Fort v. Edwards

The Chancellor. Cyrus Edwards, late of Newark, by his will dated April 3d, 1879, provided as follows: “ It is my will, and I do hereby bequeath and devise to my beloved wife, Mary P. Edwards, the just and full sum of $5,000, to be paid to her, as far as can be, out of the insurance money coming to my estate from the insurance on my life; and I do further devise to my said wife the $500 life insurance policy, now held by me, on the life of my wife, insured for my benefit, &c.” He died a few hours after he made his will. When he made the will, and when he died, he had three policies of insurance on his own life, for $2,500 in the aggregate, the insurance money secured whereby was payable to his wife, and he had no other insurance on his life at either time. He had a policy of insurance on his wife’s life for $500, 643 payable to him, referred to in the will, and thereby given to her. After his death, his widow received from the insurance company the money due ($2,781.58) on the policies on his life. The testator, in his life-time, kept those policies in his possession, and paid the premiums thereon, and, on the execution of his will, delivered them over to his-executor as part of his estate, with all the other papers and documents belonging to his estate. The widow claims that she is entitled to the legacy of $5,000, irrespective of the money received by her on those three policies, because they are not within the description given by the will, inasmuch as the money due on them was coming to her, and not to the testator’s estate; and she insists that the insurance money is not to go towards payment of the legacy. If such interest he vested in the wife and children, the assured cannot deprive them of it by his will (Gould v. Emerson, 99 Mass. 151/,; Ruppert v. Union Mut. Ins. Co., 7 Roberts. 155 ; Rogers v. Botisford, 44 Ga. 652; Gauch v. St. Louis Ins. Co., 88 III. 251. See Kerman v. Howard, 28 Wis. 108). As to where the right of testamentary disposition is reserved in the policy itself, see Roberts v. Roberts, 64 N. C. 695; or a right of substituting another beneficiary [Eiseman v. Judah, 4 Cent. L. J. 845 ; Crittenden v. Phcenix Ins. Co., 41 Mich. 44&)- Where the testator has insured his life for his own benefit, he may, of course, dispose of the proceeds of the policy by his will [Phillips v. Eastwood, LI. & G. temp. Sug. 270; Stooke v. Slooke,85 Beav. 896 ; Petty v. Willson, L. R. [4 Ch.) 574; Williams v. Corson, 2 Tenn. Ch. 269; Keller v. Gaylor, 40 Conn. 81/8); but a mere bequest of an annuity will not pass a policy on the annuitant’s life [Hamilton v. Baldwin, 15 Beav. 282); so, money due on a policy may pass, as donatio causa mortis, by the delivery of the policy [Amis v. Witt, 83 Beav. 619, 7 Jur. [N. S.) .$99, 1 B. é S. 109). Such bequests, however, are not valid as against creditors [Elliott's Case, 50 Pa. St. 75; Stokes v. Coffey, 8 Bush 533; Hathaway v. Sherman, 61 Me. 466 ; Slokoe v. Cowan, 29 Beav. 637.—Rep. It is evident that the testator referred to those policies. He could not have meant any others, for he had none. He kept them in his own possession, paid the premiums himself, and, undoubtedly, regarded the money as part of his estate, notwithstanding he had given direction to the payment of it by the provision in the policies that it should be payable to his wife. The words “coming to my estate” 644 may be regarded as an error in description, as it undoubtedly was. The testator was in extremis when the will was made. He intended that the money to be received on the policies on his life should be taken and accepted as so much of the legacy of $5,000, and it will be so decreed.