May Bell Wimbush sued Metropolitan Life Insurance Company and Edna Mary Lyons, alias Edna M. Wimbush, to recover against the company on a life-insurance policy and to enjoin payment of the policy to the other defendant. The policy was issued some time before June 21, 1935 (the exact date not being alleged), on the life of Will Albert Roy Wimbush, the plaintiff's husband, since deceased, and she brought the suit both in her individual capacity and as administratrix of his estate. According to her allegations, properly construed most strongly against her, the policy as originally issued named Elnora Wimbush as beneficiary, she being a daughter of the plaintiff and the insured. This daughter later died (the date not being stated), leaving minor children who, together with the plaintiff and other grandchildren, were the heirs at law of the insured at the time of his death. On or about June 21, 1935, the insured caused the policy to be changed so as to name as beneficiary another and different person by the name of Edna M. Wimbush, who is the same person as the individual defendant in this case, both she and the insured (the petition alleged) having fraudulently represented to the insurance company that she was the insured's wife. It was further alleged that this change of beneficiary was made in consideration of adulterous relations between the person so referred to and the insured, that it was made without the consent of the original beneficiary and with intent to defraud her and her children, also to defraud the plaintiff (his wife), the insurance company, and his own estate; that, for these and other reasons alleged (see statement, infra), such attempted change in beneficiary was void and amounted to no change whatever. Held:
1. A man has an unlimited insurable interest in his own life, and may ordinarily take out a policy of insurance upon his own life and make it payable to whomsoever he pleases, regardless of whether the beneficiary has an insurable interest in his life. Clements v. Terrell, 167 Ga. 237 (1) (145 S.E. 78, 60 A.L.R. 969).
(a) The rule as just stated does not apply to policies issued by fraternal and mutual-benefit societies, where the classes of beneficiaries are restricted, but so far as appears, the policy involved in the instant case was a regular life-insurance policy, in the form of a group policy upon which a certificate was issued to the insured. Code, §§ 56-1608, 56-1703; Fain v. Feldman, 191 Ga. 519 (2), 522, 523 (13 S.E.2d 179); Quinton v. Millican, 196 Ga. 175 (1) (26 S.E.2d 435).
2. "In ordinary life insurance, where no power of divestiture or to change the beneficiary is reserved in the policy, the issuance of the policy confers a vested right upon the person so named as beneficiary, and the insured can not transfer such interest to any other person without the consent of such beneficiary." Perry v. Tweedy, 128 Ga. 402 (1) (57 S.E. 782, 119 Am. St. R. 393, 11 Ann. Cas. 46). "The rule is different, however, where a power to change the beneficiary or to assign the policy is reserved to the insured by the terms of the instrument; and in such a case the issuance of the policy does not confer a vested right or *Page 274 interest upon the beneficiary." Bankers Health Life Insurance Co. v. Crozier, 192 Ga. 111 (1), 113 (14 S.E.2d 717).
(a) In the instant case, no copy of the policy was attached to the petition, and there being no allegation as to whether it did or did not reserve such right to change the beneficiary, the petition, construed most strongly against the plaintiff, must be taken to mean that the policy contained a reservation of such right, and therefore that the insured could designate a new and different beneficiary without the consent of the beneficiary originally designated. Krueger v. MacDougald, 148 Ga. 429 (1) (96 S.E. 867); Fain v. Feldman, 191 Ga. 519 (supra).
3. A regular life-insurance policy issued to a man upon his own life, and in favor of his paramour as designated beneficiary, may, if not otherwise invalid, be collected by her, and where she is designated by a name that is sufficient to identify her, whether it be her correct name or not, she is, upon the death of the insured, entitled to the proceeds of the policy as against the wife of the insured and the administrator of his estate; and this is true even though both she and the insured may have falsely and fraudulently represented to the insurance company that she was the wife of the insured. See Quinton v. Millican, 196 Ga. 175 (3) (supra).
(a) The same would also be true as against a former beneficiary where the right to change the beneficiary was reserved. Clements v. Terrell, 167 Ga. 237 (145 S.E. 78, 60 A.L.R. 969); Freeman v. Atlanta Police Relief Assn., 191 Ga. 200 (12 S.E.2d 616).
(b) If such false representation as to relationship as wife amounted to a warranty or representation materially increasing the risk, only the insurance company, if any one, could complain on that ground. Preston v. National Life c. Insurance Co., 196 Ga. 217 (2) (26 S.E.2d 439, 148 A.L.R. 897); Mutual Life Insurance Co. of New Jersey v. Cummings, 66 Or. 272 (133 P. 1169, 47 L.R.A. (N.S.) 252, Ann Cas. 1915 B, 535); 29 Am. Jur. 960, 965, §§ 1285, 1292.
