Bartram v. Hopkins

Torrahce, J. This action is brought under § 2799 of the General Statutes, the material part of which reads as follows: “ Any policy of life insurance, expressed to be for the benefit of a married woman, or assigned to her, or in trust for her, shall inure to her separate use, or in case of her decease before payment, to the use of her children, or of her husband’s children, as may be provided in such policy, provided that if the annual premium upon such policy shall exceed three hundred dollars, the amount of such excess with interest, shall inure to the benefit of the creditors of the person paying the premium.” The policies here in question were five in number, each of them insuring the life of the husband for the benefit of the wife, and all the annual premiums upon each of them were paid by the husband. Upon none of the policies did the gross annual premiums — 515 — paid by tbe husband exceed $300. The proceeds of these policies were paid to the wife at the death of the husband, and amounted to $22,000. The court below found that the amount of the actual cash payments made by the husband in paying annual premiums upon the five policies, in excess of $300 per year was, without interest, about $3,500, and rendered judgment against the wife for so much of that sum as would enable the plaintiff to pay the husband’s debts and the expenses of settling his estate in full. The questions arising upon the defendant’s appeal will be first considered. One of the important questions thus arising is, whether the plaintiff is entitled to recover anything, in an action of this kind, unless he can show that the premium, or the excess premium, was paid in fraud, actual or constructive, of existing or subsequent creditors. This was the main point raised by the demurrer to the complaint, by the special defense, and by the claims made upon the argument. The answer to this question depends upon the construction of the statute. The defendant claims it must be answered in the negative. This claim appears to be based mainly upon the assumption that the statute was passed solely to enable an insolvent person to make a gift of a certain amount which would be good and valid as against his creditors. The defendant, in effect, argues in this way: Prior to and independent of the statute, a solvent husband or other person could make a reasonable gift to a married woman in the shape of premiums or otherwise, which would be a valid gift as against any subsequent creditor of his; but a person who was insolvent or in embarrassed circumstances could not make such a gift; the statute as to the insolvent person was an enabling statute, and his right to make a gift was limited and conditioned by its provisions; but as to the solvent person, his right to make a reasonable gift was not affected by the statute, and therefore its provisions did not apply to such gifts made by him. We think the defendant’s assumption is not well founded. The statute was originally passed in 1850, and as it appears — 516 — in the Compilation of 1854, p. 378, reads as follows: “ That policies of life insurance issued on the life of any person, expressed to be for the benefit of any married woman, whether the same be effected by herself or her husband, or by any other person on her behalf, shall inure to her separate use and benefit, and that of her husband’s children, if any, as may be expressed in said policies, independently of her husband and his creditors and representatives, and also, independently of any other person effecting the same in her behalf, his creditors and representatives: Always provided, that this section shall not apply to insurance where the annual premium on the policy shall exceed the sum of one hundred and fifty dollars,.unless paid from the private property of the wife.” With some slight verbal changes made in the Revision of 1866, the law remained in this form down to 1871. By Chap. 25 of the Public Acts of that year, the amount that might be paid for annual premiums upon such policies was changed from SI 50 to $300 ; otherwise no change was made. Subsequently, at the same session of the General Assembly in 1871 (Chap. 138, § 36), the law was changed to read as follows: “ A policy of insurance on the life of any person, expressed to be for the benefit of any married woman, . . . or to any person in trust for her or for her benefit, whether the same be procured by herself, her husband, or any other person, shall inure to her separate use and benefit, or, in case of her decease before payment of the same, to the use and benefit of her children, or of her husband’s children, as may be provided in said policy, independently of her husband, his creditors, or representatives, or of the person procuring, assigning, or transferring the same, his creditors or representatives : provided, that if the annual premium on any such policy exceed three hundred dollars, an amount equal to the excess of such premium over three hundred dollars, with interest thereon, shall inure to the benefit of creditors,” etc. All Acts and parts of Acts inconsistent with said Act were at the same time repealed. In the Revision of 1875 the Act was abbreviated and condensed into the form in which it now appears as § 2799 of the present revision. — 517 — We think no change in the law, as it stood in 1871, was made or intended to he made in the Revisions of 1875 and 1888. “ Revisers are presumed not to change the law, if the language which they use fairly admits of a construction which makes it consistent with the former statute.” Duffield v. Pike, post, p. 521. When the original Act was passed in 1850, the property rights of married women in this State were substantially those conferred by the common law, and were consequently extremely limited. At the beginning, of this century this court, in Dibble v. Hutton, 1 Day, 221, held in effect that a husband could not make a gift of personal property to his wife which would be protected either at law or in equity against him or his creditors. This continued to be the law of the State down to 1857, when the case of Dibble v. Sutton was expressly overruled in the case of Deming v. Williams, 26 Conn. 226, although it had been in effect overruled in 1856 in the case of Riley v. Riley, 25 Conn. 154. In this State at common law, dioses in action, which would include policies of life insurance, accruing to the wife during coverture, vested at once and absolutely in the husband. 