Day v. Metropolitan Life Insurance Co.

NOURSE, P. J.

Plaintiff sued for declaratory relief to determine his rights as trustee of a missing person in several policies of life insurance. Judgment went for plaintiff after defendant’s demurrer to the complaint was overruled, and the defendant has appealed on the judgment roll.

On June 10, 1932, plaintiff was appointed trustee of the estate af Frank Baumgarteker, a missing person, under the provisions of sections 1822 et seq. of the Code of Civil Procedure. As a part of the estate plaintiff took possession of four life insurance policies issued by the defendant on the life of Baumgarteker. Each policy contained identical clauses in respect to options on surrender or lapse in accord with the nonforfeiture provisions of section 450 of the Civil Code. Acting upon these terms of the policies the plaintiff made written demand upon the defendant to have these policies continued in force as nonparticipating paid-up in

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surance. The defendant refused to comply with the demand, taking the position that plaintiff had no legal standing because the statute under which he was appointed trustee was unconstitutional. This was the principal ground urged in the demurrer and on this appeal, but defendant also argues that neither plaintiff nor the insured had the right to exercise any of the options provided for in the policies prior to an actual default, and that the complaint was insufficient because it did not allege an actual default when the demand was made. In a supplemental brief filed on this appeal, the defendant has raised the additional point that the trustee could not assert the right to exercise any of the options under the policies except the first, for the cash surrender value, because an immediate cash payment would be most advantageous to the beneficiaries under the policies. We will consider the points in this order:

It may be conceded that, under certain circumstances, an absence of three months might be an unreasonable time to permit a proceeding under the statute. On the other hand, circumstances might arise which would justify a proceeding earlier than that. If a husband and father openly abandons his wife and children and openly declares his intention to disappear and leaves behind him sufficient property to support those dependent upon him but leaves it in a way that they cannot use it, no court would be justified in holding that they must wait seven years before the property could become available for their support. Yet a period of seven years is the minimum time which the appellant here concedes to be reasonable. If this court, on the record before us, should declare either that ninety days was too short or that seven years was too long such determination would have no factual basis but would rest on conjecture alone. In the last analysis these questions are purely legislative, and the courts will not substitute their opinions for that of the legislature unless the unconstitutionality of the statute is so apparent on the face that no circumstances can be assumed under which it might have a constitutional operation. By this we mean that, unless the statute on the face appears unconstitutional, that question can be raised only in a case where its application is sought against a party who may claim that, under the circumstances of that case,