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In Re Estate of Kite

MAY 2, 1974.

IN RE ESTATE OF ALLEN M. KITE — (DENNIS S. KITE, CLAIMANT-APPELLANT,

v.

BARBARA L. KITE, EXECUTOR-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. L.J. HYDE, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This matter involves a claim filed in the circuit court of Cook County by Dennis Kite against his father's estate to recover damages allegedly caused by the failure of his father to maintain in full force certain life insurance policies wherein the claimant was named beneficiary. After a hearing, the trial court granted the estate's motion to dismiss the claim, and claimant appeals.

The decedent, Allen M. Kite, and June H. Kite were married in 1944. Their son, the claimant, was born in 1945.

On June 29, 1950, a decree of divorce was awarded in Cook County to June Kite against Allen Kite. In addition to providing for alimony, child support and other property rights, the decree provided in pertinent part as follows:

"That defendant (Allen M. Kite) shall pay the premiums necessary to keep in force three (3) life insurance policies previously issued on the life of the defendant, by the State Mutual Assurance Company of Worcester, Massachusetts, each of said policies being in the face amount of Five Thousand Dollars ($5,000.00), and the defendant shall name Dennis Sherman Kite as the primary and sole beneficiary in said policies."

The decree further provided that on May 25, 1950, the parties had entered into a property settlement agreement. That agreement in pertinent part is as follows:

"First party (Allen M. Kite) agrees that Dennis Sherman Kite shall be named as the primary and sole beneficiary in the following life insurance policies, previously issued on the life of first party, by the State Mutual Assurance Company of Worcester, Massachusetts, each of said policies being in the face amount of Five Thousand Dollars ($5,000):

Policy No. 548,061 Ex;

Policy No. 559,963 Ex; and

Policy No. 568,799

First party further agrees to pay all premiums that may be due, or become due, to keep said policies in full force and effect, and agrees that he will not remove the name of the said child as beneficiary of said policies, without the written consent of second party (June H. Kite) first had and obtained."

Thereafter, decedent never attempted to change the claimant as beneficiary, but did make loans from the insurance company on the three policies. He also failed to pay certain premiums on these policies. The result was that decedent had reduced paid-up insurance with the three companies at the time of his death, July 26, 1971. Instead of the $15,000 recited in the decree and property agreement, claimant received $4,132.93 as proceeds of the three policies.

However, in addition to the aforesaid $4,132.93, the claimant received the proceeds of six other insurance policies taken out by the decedent on his life and naming the claimant as beneficiary. Claimant received total proceeds in the amount of $16,171.30 on these six additional policies taken out by his father. As a result, claimant received total life insurance proceeds of $20,304.23 arising from his father's death.

Claimant maintains on appeal that the loans against the three policies along with decedent's failure to pay all of the premiums on the three policies prevented the three policies from remaining in full force and effect, therefore violating the terms of the divorce decree and property settlement agreement, and exposing the estate of decedent to ...


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