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Gerber v. Equitable Life Assur. Soc.

OPINION FILED JANUARY 28, 1954.

GENEVA L. GERBER AND MARILYN E. RANSOM, A MINOR, BY GENEVA L. GERBER, HER GUARDIAN, PLAINTIFFS. GENEVA L. RANSOM AND MARILYN RANSOM ENGEL, APPELLANTS,

v.

THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, DEFENDANT-APPELLEE.



Appeal by plaintiffs from the Circuit Court of Sangamon county; the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at the October term, 1953. Affirmed. Opinion filed January 28, 1954. Rehearing denied February 26, 1954. Released for publication February 26, 1954.

MR. JUSTICE WHEAT DELIVERED THE OPINION OF THE COURT.

Rehearing denied February 26, 1954.

Plaintiffs-appellants Geneva L. Ransom and Marilyn Ransom Engel, appeal from an adverse judgment entered by the circuit court of Sangamon county in their action to collect the adjusted principal amount of three insurance policies issued by defendant-appellee, The Equitable Life Assurance Society of the United States, upon the life of James I. Ransom, now deceased.

Plaintiffs, as beneficiaries of the policies, contend the defendant did not prove its affirmative defense that the insured, prior to his death, exercised an option to surrender the policies in question and receive the cash surrender value thereof. This theory is based upon the following stipulated facts.

Each of the policies in question provided:

". . . Within three months after . . . default (of premium payment) this policy may be surrendered by the insured . . . who may elect one of the following options: (a) To receive the cash surrender value of this policy; . . ."

The premiums on each of the policies were in default but within such three-month period the following events occurred:

October 8, 1934: The insured mailed a letter addressed to defendant at its branch office in Peoria, Illinois, requesting payment of the cash surrender value of the three policies which were enclosed with the letter.

October 9, 1934: The insured's letter with enclosures was received by defendant's cashier at its Peoria branch office.

October 9, 1934: Defendant's assistant cashier forwarded the policies together with a company form requesting issuance of a check for the cash surrender value thereof to defendant's home office at New York. The insured's letter of October 8 was retained at the Peoria branch office.

October 11, 1934: The policies and form request were received by defendant at its home office in New York.

October 14, 1934: The insured died.

Thereafter, the following occurred:

October 16, 1934: The defendant's home office issued and mailed to its cashier at its Peoria branch office its check payable to the insured in the amount of $67.02, being the ...


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