| Ala. | Dec 15, 1881
The present record presents but a single question, which arises on the construction of the endowment policy taken out on the life of Hiram W. Yan Hagen, and copied in the record. The sum due on that policy became payable when the said Pliram W. became forty-five years of age — in the spring of 1881. • The policy is so framed, that the sum assured was to be paid at his death, or when he reached the age of forty-five, which ever should first happen. He was living when he became forty-five years of age, and, so far as we are informed, is still living. This suit was commenced in 1879, about two yéars before the maturity of the policy, and its object was and is, to subject the fund assured to the payment of Hiram W. Yan Hagen’s debt. The suit was not brought to trial until Yan Hagen became forty-five years of age. For appellant it is contended, that when he reached that age, the money was payable to Hiram W. and Recame his property. Appellee is the daughter of the said Hiram W., and she claims the money as her property. • It is admitted as a fact, that when the policy was taken out — in 1869 — Adele F., the claimant, was only three or four years old, and that all payments of premiums were made by Hiram W., the father, until this suit was brought in 1879. The payment of the two premiums afterwards made, were by Adeíe F., the daughter, through her attorney. The record does not show whether Adele F. had, or had not an estate, or means with which to pay the premiums. No question is raised as to the bona fióles of the transaction, and the inquiry is, who under the policy, and under the facts of this case, is entitled to the money, the father or the daughter. In answering this question, we must endeavor to get at the intention of the parties as expressed in the written policy. The policy recites the amount of annual premium to be paid, and when paid; recites that the advance premium was paid, and the subsequent premium to be paid, by Adele F. Yan Hagen, and then stipulates that the Gold Life Insurance Company of Mobile “ do assure the life of Hiram W. Yan Hagen, of Mobile, in the county of Mobile
Counsel on each side of this controversy confess they have been unable to find any adjudged case precisely like the present. In a small publication, entitled “ Law of Assignments of Life Policies,” by Hiñe & Nichols, published in 1881, on page 114, is the following language: “In Tenness v. N. W. Mut. Life Ins. Co., 9 Ins. Law Journal, 191, the insurance was on the life of the husband, ‘ for the sole use and benefit ’ of the wife, ‘ for the term of ten years,’ and the company promised to pay the amount to the person whose life was insured or assigns in ten years, or, in case of his previous death, to pay the beneficiary or assigns. It was held by the Supreme Court of Wisconsin, in 1819, that so far as the life insurance part of the contract was concerned, it was an insurance of the husband for his own benefit, but, in case of his previous death, the wife would be entitled to the endowment. The husband surviving the term, she had no claim on the fund.” We have carefully examined the Wisconsin reports, extending over a period of six years, and including the year 1881, and find no mention made of the case referred to above. That case, if correctly reported, is somewhat different from this, in the collocation of the clauses of the policy. So this case comes at last to the inquiry, what is the proper interpretation of the policy ? What did the parties intend, as shown by the language employed ? The Circuit Court, after much deliberation, reached the conclusion, that the claimant, the daughter, was entitled to the money.
We feel constained to differ with the Circuit Court. By the very terms of the policy, the payment of the money to the daughter was made contingent on notice and proof of the death of said Hiram W. Van Hagen. Being in life, and reaching
Neversed and remanded.