278 Mass. 238 | Mass. | 1932
The defendant’s husband at his death was president, treasurer, general manager and majority stockholder of Phoenix Bond & Mortgage Company, a corporation engaged in the business of a broker. He died December 14, 1930. He took out policies of fife insurance in 1912, 1918, 1923, 1926, and 1929, of which she was the beneficiary. In the course of 1929 and 1930 he caused the corporation to pay premiums upon these policies in a total sum of $2,599.05. Since his death the defendant has received from the insurance companies $68,469.08 upon the policies. From September, 1929, to and including July, 1930, the husband caused the corporation to pay in each month except June $210, and in October, 1930, $60, in all $2,160, for notes given by him in payment for an automobile, title to which was taken by the defendant, in whose
The plaintiff is the trustee in bankruptcy of the corporation. He brings this amended bill alleging the foregoing in greater detail; and, in addition, stating that these payments were in fraud of the creditors of the corporation, that the corporation at the instance of the husband paid the insurance premiums “in order that the . . . [policies] might be continued in effect for their full face value at the death of the insured, and did thereby effect the said policies in the amounts by which their full face value exceeded their then paid up or cash surrender value, which said amounts are greater than the amount of the premiums so paid”; and, further, that he is informed and believes that the husband’s estate is insolvent and the respondent has not sufficient assets to meet the plaintiff’s claim save for the proceeds of the insurance policies; that he has no information in what form or in what institution her funds are kept or on deposit and so is unable to attach them in an action at law and is without adequate remedy at law.
The case is before us upon the plaintiff’s appeals from an interlocutory decree sustaining a demurrer, and from a final decree dismissing the bill.
The demurrer was sustained properly. G. L. c. 175, § 125, as amended by St. 1928, c. 176, § 1, provides that “If a policy of life or endowment insurance is effected by any person on his own life or on another life, in favor of a person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds against the creditors and representatives of the person effecting the same, whether or not the right to change the named beneficiary is reserved by or permitted to such person; provided, that, subject to the statute of limitations, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall enure to
The reason commonly given for the proviso is the propriety of allowing his creditors to obtain the amounts by which the insolvent has depleted his estate in order to secure the insurance, his gift to those who naturally look to him for support. Bailey v. Wood, 202 Mass. 549, 551. Here the proceeds of the policies are sought not for the benefit of the creditors of the husband but for that of the creditors of the corporation. The personal representative of the husband is not made a party. The corporation in making the payment, unless it is treated as the agent of the husband spending money for which he was accountable to it, is in the position of a volunteer who pays premiums for insurance. Such a volunteer has no valid claim for reimbursement and no lien on the policy. Gifford v. Gifford, 93 N. J. Eq. 299. Bartlett v. Goodrich, 153 N. Y. 421. So far as the bill sought to reach the proceeds of the policies it was demurrable.
The plaintiff has a plain, adequate and complete remedy at law to recover the $1,900 paid without consideration and received by the defendant; and also for the amounts paid upon the notes given in payment by the husband for the automobile. Ordinarily a bill in equity cannot be maintained to obtain precisely what the plaintiff can secure by action at law. The constitutional right to trial by jury might be infringed otherwise. Jones v. Newhall, 115 Mass. 244. Maguire v. Reough, 238 Mass. 98. Morse v. International Trust Co. 259 Mass. 295. Where, however,
The plaintiff’s lack of knowledge in regard to the whereabouts of the defendant’s property or of her bank account is not a good ground for jurisdiction in equity. No fraudulent concealment by her is alleged such that equitable replevin can be maintained.
It follows that the demurrer was sustained properly and the interlocutory decree must be affirmed. As no amendment was offered, the final decree also was right; but, in view of the decision with reference to certain of the claims, we think it should be modified by a declaration that it is without prejudice to such right as the plaintiff may have to recover the sums paid on the automobile notes and to the defendant, and, as so modified, that it be affirmed.
Ordered accordingly.