166 So. 172 | La. Ct. App. | 1936
In the court a qua the exception was sustained, and plaintiff has appealed from a judgment dismissing her suit.
We consider first the contention that, because of the failure of plaintiff to allege that there is no beneficiary named in the policy, she has not alleged a cause of action in herself as heir. Assuming for the moment that an heir, as such, without first obtaining a judgment of possession, may claim the proceeds of a policy payable to the estate of the insured, or payable to his executor or administrator, we are still nevertheless confronted here by the fact that there is no allegation showing that the policy in this case is so payable. The duty is on the plaintiff in every case to allege and show facts which entitle that plaintiff to recovery. It is necessary that an heir allege not only heirship, but also facts which, by reason of that heirship, authorize recovery. If there is a designated beneficiary, then the heir has no right of action, because the estate of the deceased is in no way interested in a policy payable to a named beneficiary. It becomes apparent, then, that before an heir can make claim to the proceeds of a policy, even assuming that the other objection which we find presented may be overcome, that heir must allege that the policy is payable to the estate, or to the executor or administrator of the insured.
This objection, however, is directed solely at the omission of allegations which possibly may be made, and therefore does not necessarily require the dismissal of the suit.
We, therefore, next consider the more serious contention: That an heir who desires to claim the proceeds of such a policy must first obtain from a probate court with jurisdiction of the estate of the deceased a judgment recognizing such heir and sending him or her into possession.
Plaintiff asserts that it is not necessary that there be an allegation to the effect that she has been recognized as the sole legal heir and she points to Hicks v. District Grand Lodge, etc. (La.App.)
But there was not presented there the contention which is made here. In that case it was argued that the heir could not make claim directly at all, but must first prevail upon the succession representative to collect the proceeds, which, after they had come into the hands of such representative, *174 might then be claimed by the heir. We held that in such case an heir may make claim directly and need not proceed through the succession representative. We said: "We have devoted much thought to the question whether in such case as we find here the claim should be made by the succession representative and the heir relegated to a claim against the succession after recovery of the fund by the said succession representative."
Our conclusion was: That if the heir is a person included within those persons specified in the rules of the association and permitted by Act No.
In other words, we reached the conclusion arrived at by the Supreme Court one month later in the matter of Crump v. Metropolitan Life Ins. Co.,
In Succession of Brierre,
Of course, if there must be such a judgment of possession before the heir may claim the proceeds of such a policy, then there must be an allegation that such a judgment has been rendered. If there must be such an allegation, then a petition which does not contain such an allegation does not state a right of action in the person making the claim.
That in certain other cases insurers have seen fit to take advantage of Act No.
The contention that the qualification in the probate court will require the unnecessary expenditure of money cannot be considered. If the qualification is necessary, then it must be obtained.
We conclude that, for both of the reasons set forth, plaintiff's petition does not set forth a right of action in her to present this claim. But, in view of the fact that the absence of the necessary allegations here may result from mere omission to make the allegations and not from the fact that the necessary allegations may not be made, we have concluded to remand the matter in order that in the court below plaintiff may be afforded an opportunity to make the necessary amendments and to produce the necessary proof that the policy is payable to the estate of the deceased and that she is the sole legal heir of the deceased, duly qualified and recognized as such.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that the matter be remanded to the *175 First city court of New Orleans for further proceedings according to law, and not inconsistent with the views herein expressed. Appellant to pay all costs.
Reversed.