Troy v. London, 39 So. 713

Troy v. London

39 So. 713 | Ala. | 1905

HARALSON, J.

In 1887 the plaintiff insured his life in the Mutual Life Insurance Company of New York, and on the 22d of June, 1903, he commenced this action against the company to recover an amount alleged to he due to him by the terms of the policy. The company set up that the claimant, Florence L. Troy, as executrix of the will of Daniel S. Troy, deceased, claimed the fund, paid the same into court, and asked that said executrix be required to come in and defend the suit.

*283Upon notice, tlie executrix came, and, propounding her claim, stated that on the 10th day of November, 1887, the plaintiff transferred and assigned to her testator the policy of insurance sued on, which had never been re-transferred to the plaintiff and which was the property of the claimant. The written assignment states, “To protect 1). 18. Troy from any and all liability of or on account. of any indorsement for me, and to secure him from any and all such sums as I may owe him now or hereafter, I have this day assigned to him all my interest in policy No. 309,(142 in the said Mutual Life Insurance Company of New York, by the assignment attached hereto, and hearing even date here1,with.”

The plaintiff demurred to the claim tlnis set up by the executrix, on the ground, in substance, that it is not alleged that at the time of bringing this suit or the filing of this claim, the testator or his estate was liable on any indorsement for plaintiff, or that plaintiff was indebted to claimant’s testator, or Ids estate, in any sum whatever, or to what extent he was liable for plaintiff, nor to what extent plaintiff is indebted to the1 testator or his estate.

The contention of the. plaintiff as raised by the demurrer to the claim ,is that claimant should have alleged and assumed the. burden of proving1, that the intestate was still liable under some indorsement or security for the plaintiff, or that he was owing his estate some debt, which the assignment was designed to secure, or protect, from' loss. The contention of claiminat is, that the burden was on plaintiff to show that there was no such outstanding indorsement or liability for indebtedness to claimant’s testator.

If there was no indorsement by the testator for plaintiff, or no indebtedness by him to testator, such as in either case, the assignment was designed to protect him, he would have had no insurable interest in plaintiff’s life, and the assignment would have been illegal and void as a wager policy. — Helmetag's Admr. v. Miller, 76 Ala. 183, 52 Am. Rep. 316. in such case there is no presumption of an insurable interest, and the burden is on the assignee to prove such interest, it being material and requisite to his right of recovery. - Ala. G. L. Ins. *284Co. v. Mobile Co., 81 Ala. 329, 1 South. 561 ; Stoelker v. Thornton, 88 Ala. 241, 6 South. 680, 6 L. R. A. 140 ; Els-berg v. Sewards, 66 Hun. 28, 21 N. Y. Supp. 10 ; 19 Am. & Eng. Ency. Law (2d Ed.) 87.

Affirmed.

Tyson, Simpson, and Anderson, JJ., concur.