H. J. Mullins & Co. v. Thompson

Gould, Associate Justice. Appellants, creditors of the estate of W. P. Thompson, deceased, sought, by motion, to compel his administrator to inventory as part of the estate a certain life insurance policy. The administrator claimed that the policy constituted no part of the estate, but belonged to himself and wife, the parents and sole heirs of deceased. [12] On account of the disqualification of the county judge, the motion was transferred to the District Court. That court, made its order refusing the motion, and the case comes here by appeal. The statement of facts recites that “plaintiffs in the motion admitted -the terms of the policy, as stated in defendant’s answer, as to whom the same was payable.” In the original answer, sworn to by defendant, the terms of the policy are thus stated: “That at the death of said W. P. Thompson there was upon his life an insurance policy for $2,500, issued by the Phoenix Life Insurance Company of Hartford, Connecticut ; that said policy was drawn in favor of the heirs or assigns of said W. P. Thompson.” In a subsequent answer the policy is described as “ in favor of the heirs and assigns of said W. P. Thompson and in a third answer it is said “that said policy was for the benefit of the heirs and assigns of the said W. P. Thompson, and there was found no assignment of said policy”; and, again, “that the insurance policy declares by its terms that it was for the benefit of his heirs.” There is in the record nothing else showing the terms of the policy, or its nature or class. It appears from the statement of facts that W. P. Thompson died unmarried, leaving his father and mother his heirs at law, and that their family consisted of five children, mostly girls. It further appears that he died indebted to his father—who was a poor man—over $3,000, and that before the issuance of the policy, being at that time indebted to his father over $1,600 for cash actually advanced him, he stated his intention to take out a policy payable to his parents to secure to them what he owed them. The policy was found amongst his papers. Ho question is presented by bill of exceptions or the assignment of errors as to the admissibility of this parol evidence, and as we think the order of court was correct, without looking to evidence outside of the policy, it is not proposed to inquire whether, as claimed by appellee, such evidence was [13] admissible on account of the uncertainty as to who would be the heirs of W. P. Thompson when he died. As it devolved on the plaintiffs to show that the policy belonged to the estate, and devolves on them here to show error in the action of the court below, they should have developed, and must be presumed to have developed, the nature and terms of the policy in so far as these tended to establish their case. If they have failed to show error, the judgment must be affirmed. Counsel on each side, however, have argued the case as' if the policy were payable to the “ heirs or assigns ” of W. P. Thompson. Assuming such to be its terms, the case presented is, that W. P. Thompson took out an ordinary life policy not payable to himself, but payable to his heirs or assigns. A policy payable to the heirs of the insured is a policy for their benefit, unless there is something on its face to show a different intention. The case of Wason v. Colburn, 99 Mass., 342, cited by appellant, was an endowment policy payable at the expiration of the prescribed period to the assured himself, “ or, in case of prior decease, to his heirs or representatives.” Being an endowment policy, it was said to be primarily intended for the benefit of the assured himself. For this reason, and because the word “representatives” was held to legally indicate “administrators,” the policy was treated as part of the estate of the insured. That case differs widely from the present, and neither it nor the opposing case from Missoúri cited by appellee can be regarded as controlling the question before us. (Loos v. Ins. Co., 41 Mo., 538.) Insurance policies, other than those classed under the head of endowments, are ordinarily taken out for the benefit of some third person or class of persons, and not as a mere investment for the benefit of the estate of the insured. They may be payable to and for the benefit of a named person or persons, or of a designated class; as, parents, children, next of kin, or heirs. A grown son, not married or contemplat [14] ing marriage, and wishing to provide, in ease of his death, for his parents and younger brothers and sisters, looking to the contingency of death in the family, might well make the policy payable to his heirs. Looking to the further contingency, that in the course of time his then heirs might all cease to have claims upon him, the parents by death and the brothers and sisters by becoming of an age to provide for themselves, he might reasonably desire, in that event, to be able -to assign the policy to some one else. We think that the intention of the insured was, and the true construction of the policy is, that so long as it remained unassigned it was for the benefit of his heirs, but that the power to divert it from the heirs was intended to be reserved. It is said, that by retaining the power to assign the policy, the insured subjects it, during his life, to be reached by creditors. (2 Bliss on Life Ins., p. 592.) Whether this be so or not in case of an insolvent debtor, whose creditors, during his life or after his death, assert their rights in a proper equitable proceeding, is not a question now before us. The record as presented fails to show that the true construction of the policy requires that it should constitute a part of the estate, or that the court erred in refusing to compel the administrator to place it on his inventory. The judgment is affirmed. Affirmed.