Milam v. Davis , 97 Fla. 916 ( 1929 )

Upon the reargument of this case, the question was raised in behalf of one of the appellants, the widow of the deceased, as to whether the statute, Sec. 4977, Rev. Gen. Stats., Sec. 7065, Comp. Gen. Laws, invoked by the complainants in the court below, appellees here, applies to the case as made by the bill. The insistence is that by the language of the Act it is limited in its operation to the disposition of the proceeds of insurance policies insuring the lives of persons dying in this State, whereas the bill did not allege that D. P. Davis died in Florida and only alleged by the barest inference that he ever lived in this State. This inference in drawn from the allegation that the will was probated in Hillsborough County and his designation of himself in his will, which is made a part of the bill, as being "of Hillsborough County, Florida." This characterization of the allegations of the bill appears to be correct. However, there was no objection by demurrer or otherwise to this weakness in the bill in the court below, and the appellants here filed their several answers to the bill without alleging therein that Davis was not a resident of this State, or that he died beyond the borders thereof, and without rebutting in any way the inferential allegation in the bill that he was a resident of Hillsborough County, Florida. Furthermore, the pleadings of both complainants and defendants were all apparently framed upon the assumption that the disposition of the proceeds of the insurance policies was governed by the laws of this State, and the court below evidently acted upon this assumption. On appeal, we think that it might well be deemed by this Court that the inferential allegation of the residence of the deceased above referred to was accepted as being sufficient by the defendants in the court below, appellants here, or so acquiesced in by them, as to amount to such a tacit admission of the fact that Davis was a resident of Florida at the time of his death, as to preclude any objection on that score at this stage of the case. However, this preclusion might not apply to the point made, that the bill totally fails to allege that Davis died in this State. But was an allegation of this nature essential? The answer to this question depends upon whether or not the insurance statute above referred to applies only to insurance on the lives of persons dying in this State. While freely acknowledging the difficulty of the question so raised, our view is that the statute is not so limited in its operation, and that the assumption upon which this case appears to have been tried in the court below, to-wit, that the disposition of the proceeds of the insurance policies left by the deceased at his death was governed by said statute, was correct.

True it is that the body of the statute begins with the words "Whenever any person shall die in this State, leaving insurance on his life, the said insurance shall inure," etc. Thus the very first words of the Act appear, on first approach, to conclusively sustain appellant's contention. Considered separately from the statute as a whole, there is no mistaking their meaning. They are plain enough. And yet, if the manifest intention of the statute is to be given effect, surely the Legislature did not mean what it so plainly said in these first few words. It could hardly have done so without defeating to a considerable degree the chief purpose of the statute, and in all probability the entire statute constitutionally considered. What the Legislature probably intended to say (transposing the position of the words "in this State") was: "In this State, whenever any person shall die leaving insurance on his life," etc. Manifestly, the main purpose of the statute was to afford certain valuable protection to surviving members of the families of any and all the people of this State who happen to die leaving life insurance not made payable to any designated beneficiary, regardless of any such adventitious circumstances as the place of death of the insured. If this statute should be construed as extending this protection to the widows and children of only those insured resident of Florida whose death occurs in this State and denying it to the widows and children of residents of this State who happen to die beyond its territorial boundaries, this would be an arbitrary and unreasonable discrimination, and would deny to the latter group the equal protection of the laws. To illustrate, let us suppose two farmers, each with large families and owing large debts, living in the northern part of Leon County, Florida, near the Georgia line, each having his life insured for $5,000.00 payable at death to their respective estates. Let us suppose further that each is stricken with serious illness resulting in death, one dying at home, but the other in the nearby hospital at Thomasville, Georgia, where he had been taken for an operation which it had been thought might save his life. If the quoted words of the statute be given their literal meaning and the statute given the construction contended for by appellant, the widow and children of one of these citizens would be protected in the collection of the full amount of the proceeds of the insurance policy, whereas the widow and children of the other would be entirely deprived of the protection which, by this statute, construed as a whole, the Legislature manifestly intended they should have, and which right had attached, under the policy and the statute, before actual death took place. It is no uncommon occurrence for resident citizens of Florida to die outside of this State, while temporarily absent therefrom for various and sundry, yet entirely legitimate, reasons. Surely it was not the intention of the statute to deprive their families of the benefit and protection which the statute affords on any such ground as that. A study of the statute as a whole convinces us that the statute had no such intention.

