Ruth Green Garrard filed her equitable petition against the Merchants Bank, T. R. Bennett, state superintendent of banks, George B. Barrett, liquidating agent for said bank, and the Pacifie Mutual Life Insurance Company, and made this

case:

(1) That on October 26, 1921, the directors of said bank turned over to the state superintendent of banks all its assets, including a claim against Crawford G. Garrard of approximately $10,000.

(2) That as security for said indebtedness said Crawford G. Garrard, on September 11, 1918, assigned and transferred to said bank, as its interest may appear, the right, title, and interest in and to a policy issued by said insurance company upon his life, a copy of said assignment being attached to the petition as an exhibit.

(3) That by the terms of said policy said company promised to pay at its home office, on receipt there of due proof of the death of the insured, $10,000, less any indebtedness and unpaid portion of the premiums for the then current policy year, to petitioner, the wife of the insured and beneficiary named therein.

(4) That the following rule is set out in said policy to govern a change of beneficiary therein, to wit: "Change of beneficiary. The insured, with the assent of the assignee when there is an existing assignment made as herein provided, other than an assignment to the company as collateral security for a policy loan, may, while this policy is in force, designate a new beneficiary, reserving the right of revocation, by filing written notice thereof at the home office of the company, accompanied by this policy for indorsement thereon. Such change shall take effect on the indorsement of the same on this policy by the company, and not before. Should there be no beneficiary living

at the time this policy becomes a claim by death, the proceeds hereof shall be paid to the executors, administrators, or assigns of the insured."

(5) That the following rule is set out in said policy to govern an assignment thereof, to wit: "Any assignment of this policy must be made in writing. The company shall not be deemed to have knowledge of any assignment unless the original or a duplicate thereof is filed at the home office of the company, and its receipt duly acknowledged. The company will not assume responsibility for the validity of any assignment."

(6) That said policy was dated August 27, 1918, and the beneficiary therein was never changed from petitioner.

(7) That the assignment of said policy was made with the full knowledge of the fact that petitioner was named as beneficiary therein, and said assignment was made subject to the rights of petitioner as such beneficiary.

(8) That the insured died on December 31, 1922, and petitioner survived him.

(9) That under the terms of said policy and under the law petitioner is entitled to the proceeds of said policy.

(10) That the policy is in the possession of said bank and the agents in charge thereof.

(11) That said bank claims that all of the money due and collectable under said policy belongs to it absolutely, and that petitioner is not entitled to any of the proceeds until the claim of the bank has been fully satisfied.

(12) That said bank has presented to said insurance company proof of the death of the insured, for the purpose of having all of the money due and collectable thereunder paid to it.

(13) That said bank is insolvent. (14) That unless said bank, the state superintendent of banks, said

liquidating agent, and said insurance company, be temporarily enjoined from collecting and paying said money, the same will be paid over to said bank instead of to petitioner, who is legally entitled to the same.

And (15) that petitioner is without an adequate remedy at law.

Petitioner prayed for process, that the bank, the state superintendent of banks, and the liquidating agent, be temporarily enjoined from collecting the proceeds of said policy; that said insurance company be temporarily enjoined from paying over the proceeds of said policy to said bank, superintendent, and agent; and that petitioner be declared to be the beneficiary of said policy and entitled to the proceeds of the same.

The assignment of the policy by the insured is as follows:

"Assignment of Policy as Collateral Security.

"For value received, I hereby assign and transfer unto the Merchants Bank, of Augusta, Georgia, as their interest may appear, and of the remainder, if any, to my wife, Mrs. Ruth Green Garrard, all the right, title, and interest in and to policy of insurance No. 338,256, issued by the Pacific Mutual Life Insurance Company of California upon the life of Crawford Gibson Garrard, together with all dividends, benefits, and advantages to be had or derived therefrom, and from any supplementary agreement or separate contract providing for accidental total loss benefits which may have been issued on the aforesaid life by the said insurer under the same policy number as that above mentioned, and all subject to the conditions of said policy supplementary agreement or separate contract, and to the rules and regulations of said insurer. [I] do guarantee the validity and sufficiency of the foregoing assignment to the above-named assignee, h— executors, administrators, or assigns (successors or assigns if assignee is

a corporation), and said assignee's title to said policy will forever warrant and defend.

"This assignment is made as collateral security for the payment of

dollars, with interest, together with any sums advanced by said assignee for the purpose of paying premiums on 'said policy of insurance, and with full power to said assignee or legal representatives, subject to the conditions of the said policy and the rules and regulations of said insurer, to enjoy all benefits and advantages to be had or derived therefrom, and to exercise all rights and privileges in connection therewith, any moneys received from said insurer by said assignee or legal representatives under this power, however, to be so received in trust, but without any liability on the part of said insurer to see to the proper discharge of the trust or of any part thereof.

"Each person executing this assignment represents to said insurer that he, or she, has attained majority according to the laws of the state in which he, or she, resides.

