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ODOM v. TRAVELERS INSURANCE CO.

June 16, 1959

ORVILLE M. ODOM, ADMINISTRATOR OF THE ESTATE OF EDD LEE LOVEJOY, DECEASED, PLAINTIFF,
v.
TRAVELERS INSURANCE CO., DEFENDANT, GEORGIANNA DEDOW, DEFENDANT IN INTERPLEADER.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On December 4, 1957, the plaintiff filed his complaint in the Circuit Court of Lafayette County, Arkansas, seeking to recover on a policy of life insurance issued to Edd Lee Lovejoy, the insured, by defendant, The Travelers Insurance Company, in the sum of $10,000, together with twelve percent penalty and attorney's fee.

The policy, No. 2819076, was issued January 28, 1957. The beneficiary designated in the policy was "to my estate." The defendant insurance company agreed in the policy to pay the designated beneficiary at the home office of the company in Hartford, Connecticut, the amount of the insurance stated therein immediately on receipt of the company's prescribed forms of due proof of the death of the insured during the continuance of the contract.

The policy provided that the beneficiary might be changed by the insured as follows:

    "Subject to written approval of the Company and the
  right of the assignee, if any, the Beneficiary if not
  irrevocably designated may be changed at any time and
  from time to time during the continuance of this
  contract, such new designation to be effective as of
  the date of execution thereof, whereupon all rights
  of the former Beneficiary shall cease. If the
  Beneficiary or Beneficiaries or any of them named
  herein shall not survive the Insured, the proceeds of
  the contract or the share of the deceased Beneficiary
  or Beneficiaries, as the case may be, shall be paid
  to the executors, administrators or assigns of the
  Insured, unless otherwise provided in or by
  indorsement upon this contract or attached hereto."
  In due time the defendant insurance company removed the case to this court and filed its answer and counterclaim. In its answer the defendant insurance company admitted the issuance of the policy and that it was obligated by the terms thereof to pay the sum of $10,000, less $13 for a premium which was due July 28, 1957, and had not been paid; that it was willing to pay the sum of $9,987 but that there were conflicting claims in that the plaintiff, who had been appointed Administrator of the Estate of Edd Lee Lovejoy, the insured, was making claim for said sum and that Georgianna Dedow was likewise making a claim for payment of said amount by virtue of what she claimed to be a valid will of the decedent, Edd Lee Lovejoy, dated June 12, 1957.

In its counterclaim the defendant insurance company asked that Georgianna Dedow be made a party and that it be permitted to pay the said sum of $9,987.00 into the registry of the court, and that it be discharged.

The plaintiff is a citizen and resident of the State of Arkansas. The defendant insurance company is a citizen and resident of the State of Connecticut and authorized to engage in the life insurance business in Arkansas. Georgianna Dedow was and is now a citizen and resident of the State of Louisiana.

Following the filing of the answer and counterclaim by the defendant insurance company, the court on December 26, 1957, directed that summons be issued and served on the said Georgianna Dedow and restrained the plaintiff and Mrs. Dedow from instituting or prosecuting in any other court any claim to the proceeds of said insurance.

On January 20, 1958, Mrs. Dedow filed a motion for additional time to answer, in which she alleged that:

    "This defendant's right to recovery of the funds
  heretofore interpleaded into the Registry of the
  Court arises from the last will and testament
  executed by the said Edd Lee Lovejoy, deceased. Said
  will as of the date of this motion has not been
  admitted to probate.
    "This defendant is causing said will to be admitted
  to probate in the 26th Judicial District Court of
  Bossier Parish of Louisiana, and she desires
  additional time within which to answer the
  cross-complaint for interpleader so that she may
  rightfully allege the admission of such will to
  probate by way of answer. It will reasonably require
  thirty days from the date of filing hereof to cause
  said will to be admitted to probate."

On the same day the motion was filed the court extended for thirty days the time for her to answer the counterclaim for interpleader.

On February 17, 1958, Mrs. Dedow filed her "Answer and Claim to Fund," in which she alleged that the moneys represented by the fund now interpleaded are the proceeds of a life insurance policy issued by defendant insurance company upon the life of Edd Lee Lovejoy, deceased. She attached a photostatic copy of the policy, and further alleged that while the policy designated the beneficiary as "to my estate," the right was reserved unto the insured to change the beneficiary at any time. She further alleged:

    "Upon the June 12, 1957, the said Edd L. Lovejoy
  executed his last will and testament, holographic in
  form, wherein, by specific reference to the policy of
  insurance hereinbefore described, he expressed his
  desire that the beneficiary of said policy of
  insurance be changed from `my estate' to `Georgianna
  Dedow', this claimant. The said Edd L. Lovejoy died
  upon July 30, 1957, and his said last will and
  testament was duly admitted to probate in the 26th
  Judicial District Court of Bossier Parish, Louisiana,
  upon the 24th day of January, 1958. A copy of said
  will is attached hereto marked Exhibit `B' and made a
  part hereof as if fully set out herein.

Upon the filing of the answer by the defendant in interpleader, Mrs. Dedow, the plaintiff on March 6, 1958, filed his motion for additional time to reply to the answer and claim of Mrs. Dedow, and on the same day the court extended the time of plaintiff in which to file a reply to said answer and claim.

