Herriman v. McKee

Beck, J. I. The plaintiff alleges, in his claim presented to-the Circuit Court, that the decedent and his wife, who united in the execution of the note which was given for the purchase-of a house and. lot to be used as their home, agreed that the proceeds of insurance upon the life of deceased should be applied in payment of the note, and that since the death of decedent the insurance money has been received by defendant. There was a general denial of plaintiff’s claim, and certain special defenses were pleaded which need not be set out here. II. In the progress of the trial certain exceptions were taken by plaintiff to rulings of the court upon the admission of evidence. These rulings are now assigned for error. They demand but brief consideration. The plaintiff testified that he had received the policy referred to in the note from Mrs. McKee, her husband being present, lie was asked whether this was before or after the execution of the note, and an objection to this question was sustained. We think the question was unobjectionable, but fail to discover any possible prejudice resulting to plaintiff from this ruling. No prejudice is pointed out by plaintiff’s counsel. III. The plaintiff testified that he took the policy to a lawyer, and was asked what purpose he had in taking it there. An objection to the question was rightly sustained. His pur [187] poses or intention could have had no effect upon the defendant’s rights. IY. The plaintiffs introduced in evidence certain declarations and conversations of the decedent in his life-time, and of his wife, the defendant, which, it is claimed, tend to show an arrangement and agreement that the note should be paid from the proceeds of the life insurance. It does not appear that this testimony was excluded. The amended abstract shows that it was admitted subject to objections. The original abstract states substantially the same fact. It is not shown that this evidence was afterward excluded. The objection made here to the alleged exclusion of the testimony is not based upon the facts as they are presented to us. 1. Promisorrynote: life insurance : contract. i. PKoanssoBY Y. Under Code, §§ 1182, 2372, the avails of the insurance upon the life of the decedent are exempt from claims agains^ his estate unless a special contract or arrangement, or an assignment of the policy, be shown. Plaintiff insiststhat such an arrangement or agreement is established by the evidence. We think differently. The note, upon its face, does not disclose a contract of the character required to give plaintiff a claim upon the money. The other testimony in this ease, regarding it all as admissible, falls short of establishing such an agreement or arrangement. The most that can be claimed 'for the declarations of decedent and his wife is that they show a purpose or intention upon their part to devote the avails of the life insurance in payment for the property bought of plaintiff. There is also evidence tending to show that decedent agreed that the note should be paid out of the insurance money when the contract for the purchase of the property and the note were executed. If we regard this evidence as admissible, which we do not decide, it is far from being sufficiently clear and satisfactory. We would be unwilling to hold that it established an agreement or arrangement that the avails of the life insurance should be devoted to the pay [188] ment of the plaintiff’s claims. The parties reduced their contract in regard to the purchase of the property to writing, in the form of a bond for a deed by plaintiff, and the note filed as the basis of plaintiff’s claim. No agreement or arrangement of the character set up by plaintiff is found therein. If it be competent to show such an arrangement made at the time of the transaction by oral testimony, it ought, at least, to be established with the clearness and explicitness required to prove a contract. But the oral evidence falls short of this requirement. The judgment of the Circuit Court is Affirmed.