119 Wis. 502 | Wis. | 1903
The appellants’ assault upon the judgment is predicated upon two propositions: First, that there was no debt due from the garnishee to A. IF. Straw at the time of the service of the garnishee summons, to wit, September 19, 1900; secondly, that any such debt was exempt from seizure for debts of either Mr. or Mrs. Straw.
1. The first proposition is that the so-called tontine dividend accumulation had not become due absolutely on the 19th day of September, for the asserted reason that the ton-tine period was not completed until that day had passed; hence, if Straw■ had died on that day, the dividend accumulation would never have become payable. ■ With this contention we cannot at all agree. The policy did not provide that this
Text it is insisted that tire liability of the company for these tontine dividend accumulations is not a debt to Alonzo TU Straw. The only support for this contention is apparently that it arises out of one of the provisions of the policy of insurance, in which Mrs. Amelia E. Stravj is named as beneficiary. But she is named merely as beneficiary of the life insurance. The provision for payment of tlie tontine dividend accumulations is that: ,
“Upon completion of the tontino dividend period, . . . the said insured or his assigns, without the consent of any other person named within as beneficiary, if any, shall have 'the option either: First, to withdraw in cash the accumulated surplus apportioned by the company to this policy,” etc.
Wo cannot feel justified in attempting to state at length reasons for so obvious a conclusion as that this agreement fs one wholly with the assured, and over which he has full
But again it is insisted that no absolute debt existed to the-defendant Alonzo W. Straw unless it was shown that he had-’, exercised his election that the accumulation be paid to him-in money, instead of being applied by the insurance company either to provide ah annuity for future premiums on this policy, as it was agreed that it should be if he exercised no election within sixty days, or to the purchase of other forms*, of insurance. We shall not deem it necessary to decide-whether the exercise of Straw’s election so constituted a condition precedent to the absolute liability to him that garnishment would not lie in its absence. It suffices for the determination of this contention by the appellants that the trial' court has affirmatively found that at the time of the service* of the garnishee summons the accumulation had become payable absolutely. In support of this finding of fact, it must, be assumed that any steps legally necessary to its correctness, were established by the evidence. Appellants have seen -fi.tr to come here without exception to the findings, and without a<bill of exceptions to inform us of the proofs. It is not impossible that there may have been definite proof of the exercise by A. W. Straw of the election vested in him by the* policy, and of the making of a demand for this sum. IF such facts were not established, and were necessary to the-ultimate fact found by the court, appellants should have re
In this connection it is nrged that both the original answer of the garnishee and a substituted answer interposed four months later, in pursuance of a stipulation that such later answer might he substituted for the original one, declare that no election or demand had been made by A. W. Strcuw. To the original answer the plaintiffs responded by a formal statutory notice of issue, hut served none such after the service of the substituted answer. Of course, the service of the notice of issue raised an issue on all facts asserted in the garnishee’s answer, and evidence might have been offered on either side thereof, but in the absence of any such notice of issue the garnishee’s answer is to be taken as true. It is claimed that, because such notice was not renewed after fee service of the substituted answer, its allegations must be ae-corded conclusive effect. It has many times been held in this, court that, when a complaint is amended after an answer thereto has been filed, that answer will stand as the answer fin the amended complaint, unless it be withdrawn or a new one be filed. Yates v. French, 25 Wis. 661; First Nat. Bank v. Prescott, 27 Wis. 616; Harris v. Wicks, 28 Wis. 198; Knips v. Stefan, 50 Wis. 286, 289, 6 N. W. 877. Uo reason is apparent why the same rule should not. apply to the situation here. Plaintiffs, having once notified the garnishee of their desire that the facts set forth in the garnishee’s answer fee-made subject of proof, may well be deemed to have intended to stand upon that notice, although a new answer came in', in this case stipulated to be a mere substitution, which set forth in the main the same facts with some slight modifies^ tions. It is, of course, apparent from the record, even without a hill of exceptions, that the court and the parties bofe took this view upon the trial and assumed that issues of fact arose upon the garnishee’s answer to be tried. Other-
• ’ 2. Claim of exemption from debts, whether of Mr. or Mrs. Straw, is predicated upon sec. 2347, Stats. 1898, the general purpose of which legislation was thoroughly treated in Ellison v. Straw, 116 Wis. 207. In compliance with the views there expressed, that statute must doubtless be given liberal construction for the protection, especially, of widows, in their right to receive insurance upon the life of a husband av other person. On the other hand, the inference is equally obvious of a legislative intent not to screen the husband in building up for himself a fund beyond the reach of his creditors. Life insurance is one thing, investment is another, but ike ingenuity of the life insurance companies in formulating contracts which confuse the distinction has been active for generations. Pure life insurance has become rare, except with beneficial associations; but the gradations from that contract, with some slight provision for accumulation of dividends, to contracts where the accumulation is the predominant, if not even the exclusive, purpose, are almost numberless. ■ Life insurance is a promise to pay a certain sum upon the death of the assured. Tennes v. N. W. Mut. L. Ins. Co. 23 Minn. 271, 3 N. W. 346; Talcott v. Field, 34 Neb. 611, 52 N. W. 400; Shakman v. U. S. Credit System Co. 92 Wis. 366, 66 N. W. 528. Doubtless the amount so payable may be augmented by accumulation of excessive premiums and their earnings in the hands of the company without destroying the essential character of the contract. When, however, we find, as frequently, a promise to repay a sum made up from á portion of the premiums and their earnings at a date certain in the lifetime of the assured, we have only a contract
We conclude that the record discloses no error of the trial court in adjudging liability upon the garnishee.
By the Court. — Judgment affirmed.
