Kimball v. Gilman

Smith, J. The sum insured on the life of the defendant’s testate is stated in the policy to be “ for the express benefit of Sarah F. Holt, wife of said assured.” By statute, insurance thus effected inures for the benefit of the wife, or, in case of her death, to her children, if any, against the claims of creditors or representatives of the person effecting the same. Gen. Stats., c. 160, s. 1; G. L., c. 175, s. 1; Stokell v. Kimball, 59 N. H. 13. As the plaintiff’s intestate survived her husband, the sum insured on his life inured to her benefit, both by the terms of the policy and by the provisions of the statute. The right to receive this money to her own use having become vested in the wife upon the death of her husband, *56 it has become, by her death, assets of her estate, which her administrator is entitled to recover. Perkins v. Perkins, 46 N. H. 110. The defendant, having received the sum insured from the insurers, holds it as trustee for the plaintiff, and having money in his hands •which in equity he ought to pay to the plaintiff, it can be recovered in this action. Wentworth v. Gove, 45 N. H. 160; Lockwood v. Kelsea, 41 N. H. 185; Hudson v. Robinson, 4 M. & S. 475; 2 Greenl. Evid., s. 117. A judgment in this suit against the defendant will be a protection to him against the claim of creditors and representatives of his testate. Perkins v. Perkins, supra. Upon settlement of his administration account he will be charged with the money thus collected, and credited with the payment of the same to the plaintiff; and there is no occasion to wait until he can settle his account in probate court. If the agreement can be deemed a reference to the judge of probate as arbitrator, it is revocable, and the bringing of this suit is a revocation. The refusal of the judge of probate to act as arbitrator has made the execution of the submission impossible. Morse Arbit. and Aw. 236. The objection that the defendant is sued personally, and not in his representative capacity as administrator, can be easily obviated by amendment. Judgment for the plaintiff. Allen, J., did not sit: the others concurred.