Roberts v. Hardin , 179 Ga. 114 ( 1934 )

Pee Curiam.

1. Where a policy of life insurance was unconditionally payable to the wife of the insured as beneficiary, except that it contained a separate stipulation, that, “if any beneficiary die before the insured, the interest of such beneficiary will vest in the executors or administrators of the insured, unless otherwise provided herein,” and except that the policy reserved the right in the insured to change the beneficiary, which right was never exercised; and where after the death of both the husband and the wife, their legal representatives were required, at the instance of the insurance company, to interplead for the purpose of determining to which estate the proceeds of the policy should be paid, it was error for the court to rule and to charge the jury that the burden was upon the administratrix of the wife to show that the wife survived the husband, before a recovery could be had by such administratrix. Under the language of the policy the wife was named as beneficiary, and the proceeds were to be payable to the estate of the husband only upon the happening of a condition subsequent; and the burden was upon the administrator of the husband, the insured, to prove the happening of this condition, in order to recover for the husband’s estate. The fact that the insured reserved the right to change the beneficiary is immaterial, since the right was never exercised. Civil Code (1910), § 3717; Griswold v. Scott, 13 Ga. 210 (3); Baker v. Tillman, 84 Ga. 401 (11 S. E. 355); Loewenherz v. Weil, 33 Ga. App. 760 (2) (127 S. E. 883); Watkins v. Home Life Ins. Co., 137 Ark. 207 (208 S. W. 587, 5 A. L. R. 791); Cowman v. Rogers, 73 Md. 403 (21 Atl. 64, 10 L. R. A. 580). While there are some authorities to the contrary, they do not, in the opinion of this court, represent the better view.

2. Under the rulings stated above, the court erred, after verdict for the administrator of the husband, in not granting a new trial to the administratrix of the wife on proper motion therefor.

Judgment reversed.

All the Justices conciw, except Atkinson and Hutcheson, JJ, who dissent. Howell Broolce and Moms & Welsch, for plaintiff in error. A. J. Henderson, contra.