The present statute, and the general public policy which it evinces and puts into operation, had its origin in the Act of 1872, Chap. 1864 of the Laws of Florida, which was entitled, "An Act to provide the manner in which moneys collected in life insurance shall be paid." It was practically the same as the present statute, except as to the proviso, which was added in 1897 and amended in 1927. The Act of 1897, being Chap. 4555, was entitled: "An Act to amend Section 2347 of the Revised Statutes of the State of Florida, relating to the disposition of the proceeds of life insurance." This Act is substantially identical with the original Act, down to the proviso which it added thereto, and which proviso related to bequeathing or devising the proceeds of insurance when it was for the benefit of the estate of the insured or payable to his estate. The Act of 1903 further amended the proviso. This Act, Chap. 5165 of the Laws of 1903, was brought forward in the General Statutes of 1906 as Sec. 3154, and in the Rev. Gen. Stats. of 1920 as Sec. 4977, and in the Comp. Gen. Laws of 1927 as Sec. 7065. The title of the Act of 1903 was: "An Act to amend an Act entitled 'An Act to amend Sec. 2347, of the Revised Statutes of the State of Florida, relating to the disposition of the proceeds of life insurance,' approved June 4, 1897, being Chapter 4555, Laws of Florida."

The title of an act is a part of the act, and may be resorted to in aid of the construction of the act, as evidence of the legislative intent, and the whole statute, including the title, may be considered together in arriving at such intent. Jackson Lumber Co. v. Walton County, 116 So. R. 771, 95 Fla. 632, and authorities cited. There is nothing in the titles of any of these various acts which indicates any legislative intention to except from their operative effect upon "the proceeds of life insurance," the proceeds of such insurance held by residents of this State who die outside its boundaries. Per contra, these titles indicate a broad, statewide policy, "relating to the disposition of the proceeds of life insurance," without denial of its benefits to any class of our citizens or residents, or their families.

It is hardly conceivable that the settled public policy of the State for the past fifty-seven years, with reference to the disposition of life insurance proceeds, as exemplified by this statute, should have been intended to be inapplicable or ineffective if the insured, though a resident of this State and the insurance made payable in this State, happened to die outside the State. What reasonable relation exists between the manifest intention of the statute as to the disposition of the proceeds of the insurance and the mere place of death of the insured: The mere place of death should have no effect upon thecontract of insurance or its collectibility within this State by those entitled to the proceeds, provided, of course, proof of the fact of death can be made. Why should it have any effect under the statute? There is no reason why it should have; and to give it any such effect would be to go contrary to the manifest intention and main purpose of the statutes as a whole, and to also probably render the entire statute unconstitutional and void, as being based upon a purely arbitrary and wholly unreasonable classification. Thus it appears that while the first few words of the statute are plain in their meaning and unambiguous when considered alone, they become very doubtful and ambiguous when construed in connection with the context — the statute as a whole, including its title. In fact, the three words, "in this State," as they are placed in the opening words of the statute, are inconsistent with and repugnant to the remainder of the statute, give it a meaning which was not intended, and must either be considered as stricken therefrom or as transposed to some other position in the sentence as hereinabove suggested, or the statute must fail in its purpose in many cases, or fall altogether. It is the duty of the court to so construe the statute as to uphold its validity and effectiveness if possible to do so in the light of sound and applicable principles of statutory construction, some of which we will now consider.

The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. But as the courts cannot legislate, this intention must be gleaned or ascertained from the statute, its language, policy and purpose, and where the language, the meaning or intent of which is in dispute, is plain and intelligible, it must as a general rule be given effect by the courts according to its plain and natural meaning. Board of Commissioners v. State, 118 So. R. 313. But where some part of the language of a statute is of doubtful meaning when construed in connection with the body of the statute, or where an adherence to its strict letter would lead to injustice, to invalidity, to absurdity, or to contradictory provisions, the duty devolves upon the courts to ascertain the true meaning and intent of the statute in its entirety, and give effect to it, if this can be ascertained from a consideration of the statute as a whole, even though, in doing so, the spirit or reason of the law prevails over a portion of its letter. Especially is this true where the literal meaning of the questionable portion of a statute is absurd and apparently inserted through inadvertence. In order to give effect to the evident purpose of a statute as a whole, some phrase of which is repugnant to the remainder or imperfectly expressed, it is sometimes permissible to transpose the position of words and phrases so as to accord with, rather than defeat, the manifest legislative intent. And there are cases where, instead of applying qualifying words and phrases to their next antecedent, as strict grammatical construction might require, they are applied distributively to that part of the subject matter to which they appear by the context most properly to relate, and to which they are indeed most applicable. See Black Interpretation of Laws, 166 et seq.; Am. Eng. Encyc. of Law, 2nd ed., 602, 612-3, 616; 36 Cyc. 1106-1116; Axtell v. Smedley, 59 Fla. 430, 52 So. R. 710; Curry v. Lehman, 55 Fla. 847, 47 So. R. 18; Davis v. Fla. Power Co., 64 Fla. 246, 60 So. R. 759, Am. Cases 1914 B. 965; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 So. R. 398; Goode v. State, 50 Fla. 45, 39 So. R. 461; City of Miami v. Romfh, 66 Fla. 280, 63 So. R. 440; State v. Beardsley, 84 Fla. 109, 94 So. R. 660.

