93 Ga. 752 | Ga. | 1894
Charles C. Hardwick, in his lifetime, took out a policy •of insurance payable to his “heirs or assigns.” The contest in the present case was between his creditors and his heirs at law, who were his sister, two nieces and a nephew (he never having had a wife or child), •over the fund derived from this policy, which had been paid over by the company to Hardwick’s administrator. The policy was issued in 1869; the debts due the contesting creditors were made in 1890. Hardwick had never assigned the policy, and died insolvent. There was no evidence that he was insolvent when the policy was taken out, nor that any of the premiums upon it were paid when he was insolvent, nor that any of the present claims against his estate were in existence at any time when any premium was paid. The judge, upon the above state of facts, rightly decreed that the heirs were entitled to the proceeds of the policy in the administrator’s hands.
What is the meaning of the words “ heirs ” as used in this policy? Under our statute of distributions, which is the same as the statute of descent or inheritance when the decedent leaves no widow, this word certainly means “the next of kin.” Code, §§2484, 2570. As the assured was unmarried and childless, he doubtless intended to provide for those who would, at the time of his death, he entitled to his estate as his legal distributees, unless,
It was strenuously insisted for the creditors that the true construction of the words “ heirs or assigns,” as used in this policy, would make it mean that the policy was payable to the legal representatives or to the estate of the deceased, and that therefore its proceeds were assets for the payment of his debts in the due course of administration. "We confess that the question is not altogether free from doubt, but we have given the instrument that construction which, in our judgment, best accords with the real intention and purpose of the assured. Men much more rarely take life insurance for the benefit of creditors • than for the benefit of those to whom they are related by ties of blood or afl'ection. In support of the creditors’ contention, the case of Rawson & Co. v. Jones, 52 Ga. 458, was relied upon. There the policy taken out by Jones was payable to “ his heirs, executors, administrators or assigns.” He had no wife or child, never having been married. This court held that this policy was payable to the legal representative of Jones, and therefore was legal assets in his hands for the payment of debts and for distribution. Judge Trippe stated that the introduction of the word “ heirs ” did not affect the construction, and added: “ The terms ‘heirs, executors and administrators’ are not words that are used where those who are next of kin are intended to have a right given them- directly by the instrument — for instance, as purchasers ; but are the terms usually employed to signify that if they take at all, it is not directly, but through an administration.” The use of the words “ executors and administrators” manifested a clear intention on the part of the assured to vest the proceeds of the policy in his legal representatives, and the mere fact that the word “ heirs ” was used
We think the present case is different from the one just cited. Here, there were no words manifesting a positive intention that the proceeds of the policy should become a part of the estate of the assured. If the word “ assigns ” had not been used, but only the word “ heirs,” there could be no doubt the next of kin would be entitled to its proceeds. The effect of inserting the word “ assigns ” was not to make the assured the owner of the proceeds, but merely amounted to a reservation to him of the power to appoint who should take. With this word in the policy, the assured could have cut off' those who were to become his heirs at law, by appointing others in their place while he yet lived. As he did not do this, their rights under the policy as purchasers remained intact and complete.
We are aware there are decisions contrary to the conclusion we have reached in this case, but we are nevertheless satisfied with the correctness of our judgment, and will mention a few authorities, which, to some extent, sustain it. The case of Mullins v. Thompson, 51 Tex. 7, in which it was held that a policy payable to the “ heirs or assigns ” of the assured was assignable by him, but not having been assigned, the heirs were entitled to its proceeds on the death of the assured, is very much in point. In Pace v. Pace, 19 Fla. 438, the words “for the benefit of the estate of the insured ” were, by the aid of extrinsic evidence, construed to mean that the policy was for the benefit of a minor child, and that its proceeds did not go to the administrator of the assured. The Supreme Court of Missouri, in Loos v. Hancock Mutual
The fact that the money was paid by the insurance company to the administrator, while it may tend to show' that, in the opinion of the managers of the insurance company, he was the proper person to receive it, will
Judgment affirmed.