153 Mass. 544 | Mass. | 1891
We have no occasion to consider whether an action can be maintained in the name of the administrator of an assured person, upon a policy of life insurance payable to “ the assured, his executors, administrators, or assigns,” which has been assigned as collateral security to the insurance company which issued the policy; for the parties have agreed that, if the defendant’s set-off is not allowed, judgment is to be entered for the plaintiff, and if it is allowed, the judgment is to be for the defendant for the balance due.
These questions are two : first, whether the money due under the policies belongs to the administratrix as assets of the estate which are subject to the debts of the assured, and, second^, whether these are “ mutual debts or demands between the plaintiff and defendant,” within the meaning of the Pub. Sts. c. 168, § 1, or are within the provision of § 12 of that chapter, which is as follows : “ In an action by an executor or administrator, a demand against his testator or intestate which at the time of his death belonged to the defendant may be set off in the same manner as if the action had been brought by the deceased.”
The policy numbered 7,629 was made “ for the express benefit of Lucinda A. Boyden, wife of said assured, and their children.” This policy was assigned to the assured in due form by Lucinda A. Boyden, and by their children, who were then of full age. Lucinda A. Boyden died before the assured. If no assignment had been made, the policy on her death would have inured to the sole benefit of the children. A policy in this form, taken out by the assured on his life, and expressed to be for the benefit of his wife, is not only secured to her by our statute, but, in the absence of any statutory provision, it would be in the nature of an executory trust for her benefit, of which she could not be deprived without her consent. Pub. Sts. c. 119, § 167. St. 1887, c. 214, § 73. Gould v. Emerson, 99 Mass. 154. Knicherbocker Ins. Co. v. Weitz, 99 Mass. 157. Pingrey v. National Ins. Co. 144 Mass. 374.
In the present case there is an express provision which declares the policy to be for the,benefit of the children as well as of the wife, and on her death, if there had been no assignment, they would have become the sole beneficiaries. By virtue of their assignment, their interest passed to the assured, and the argument of the plaintiff that the assignment from the wife to
In the policy numbered 22,807 the following clause appears : “ Said sum insured being for the express benefit of Lucinda A. Boyden, wife of said assured, in case of her decease prior to that of said assured, for his own order.” The expression, “ for his own order,” is equivalent to “ for himself,” or “ for his estate,” and, by the terms of the policy, Lucinda A. Boyden, having deceased before him, the administratrix is entitled to the proceeds, to be administered as assets of the estate.
The debts which the defendant seeks to set off, and the claims which the plaintiff is trying to enforce, are all in the same right. The plaintiff sues in her official capacity, and, in a broad sense, these are “ mutual debts or demands between the plaintiff and defendant in an action.” The statute in relation to set-off is a remedial one, and is given a liberal construction. This case comes within the reason of the rule prescribed by the statute, and it fairly falls within the language of the Pub. Sts. c. 168, § 12, above quoted. The action is by an administratrix, and the demands against the intestate which are sought to be set off belonged to the defendant at the time of his- death, and, by the terms of the statute, they “ may be set off in the same manner as if the action had been brought by the deceased.” It is contended on this language that the action could not have been brought by the deceased in his lifetime, and that therefore the statute is inapplicable. There are many cases in which it is held that there can be no set-off of a debt against the deceased, in an action brought by an administrator on a claim which has come into existence since the death of his intestate. But the case at bar is not within the principle on which these decisions are founded. The reason of the rule which is laid down in some of them is, that a set-off, under such circumstances, would improperly affect the distribution of the assets. In the present case the claims in favor of the plaintiff’s intestate existed in full force the instant that her intestate died. Certain preliminaries, and the lapse of a certain time, were necessary before they became payable, but the liability which is now sought to be enforced existed
If it were doubtful whether the set-off could be allowed in this case, by virtue of the statutes in relation to that subject, there is another ground on which it would be permitted. It appears that the estate of the plaintiff’s intestate is insolvent; and it has often been held in this Commonwealth, that the right of set-off by the general provisions of law in relation to the settlement of insolvent estates of deceased persons includes debts against the deceased which are not due at the time of his death, and requires the adjustment of all claims on either side existing at that time, whether they were then payable or not. M'Donald v. Webster, 2 Mass. 498. Bigelow v. Folger, 2 Met. 255. Phelps v. Rice, 10 Met. 128. Aldrich v. Campbell, 4 Gray, 284.
The defendant’s set-off is allowed; and, in accordance with the agreement of the parties, judgment is to be entered for the defendant for the balance due. Under the Pub. Sts. c. 137, § 33, no execution can be issued on this judgment, but the judgment may be presented for allowance against the insolvent estate in the same manner as other claims of creditors.
Judgment accordingly.