Friedman Bros. v. Fennell

STONE, C. J. — Our statutes permitting insurauce of the life of a husband or father for the benefit of the wife, or child or children, is not declarative of any common-law principle, but is enabling — creative of a new right.— Con. Life Ins. Co. v. Webb, 54 Ala. 688. These statutes confer a special privilege. In their nature they are an exemption of property from the payment of debts; and to be successful in securing the exemption, the statute must be conformed to. When, however, the case exists for which the statute makes provision, the statute will be liberally interpreted in furtherance of the relief intended. — Fearn v. Ward, 65 Ala. 33-38; s. c., 80 Ala. 555; 3 Brick. Dig., 490, § 8; Felrath v. Schonfield, 76 Ala. 199; Tompkins v. Levy, 87 Ala. 263; Elliott's appeal, 50 Penn. St. 75; s. c., 88 Amer. Dec. 525, and note. The debt against which the claim of Charles Fennell the younger is asserted, was in existence, and the policy was taken out and the premium money paid by the father, while he was so indebted and was insolvent. It is charged in the bill, and not denied, that the said debt was in existence at and before the time when the Code of 1886 went into operation. Section 2356 of the Code of 1886 changes, somewhat, the statute on the subject theretofore existing — Code of 1876, §§ 2733-4. The contention is urged before us, that inasmuch as the exemption secured under the later Code is an enlargement of that secured by the Code of 1876, the new or enlarged provision can not be made to apply against creditors whose claim ante-dated the amended statute. — 3 Brick. Dig., 490, § 8. For reasons to be presently stated, we consider it unnecessary to decide this question. The language of the statute — Code of 1886, § 2356 — is, that “the husband or father may insure his life for the benefit of his wife, or for the benefit of his wife and children, or for the benefit of his minor child or children.” It will be seen by comparing the two statutes, that the clause, “for the benefit of his minor child or children,” has no counterpart in the statute theretofore existing. That clause is new. Before that time, the only statutory authority for making provision for child or [573] children by means of life insurance, was to append it to the policy taken out for the benefit of the wife. The insurance, there provided for, enured to the wife only in the event she survived her husband; but the statute — Code of 1876, § 2734 —declared that, “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.” To come within the present statute, and to secure to the child or children the benefit it tenders, the later statute, as we have said, must be conformed to. The policy being in the name of the father, his attempt to transfer it to his child stands on no higher plane than any other attempt he might make to give away his property at the expense of his debts. Such gifts are constructively fraudulent. — Con. Life Ins. Co. v. Well, 54 Ala. 688; Tompkins v. Levy, 87 Ala. 263; Fearn v. Ward, 80 Ala. 555 ; Battle v. Reid, 68 Ala. 149 ; 3 Brick. Dig., 490, § 8. There were original and amended bills in this case. The original bill averred that, by the terms of the policy of insurance, as taken, the insurance money was made payable to the minor child, Charles Fennell, Jr. The answer and exhibit show that the policy was sued out in the name of Charles M. Fennel], the father, and by its terms the insurance money was made payable to him. The policy bears date February 28, 1889. On March 15 next ensuing, Charles M. Fennell assigned the policy to his son, Charles H. Fennell. The amended bill does not, in terms, correct any averments of the original bill, nor does it purport to do so. It simply adds an additional paragraph to the bill, by which it is averred that Charles M. Fennell, after the accrual of his debts, sued out a policy in his his own name, paid the premiums, and that on March 15, 1889, for love and affection, and with intent to delay, hinder and defraud complainants, assigned and transferred the policy to Charles H. Fennell, his son. The amendment fails to show the amount of the policy, or when issued. If its averments were sufficiently specific, its indications would be that it sets forth a different policy from the one relied on in the original bill. If it was intended as a correction of the mistaken description of the policy made in the draught of the original bill, it is insufficient, because it fails to refer to and correct the mistake. Considering the two together, and each as a part of the amended bill, it is inconsistent with itself in the several descriptions of the policy. The bill needs further amendment. The chancellor gave no reason for his ruling on the’demurrer. The bill in its present shape is evidently bad, and, to give it equity, must be amended. We find no ground for reversing his decretal order. Affirmed.