Argued July 6, decided July 22, rehearing denied September 9, 1913.
On the Merits.
(133 Pac. 1169.)
On the 5th day of May, 1911, sáid insurance company issued a policy of life insurance on the life of Harry A. Cummings in the sum of $2,000, which policy wa,s issued in consideration of the payment by said deceased of an annual premium of $54.34 or a semiannual premium of $27.14. Said deceased paid to said company the first semi-annual premium of $27.14 at the time said policy was issued. Said Harry A. Cummings died on the 23d day of August, 1911. Said policy had earned $2.08, making the amount due on the policy $2,002.08. There was due as a semi-annual premium on said policy the sum of $27.14, which leaves due, as a balance, the sum of $1,974.36. Said policy by its terms made said sum of $2,000 payable, on the death of the insured, to “Evelyn M. Cummings, his wife.” The defendant Evelyn M. Cummings claimed that she was entitled to the said sum of $2,000 as the beneficiary of said policy and made proof of her claim. Said Sophia J. Cummings claimed that she was entitled to said $2,000 as the beneficiary of said policy as the wife of Harry A. Cummings, deceased, and made proof of her claim. Each of said parties claimed the whole of said $2,000 and demanded payment thereof. Said company filed its complaint, alleging thé necessary facts and asking that said defendants be required to appear and set forth their several titles and claims to the proceeds of said policy, and asked the court to require them to adjust and settle tbeir respective demands between themselves. The plaintiff insurance company deposited in the court below the proceeds of said policy, to be paid to the person entitled thereto.
Each of the defendants filed an answer to the plaintiff’s complaint, claiming to be entitled to said money. The defendant Evelyn M. Cummings in her answer alleges that for about two years before the death of Harry A. Cummings and until his death she lived with him as his wife, and that he represented to the public and his friends that she was his wife, and that she was known-to the public as his wife, etc. The defendant Sophia J. Cummings was shown by the evidence to be the wife of the deceased, but she resided in California, and she and the deceased had not lived together, at any time, for about three years prior .to his death.
The court below rendered ¿ decree that the defendant Evelyn M. Cummings was not entitled to the proceeds of said policy on deposit, and that the defendant Sophia J. Cummings was entitled to said money, etc. The defendant Evelyn M. Cummings appealed.
Reversed : Decree Rendered.
For appellant there was a brief, with oral arguments by Emmons, Emmons & Reid.
For respondent there was a brief, with oral arguments by Mr. Arthur P. Tifft and Mr. Hamilton Johnston. '
Mr. Justice Ramsey
delivered the opinion of the .court.