107 Cal. 373 | Cal. | 1895
The plaintiff is the son of Solomon Heydenfeldt, deceased. The said deceased, in his lifetime, procured a policy of insurance upon his life from the Brooklyn Insurance Company of New York for ten thousand dollars, payable to “ Catherine, wife of Solomon Heydenfeldt, or any wife that may survive him, and minor children living at the time of his death.” Said Catherine having died during the lifetime of the
If the views of the court below were correct as to the legal merits of the case, then the judgment upon the pleadings was right; for proof of the averments in the answer would have been immaterial, and the denials were merely of matters of law. And we think the views of the court were correct.
There is no denial in the answer that respondent was a minor child of the deceased at the death of the latter; but it is contended that the averment on that subject in the complaint is insufficient. The averment is that at the time of the death of the deceased there were “ seven minor children, to wit, plaintiff above named, Frederick O. Heydenfeldt, then of the age of about twenty years and ten months,” and six others who are named. It is not necessary to consider how the words “ about twenty years and ten months” should be construed if they stood alone; for, as they are immediately preceded by the statement that plaintiff was a minor, the whole clause is clearly sufficient as an averment of his minority.
The deceased had children by both wives, and it is contended that the policy run to the surviving widow and her minor children. But we think that the true construction of the language (above quoted) clearly is that the policy was payable to his present wife, Cather
The contention that the amount of the policy should go one-third to the widow and two-thirds to the seven children, according to the statute of succession, cannot be maintained. The fund was not a part of the assets of the estate of the deceased, and the law of descents and distributions has no applicability to the case. The persons named in the policy take per capita. (Felix v. Grand Lodge A. O. U. W., 31 Kan. 81; 47 Am. Rep. 479; Campbell v. Wiggins, Rice Eq. 10.)
The appellants were sued personally and not as executors. The unnecessary statement in the complaint of the fact that when they collected the policy they were acting as executors is of no consequence. The policy was no part of the assets of the estate, and appellants had no right as executors to collect; and, if liable at all, they are liable personally, as they -were sued, and not as executors. And having wrongfully come into possession of the amount of the policy—whether by mistake or otherwise—they became trustees “ of the thing gained for the benefit of the person who would otherwise have had it.” (Civ. Code, secs. 2223, 2224.) Whether or not the respondent could have maintained an action for his share of the policy against the insurance company is a question not here involved.
The point for a reversal, most insisted on by appellants, is based on an alleged estoppel. It is averred in the answer that the amount of said policy was treated by appellants as part of the assets of the estate of said Solomon Heydenfeldt, deceased; that they so reported, inventoried, and accounted for it; and that there was a final distribution of all of the estate, which included the amount of said policy, under the last will of said deceased, to the said Elisabeth, widow as aforesaid, and to her assignee, Crittenden. It is further averred that since July 21, 1891, the respondent liacl notice and knowledge that the proceeds of the said policy were in-
The judgment is affirmed.
Henshaw, J., and Temple, J., concurred.