"Witness my hand and seal, this 11th day of September, 1918. "Crawford Gibson Garrard. [Seal.]" "State of Georgia, County of Richmond-ss.:

"On this 11th day of September, 1918, before me, W. H. Sherman, a notary public in and for said county, personally appeared Crawford Gibson Garrard, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he executed the same. I further certify that, after careful investigation in that behalf, I believe that said Crawford Gibson Garrard to be of lawful age, of sound mind, and competent to execute said instrument, and to have a full understanding of the contents thereof.

"W. H. Sherman, Notary Public in and for the County of Richmond, State of Georgia.

"The Pacific Mutual Life Insurance Company of California, in ac

cordance with its rules as stated below, has retained the duplicate of this assignment. Los Angeles, Cal., September 21, 1918.

"C. E. D. Moore, Assistant Secretary.

"Notice. The rules of the insurer require that an assignment must be in writing, and that the insurer shall not be deemed to have knowledge of such assignment unless the original or a duplicate thereof shall be filed at the home office of the insurer, its receipt duly acknowledged, and, if the terms of the policy so require, proper indorsement made thereon. The insurer will not assume or accept any responsibility as to the validity of any assignment. The acknowledgment by an assignor must be made before a notary public, and certified by him under his official seal. When an assignment is executed by an officer on behalf of a corporation, the seal of the corporation should be attached, together with a certified copy of the bylaws of such corporation, or a certified copy of the minutes of the meeting of the board of directors, authorizing such officer so to act. Both original and duplicate of the assignment should be sent to the home office; one copy being retained by the insurer, and the other returned."

The state superintendent of banks and the liquidating agent of the bank demurred generally to said petition, on the ground that it set forth no cause of action against them or either of them. The bank likewise demurred. The court overruled each of the demurrers; and the defendants excepted.

Messrs. Hull & Barrett, for plaintiffs in error:

The Merchants Bank and Bennett, as superintendent of banks, in charge of said bank, are entitled to the proceeds of the policy in question up to the amount of the indebtedness due by Crawford Gibson Garrard and secured by the assignment of said policy.

Farmers State Bank v. Kelley, 155 Ga. 733, 118 S. E. 197; Cheek v. Rice,

30 Ga. App. 779, 119 S. E. 465; Rattray v. Banks, 31 Ga. App. 589, 121 S. E. 516; Mutual Ben. L. Ins. Co. v. Swett, 137 C. C. A. 640, 222 Fed. 200, Ann. Cas. 1917B, 298; Missouri State L. Ins. Co. v. California State Bank, 202 Mo. App. 347, 216 S. W. 785; First Nat. Bank v. Security Mut. L. Ins. Co. 283 Mo. 336, 222 S. W. 832; Lamar L. Ins. Co. v. Moody, 122 Miss. 99, 84 So. 135; McNeil v. Chinn, 45 Tex. Civ. App. 551, 101 S. W. 465; Chamberlain v. Butler, 87. Am. St. Rep. 502, note; 14 R. C. L. "Insurance," 171.

Mr. W. Inman Curry, for defendant in error:

The beneficiary named in a contract of insurance has a vested interest in the contract, which can be devested only in accordance with the express provisions of the contract permitting a change of beneficiary.

Arnold v. Empire Mut. Annuity & L. Ins. Co. 3 Ga. App. 685, 60 S. E. 470; Roberts v. Northwestern Nat. L. Ins. Co. 143 Ga. 780, 85 S. E. 1043; Chance v. Simpkins, 146 Ga. 519, 91 S. E. 773; Bennett v. Rosborough, 155 Ga. 265, 26 A.L.R. 1397, 116 S. E. 788; Smith v. Locomotive Engineers Mut. L. & Acci. Ins. Asso. 138 Ga. 717, 76 S. E. 44; Thomas v. Metropolitan L. Ins. Co. 144 Ga. 367, 87 S. E. 303; Lovinger v. Garvan, 270 Fed. 298; Reid v. Durboraw, 272 Fed. 99; Supreme Conclave, R. A. v. Cappella, 41 Fed. 1; Hotel-Men's Mut. Ben. Asso. v. Brown, 33 Fed. 11; Holland v. Taylor, 111 Ind. 121, 12 N. E. 118; Daly v. Daly, 138 Md. 155, 113 Atl. 645; Freund v. Freund, 218 Ill. 189, 109 Am. St. Rep. 283, 75 N. E. 925; Thomas v. Thomas, 131 N. Y. 205, 27 Am. St. Rep. 582, 30 N. E. 61; Stafford v. Brotherhood of R. Trainmen, 224 N. Y. 653, 121 N. E. 892; Fink v. Fink, 171 N. Y. 616, 64 N. E. 506; Berg v. Damkoehler, 112 Wis. 587, 88 S. W. 606; Muller v. Penn Mut. L. Ins. Co. 62 Colo. 245, 161 Pac. 148; Johnson v. New York L. Ins. Co. 56 Colo. 178, L.R.A.1916A, 868, 138 Pac. 414; Wooten v. Grand United Order, 176 N. C. 52, 96 S. E. 656; Sullivan v. Maroney, 77 N. J. Eq. 565, 78 Atl. 150; Anderson v. Broad Street Nat. Bank, 90 N. J. Eq. 78, 105 Ati. 599; Deal v. Deal, 87 S. C. 395, 69 S. E. 886, Ann. Cas. 1912B, 1142.

