36 A. 981 | N.H. | 1891
"When a policy of insurance is effected by any person on his own life or the life of another, expressed to be for the benefit of a third person . . ., the party for whose benefit such policy is so expressed to be made shall be entitled to the sum so insured, against the claims of the creditors or representatives of the party effecting the same." Gen. Laws, c. 175, s. 2. The facts as reported in the case show that the insurance was effected by Mrs. Lawrence on her own life for the benefit of the defendant, upon an unbounded and well grounded faith that the defendant would make an equitable disposition of the proceeds. It is also consistent with the findings of the case that the defendant may have been present with Mrs. Lawrence when the policy *119
was issued. If not, he was immediately informed of it, and adopted her act in procuring the insurance and making him the principal beneficiary in the policy. The transaction in a legal aspect does not differ from what it would have been if he had himself procured the insurance with Mrs. Lawrence's assent. The statute referred to relates to legal insurance, and was not intended to give validity to contracts that are void as wagers, and contrary to common-law principle. This policy, payable to the defendant, who had no interest in the life of Mrs. Lawrence, but who would have acquired, if the contract was legal, an interest in her immediate death, was an illegal contract. And it is settled in such a case, when the insurance has been paid according to its terms, that the residue remaining after an equitable adjustment may be recovered by the administrator of the estate of the person insured. Warnock v. Davis,
When an administrator of Mrs. Lawrence's estate is appointed, he may be made the plaintiff by an amendment of the bill; and when the bill is further amended, if necessary, by adding a count in assumpsit for money had and received, there will be judgment for the plaintiff for the balance remaining in the defendant's hands, after an equitable adjustment of his payments, including expenses and what he paid Mrs. Lawrence's daughter.
Case discharged.
SMITH, J., did not sit: the others concurred.