4. The petition alleged that the certificate provided that, if there is no designated beneficiary at the time any benefit might be due to a beneficiary, then such benefit shall be payable to the widow or husband of the insured, if living, and that if any beneficiary should die before the insured, the interest of such beneficiary would vest in the employee, who was the insured. Held, that, under the preceding rulings as applied to the petition as a whole, the allegations contained therein do not show that the attempted change in beneficiary was void as contended, and therefore it does not appear that either of the provisions here stated ever became operative.
5. It follows that the petition did not state a cause of action in the plaintiff, either in her individual capacity or as administratrix of the estate of the insured; and the court did not err in sustaining the general demurrer filed by the individual defendant (substituted beneficiary) and in dismissing the petition. In this view, it is unnecessary to pass upon the special demurrers.
Judgment affirmed. All the Justices concur, except Jenkins, C. J., who concurs specially, and Wyatt, J., who took no part in the consideration or decision of this case. On December 23, 1946, May Bell Wimbush, individually and as administratrix of the estate of her deceased husband, Will Albert Roy Wimbush, filed an equitable petition in the Superior Court of Fulton County against Metropolitan Life Insurance Company and "Edna Mary Lyons, alias Edna M. Wimbush," seeking to collect the proceeds of a life-insurance certificate for $1500, issued by the defendant insurance company to her late husband, and praying also for injunction, cancellation, and other relief. The insurance company filed an answer, admitting liability "to the proper beneficiary" for the amount due on the certificate; asserting, however, that both the plaintiff and the individual defendant named in the petition were claiming such amount, and praying that said parties be required to set up their claims in this action, that it be permitted to pay into court the sum of $1500, "and that when said sum is paid into the registry of the court, . . it is relieved from any payment of any other sum . . under said policy; and he discharged as a defendant." After notice to the other parties, the judge passed an order granting these prayers of the company, and the money was paid into court accordingly. No exception was taken to this order. The other defendant, as "Edna M. Wimbush," demurred generally and specially to the original petition, and also filed an answer. Two amendments were allowed to the petition, subject to demurrer. After allowance of the second amendment, the individual defendant, as "Edna Mae Callaway Wimbush," renewed her demurrers to the petition as amended. The court sustained the demurrers and dismissed the petition, and the plaintiff excepted, carrying the case to the Court of Appeals. The defendant in error moved that the case be transferred to the Supreme Court, which was done.
The substantial allegations of the petition, as amended, were: *Page 276
The plaintiff and Will Albert Roy Wimbush were married in 1916, and were husband and wife from then until the latter's death on or about December 17, 1946. There were born to the plaintiff and her said husband three children, now deceased, one of whom, Elnora Wimbush, left surviving two children, aged nine and seven years respectively. Said two children, together with three children of another deceased daughter, are dependent upon the plaintiff, with whom they have lived for a number of years. These five children and the plaintiff are the heirs at law of Will Albert Roy Wimbush, and dependent upon his estate.
For a long number of years the plaintiff's said husband was employed by King Plow Company in Fulton County, Georgia, and at the time of his death there was in force a life insurance certificate No. 198, issued to him under a group life-insurance policy issued to King Plow Company by Metropolitan Life Insurance Company, said certificate being for the face amount of $1500.
Prior to June 21, 1935, the beneficiary in said insurance certificate was Elnora Wimbush, one of the lawful children of petitioner and Will Albert Roy Wimbush. The said Elnora was the mother "in after years" of the two children mentioned above as having survived her, and "which daughter, Elnora Wimbush, did not consent to the change of beneficiary from her to any one else at any time."
On or about June 21, 1935, Will Albert Roy Wimbush, "as an illegal consideration to enable" him "to have unlawful carnal knowledge" of Edna Mary Lyons, attempted to change the beneficiary under said insurance certificate, and "Will Albert Roy Wimbush and said Edna Mary Lyons illegally conspired together to defraud" the plaintiff, Elnora Wimbush, and her said children and the estate of the insured, out of the proceeds of said insurance policy by stating to the insurance company and the plow company that they were husband and wife, which was untrue, but upon which false representation said insurance company relied and believed to be true, which representations were fraudulent, and did defraud the plaintiff individually and the estate of Will Albert Roy Wimbush out of the proceeds of said life-insurance certificate, the attempted consideration, as well as the adulterous relation between Will Albert Roy Wimbush and Edna *Page 277 Mary Lyons being the consideration of said fraud on their parts for the attempted change of beneficiary, which "was against public policy, and in fraud of the property rights of your petitioner, and of all of the heirs at law of Will Albert Roy Wimbush, as well as . . Elnora Wimbush and her two minor children named in this petition."
