponreceipt of due proof of the prior death of the insured or to a clauseproviding for a reversion to the estate of the insured in event of herprior death.? This protects the creditors of the insured rather thanthe children of the deceased beneficiary.There has been but one reported case in Kentucky involvingthe distribution of the proceeds of a life insurance policy where theinsured and the beneficiary perished in a common disaster. InColvos' Administrator et al v Mary Gouvas et al,' the policies pro-vided that the proceeds should be paid to the beneficiary upon receiptof due proof of the prior death of the insured, and that if any bene-ficiary died before the insured, the interest of such beneficiary shouldvest in the insured. The court applied the common law rule thatthere is no presumption of survivorship and one who claims throughthe beneficiary has the burden of proving that the beneficiary sur-vived the insured. The evidence was deemed insufficient toestablish the survival and the proceeds of the policy were distributedas property of the insured. The Kentucky Legislature in 1942, bystatute," provided that in case of simultaneous death where there isno proof of survivorship the proceeds will be distributed as thoughI Flimin v. Flimin's Adm'x., 250 Ky. 827, 64 S. W. (2d) 820(1933)." Bradley v. Bradley's Admr., 178 Ky. 239, 198 S. W. 633 (1917)." Colvos' Adm'rs, et al v. Mary Gouvas et al, 269 Ky. 752, 108S. W. (2d) 820, 113 A. L. R. 871 (1937); Hunt Public Adm'r., et al.v. Mut. Life Ins. Co. of N. Y., 243 Ky. 511, 49 S. W. (2d) 322 (1932);Hamblin's Adm'x. v. Hamblin's Adm'r., 241 Ky. 447, 44 S. W. (2d)299 (1931); Wigram v. Miller, 98 Ky. 220, 33 S. W. 637 (1896).1" Buckley v. Supreme Council Catholic Knights of America, 143Ky. 618, 136 S. W. 1006 (1911); Neal's Adm'r. v. Shirley's Adm'r.,137 Ky. 818, 127 S. W. 152 (1910); Hall v. Ayre's Guardian, 32 Ky.Law Rep., 288, 105 S. W. 911 (1907); Supreme Council CatholicKnights of America v. Densford, 21 K. L. R. 1574, 56 S. W. 173, 49L. R, A. 776 (1900)."269 Ky. 752, 108 S. W. (2d) 820, 113 A. L. R. 371 (1937)."K. R. S. 397.040.66 KENTUCKY LAw JOURNALthe insured survived. This changes the common law by establish-ing a presumption that the beneficiary died first.The statute raises an additional problem which should be men-tioned. The general rule seems to be that one person has no legalright to effect life insurance upon the life of another without hisconsent, but K.R.S. 297.140 provides that a married woman may,without the consent of her husband, contract, pay for, take out andhold a policy of insurance upon the life of her husband. The Ken-tucky Court, however, has held in a number of cases that a policyeffected on the husband's life without his consent is against publicpolicy and void. It is also held that, where the wife pays for thepremiums on such policies from household funds or from his money,he may recover the sums so paid from the insurance company.'IRA G. STEPHENSONTHE EFFECT OF THE MARRIED WOMAN'S SURETYSHIPSTATUTE IN KENTUCKYUnder the common law a married woman's contract of surety-ship was void' and a mortgage or other conveyance given by her assecurity for the debt of another was likewise void? K. R. S. 404.010(2), which replaced a- narrower statute, provides: "No part of amarried woman's estate shall be subjected to the payment or satis-faction of any liability on a contract made after marriage to answerfor the debt of another, including her husband, unless the estate hasbeen set apart for that purpose by mortgage or other conveyance."It will be seen that the statute, instead of restricting the power ofmarried women to enter into contracts of suretyship, actually extendsit by providing a method by which she can set aside her property assecurity for the debt of another.The statute, seemingly clear, has not always proved easy of ap-plication. The difficulty is in determining in what situations themarried woman is a surety, especially in the cases where she signsa note as a principal either as the sole principal or as a co-maker.The Court of Appeals has laid down two principles for guidance:' 5Metropolitan Life Insurance Co. v. Smith, 22 K. L. R. 868, 59S. W. 24, 53 L. R. A. 817 (1900); Metropolitan Life Insurance Co. v.Blesch, 22 K. L. R. 530, 58 S. W. 436 (1900); Metropolitan Life Insur-ance Co. v. Selhorst, 21 K. L. R. 912, 53 S. W. 524 (1899); Metro-politan Life Insurance Co. v. Trende, 21 K. L. R. 909, 53 S. W. 412(1899); Metropolitan Life Insurance Co. v. Monohan, 102 Ky. 13, 42S. W. 924 (1897).1Underhill v. Meyer, 174 Ky. 229, 192 S. W. 14 (1917).'Merchant's and Mechanic's Bldg. and Loan Assoc. v. Jarvis.Adm'r, 92 Ky. 566 (1892); Hirshman v. Brashears, Etc., 79 Ky. 258(1881).'Kentucky General Statutes (1888), c. 52, art. 2, sec. 2.

Insurance Payable to a Married Woman--Effect of K.R.S. 297.140

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Insurance Payable to a Married Woman--Effect of K.R.S. 297.140

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