Keller v. Gaylor

Seymour, C. J. The facts upon which the questions in this case depend are briefly and distinctly stated in the record. The clause in the policy of insurance upon the effect of which the parties differ is, in substance as follows: — “ The company promise to pay the sum insured to the above named party, to whose benefit this insurance shall enure whenever the same becomes due, his executors, administrators or assigns, within three months, Ac., and in case of the death of said party for whose benefit this insurance is made, before the decease of the said party whose life is hereby insured, the amount of this insurance shall be payable, after the death of the latter, to his children by her, for their sole use, or to their guardian if under age.” Inasmuch as Mr. Gaylor had no children, nothing became payable under the clause in the policy in their favor. Upon the death of Mrs. Gaylor no one except Mr. Gaylor’s administrator had or could have a right to the insurance money. By the terms of the policy (there being no children) the money was payable to him. He accordingly received it, and it is in his hands as part of the assets of Mr. Gaylor’s estate. Thus far the contending parties are substantially agreed. The whole question between them resolves itself into this,— whether, there being no debts, the insurance money in the hands of the administrator of Mr. Gaylor shall be distributed to Mr. Gaylor’s heirs at law as intestate estate, or whether it shall go to the representatives of Mrs. Gaylor under the residuary clause of Mr. Gaylor’s will. In behalf of the heirs at law it is claimed that Mr. Gaylor had no interest in the policy at the time of his death, and that whatever interest his estate ultimately had in the policy came into existence after his death and not until it had become certain that he could have no posthumous child to take the insurance money. It must be conceded that until some period [348] after his death there was an uncertainty whether a child might not be born to him, which child on the death of Mrs. Gaylor might be entitled to the insurance money, and the question is' (1,) whether this uncertainty makes the interest of Mr. Gaylor in the policy so uncertain as not to be the subject of testamentary disposition, and (2,) whether if devisable the terms of the will are such as to pass the benefit of the policy to Mrs. Gaylor. On the first point, we think it clear that Mr. Gaylor at the time of his death had an interest in the policy which could be bequeathed. The contract under which the insurance money became payable was made with him, and is by its express terms for his benefit. In a certain event which never happened the insurance money would indeed have become payable to his children. The insertion of this clause in favor of his children however did not divest Mr. Gaylor of his interest as contracting party in the contract. No other person than Mr. Gaylor ever had any interest in the policy before his death, and his interest then immediately passed to his personal representatives. Mr. Gaylor had at his death a vested interest, liable indeed to be divested by the birth of a child. Had Mr. Gaylor died intestate the policy would have passed to the administrator as assets, and in general under our law whatever may thus pass is devisable. On the second point, the residuary legatee is hares jactus, and generally takes whatever the hceres natus would take. But it is said that the will speaks from the death of the testator, and only carries such interests'as were in esse at the testator’s death, and not interests which accrue to the éstate of the testator after death. The words of Mr. Gaylor’s will in favor of his wife are very strong. He gives to her “all the rest and residue of [his] estate both real and personal, in whatever it may consist or wherever situated, to be hers without restraint and absolutely.” We think this language conveys to her all that came to his estate as assets. She is by this clause of the will constituted sole heir of his estate to [349] tlie exclusion of statute heirs. She became entitled to the policy of insurance as a chose in action belonging to him at his death. Her representatives are therefore we think entitled to the insurance money received by the administrator, Mr. Budau, and the Superior Court is advised to render judgement accordingly. In this opinion the other judges concurred.