Roquemore v. Dent

DOWDELL, J —We concur in the conclusions of the learned judge who tried this case. The new policies which were issued upon the' surrender of the old, were in substitution of the latter: The wife of the assured and his children were made the beneficiaries under the old; under the new or substituted policies the insurance was made payable to named trustees for' “such of his [assured’s] children as might survive him.”' The old policies were issued in 1870 and 1871. The wife died in 1882 and before her husband. Under the statute, sections 2733 and 2734, Code of 1876, her interest terminated with her death.—Tompkins v. Levy, 87 Ala. 263; Friedman v. Fennell, 94 Ala. 570. The new policies Avere issued after the death of the wife. Under this substitution no substantial change Avas made as to the beneficiaries. The neAV policies Avere made payable to trustees, but the- quantum of interest to the beneficiaries remained the same. The employment of the words, “executors, administrators, or assigns,” in the beneficiary clause of the policy does not differentiate this case from that of Tompkins v. Levy, supra, where the words employed were, “heirs, executors or assigns.” There is no reason why the rule of laAV in respect, to testamentary bequests to children payable in futitro, should not apply to policies of insurance taken by the father for the benefit of children. In either case he is actuated by the promptings of natural love and affection, and with the same desire and purpose in both instances to make provision for his children after his [297] death. In the former, that is in a testamentary bequest payable to children as a class, it would not be questioned but that the clasvs would open to let in after-born children to participate in the bequest, ancl without any distinction between after-born children of a second and a first wife. The application of this rule to. insurance taken by the father for his children is supported'both by reason and authority.—Thomas v. Leake, 67 Texas, 471; Ricker v. Charter Oak Ins. Co., 27 Minn. 197, s. c. 38 Am. Rep. 289. The action of the court in sustaining the exceptions to the register’s report upon fees and compensation was not unauthorized under the evidence, and we are not disposed to disturb the decree on this question.' We find no error in the record and the decree of the city court will be affirmed, both as to direct and cross appeals.