50 Wis. 603 | Wis. | 1880
It was held in Clark v. Durand, 12 Wis., 223, and again in Kerman v. Howard, 23 Wis., 108, that a person who procures a policy of insurance on his own life for the benefit of another, and pays the premiums thereon, may dispose of it, by will or otherwise, to the exclusion of the beneficiary named in the policy. The opposite doctrine was held in a very late case in Minnesota (Ricker v. Charter Oak Life Ins. Co.,
Did Walter II. Ballou dispose of the policy, or the proceeds thereof, after the policy was issued? If he did so, it was effected by the drawing up and signing of the two papers found with the policy and -with his other papers after his death. Neither of these papers- was delivered to Paige, the assignee named in one of them, nor to any other person to be delivered to Paige or to the person who might thereafter be appointed administrator of the estate of the insured. Neither of them was executed with the legal formalities essential to their validity as bequests. They never saw the light until the author of them was dead. The most that can be said of them is, they tend to show that Walter H. Ballou at one time contemplated making the disposition of the proceeds of the policy indicated in the writings, but that he never executed his purpose in that behalf. We think it very clear that no claim by the administrator of his estate to such proceeds can be predicated upon those writings. The only remaining question to be determined is: Did the death of the beneficiaries, their father surviving them, of itself abrogate the stipulation making the insurance money payable as therein prescribed? If such was the legal effect of the death of the beneficiaries, undoubtedly the proceeds of the policy are a part of the estate of Walter H. Ballou, and should be awarded to his administrator, the appellant. The solution of this question requires a consideration of the relations of the beneficiaries to the policy, and their interest (if they have any) in it.
In the Minnesota case, above cited, it was held that the taking of the policy payable to the beneficiaries was an irrevocable and executed voluntary settlement upon the beneficiaries, and that the latter had an absolute vested interest in the proceeds of the policy, which could only be divested with
To hold on-the one hand that the transaction amounts to an executed voluntary settlement, and is therefore irrevocable, or, on the other, that it vests no interest whatever in the beneficiary, would lead in many cases to great embarrassments and hardships, the danger of which will in a great measure be removed by adopting the middle ground above suggested. Moreover, that ground is in entire harmony with the judgments in our own cases above cited, and we believe accords best with the analogies of the law.
To prevent the lapse of a legacy when the legatee dies before the testator, it is requisite ■ — -first, that the testator declare his intention that the legacy shall not lapse; and second, that he point out to whom it shall be paid if the legatee die first. The last requirement is fulfilled if the bequest is to the legatee, and his executors or administrators. 2 Redf. on Wills, 165, ch. 1, § 8, pi. 7, and cases cited in notes.
Manifestly, the effect of the testator’s declaration that the legacy shall not lapse is to make the will operative at his death, by relation as of the time when it was made. This, by
The judgment of the circuit court must therefore be affirmed.
In this case the father, Walter II. Ballou, procured an insurance upon his life, payable on his death to his two minor sons, John A. and Walter A., “ their guardians, executors, administrators or assigns.” The two sons died, leaving their father and mother them surviving. Afterwards the father died, leaving his widow, the mother of the sons, him surviving. An administrator was appointed for the estate of the father, and also an administrator for the estates of the sons, and both administrators are here claiming the insurance money. Which has the legal right to it? Was the policy the property of the sons at the time of their death, or did it remain the property of the father until-his death, or did one have the absolute and the other the contingent interest, and, if so, which had the absolute and which the contingent interest? If the sons had an interest in the policy, when, if ever, did it
In Continental Life Ins. Co. v. Palmer, 42 Conn., 60, “a wife insured the life of her husband, the amount payable to herself, if living, if not, to their children. She died before her husband, and one of the children died before him, leaving ■a child. LLeld, that a transmissible interest vested in the children upon the issuing of the policy, and that the child of the deceased child took by descent the interest of its parent, and was entitled to the portion of the fund which the parent
In Libby v. Libby, 37 Me., 359, it was held that “ where the husband effects an insurance on his life for the sole and separate use and benefit of his wife, if she dies before her husband, the property in the contract of insurance becomes vested in her heirs.” In Hutson v. Merrifield, 51 Ind., 24, the facts were similar, and the court held “ that the wife had such an interest in and ownership of the policy, and such a right to the proceeds, as would, on her death, descend to her heirs, though her husband survive her.” To' the same effect are Swan v. Snow, 11 Allen, 224; Lockwood v. Bishop, 51 How. Pr., 221; Eadie v. Slimmon, 26 N. Y., 9; Fowler v. Butterly, 78 N. Y., 68; Myers v. Ins. Co., 27 Pa. St., 268; Price v. Ins. Co., 17 Minn., 497; May on -Ins., § 392. Mr. Bliss says: “If the policy, when issued, expressly designates a person as entitled to receive the insurance money, such designation is conclusive, unless some question arises as to the rights of the creditors of the person who paid the premium and procured the insurance.” Section 316. “"We apprehend the general rule to be that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his or hers, by deed or by will, to transfer to any other person the interest of the person named.” Section 317.
If these authorities are sound, then the judgment in this case should be affirmed. They seem to be logical They imply regular succession. They involve no break in the title. In them there is no absence of ownership during life, nor acquisition of it after death. They give no new meaning to the word “ administrator,” but recognize him as a trustee appointed by law to represent interests acquired by the death of the intestate. It is insisted, however, that these authorities are in
I concur in the conclusion of the majority of the court that this judgment should he affirmed.
If the case of Kerman v. Howard, 23 Wis., 108, is not to be followed, then I agree with Justice Oassoday that the respondent can recover the money due upon the policy, as administrator of the estate of the deceased children, only upon the theory that the right to the money to become due upon such policy was vested in them at the time of their decease.
By the Court.— Judgment affirmed.