BULLOCK
v.
EXPRESSMEN'S MUT. LIFE INS. CO. et al.
No. 103.
Supreme Court of North Carolina.
October 10, 1951.*72 Thomas J. Moore, A. C. Owens, and L. H. Gibbons, all of Wilson, for plaintiffappellant.
Talmadge L. Narron, Wilson, for defendant-appellee.
DEVIN, Chief Justice.
The policy of insurance out of which this controversy arose was taken out by the insured primarily for the benefit of his wife with provision to the effect that if she did not survive him a foster son should become the beneficiary. It was clearly expressed in the policy that upon the death of the insured the insurance money should be paid to his wife, Maydie Taylor Bullock, if living, or if not living to Rudolph Pink Bullock. Maydie Taylor Bullock did not predecease her husband, and is still living, but the law will not permit her to derive benefit from the death of the insured since admittedly it was caused by her felonious act. Garner v. Phillips, 229 N.C. 160, 47 S.E.2d 845; Parker v. Potter, 200 N.C. 348, 157 S.E. 68; Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 51 A.L.R. 1100; Anderson v. Life Insurance Co., 152 N.C. 1, 67 S.E. 53; New York Mut. Life Ins. Co. v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 29 L.Ed. 997; Vance on Insurance, sec. 156; 29 A.J. 979; Restatement, Restitution, sec. 189; 1 Appleman, Insurance Law, 456. The North Carolina statutes also declare that in such case she loses every right she would otherwise have been entitled to in the personal estate of her husband. G.S. §§ 28-10, 30-4, 52-19. She can neither collect the insurance money *73 nor assign her right to anyone else. Equitable Life Assur. Soc. v. Weightman, 61 Okl. 106, 160 P. 629, L.R.A. 1917B, 1210; Schmidt v. Northern Life Ass'n, 112 Iowa 41, 83 N.W. 800, 51 L.R.A. 141; Johnston v. Metropolitan Life Ins. Co., 85 W. Va. 70, 100 S.E. 865, 7 A.L.R. 823; So speaks the voice of authority.
The question then arises, who is entitled to the insurance money? The question thus presented is not without difficulty. Upon the facts here admitted we find no direct decision by this Court, and decisions from other jurisdictions are not definite or authoritative.
In Parker v. Potter, 200 N.C. 348, 157 S.E. 68, 72, it appeared that J. A. Groves had obtained from the Woodmen of the World a policy of insurance on his life payable to his wife or in the event of her prior death, "if there be no surviving wife or children", to his next living relation. Subsequently J. A. Groves killed his wife and then committed suicide. This Court held in an opinion by Justice Adams that the interest of the wife was contingent upon her surviving her husband, and her death occurring before his, terminated her contingent interest, and the right to the insurance money passed to the next living relation of the insured. In the case at bar it would seem from the language of the policy that the interest of Rudolph Pink Bullock would accrue only in the event Maydie be not living at the time of the death of the insured.
In Anderson v. Parker, 152 N.C. 1, 67 S.E. 53, where the insured was killed by the beneficiary who then committed suicide, it was held the administrator of the insured was entitled to the insurance money.
Garner v. Phillips, 229 N.C. 160, 47 S.E. 2d 845, involved the devolution of real property where a son and only heir murdered his father and mother. It was held the son took only the naked legal title for the benefit of those next entitled.
In Bryant v. Bryant, 193 N.C. 372, 137 S.E. 188, 51 A.L.R. 1100, the same result was reached where husband and wife having an estate by the entireties the wife was murdered by the husband.
The appellee calls our attention to the case of Beck v. West Coast Life Ins. Co., 228 P.2d 832, which was recently decided by the District Court of Appeals, First District of California. As there was apparently no effort to have the decision in this case reviewed by the Supreme Court of California, it will be presumed the law of that state on the facts disclosed is correctly stated. The policy of insurance in that case was on the life of Lila Loly Downey, and named as beneficiary the husband of the insured, David Albert Downey, "if living, otherwise to Jettie Knoll-Friend." The husband murdered his wife and was sentenced to imprisonment in the State Prison for life. In California, Penal Code, § 2601 provides that "A person sentenced to imprisonment in the State prison for life is thereafter deemed civilly dead." It was held that civil death denominated by the statute had the same legal effect as physical death, and that Jettie Knoll was entitled to the fund.
Appellee also cites the case of Metropolitan Life Ins. Co. v. McDavid, 39 F.Supp. 228. This was decided by the District Court for the Eastern District of Michigan in 1941. The husband, an employee, was insured in a group policy issued to General Motors Corporation and contained provision that if no beneficiary was designated, the benefit should be paid to wife if living; if not living, to children; if none survive, to mother. There were other policies of insurance not here pertinent. The wife shot and killed her husband, was convicted of manslaughter and sentenced to five years in prison. There were no children. The court held the wife was not entitled to any part of the proceeds of the policy, and that the rights of the parties should be determined exactly as they would have been if the wife had died prior to the death of her husband, and that the mother was entitled to the proceeds of the policy referred to.