Any assignment or transfer of the policy that might be made by the insured would not affect the vested interest of the beneficiary, and her rights remain undisturbed.

Anderson v. Broad Street Nat. Bank, 90 N. J. Eq. 78, 105 Atl. 599; Sullivan v. Maroney, 77 N. J. Eq. 565, 78 Atl. 150; Deal v. Deal, 87 S. C. 395, 69 S. E. 886, Ann. Cas. 1912B, 1142; Schoenholz v. New York L. Ins. Co. 234 N. Y. 24, 136 N. E. 227; Muller v. Penn Mut. L. Ins. Co. 62 Colo. 245, 161 Pac. 148; Johnson v. New York L. Ins. Co. 56 Colo. 178, L.R.A.1916A, 868, 138 Pac. 414; Douglass v. Equitable Life Assur. Soc. 150 La. 519, 90 So. 834; Grand Lodge, A. O. U. W. v. State Bank, 93 Kan. 310, 144 Pac. 257; Lowenstein v. Koch, 165 App. Div. 760, 152 N. Y. Supp. 506; Farra v. Braman, 171 Ind. 529, 86 N. E. 843; Vanasek v. Western Bohemian Fraternal Asso. 122 Minn. 273, 49 L.R.A. (N.S.) 141, 142 N. W. 333, Ann. Cas. 1914D, 1123; Grand Lodge, A. O. U. W. v. Edwards, 111 Me. 359, 89 Atl. 147; Crosby v. Mutual Ben. L. Ins. Co. 221 Mass. 461, 109 N. E. 365; Haigh v. Mentor Council, L. H. 17 Phila. 71; Barner v. Lyter, 31 Pa. Super. Ct. 435; Indiana Nat. Ins. Co. v. McGinnis, 180 Ind. 9, 45 L.R.A. (N.S.) 192, 101 N. E. 289; Marlow v. Paganini, 277 Fed. 790.

Hines, J., delivered the opinion of the court:

Insurancerights of beneficiary.

Where a policy of insurance does not provide for a change of beneficiary, the general rule is that the policy and the money to become due under it vest immediately in the person named as the beneficiary, and that this interest, being vested, cannot be transferred to any other person without the consent of the named beneficiary. Perry v. Tweedy, 128 Ga. 402, 119 Am. St. Rep. 393, 57 S. E. 782, 11 Ann. Cas. 46; Roberts v. Northwestern Nat. L. Ins. Co. 143 Ga. 780, 85 S. E. 1043; Farmers State Bank v. Kelley, 155 Ga. 733, 118 S. E. 197; Central Nat. Bank v. Hume, 128 U. S. 195, 32 L. ed. 370, 9 Sup. Ct. Rep. 41.

Where a policy of life insurance provides that the insured may change the beneficiary, the general rule is that the beneficiary has an interest in the policy divestible by the substitution of a new beneficiary by the

-effect of provision for change of beneficiary.

insured. In such a case this right is often spoken of in the decisions of the courts as a vested right. Arnold v. Empire Mut. Annuity & L Ins. Co. 3 Ga. App. 685, 60 S. E. 470. Strictly speaking, the right of the beneficiary in a policy in which the insured reserves the right to change the beneficiary or to assign the policy is not a vested right. To be "vested," in its accurate legal sense, a right must Words and be complete and con- phrases “vested rights." summated, and one

of which the person to whom it belongs cannot be devested without his consent. A divestible right is never, in a strict sense, a vested right.

In Nally v. Nally, 74 Ga. 669, 58 Am. Rep. 458, this court held that, under a policy which provided "that the assured may, with the consent of the company, at any time, assign it, or, before assignment, change the beneficiaries therein, or make any other change," the right of the beneficiary was not absolute and irrevocable. In Ogletree v. Ogletree, 127 Ga. 232, 55 S. E. 954, this court said: "The contract may reserve to the insured the right to change the beneficiary at will; and, when this is done, the nominated beneficiary acquires no vested interest in the policy or its proceeds, and, until the death of the insured, has a mere expectancy."

Still, under a policy which reserves to the insured the right to change the beneficiary, such right is one of contract, and the

Insurance

beneficiary.

change of beneficia- method of ry can be accom- changing plished only in the manner pointed out in the policy. Roberts v. Northwestern Nat. L. Ins. Co. 143 Ga. 780, 85 S. E. 1043; Chance v. Simpkins, 146 Ga. 519, 91 S. E. 773. In these cases this court was dealing with changes of beneficiaries under provisions in policies reserving to the insured the right to change the beneficiaries, and was not considering the question of the change of a beneficiary by an assignment of the policy. So, in this case, if the insured had de