Greenberg v. Greenberg

KAUS, P. J.

This is a judgment roll appeal. The only contention is that the conclusions of law and the judgment entered pursuant thereto, are not supported by the findings of fact. We disagree. The following is a summary of facts: Plaintiff, Caroline, is the first wife, defendant, Clarice, is the widow of Joseph Greenberg who died in 1962. Defend

[897]

ant Gregg is the child of the marriage between Clarice and Joseph. Joseph and Caroline were divorced on November 6, 1945. Part of the property settlement agreement was a promise by Joseph to Caroline to make her the irrevocable beneficiary of about $36,000 worth of life insurance ‘‘ as long as you do not remarry."

1

Caroline never remarried. At the time of the agreement there was in effect somewhere between $80,000 and $130,000 worth of life insurance, represented by seven or eight policies. At the time of Joseph’s death only six policies were in effect, the face amount of which totalled $58,000.

Joseph never promised to make Caroline the irrevocable

2

beneficiary of any particular policy or policies. What promise he made, he did not keep.

Joseph married Clarice, the defendant, on November 9, 1945.

3

Shortly thereafter he became ill and for substantial periods before his death was unable to contribute significantly to the family income, which was principally supplied by Clarice.

In 1955 Joseph borrowed $21,150 from a bank. He secured the loan with four of the six policies. The terms of the loan were that if he failed to make interest payments when due or failed to maintain the four policies in force, the bank had the right to surrender them for their cash value and apply the proceeds to the loan. The amount of the loan was equal to the maximum amount which could be secured by the cash value of the four policies.

In 1957 Joseph was hospitalized and unable to make either the interest or premium payments. He explained the situation to Clarice and told her that if she wanted to, she could keep the loan and the policies current and in force and that if she did do so he would designate either her, or their son Gregg, as beneficiary, subject, of course, to the claim of the bank. Clarice accepted the offer and made the interest and premium payments on all six policies in issue. Joseph thereupon designated Clarice as the beneficiary of four policies. With respect to one policy she had been the beneficiary since 1953. Joseph designated Gregg as the beneficiary of the sixth policy.