In Equitable Life Assur. Soc. v. Weightman, 61 Okl. 106, 160 P. 629, L.R.A. 1917B, 1210, the policy was to husband and wife payable to either on death of the other. The wife murdered her husband and was convicted and sentenced to imprisonment for life. It was held the administrator of the *74 husband was entitled to the fund. The same result was reached in Sharpless v. Grand Lodge A.O.U.W., 135 Minn. 35, 159 N.W. 1086, L.R.A. 1917B, 670. See also Box v. Lanier, 112 Tenn. 393, 79 S.W. 1042, 64 L.R.A. 458; Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857; Schmidt v. Northern Life Ass'n, 112 Iowa 41, 83 N.W. 800, 51 L.R.A. 141; Johnston v. Metropolitan Life Ins. Co., 85 W. Va. 70, 100 S.E. 865, 7 A.L.R. 823; 1 Appleman, Insurance Law, 455, and cases cited. However, in Blanks v. Jiggetts, 192 Va. 337, 64 S.E.2d 809, it was held that a son who had murdered his father was entitled to inherit real property of his deceased mother, though the son's interest therein was accelerated by the death of his father. See also Oleff v. Hodapp, 129 Ohio St. 432, 195 N.E. 838, 98 A.L.R. 764, where it was held the murder of an associate in a joint and survivorship account did not divest the murderer of his property rights thereto in the absence of a controlling statute.
A general statement of the law on this subject will be found in the volume of Restatement of the Law entitled Restitution, section 189, as follows: "If the beneficiary of a life insurance policy murders the insured, he is not entitled to receive and to keep the proceeds of the policy. In such a case ordinarily the executor or administrator of the insured is entitled to receive the proceeds of the policy from the insurer and to apply them in the same way in which they would have been applicable if the beneficiary had predeceased the insured or was otherwise incapable of taking or disqualified from taking the proceeds. Ordinarily the proceeds would be applicable to the payment of the debts of the insured, and after payment of his debts would be payable to his residuary legatee, if any, and if none, to his next of kin." Provision for alternative beneficiaries in case the original designation fails which occurs frequently in group insurance and insurance certificates issued by fraternal and mutual benefit societies, is generally followed, as in the McDavid case, supra.
While in the case at bar it may be presumed in the light of subsequent happenings the insured would have wished his foster son to have the insurance money, the Court, in determining as a question of law the party entitled, must give effect to the terms of the policy which constituted the contract between the insurer and the insured. The Court is without authority to change the terms of a contract the parties have entered into. This rule was succinctly stated in Hartford Acc. & Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 202, as follows: "It (the Court) has no power to write into the contract any provision that is not there in fact or by implication of law." By the terms of the policy the insurance here is made payable to Maydie Taylor Bullock, if living, or if not living to Rudolph Pink Bullock. As beneficiaries the wife and foster son are not on an equal footing. Rudolph's interest is made contingent upon the death of the wife before that of the insured. She, however, is still living. The law of North Carolina does not regard imprisonment in State Prison for a term of years as equivalent to legal death. The doctrine of civiliter mortuus is not recognized. Schmidt v. Northern Life Ass'n, 112 Iowa 41, 83 N.W. 800, 51 L.R.A. 141. No corruption of blood, or forfeiture of estate results from conviction of crime. Unless otherwise provided by law one duly committed to prison on conviction of a criminal offense retains his property rights and his identity.
In Parker v. Potter, 200 N.C. 348, 157 S.E. 68, 71, Justice Adams, delivering the opinion of the Court, quoted with approval from 2 Couch, Cyc. Ins. Law, sec. 306, as follows: "The status of a beneficiary designated as such in an insurance policy or benefit certificate depends entirely upon the terms of the contract of insurance, construed in accordance with the rules of interpretation and construction applicable to such contracts, he being held chargeable with notice of the contents of the same."
We think the language of the policy must control. Rudolph Pink Bullock's interest in the policy of insurance on the life of Willie P. Bullock was made by its terms contingent upon the death of Maydie Taylor Bullock during the lifetime *75 of the insured. That event did not happen, and the net proceeds of the insurance should thereupon be paid to the administrator of the estate of Willie P. Bullock, who took out the policy and paid the premiums thereon, that it may be used to pay his debts and for distribution to his next of kin.
There was error in the judgment below, and the cause is remanded for judgment in accordance with this opinion.
Error and remanded.
VALENTINE, J., took no part in the consideration or decision of this case.