Waxman v. Citizens Nat. Trust & Sav. Bk. of Los Angeles

VALLEE, J.

Appeal by defendant, as executor of the will of James W. Henderson, from an adverse judgment in an action for damages for the failure of decedent to have a policy of life insurance in force on his life at the time of his death.

On August 15, 1932, decedent and his then wife, Thelma,

[147]

entered into a property settlement agreement. Plaintiff Wilma is the daughter of decedent and Thelma. In the agreement, decedent promised that he would assign and transfer an insurance policy “now upon his life in an established ‘Old Line Insurance Company’ in favor of said Wilma” as beneficiary, to be irrevocable as to her, and that he would pay the premiums on the policy and would cause it to be delivered to Thelma, in trust, for the use and benefit of Wilma. On September 7, 1932, decedent and Thelma were divorced. The interlocutory decree approved the property settlement agreement.

On January 12, 1933, decedent and Thelma entered into a written modification of the property settlement agreement. The modification said that in relation to the change of beneficiary of a $10,000 policy as provided in the property settlement agreement, decedent stated that while this change had not been made he then had a policy in that amount paid up and in good standing in which Thelma was named as beneficiary, and that the change had been directed and would be effected within a few days. Decedent did not change the beneficiary as he promised to do in the modification agreement. In 1937, he secured two policies on his life, each in the amount of $5,000, with Wilma named as beneficiary in each. He.delivered these policies to Thelma. He did not pay the premium on one of the $5,000 policies after June 18, 1939. On December 6, 1942, that policy lapsed. It was not reinstated. Decedent died on October 1, 1951. At the time of his death, only one policy for $5,000 was in force with Wilma named as beneficiary. She collected the face of that policy; filed a claim against the estate of decedent for $5,000, which was rejected; and brought this action against the executor of the will of decedent for $5,000 damages. Judgment was for Wilma for $5,000 and interest from October 1, 1951. Defendant appeals.

Defendant’s assignments of error are: 1. The intent of the property settlement agreement was fully complied with and so acknowledged by mutual consent of the parties. 2. The cause of action is barred by section 337 (1) of the Code of Civil Procedure.