1 Swift’s Digest, p. 28; Fourth Eccl. Soc. v. Mather, 15 Conn. 587. This was the law in 1850; Hawley v. Burgess, 22 Conn. 283, decided in 1853. The Act of 1849 affected only personal estate which accrued to the wife during coverture by bequest or distribution. Compilation of 1854, p. 376. Prior to 1850, then, the law of this State, as declared in its statutes and by its judicial decisions was, that a husband, whether solvent or not, could not make a gift to his wife, of personal property, which would be valid against him or his creditors; and a third party, whether solvent or not, could not make a gift of personal property to a married woman which would be protected as against the husband or his creditors. This was the state of the law when the original Act here in question was passed. The Act was an enabling act. It enabled the parties concerned to do what they could not do before, namely, make a gift of the prescribed kind and amount, to a married woman, which would be valid as against her husband and creditors of the giver; and to do this what — 518 — ever might he the financial condition of the giver when the gift was made. Connecticut Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305; Chapin v. Fellowes, 36 id. 132; Continental Life. Ins. Co. v. Palmer, 42 id. 60. The Act of 1850 included policies whereon the annual premiums were paid by the giver, only when that premium was $150 or less. In 1871 the Act was extended so as to cover all such policies, without regard to the amount of the annual premiums, with a proviso that if such premium exceeded $300, “ an amount equal to the excess of such premium over three hundred dollars, with interest thereon,” should inure to the benefit of creditors. The statute of 1850 limited the power to make such a gift as is here in question, to cases where the annual premiums did not exceed $150, while the Act of 1871, being the one in force now, extended the limit to $300 ; and this, so far as the present question is concerned, is all the difference there is between the two Acts. In both Acts, for one thing, we think the legislature intended to limit the amount which a husband could divert from his creditors in this particular form of gift, and to say that all given beyond the statutory amount should be liable to his creditors. We think it had the power to do this, and its intent to exercise the-power is manifest and clear. For these reasons we are of opinion that in a case like the one at bar the plaintiff, if otherwise entitled to recover, is entitled to recover without showing that the excess payments of premiums were made in fraud, actual or constructive, of creditors. We also think that the statute applies to a case where there are a number of policies taken out for the benefit of a married woman, although the annual premium paid upon no one of them may exceed the statutory amount. In such case, if the aggregate of the annual premiums paid exceeds the statutory amount, the excess so paid is available for creditors. This is the plain intent of the legislature, and to construe the law otherwise would defeat that intent. We have no occasion to decide or to consider in this case, whether the basis of recovery in cases of this kind should be the excess of gross, or of net annual premiums, with interest; — 519 — for the court helow did not pass upon this question, but adopted the excess of actual cash payments as the basis of recovery ; and of this the defendant certainly has no reason to •complain. We also think that the Act of 1871 applied to all of the policies in this case, and that the trial court correctly held that the annual premiums paid upon each of them, to the extent of $300, were protected. The defendant claims that the statute does not apply to a case where the policy of life insurance is taken out and the premiums paid by a husband, pursuant to a contract between himself and his wife upon a valuable consideration flowing from her. This was one of the points raised by the demurrer to the special defense, which was ruled adversely to the defendant. We have no occasion to decide this question here, because we think the defendant waived its consideration in the court below. After it was decided on the demurrer the parties, instead of trying the case upon the pleadings, agreed upon the facts between themselves. That statement contains no reference to the claimed agreement between the husband and wife. For aught that appears all such reference was voluntarily omitted by the defendant. She thus said in effect to the court, these are the facts, and all the facts of my case, what is the law on this precise state of facts ? In this condition of things the ruling upon the demurrer to that part of the second defense setting up an agreement between husband and wife, became of no importance, because the case voluntarily presented to the court by the defendant is devoid of any such agreement. Upon the record we think the defendant waived her objection to that ruling. There is no error. The three errors assigned upon the plaintiff’s appeal are based upon the court’s action in not allowing interest upon two claims of one L. M. Hopkins. The record shows that the intestate was the maker upon sundry promissory notes upon which L. M. Hopkins was indorser. At the decease of the maker these notes were held by the Connecticut National Bank of Bridgeport, and they matured after the death of the maker. The Bank presented — 520 — these notes after .their maturity to the commissioners on the estate of the intestate, who allowed the principal sums due on the notes, but no interest. No appeal was taken from the report of the commissioners. In October, 1895, the plaintiff paid to the Bank eighty per cent upon the amount allowed by the commissioners upon said notes, and subsequently L. M. Hopkins, the indorser, paid the balance due upon the principal of the notes to the Bank, and the interest upon them from maturity to October 1st, 1895, and took them up and now holds them as owner. The interest upon said notes up to October 1st, 1895, amounted to #532.09, and L. M. Hopkins is demanding that sum from the plaintiff as administrator. The intestate at his decease was also the maker of another note upon which L. M. Hopkins was indorser, which, when it matured after the decease of the intestate, was held by Marsh, Merwin and Lemmon. At maturity L. M. Hopkins paid it and took it up, and presented it to the commissioners who allowed its face value, but without interest. On the 1st of October, 1895, the plaintiff, as administrator, paid to L. M. Hopkins upon said note #137.96, leaving the balance due- thereon unpaid. The interest upon this note from maturity to October 1st, 1895, amounts to #12.67 and this sum L. M. Hopkins is demanding from the plaintiff. The plaintiff claimed that these two amounts for interest, which L. M. Hopkins was thus demanding from him, should, by the trial court, be added to the amount of the claims allowedly the commissioners, in making up the amount for which judgment should be rendered. The court overruled this claim, and took as the basis of its judgment as to this matter the claims allowed by the commissioners, with interest thereon from the date of the filing of their report. We think the ruling complained of was correct. This is not a suit brought to determine whether L. M. Hopkins has or has not a valid claim against the estate of the. intestate. The pleadings are not adapted for the trial of any such issue, and L. M. Hopkins is not a party, and would not be bound by any action of the court with respect to his claims. If he has proved his claim before the commissioners and has taken — 521 — no appeal, their decision, for the purposes of this case, determines what his claim is. If he has a claim which he has not proved before the commissioners, then he must establish it, if he can, in some proceeding other than this. There is no error apparent on the record. In this opinion the other judges concurred.