Taylor v. Hill, 86 Wis. 99

86 Wis. 99 | Wis. | 1893

Winslow, J.

The appellant’s contentions are, in brief: First, that Mrs. Paine was the sole owner of the moneys realized from the insurance policy, because (a) under the law as it existed in 1860, and the charter of the insurance company, neither Mrs. Paine nor the company had power to enter into a contract of insurance for the immediate benefit of the respondents, and (b) even if such power existed, the true construction of the policy is that the loss is payable to Mrs. Paine alone if she survives her husband, and to the children only in case her death precedes his; second, that in any event the children are entitled to a moiety only of the fund; third, that Mrs. Paine, in whose hands the whole fund went, should be compelled to charge the plaintiffs with their support, and such sums should be •credited to the guardian in his accounting; and, fourth, that plaintiffs have been guilty of laches which should prevent their recovering anything.

I. An elaborate and able argument was made by appellant •upon the proposition that neither the company nor Mrs. Paine (she having no separate estate) had power to enter into a contract of insurance on the life of Mr. Paine, payable directly to their children. It was argued that a married woman without separate estate had not that power under the laws existing in 1860, and that the charter distinctly negatives the power of the company to issue such a policy. The company was chartered by ch. 129, P. & L. Laws of 1857. Sec. 2 of that act provides that the corporation “ shall have no powers or privileges except such as are expressly granted by this charter.” Sec. 3 provides that the corporation “ shall have the power to insure the lives of its respective members, and to make all and every insurance appertaining to or connected with life risks,- and .to grant and purchase annuities.” Sec. 17 provides as follows : “ It shall be lawful for any married woman by herself and in her name ... to cause to be insured the life of her husband for any definite period or for the term of his natural life; and in case of her surviving her husband the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her, to and for her own use-. ... In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable after death to her children? for their use, and to their guardian if under age.”

Under these sections it was argued that the only policy which the company was authorized to issue to a married woman was a policy payable to her alone in case she survived her husband, and to her children only in case of her death before that of her husband. The question is interesting, but we do not consider that it arises for decision in the present case. A very similar question was discussed in the case of Hurd v. Doty, conte, p. 1. In that case Mr. Justice Cassoday said in the opinion: “ Even assuming that such company might have resisted such payment, yet we are clearly of the opinion that in voluntarily making the payment the company violated no statute nor any principle of the common law or of good morals.” This applies with equal force to the present case. The company issued a policy payable to the wife and children. They voluntarily paid the money due thereon to the widow and the guardian of the children. The transaction, so far as the company is concerned, was closed. The company could recover back. none of the money paid. They waived the defense of ultra vires, if they had it. In a subsequent controversy touching the title to the money so voluntarily paid, the question of the power of the company to make the contract they did make cuts no figure. The contract is of-importance now only in determining the question of the title to the moneys paid under it. Upon this question it was argued that the true construction of the policy is that the insurance is to be paid absolutely to Mrs. Paine in case she survives her husband, and to the children only in case of her death before that of her husband. This argument was based upon the claim that the charter defining the powers of the company must be construed as a part of the policy. This question also' might be interesting, and perhaps doubtful, in an action against the company upon ■the policy, but it seems to us- of no moment now. The company in no Uncertain language agreed to pay the loss to Mrs. Paine and the children of Mr. Paine, “ their executors, administrators,■ and assigns.” It would be doing violence to language to say that this means payment to Mrs. Paine in case of her survival, and to the children in case of her previous death. Purthermore, the parties in interest all participated in a practical construction and interpretation of the policy when it fell due, — the company, the widow, and the children through their guardian,— and they construed it to mean just what it says, namely, payment to the widow cmd children. The use of the word “sole” in the sentence “sole use of Maria P. Paine and children of George Paine” is certainly inaccurate in this view, but it cannot have the force of changing entirely the direct and specific promise of payment.

II. As to the shares which the widow and children are entitled to take under the policy we are clearly of the opinion that, in the absence of any designation in the policy of inequality in the shares, all the beneficiaries share equally. Gould v. Emerson, 99 Mass. 154; Felix v. Ancient Order of United Workmen, 31 Kan. 81; Jackman v. Nelson, 147 Mass. 300. The guardian should have retained in his hands, as the property of his wards, three fourths of the moneys received.

III. Can the guardian insist that he be credited with the support of the wards furnished by the mother gratuitously with no intention of charging therefor? "We know of no principle of the law which wpuld authorize this. She has never made any claim for such support, and now refuses to make any such claim. She was certainly at liberty to support her children gratuitously out of her own property if she chose, and if she chooses to make no claim therefor against them we do not see how any other person can make such claim.

IV. Has there been laches which will bar a recovery ? This question must be answered in the negative. As between the trustee of an express trust and his cestui que trust, the statute of limitations does not apply, nor does any bar in analogy thereto, unless the full period of limitation has elapsed since the denial or repudiation of the trust. Laches is a bar in analogy to the statute of limitations. Fawcett v. Fawcett, 85 Wis. 332.

By the Court.— Judgment affirmed.