47 Mo. 453 | Mo. | 1871
delivered the opinion of the court.
Plaintiff, George R. Baker, is the husband of Ellen P. Baker, and Henry W. and Kate are their minor children. He brings this suit as the trustee of his wife and the next friend of the children. It seems that the plaintiff procured an insurance on his life for the benefit of his wife, in the Mutual Life Insurance Company of New Jersey, for the sum of $5,000, the premium being paid by himself; that subsequently, with the consent of the company, the husband and wife joined in an assignment of the policy to the defendant, Young, to secure an indebtedness of the husband. At the date of the assignment the policy was nonforfeitable.
Prior to the institution of this suit he was appointed by the Circuit Court trustee for his wife, and he now sues for the recovery of the policy in her behalf and that of her children, claiming that the assignment was void. The suit is based upon the theorf that immediately upon the issuing of the policy the wife and children took a yested interest, and that the wife was
In the first place I do not think that the children are proper parties, or that they have any interest in the proceeding. The clause in this section, that the policy shall inure to the separate use and benefit of the wife and her children, applies simply to the manner of the descent and distribution. After’ the wife has received and reduced the money to possession, and she dies, it shall go to her children, and not to the husband’s representatives. This interpretation is made the more apparent by the concluding paragraph of the section providing for the appointment of a trustee to manage the interests of the married woman in the
In the case of The Charter Oak Life Ins. Co. v. Brant, ante, p. 419, we expressed our opinion in favor of the assignability of these policies, where such assignment did not conflict with the policy and spirit of the statute. We must now arrive at the intent of the Legislature in the enactment of the eighteenth section. ■ It provides for the inurement of the insurance for the benefit of the wife and children, independently .of the husband and his creditors. It gives it to the wife and allows her to keep and retain it, if she chooses to do so, without-molestation. The creditors of the husband can not reach it and deprive her of it against her consent, nor can the husband intermeddle with it contrary to her will. - -
But there are no terms o£ restraint used, nor any provision against voluntary alienation on her part. In Eadie v. Slimmon, 26 N. Y. 9, the insurance was effected by the wife at her expense, and the court thought it would be a violation of the spirit of the statute to hold that she could sell or trafSc with her policy as though it were realized personal property or ordinary security for money. The facts of that case, however,-are unlike the present, and the decision can not be regarded -as controlling authority.
Here there is no question of survivorship, and the point is whether, when the husband obtains a policy for the .benefit of the wife, and pays the premium with his own money, there is any prohibition against an assignment of it by the husband and wife conjointly. Even assume that it is the sole and separate estate of the wife, if there is no statutory restraint it may be parted with or alienated. The wife can not be compelled to use it for any purpose, nor can third persons wrest it from her; but if she will make a voluntary disposition of it, I see nothing to prevent her exercising the power. It has long been a settled and established rule of law that the wife may mortgage ■ or assign her separate property to secure the payment of her husband’s debts, and if we admit the soundness of the appellant’s,argument there is nothing to forbid the application of the principle to the present
The law for the complete protection and security of the wife gives her the power to retain and appropriate the insurance, where it is procured by others for her benefit, if she sees fit, discharged from all claims of either her husband or his creditors; but I think it was not the intention of the Legislature to impose upon her any disability or restraint from alienation where her act is free and voluntary. ,
The Circuit Court found for the defendant, and I think its judgment should be affirmed.