99 Mass. 154 | Mass. | 1868
The rights of the parties are regulated by the statute law of Massachusetts. It is unnecessary therefore to consider whether, by the general principles of equity jurisprudence, the policy of insurance on the life of Alonzo P. Gould, for the benefit of his wife and children, would have constituted an executed voluntary settlement which he could not have revoked by a subsequent like settlement or by will, and which could have been enforced against his representatives. See Fortescue v. Barnett, 3 Myl. & K. 36; Lewin on Trusts, (3d ed.) 86-92; Stone v. Hackett, 12 Gray, 227.
The Gen. Sts. c. 58, § 62, in accordance with which this policy was issued, provide that “ a policy of insurance on the life of any person, expressed to be for the benefit of any married woman whether procured by herself, her husband, or any other person shall enure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effecting the same or his creditors.” This is but a reenactment of a provision which has been incorporated for many years in the legislation of the Commonwealth. Sts. 1844, c. 82, § 1; 1854, c. 453, § 28; 1856, c. 252, § 42. See also St. 1864, c. 197. It proceeds upon the theory that the interest of a man’s wife and children in his life, and ms duty to make reasonable pro
There does not appear to have been any such statute in those states in which the decisions were made upon which the defendant relies. None is referred to in Pennington v. Gittings, 2 Gill & Johns. 208. The statute of Tennessee, under which Rison v. Wilkerson, 3 Sneed, 565, arose, only provided that an insurance effected upon a man’s life should enure to the benefit of his widow and heirs, and not be subject to his debts; and did not insert the words of our statute, “ independently of her husband,” and of “ the person effecting the same.” The policy also, in that case, was in common form, without any special stipulation ; and the court, in speaking of the argument that it operated as a settlement upon the widow and children of the de ceased, which could not be diverted from their use and benefit by any act either of the husband or his creditors, said : “ It would be more difficult to meet this argument, if indeed it could be successfully met at all, if the policy had expressly provided that in the event of death the sum secured should be paid to the widow and children.”
The policy upon the life of Alonzo P. Gould is expressly made payable, upon his death, “ for the benefit of his widow, if any, and his then surviving child or children.” The rights of the
The contract of the insurance company having been made with the assured, his executors, administrators and assigns, the defendant, as his administrator, might by law collect the amount of the policy. Burroughs v. State Assurance Co. 97 Mass. 359. But it was not general assets in his hands, liable to the payment of debts, or to distribution under the will of the deceased or the law of his domicil. The defendant held it in trust, to be paid over to the widow and child of the deceased in equal parts. The plaintiff does not claim as a creditor, legatee or distributee, but as cestui que trust of money in regard to which the trustee has no duty but immediate payment. The plaintiff may therefore, upon familiar principles, recover the amount due to her, as money had and received to her use. Arms v. Ashley, 4 Pick. 71. Wheelock v. Pierce, 6 Cush. 288. Carney v. Dewing, 10 Cush. 498. The defendant is entitled to deduct, out of the money collected, his expenses of collection, which may include the expenses of taking out administration here, if this was the only estate of the deceased in this Commonwealth.
Judgment for the plaintiff.
