McElwee v. New York Life Ins.

47 F. 798 | U.S. Circuit Court for the District of Eastern Missouri | 1891

Thayer, J.

After an attentive consideration of this case I have concluded that plaintiff is not entitled to recover. By the terms of the policy the company agreed “to pay the sum of the insurance * * * to the children of the insured, [that is, to the children of Mrs. Vail,] share and share alike, or their executors, administrators,- or assigns,” and there ivas no change made or attempted in the phraseology of the promise during the life-time of the insured. The policy was obviously intended as a provision for such children as might be horn of the marriage between Mr. and Mrs. Vail, and for no one else. The promise was to pay to the children; they were the beneficiaries. If Mrs. Vail had contemplated the possibility of death before she had given birth to any children, some provision would probably have been inserted in the policy touching the disposition of the insurance money in that event. What such provision would have been it is impossible to say, and it is useless to indulge in speculation on that subject, as the court is powerless to make a contract for the parties covering that contingency. It can only enforce such a contract as the parties have themselves made. Some stress is laid on the fact that, according to the rule which prevails in some states, Mrs. Vail retained the power, so long as she held the policy, to change the beneficiaries with the consent of the insurer. Kerman v. Howard, 23 Wis. 108; Gambs v. Insurance Co., 50 Mo. 47. It is claimed that because she retained such power, her administrator may recover on the policy. I am unable to assent to that proposition. Even if she had a right to change the beneficiary, it was a mere power, to be exercised with the company’s consent, and, as the agreed case shows, she never exercised it, or attempted to do so. The existence of such power, eyen if its existence he conceded, is not sufficient to make the policy a part of her estate, or authorize her administrator to sue thereon. Furthermore, it is said that by taking out the policy for the benefit of her children Mrs. Vail constituted the defendant company a trustee for her children, and, the trust having failed because she died childless, that the fund in the trustee’s hands inures to the benefit of her estate, in the same manner that a fund left in trust for a given purpose will inure to the benefit of the donor or his heirs, if for any reason the trust cannot be executed. It is sufficient to say of this contention that, if the principle invoked has any application to the case at bar, it is only applicable to the premiums actually paid up to the time of Mrs. Vail’s death, and the interest accumulated thereon; and the remedy is in equity. Mrs. Vail did not place $5,000 in the hands of the defendant company to be held for the benefit of or in trust for her children. She contracted to pay $89.60 quarterly, and up to the time of her death had paid only two quarterly installments. The contract was entered into with the expectation that Mrs. Vail would live many years, and that the premiums paid in the mean time, with accumulated interest, would equal the face of the policy at the end of her expectancy. Under the circumstances, it cannot be maintained, even on the trust theory above outlined, that the defendant is liable to the plaintiff in the sum of $5,000, or in any other sum, in a strictly legal proceeding. I feel satisfied that judgment should be entered for the defendant, and it is so ordered.