On September 13, 1958, the court entered an order sustaining the interpleader and discharging the defendant, The Travelers Insurance Company, from any and all further liability with respect to the insurance policy herein involved.

On October 13, 1958, by agreement of counsel for the plaintiff, the Administrator, and the defendant in interpleader, Mrs. Dedow, the court entered the following order:

    "By agreement of counsel, it is ordered by the
  court that the said interpleader be allowed thirty
  days from this date within which to take whatever
  action she may deem necessary in the Probate Court of
  Lafayette County, Arkansas, and the time heretofore
  granted to the plaintiff to reply to the answer of
  the interpleader is further extended until the
  disposition of litigation in the said Probate Court
  of Lafayette County, Arkansas."

Mrs. Dedow and her attorneys decided not to file a proceeding for the probate of the will in the Probate Court of Lafayette County, Arkansas, and her attorneys advised the attorneys for the plaintiff that no such action would be taken. Upon receipt of such information the plaintiff on May 13, 1959, filed his reply to the answer and claim of Mrs. Dedow. In his reply the plaintiff admitted that the fund in the registry of the court is the proceeds of the insurance policy issued by defendant insurance company upon the life of Edd Lee Lovejoy; that the designated beneficiary in the policy was "to my estate" and that the policy provided that the beneficiary might be changed subject to the written approval of the company.

Denied that the insured on June 12, 1957, or on any other date executed his last will and testament, holographic in form, and that any change of beneficiary was ever made in said policy.

Admitted that the insured, Edd Lee Lovejoy, died in Lafayette County, Arkansas, on July 30, 1957, and that an instrument purporting to be his last will and testament was admitted to probate without notice in the 26th Judicial District Court of Bossier Parish, Louisiana, on January 24, 1958.

Denied that Mrs. Dedow is entitled to the fund in the registry of the court. The plaintiff further alleged that at the time of the death of the insured, July 30, 1957, he was a citizen and resident of the Town of Bradley in Lafayette County, Arkansas, where he had resided for a period of over two years prior to his death; that he died intestate, and that following his death, upon the petition of the surviving widow and father of the insured, the plaintiff, Orville M. Odom, was appointed Administrator of the estate of the deceased by the Lafayette County Probate Court on August 2, 1957.

In paragraph 5 of the reply the plaintiff states:

    "Plaintiff further alleges that when he found out
  about the admission to probate on the 24th day of
  January, 1958, in the 26th Judicial District Court of
  Bossier Parish, Louisiana of the purported
  instrument, he immediately filed suit in his name as
  Administrator versus Georgianna Dedow in the 26th
  Judicial District Court of Bossier Parish, Louisiana,
  to set aside and annul the order of that court
  admitting to probate said purported instrument; that
  said suit was filed on February 7, 1958, and that
  said case was tried on April 29, 1958, and that on
  the

  26th day of September, 1958, the said order of the
  26th Judicial District Court of Bossier Parish,
  Louisiana admitting said purported instrument to
  probate on the 26th day of January, 1958, was
  annulled and set aside, a copy of said judgment being
  attached hereto, marked Exhibit `I' and made a part
  hereof."

On May 21, 1959, the cause was tried to the court, and at the conclusion of all of the testimony, oral argument was waived, and the court took the case under advisement but requested counsel to furnish briefs as early as convenient in support of their respective contentions, which briefs have been duly received and considered.

Many of the facts were admitted, and are summarized as follows:

The insured, Edd Lee Lovejoy, died on July 30, 1957, while a citizen and resident of Lafayette County, Arkansas. On January 28, 1957, the policy of insurance was issued in the sum of $10,000, payable upon the death of the insured "to my estate."

The policy by its terms reserved the right to the insured to change the beneficiary. The insured never requested the written approval of the insurance company to change the beneficiary, and no written approval of the insurance company was ever given.

The insured died, leaving surviving him his wife, Elaine Lovejoy, age twenty-three; Edd Lee Lovejoy, Jr., a son, age twenty-two months; Frank Lovejoy, Sr., age fifty-four, father; Mary E. Lovejoy, age forty-eight, mother; and Frank Lovejoy, Jr., age eighteen, a brother.

On August 2, 1957, upon the petition of the surviving wife and father of the insured, the plaintiff, Orville M. Odom, was duly appointed Administrator of the estate of the deceased, who immediately made demand on the insurance company to pay the policy to him as Administrator, and the proceedings heretofore set forth followed.

At the time of the death of the insured, the defendant in interpleader was a citizen of the State of Louisiana and resided in Bossier City, a distance of approximately forty miles from the Town of Bradley in Lafayette County, Arkansas.

Following the death of the insured and after Mrs. Dedow had obtained possession of the document which she claims is the will of the insured and the insurance policy, she filed a proceeding in the 26th Judicial District Court of Bossier Parish, Louisiana, to probate said document, and on January 24, 1958, that court admitted said document to probate as the holographic last will and testament of the insured. Later and as a result of a proceeding filed by the plaintiff, the same court on September 26, 1958, set aside the judgment in ...


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