King Plow Company contributed about 25 percent of the premiums on said insurance certificate, and the insured paid about 75 percent thereof, which payments by him illegally deprived the plaintiff, Elnora Wimbush, and the heirs at law of the insured out of such payments amounting to several hundred dollars, while Edna M. Lyons and the insured prevented the plaintiff and the other heirs at law of the insured from knowing of the said attempt to change the beneficiary on said certificate of insurance until after the death of the insured.
Edna M. Lyons, alias Edna M. Wimbush, is insolvent.
"It is against public policy and in fraud of the rights of your petitioner for Edna M. Lyons to have held herself out as the wife of Will Albert Roy Wimbush, and . . for said Will Albert Roy Wimbush to falsely represent to the Metropolitan Life Insurance Company or to anyone else that the name of Edna M. Lyons was Edna M. Wimbush and that the insured and Edna M. Lyons were husband and wife, as the said Edna M. Lyons and Will Albert Roy Wimbush did represent themselves . . for the purpose of attempting to defraud your petitioner and the estate of said insured, and for the purpose of attempting to change the beneficiary to Edna M. Lyons for the illegal consideration [as stated above], and all of which did defraud your petitioner and the estate of Will Albert Roy Wimbush out of" insurance premiums paid by the insured, and the amount of insurance, $1500, due on said certificate; "and said beneficiary under said certificate of insurance, to wit, Edna M. Lyons, should be canceled and the proceeds of said life insurance should be paid to your petitioner and to the estate of said Will Albert Roy Wimbush, of which estate your petitioner is the duly qualified administratrix."
"It is alleged that, in the event that this court cancels or decrees the cancellation of Edna M. Lyons, alias Edna M. Wimbush, . . the proceeds of said life-insurance certificate . . would *Page 278 be payable to your petitioner and to the estate of Will Albert Roy Wimbush, of which estate your petitioner is the duly qualified administratrix."
The defendant, Edna M. Lyons, alias Edna M. Wimbush, is attempting to collect the proceeds of the insurance certificate in question in fraud of the rights of the plaintiff, the estate of the insured, and the children of the original beneficiary, and unless the insurance company is enjoined from paying the proceeds of said certificate to Edna M. Lyons, alias Edna M. Wimbush, or other than to the plaintiff, she and the estate of Will Albert Roy Wimbush will suffer irreparable loss and damage.
It was also alleged: The application for beneficiary to be shown on the policy of insurance described in the petition shows on its face that in writing the insured represented and warranted that the beneficiary named in said application was the wife of the insured. The person alleged to have been named as beneficiary under said policy has never been the wife of the insured, and there was never any such person existing as Edna May Wimbush. The person who applied for payment to her as beneficiary under said policy of insurance was not named Edna May Wimbush and had never been named Edna May Wimbush, having never married the insured or any other person named Wimbush, and her statement to the contrary was false and fraudulent.
The person who applied for payment of the proceeds of said policy, the individual defendant in this case, stated that she was entitled to such proceeds because she stated in such application for the proceeds that she was then the wife of the insured, which statement was false and fraudulent and made with the intention to defraud the plaintiff, and was known by said defendant to be false at the time the same was made.
There was no person living named Edna May Wimbush either at the time of the application for said insurance nor from that time to the date of the death of the insured, inclusive; there was never any existing person named Edna May Wimbush as described in said policy and application therefor; so that there was no designated beneficiary at the time of the death of the insured.
Under said certificate of insurance, it is provided that, in the event there is no designated beneficiary at the time any benefit might be due to a beneficiary, then such benefit shall be payable *Page 279 "to the wife or husband of the insured, if living." If no wife or husband survives the insured, "the same would follow the rules in effect as to the law of distribution to the legal heirs of the insured, . . which would eventually come down to the estate of the insured, and your petitioner is both the living wife of the insured and the duly qualified representative and legal administratrix of the estate of the insured, and is entitled as such to the proceeds of said certificate, . . there being nothing to the contrary specified in said certificate or master policy, so that your petitioner is entitled to the proceeds of said certificate of insurance, as there was no living person existing at the time of the death of the insured by the legal name set out in the policy as purported beneficiary."
The certificate of insurance further provided that, should any beneficiary die before the insured, the interest of such beneficiary should vest in the employee, who was the insured. Such provision should be construed to mean that, if there is no living person by the name of the beneficiary at the time of the death of the insured, in the event of the failure of the insured to have named a living legal person during his lifetime, in that event the proceeds of said certificate would be payable to the estate and to the legally qualified administratrix of the estate of the insured.
It was alleged that the master policy of insurance and the certificate based thereon were in the possession of the insurance company. No copy of either was attached to the petition.
The petition prayed, among other things, that the name of Edna M. Wimbush as beneficiary in the insurance certificate be canceled, and the proceeds thereof paid to the plaintiff as administratrix of the estate of the insured, and that appropriate injunctive relief be granted preserving the status pending trial of the case.