Chilwell v. Chilwell

BARNARD, P. J.

This is an action to recover the proceeds of a life insurance policy. The plaintiffs are the daughters of Archibald Chilwell and Mary Chilwell, who were married in 1917. In 1919 Mr. Chilwell took out the policy in question which named his wife, Mary, as beneficiary. In 1927, Mr. and Mrs. Chilwell separated and he went to Arizona to live. Subsequently, he brought an action for divorce in that state under a statute which permitted the granting of a

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divorce where the parties had not lived together as husband and wife for a period of more than five years. His wife, Mary Chilwell, went to Arizona, employed an attorney, and negotiations for a property settlement were carried on, in the course of which this insurance policy was discussed. On December 26, 1931, a written stipulation was signed by the attorneys for the respective parties which provided that Mr. Chilwell should pay $140 per month for the support of Mary Chilwell and the two children, and contained a further provision that the decree should provide that Mr. Chilwell should take immediate steps to procure a reinstatement of this life insurance policy and should have the two children, the plaintiffs herein, designated therein as beneficiaries, and requiring the plaintiff to keep the policy in force until it matured.

After this stipulation was signed Mary Chilwell came back to California. The stipulation was filed in the action on January 25, 1932, and on the next day, after a hearing at which Mr. Chilwell was present and testified, a divorce was granted to him. The decree contained all of the provisions of the stipulation to which we have referred, including the exact language used therein with reference to this insurance policy. This part of the decree reads as follows:

“It Is Further Ordered, adjudged and decreed that the plaintiff will take immediate steps to procure the reinstatement of the policy of insurance on his life and that upon such reinstatement he will procure said policy to designate said children, Mary Alberta Chilwell and Gail Chilwell as sole beneficiaries under said life- insurance policy and that said plaintiff will keep said policy in force and for their benefit until the same shall mature.”

Mary Chilwell died in November, 1933, but in the meantime Mr. Chilwell had married the defendant Ellen Chilwell. He failed to pay the premiums on the policy after November 6, 1933, and the policy was automatically converted into an extended paid-up insurance. He died in July, 1938, while the insurance was still in force.