45 So. 19 | Miss. | 1907
delivered tbe opinion of tbe court.
Under tbe laws of the insuring oi’der, but for tbe fact tbat Mrs. O’Eeily was tbe beir of ber deceased husband, the insurance money would have belonged to the order and been payable to nobody. She was sole heir. If there bad been three heirs, each would have been entitled to one-third as beir and not otherwise. She, being sole heir, took all as heir, and not otherwise. It is as if tbe policy bad been payable generally to the “heirs of John E. M. O’Eeily” without naming them. No one is beir to the living. Her rights began then, after his death, and not by any vested right or contract. The money came by' descent to ber under tbe law and she could have claimed it only in tbe capacity of beir. The cases of Osborn v. Sims, 62 Miss., 429, and Gordon v. James, 86 Miss., 719, 39 South., 18, 1 L. R. A. (N. S.), 46, do not apply. They refer to beneficiaries named in the policies.
It follows that tbis insurance money was not a part of Mrs. O’Eeily-’s separate estate “at tbe time of tbe death of ber bus-band,” under Code 1892, § 4499, which governs in this case.
Reversed and remanded.