It will have been noted that one of the provisions of this statute, that relating to the power of the insured under certain circumstances to provide for the disposition of the proceeds of the insurance by will, expressly becomes operative, as to the power to make a will bequeathing the same, before the death of the insured. Can it be said that a will bequeathing the insurance proceeds made by the insured in accordance with the statute would be invalidated by reason of death subsequently overtaking the maker of the will while outside the State? Furthermore, if the literal meaning contended for be given the first few words of the statute, the legislature would be attempting the impossible. Many persons die in this State leaving insurance on their lives, the disposition of the proceeds of which cannot possibly be governed by this statute; citizens of other states, for instance, who hold insurance policies made and payable in such other states, who die while temporarily sojourning in this State. 32 C. J. 976, et seq.; 37 C. J. 364-5. Nor can the statute always be given effect even where the insured is a resident of this State at the time of his death, and dies within this State. See Equitable Life Ins. Co. v. McRee, 75 Fla. 257, in which case the insurance contract was consummated in Alabama, while the insured was a resident of that State, and without reference to the laws of this State, and was made payable to the insured's administrator, which was permissible under the law of Alabama. Afterward, the insured became a resident of Florida and died in this State. Payment by the Company to insured's personal representatives was held proper, upon the ground that under these facts, the Florida statute did not apply.

The above considerations lead us to the conclusion that under the statute construed as above indicated, it was not incumbent upon the complainants in the court below to allege in their bill that D. P. Davis died in this State. This was not essential, in view of the other allegations in the bill, in order for them to successfully invoke the applicability and operative effect of the above quoted statute upon the proceeds of the insurance policies described in the bill.

The general rule is that the distribution of the proceeds of a life insurance policy is governed by law of insured's domicile; subject to certain exceptions, as in the McRee case above cited, where the contract was consummated in another state and made payable in accordance with its laws. See 7 Cooley's Briefs on Ins., 6333, 37 C. J. 365, and Pace v. Pace,19 Fla. 438.

We come now to the consideration of the claims made by the defendants in the court below, of the right to enforce payment of their respective claims out of funds realized from the collection of said insurance policies. And first, as to the claim of the widow of the insured to a dower interest in said fund.

The precise question presented is: Does the widow's statutory right of dower in the "personal estate" of her deceased husband attach to the proceeds of insurance policies on his life, payable to the insured, or his estate, or his personal representatives, where he has made testamentary disposition thereof to a trustee for the benefit of his father and his children by the terms of a will to which she has signified her dissent?

In considering this question, it might be well to look at the legal background as it exists independently of the above quoted statute.

If there were no statute on the subject, the question as just propounded should undoubtedly be answered in the affirmative; because the various policies and their proceeds, being made payable, some to the insured, some of them to his estate, some to his administrators and assigns, and one to his executors, administrators and assigns, and none of them having been assigned by the insured, nor the beneficiaries changed by arrangement with the insurors under terms contained in the policies, if there were such, would all have been assets of his estate at his death, and hence subject to dower and distribution.

In the absence of statutory provisions the contrary, it seems to be well settled that where a life insurance policy is made payable to the insured himself or to his estate, or to his executors, administrators or assigns (without any provision that it is so made payable for the benefit of any named beneficiary), and the policy is not assigned or transferred or the beneficiary changed under the terms of the policy by the insured before his death, the money accruing on the policy at his death, and indeed the policy itself, becomes a part of his estate, like any other chose in action, payable to him or his estate, and hence assets in the hands of her personal representatives. See 7 Cooley's Briefs on Ins., 2nd Ed., 6335 et seq., 37 C. J. 565, and cases cited. Thus it was held in Gilchrist v. Jeffcoat, 64 Fla. 79, 59 So. R. 243, that where the husband took out a policy on his life payable to his wife, and, if he survived her, to himself, and his wife died before he did, the policy never having been assigned or bequeathed by the husband, upon the death of the latter, leaving neither wife nor children surviving him, the proceeds of the policy become a part of the deceased husband's "general property," and hence subject to his debts. It was said in that case, in the opinion by CHIEF JUSTICE WHITFIELD: "The purpose of the statute is to provide for the wife and children of the insured and not primarily to exclude creditors where there is no wife or children or persons specially designated as beneficiaries." And in McLean v. Fisher, 60 Fla. 331, 53 So. R. 614, it was held that where a policy is made payable to the assured, his executors, administrators or assigns, it is tantamount to being made payable to his estate. It was further held that, under the statute, the proceeds of such a policy could be bequeathed by will of the insured. This is in line with prevailing authority. 7 Cooley's Briefs on Ins., 6378, 37 C. J. 87. In Sloan v. Sloan, 73 Fla. 345, 74 So. R. 407, it was held that an insurance policy made payable to the insured, his executors, administrators and assigns, may be bequeathed as a part of a general residuary legacy of "all my other personal property." It was stated in the opinion that a policy so made payable may be classed "as property that may be bequeathed in like manner as any other property or effects." We think it is clear, therefore, that, in the absence of any statute such as ours providing otherwise, and in the absence of any assignment thereof or change or a designated beneficiary by the insured in his life time, policies of life insurance, and the proceeds collected thereunder, which were made payable as the policies in this case were made payable, would upon the death of the insured become personal assets of his estate and subject to the dower rights of the widow in "the personal estate" of the deceased husband under Sec. 5494 Comp. Gen. Laws, 3630 Rev. Gen. Stats.

