Appeal, No. 326, Jan. T., 1961, from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1960, No. 548, in case of Lois and Michael Gershman, minors, by their guardian, Rhoda Gershman, v. The Metropolitan Life Insurance Company and Dorothy Gershman. Judgment affirmed.
William J. Woolston, for appellants.
Samuel Kagle, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an interpleader action wherein plaintiff-appellants, Lois and Michael Gershman, represented by their mother, Rhoda Gershman (first wife of the deceased, Benjamin Gershman) seek to obtain the proceeds of certain insurance policies on the life of Benjamin Gershman as against Benjamin's second wife, Dorothy, the named beneficiary. Appellants claim the funds by virtue of an agreement between Rhoda and Benjamin made just two days before the scheduled master's hearing concerning Benjamin's divorce from Rhoda. By that agreement, Benjamin acceded to Rhoda's request that the children (appellants) be named sole beneficiaries of the policies. Benjamin, however, never complied with the agreement, but, rather,
made his second wife, Dorothy, a co-beneficiary with the children.
The insurance company paid the funds into court. The lower court determined that there was no consideration for the agreement and that the named beneficiaries were the rightful owners. The children have appealed.
Appellants claim that agreements of this sort are binding even as to innocent third persons. They rely on the case of Hundertmark v. Hundertmark, 372 Pa. 138, 93 A.2d 856 (1952), where the husband and wife agreed that the husband should continue the wife as beneficiary of certain life insurance policies after the divorce. However, the issue in the present case arises from the very point on which this case differs factually from Hundertmark. The agreement in Hundertmark was an integral part of the separation and property settlement agreement for which that court expressly held there was adequate consideration. Hundertmark supra, at 142. In the present case, the parties had concluded their property settlement agreement more than one month before the agreement concerned in this appeal, and the question involved is whether the subsequent agreement was supported by consideration.
The lower court held that the subsequent agreement was separate and independent of the earlier property settlement and could not stand because it was unsupported by consideration. Its reasons were: (1) the first wife relinquished no legal right in excess of a mere expectancy; (2) the subsequent agreement was not for the children's basic maintenance, required by law, which had been provided for adequately by the property settlement; and (3) the sole purpose for the consummation of the subsequent agreement was that Rhoda had threatened to contest ...