100 Tenn. 295 | Tenn. | 1898
In 1869, M. Burns, Sr., took out two policies of insurance on his own life, of the respective amounts of $10,000 and $5,000. In the
This question seems first to have been considered by the Supreme Court of Connecticut in the case of the Continental Life Ins. Co. v. Palmer et als., 42 Conn., 60, upon a policy similar in its provisions to those issued to Mr. Burns, and in a controversy between the representative of a child which predeceased its mother and children who survived both the mother and father. That court, in an able and exhaustive opinion, held that each child, upon the delivery of the policy, took a transmissible interest in it, and that, the mother having died before the father,
This rule, thus announced, and enforced with so much vigor of statement, has been adopted, either upon the authority of that case or else upon considerations of a similar character,- in Estate of Conrad, 89 Ia., 396; Suggs v. Hooker, 102 N. C., 115; Cunningham v. Smith, 79 N. C., 303.
On the other hand, the Supreme Court of New York rejects this view, and applies the class doctrine to .such policies, so that, under the rule there recognized, only such children take as are alive at the death of the insured. U. S. Trust Co. v. Mut. Ben. Life Ins. Co., 115 N. Y., 152; Walsh v. M. L. Ins. Co., 133 N. Y., 408. In this latter case, the Justices of the general term, in distributing the proceeds of such a policy, had applied the Connecticut rule, but, on appeal, their judgment was reversed, and the “class doctrine” was adhered to, evidently on the ground of stare decisis. In delivering the opinion of the Supreme Court, we think Justice Gray, in reply to a strong argument at the bar against the application of this doctrine to such a contract, clearly indicates the Court’s dissatisfaction with it in the following words: “If we were at liberty to treat this question at first hand, and as altogether an original one in this Court, I should say that the arguments to sustain the judgment of the general term are cogent and not easily over
The Supreme Court of Alabama, in Continental L. Ins. Co. v. Webb, 54 Ala., 688, coincides with New York in the application of * the class doctrine to such a policy, but both Courts agree that on the delivery of the policy the children then alive have a contingent interest in it, yet they also agree in holding it nontransmissible.
We think the view of the Supreme Court of Connecticut is supported by the better reason-, as well as the weight of authority. Eor when it is conceded that the then living children have such an interest, this is necessarily a property right, though subject to be defeated or destroyed by the contingency of the mother (the assured) outliving, the father (the insured); in other words, by a condition subsequent. If property, it was none the less alienable, however much its value was affected, because contingent, and, if alienable, certainly it was transmissible.
That such an interest is the subject of disposition as other property, we think is well established. “For a long time,” says Mr. Washburn, “a contingent remainder was not supposed to be the subject of alienation, because it was rather a possibility
Mr. Jarman, in his work on Wills, Vol. II., p. 479, says: “If the gift is to children who shall live to attain a certain age, or shall survive a given period or a certain event, the death of any child pending the contingency, has, obviously, the effect of striking the name of such deceased child out of the class of presumptive objects, and, consequently, such an interest cannot devolve to representatives, as it becomes vested and transmissible at the same instant of time. Where, however, the contingency on which the vesting depends is a collateral event, irrespective of attainment to a given age and surviving a given period, the death of any child pending the contingency works no exclusion, but simply lets in the legatee’s representatives for himself. Thus, where a testator bequeaths his personal estate to A, and if he shall die without having issue, then over to B: in the event of B surviving the testator, and after-wards dying in the lifetime of A, testate or intestate, his contingent or executory interest will devolve
The Court, in Continental Life Ins. Co. v. Palmer, supra, gives a condensed statement of the case of Winslow v. Goodwin, 7 Met., 363, involving the question of the transmissibility of a contingent interest, as follows: “The testator gave an estate, real and personal, in trust', for the sole and separate use of a married daughter, and, at the death of her husband, it was to be conveyed to her and her heirs. The will further provided that if she died in the lifetime of her husband, the trustee should hold it in trust for her children until they, respectively, became of age, when it was to be conveyed to them. There were nine children, all of whom were born in the lifetime of the testator. The daughter died, her husband surviving her. Two of her children died before she died, and one afterwards, all of whom died without issue. It was held that the deceased had an interest in both the real and personal estate, ' which was transmitted to their heirs.” The Court, then, and properly, adds: “That is a strong case, and is authority for holding that the children, in the present case, had an interest in the policy from its inception, which was transmissible to heirs. ”
The alienability of contingent interests was also recognized by the Court, in Read v. Mosby, 87 Tenn., 759. “There are' future estates,” said this Court, 41 which are contingent, in which the interest
We are satisfied to adopt the rule as announced by the Supreme Court of Connecticut, not only because we. regard it as sustained “by the weight of authority” (see editorial note to Estate of Conrad, supra (S. C., 48 Am. St. Rep., 396), but because, in this case, as well as in all similar cases, it produces results which may be reasonably assumed to have been within the contemplation of the parent who secures and carries the policies of life insurance.
In the present case no reason has been, and we think none can be, assigned why Mr. Burns, the father, in taking out the policies and making in them a contingent provision for his children, would have desired or intended to devolve their proceeds upon his surviving children, to the exclusion of the distributees of others. of that class who might die before the contingency occurred. It is a natural presumption, growing out of the relation of the parties, and strengthened by equitable considerations, that he assumed, in the event of such an emergency, the statute of distributions would be resorted to for the protection of the interest of those who stood in the room and stead of the, dead child or children.