The life insurance policy in controversy, having been acquired by George Sundstrom before his marriage, was, and continued to be, his separate property. By the terms of the policy, he had the right to change the beneficiary at will; and, therefore, his wife, the respondent, merely by virtue of having been named as beneficiary, in the absence of an assignment, acquired no vested interest, but only a mere expectancy, revocable, without her consent, at the pleasure of the insured. Cade v. Head Camp,Pacific Jurisdiction W.O.W., 27 Wash. 218, 67 P. 603; Koch v.Aetna Life Ins. Co., 165 Wash. 329, 5 P.2d 313; SeattleAss'n of Credit Men v. Bank of California, 177 Wash. 130,30 P.2d 972; Massachusetts Mut. Life Ins. Co. v. Bank ofCalifornia, 187 Wash. 565, 60 P.2d 675. Was there, then, an equitable assignment of the policy?
In Nickerson v. Hollet, 149 Wash. 646, 272 P. 53, the contention was that there had been an equitable assignment of a certain claim or account, and Judge Tolman, the author of the opinion, said: *Page 117
"The law as to what constitutes an equitable assignment is not in doubt, and is well stated as follows:
"`In order to work an equitable assignment there must be an absolute appropriation by the assignor of the debt or fund sought to be assigned to the use of the assignee. The intention of the assignor must be to transfer a present interest in the debt or fund or subject matter; if this is done the transaction is an assignment; otherwise not.' 5 C.J. 909.
"`The assignor of a chose in action must part with the power of control over the thing assigned; if he retains control it is fatal to the claim of the assignee.' 5 C.J. 912."
This language was quoted with approval in two later cases:Sneesby v. Livington, 182 Wash. 229, 232, 46 P.2d 733;Philip v. Seattle, 195 Wash. 386, 391, 81 P.2d 279.
The facts as stated in the majority opinion consist, for the most part, of a narration of respondent's own testimony. There is little corroboration of any of her testimony in the record, and, as to her conversations with the insured, on which her claim to an equitable assignment necessarily must rest, there is none at all.
The question whether or not, under Rem. Rev. Stat., § 1211 [P.C. § 7722], respondent was competent to testify as to transactions had with, and statements made by, her deceased husband, the insured, was not before this court; but, nevertheless, it seems to me that, in weighing and construing her testimony, to arrive at the intention of the insured, due allowance should be made for her interest and for the fact that there was no one living who could dispute her at the trial. I am heartily in accord with the principle, to which the following cases subscribe, that, where the only person who could directly dispute a witness is dead, the testimony of that witness should be closely scrutinized and weighed in the light of the attendant circumstances, and its reasonable probability carefully *Page 118 considered. Holmes v. Connable, 111 Iowa 298, 82 N.W. 780; Inre Bremer's Estate, 151 Iowa 449, 131 N.W. 667; In re Tjark'sEstate, 55 S.D. 636, 227 N.W. 84.
With the foregoing considerations in mind, I have carefully read the entire record, and it is my conclusion that the evidence does not preponderate in favor of the trial court's finding that the policy had been equitably assigned.
Regarding the executory agreement, or declaration of trust, of the insured, on which the finding must be based, the respondent testified:
"Q. Now, Mrs. Sundstrom, at the time you and George Sundstrom were married, did you have any discussion with him regarding this life insurance policy? A. Yes, we did. At the time we were married, he told me he owed them $580.00 for board, and that he owed them for a couple of years, up until the time of our marriage in fact, and he told me that when he got his folks paid up he would put that policy in my name, give it to me." (Italics mine.)
George Sundstrom named the appellant, his mother, as his beneficiary and placed the policy in her possession long before he became indebted to his parents for board. The policy was never pledged to secure the indebtedness, and it was not necessary for him to pay it in order to regain possession. As a matter of fact, he did regain possession of the policy from the appellant when a substantial portion of the debt remained unpaid. Manifestly, the insured did not consummate an equitable assignment of the policy to the respondent at the time of his marriage, nor do I think that his statements made at that time, followed by the payment from community earnings of a portion of his indebtedness to his parents and the delivery of the policy to respondent in 1932, were sufficient to constitute an executed contract to assign.
The insured owed other debts at the time of his marriage, *Page 119 and, with the acquiescence of the respondent, he paid them with earnings of the community and without any agreement or expectation that she would get anything in return. His expressions to the effect that, when his parents had been repaid, he would transfer to respondent, or put in her name, or give her the policy, considered in the light of the attendant circumstances, would seem to me to amount to no more than a declaration that he intended to do precisely what he did do in October, 1932; namely, substitute his wife for his mother as the designated beneficiary in his policy.
I, therefore, dissent.
BEALS, J., concurs with DRIVER, J.