The opinion of the court was delivered by: MCVICAR
This is an interpleader case wherein by order of court and the agreement of the parties, Oren E. Cleveland, trustee for Gretchen Cleveland, is plaintiff in the interpleader issue, and the Butler Savings and Trust Company, Guardian of the Estate of Gretchen A. Bayer, a minor, is defendant. The Court after hearing, makes the following Findings of Fact and Conclusions of Law:
1. On or about April 15, 1938, The Mutual Life Insurance Company delivered its policy of life insurance numbered 5,349,994 on the life of Loretta B. Cleveland, in the face amount of $ 2,500.00, to said Loretta B. Cleveland. Said policy is attached to the original complaint filed in this proceeding. In said policy the beneficiary was designated as the insured's daughter, Gretchen Cleveland, if living, and if not, the insured's husband, Oren E. Cleveland.
2. On or about April 15, 1938, said Loretta B. Cleveland elected a mode of settlement whereby the amount payable on the maturity of the policy as a death claim should be paid in monthly installments of $ 50.00 each, payable to Gretchen Cleveland, and providing that each installment becoming payable prior to the date on which she attained the age of 21 years should be paid to Oren E. Cleveland, as Trustee for said Gretchen Cleveland. The Mode of Settlement provides, inter alia:
'Gretchen Cleveland, daughter of the Insured is hereinafter referred to as the primary payee, and Oren E. Cleveland, husband of the insured, is hereinafter referred to as the contingent payee.
'II If The Primary Payee Shall Survive The Insured:
'The amount payable at the death of the insured shall be settled by Mode of Settlement (4) with monthly installments of $ 50. each, payable to the primary payee.
'If the primary payee shall die during the continuance of said Mode of Settlement (4), such settlement shall terminate at the death of the primary payee and the amount of unpaid principal and interest then under the supplementary contract shall be apportioned to the contingent payee, or if the contingent payee shall not be then living, shall be payable in single sum to the executors or administrators of the primary payee.
'V Anything Hereinbefore To The Contrary Not Withstanding:
'It is agreed that each installment under said Mode of Settlement (4) becoming payable to the primary payee prior to the date on which the primary payee shall attain the age of twenty-one years, shall be payable as it becomes due, to the contingent payee, if living on its due date, as trustee for the primary payee. * * * '
3. The premium on said policy due on April 15, 1941 was not paid and said policy therefore became automatically converted into Term insurance in the amount of $ 2,467.00, until February 21, 1946.
4. Loretta B. Cleveland died on December 17, 1944 and after proof of her death was filed, The Mutual Life Insurance Company of New York in settlement of its liability under said policy issued its supplementary contract No. S.N. 45,337, which provides for payments in accordance with the Mode of Settlement attached to policy No. 5,349,994, which Mode of Settlement is incorporated into said supplementary contract No. S.N. 45,337.
5. In accordance with the order of court in this proceeding dated September 29, 1947, The Mutual Life Insurance Company of New York has paid into the registry of this Court the sum of $ 2,500.00. In accordance with the order of court in this proceeding dated March 3, 1948, the sum of $ 265.00 has been paid by the ...