113 Wis. 90 | Wis. | 1902
The respondent, to sustain the right' of action of the grandchild, cites to us a considerable array of decided cases, of which a few present instances of recovery by grandchildren under a policy payable in terms to the children of the deceased. Of these the most direct are Duvall v. Goodson, 79 Ky. 224; Supreme Council Catholic Knights v. Densford (Ky.), 49 L. R. A. 776; and Hull v. Hull, 62 How. Pr. 100. These cases proceed upon the argument that a policy of life insurance, being intended to tahe effect after the death of the assured, has in it so much 'of a testamentary
The reasoning of these last-mentioned cases, though not the conclusion, is in accord with the overwhelming weight of authority throughout the United States, much of which was collected in the concurring opinion of the present Chief Justice in Foster v. Gile, 50 Wis. 603, 609, to which may be added United States T. Co. v. Mutual B. L. Ins. Co. 115 N. Y. 152, and Walsh v. Mutual L. Ins. Co. 133 N. Y. 408. A'collection of authorities on this subject will be found in a note in Union Central L. Ins. Co. v. Buxer (Ohio), 49 L. R. A. 737. The foregoing decisions-of the court of last resort of Hew York are clearly inconsistent with Hull v. Hull, 62 How. Pr. 100, above cited, and doubtless destroy the authority of that case. The view that the beneficiary named in a policy, where there is nó limitation over in case of the failure of that beneficiary to survive the assured, has a vested right to recover the insurance, which right descends as personal property to his personal representative, is thoroughly well established in Wisconsin by a line of cases extending from Foster v. Gile, supra, to Alvord v. Luckenbach, 106 Wis. 537, subject, it is true, to the contingency as a condition subsequent, that tíre assured, who pays the premiums, may, with consent of the insurer, change the beneficiary. As a corollary, it would seem to follow that the vested right of action on the death of the beneficiary passes, not, like real estate, directly to his heirs at law, but, like other personalty, to his administrator or executor. Foster v. Gile, 50 Wis. 609.
The policy before us for construction differs, however, from any of those considered in the cases above cited, in that it does expressly provide a beneficiary in the contingency that
We are satisfied that the reasoning of the two former cases
By the Court. — The order appealed from is reversed, and cause remanded, with direction to overrule the demurrer.