Zachary v. Security Life and Trust Company

166 S.E.2d 495 (1969)

4 N.C. App. 221

Arlene N. ZACHARY v. SECURITY LIFE AND TRUST COMPANY and Quentin R. Zachary, Administrator of the Estate of Jimmy Darrell Zachary, Deceased.

No. 6915SC182.

Court of Appeals of North Carolina.

April 2, 1969.

*497 Ross, Wood & Dodge, by Harold T. Dodge, Graham, for plaintiff appellee.

Walker, Harris & Pierce, by Herbert F. Pierce, Graham, for Quentin R. Zachary, administrator, defendant appellant.

CAMPBELL, Judge.

The administrator contends that the trial judge committed reversible error in failing to sustain his motion for judgment as of nonsuit because the evidence on behalf of the plaintiff did not establish that she was the surviving widow within the meaning of the insurance policy. He argues that the deed of separation is controlling and that the following language of the deed of separation conclusively establishes that the plaintiff was not the surviving widow within the terms and provisions of the insurance policy:

"FIRST: That it shall be lawful at all times from and after the date of this Deed of Separation for the said husband and wife to live separate and apart from each other, and each of said parties shall be at full liberty to be employed by, live and associate with such persons as each may deem for his or her best interest and welfare, free from any and all authority, control, interference or molestation of the other party, and to the same extent and in the same manner as if they had never been married."

He also relies upon the following provision of the deed of separation:

"And for the consideration aforesaid, the said wife does hereby release and forever quitclaim unto the said husband all right, title, interest and estate which she now has or could hereafter acquire in and over the property and estate of her said husband, whether now owned or hereafter acquired, and contracts to well and truly abide by and perform this Deed of Separation on her part."

*498 The insurance policy specifically provided:

"The amount payable upon the death of the Insured shall be payable to the beneficiary designated in Schedule I, to be applied by such beneficiary first toward payment of the loan referred to in the schedule, any balance to be paid by such beneficiary to the surviving widow or widower of the Insured if any, and if not, to the estate of the Insured."

Since the loan had been paid in full and First Federal had relinquished any and all rights to the policy, the balance was to go "to the surviving widow" under this provision.

"Widow" is defined in Black's Law Dictionary, 4th Edition, as "A woman whose husband is dead, and who has not remarried." "Widow" is defined in Webster's Third New International Dictionary (1968) as "a woman who has lost her husband by death and has not since remarried." Although the plaintiff had separated from deceased, she was not divorced from him. Therefore, she clearly complies with these definitions of "widow". See Supreme Council American Legion of Honor v. Smith, 45 N.J.Eq. 466, 17 A. 770.

"General expressions or clauses in a property settlement agreement between a husband and wife, however, are not to be construed as including an assignment or renunciation of expectancies, and a beneficiary therefore retains his status under an insurance policy if it does not clearly appear from the agreement that in addition to the segregation of the property of the spouses it was intended to deprive either spouse of the right to take under an insurance contract of the other, and while the failure of the husband to exercise his power to change the beneficiary ordinarily indicates that he does not wish to effect such a change, each case must be decided upon its own facts. * * * * * * A contract between husband and wife entered into in contemplation of divorce proceedings for the purpose of settling the question of alimony, according to which a stipulated sum was agreed to in consideration of which the wife released the husband from all claims set forth therein, and all other claims, real or imaginary, being solely for the purpose of settling the question of alimony, did not affect a contingent claim of the right of the wife as beneficiary under a life insurance policy, especially where it appeared that the husband eliminated his divorced wife as the beneficiary on certain policies but at the time such change was made did not change the beneficiary on the specific policy involved in the suit." 4 Couch on Insurance 2d, § 27:114, pp. 655, 656.

The plaintiff and deceased clearly demonstrated by their actions and conduct that deceased retained no interest in the insurance policy after 31 August 1967. As indicated, supra, the deed of separation provided that deceased would execute and deliver to the plaintiff a deed conveying to her all of his right, title and interest in and to the house and that the plaintiff would assume the payment of the unpaid balance on the loan due First Federal. Simultaneous with the execution of this deed of separation, deceased delivered his quitclaim deed, the passbook and the insurance policy to the plaintiff. In compliance with their separation agreement, the plaintiff paid First Federal $113 on 1 September 1967, which represented the monthly payment on the indebtedness and the monthly premium on the insurance policy. Therefore, the facts clearly reveal that the plaintiff was to have the possession and ownership of the insurance policy.

The findings of fact are clearly supported by the evidence and the conclusions of law are clearly supported by the findings of fact.

Affirmed.

MORRIS and PARKER, JJ., concur.