This was in substance the holding in Burdett v. Burdett,26 Okla. 416, 109 Pac. R. 922, 35 L. R. A. (N. S.) 946, cited in behalf of the appellant widow, It appears, however, to be well settled that, as to such class of policies, a bona fide assignment thereof by the insured during his life would be upheld as valid and enforcible, he having the right to assign away his interest and title therein the same as with his interest in any other chose in action. The rule appears to be well settled that such policies may be assigned by the insured without the consent of his wife or any other person. Cooley's Briefs on Ins., Vol. 2, 1784, 1804, citing many cases. (A different rule, however, applies to a policy payable to a named beneficiary and containing no right in the insured to change the beneficiary.) For much the same reasons that support the rule above stated with reference to the power of the insured, under the class of policies referred to, to make a valid assignment of the policy, it is also generally held that in the absence of statute or if there be no statute to the contrary, he can dispose of the same by will. Cooley in his Briefs on Ins., Vol. 7, p. 6378, expresses the general doctrine thus: "As the proceeds of a life policy, payable to the executor, administrator or assigns of the insured, become a part of insured's estate on his death, they may be disposed of by will." It appears, therefore, that if we had not had any statute on the subject such as that hereinabove set forth, the policies involved in this case, not having been assigned and not having been payable to a designated beneficiary, the insured would have had the power to dispose of the proceeds of such policy by will, as he did do; but it would also follow that the widow of the insured, the provision made by the will not being satisfactory to her, would have had the right to dissent thereto, as was done in this case, and take dower in such proceeds as part of the "personal estate" under our dower statute, regardless of the provisions of the will otherwise bequeathing the same. Such was the holding in the Oklahoma case of Burdett v. Burdett, supra, where no such statute as ours was involved.

The question here is, does our insurance statute operate to change the power, or the effect of the exercise of the power, of the insured to dispose of the proceeds of life insurance policies, made payable to him or his estate, by will, subject to the widow's right of dower, as such power existed before the statute was adopted and as would certainly exist now if there were no such statute? This has proven a very difficult and perplexing problem and has given the writer and the other members of this Court considerable labor and concern. It has been very ably argued, and reargued, by able counsel on both sides. I was at first inclined to think the above question should be answered in the affirmative, but I have come to doubt the correctness of my original view.

The first part of the statute provides that the proceeds of such policies shall, on the death of the insured, go to the widow and children equally. But a proviso was added later which says that, as to policies payable to the insured or his estate, the insured may dispose of the proceeds of same by will as he could any other property or effects subject to disposition by last will and testament. This appears to leave the power of disposition by will, and the effect of its exercise, just where it was before the statute, if the insured sees fit to exercise such power. That is, if the insured elects to direct the disposition of the proceeds of the insurance by will, the matter of such disposition is lifted out of the statute, the statutory disposition no longer applies, and the insured deals by will with the proceeds of such insurance just as he sees fit, in the same manner and with the same effect as he would "any other property or effects subject to disposition by last will and testament," just as he could have done before the statute was enacted and with the same effect. But, it is said, the statute repeals the right of dower in the proceeds of insurance, and such right no longer exists. This was my original view. Undoubtedly, the effect of the statute without the proviso is to supersede or suspend the operation of the dower statute on the proceeds of insurance policies, by making a disposition thereof somewhat different from that of the dower statute, but the proviso excepts from the operation of the statute those policies which are made payable to the insured or his estate and which the insured elects to dispose of by will as he would any other property or effects, thus putting such policies and their proceeds where they were before the statute was enacted and where they would be if there were no such statute, and hence reviving the operation of the dower statute thereon. This construction is in line with the usual function of a proviso, which is to except something from the enacting clause which would otherwise be within it. So. Bell Tel. Co. v. D'Alemberte 39 Fla. 25, 21 So. R. 570; Lake County v. State, 24 Fla. 263, 4 So. R. 795; State v. Duval County,23 Fla. 483, 3 So. R. 192. This line of thought, developed as it is with so much cogency by Mr. Justice WHITFIELD in his able opinion, has brought me to a different viewpoint, and has caused me to concur in his opinion, and the conclusions therein reached.