96 Ky. 326 | Ky. Ct. App. | 1894
delivered the opinion of the court.
On the 28th day of August, 1891, L. L. LaRue made an assignment to C. F. Syrgley for the benefit of his creditors, reserving homestead and personal exemptions. The property assigned consisted of twelve or fifteen pieces of land, upon some of which there were liens, and but little personalty. It appears that his liabilities amounted to about twenty-five thousand dollars, and that his assets will realize less than five thousand dollars. At the date of the assignment he held two policies of insurance on his life for five thousand dollars each — one in the Equitable Life Insurance Society of New York, the other in the Mutual Insurance Company of Kentucky, numbered 17,371. It is alleged in the j)etition that the premiums upon these two policies were paid and kept paid by the assignor up to the date of the assignment. There is nothing showing when the policies issued, except it appears from the will of the assignor that the latter policy bore date February 2, 1891. The deed of assignment is general in its nature, and after giving a schedule of the real and personal property assigned it provides: “It is understood, if I have omitted tonaure any property, accounts or claims not herein mentioned in this deed, the same is hereby assigned and transferred to my said assignee for the purposes aforesaid.”
It is also alleged that on the — day of September, 1891, the assignor assigned the policy in the Equitable Life Insurance Society of New York to two of his-creditors, O. M. Barbour and William Dougherty, and the policy in the Mutual Life Insurance Company to H. A. Hays, J. R. Hays and Jediah Hays.
On the - day of February, 1892, the assignor-died in Larue county, Kentucky, testate, leaving a widow and • two children, one of them being a minor, the oldest, H. D. LaRue, being made his executor under the will. He declined to qualify, and at the March term, 1892, of the Larue County Court, C. D. Miller was appointed administrator, with the will annexed of said decedent’s estate. On the 8th day of March, 1892, the assignee brought suit in the Larne Circuit Court against the creditors, widow, children and administrator of said decedent to settle his estate under the deed of assignment. He alleges that the assignor failed to deliver to him said two policies of insurance; that he was entitled thereto under the deed of assignment for the benefit of the creditors; that the defendants, the three Hayses, had collected the-five thousand dollars due on the policy assigned to>
The case of J. M. Young v. L. L. LaRue’s administrator, &g., was submitted on appeal to be heard with this case, because, virtually, the same questions
The allegations of the pleadings are such as to indicate that the assignor knew of his insolvent condition for a long time previous to the execution of the deed of assignment. It does not appear from the pleadings that either of the creditors to whom he subsequently assigned the policies of insurance were named as beneficiaries therein, or that they had paid any portion of the premiums thereon, or that there was any reason for their preferment over the other creditors. If it should appear from the facts in the case on issue joined and trial had, that the allegations of the petition and amended petition are true, it is unquestionable from the language used in the deed of assignment that the policies of insurance passed to the assignee for the benefit of the assignor’s creditors generally, and having once been assigned, a subsequent assignment thereof by the assignor was void. It is the duty of the assignee to sue for and recover assets belonging to the estate assigned, and he is responsible for any laches on his part in not doing so. The death of the assignor within so short a time after he made his general deed of assignment made these policies of insurance valuable assets, while, if he had continued to live, they might have been valueless and worthless.
Under the general assignment laws of this State, it is provided in section 75 of the Kentucky Statutes: That the intent of the assignor in making the assignment, whether appearing upon the face of the deed or otherwise, shall not invalidate the deed, unless he be solvent and it appear that the assignment was made to hinder or delay creditors.” So that whether policies of insurance are intended to pass under such deeds or not will be a question of fact to be determined from the language of the deed and the intention of the assignor in the purposes of their procurement.
In support of this opinion, reference is made to section 391 of May on Insurance, 3d ed. ; Rhode Island National Bank v. Chase and others, 16 R. I., 37; Burton, Adm’r, v. Farinholt and others, 86 N. C., 260; Day v. New England Life Insurance Co., 111 Pa., 507; Hurlbut v. Hurlbut, 49 Hun., 189 ; Appeal of Elliott’s Ex’rs, 50 Pa. St., 75.
The judgment of the lower court in each case is reversed, and cause is remanded for proceedings consistent with this opinion.