Magee v. Bank of Hattiesburg & Trust Co.

Cook, J., delivered the opinion of the court. The appellants, Mrs. W. H. Magee, widow, and Mrs. J. L. Thomas, Mrs. James Daly, Jr., and Willie Bell [129] Magee, daughters, respectively, and sole heirs at law of W. H. Magee, deceased, filed a petition in the chancery court of Lamar county seeking to require the appellee, Bank of Hattiesburg & Trust Company, administrator of the estate of the said W. H. Magee, deceased, to pay to them the proceeds of certain insurance policies which the administrator had collected, and which were payable to the executors, administrators, or assigns of the deceased. It appears from the record that on the 25th day of April, 1921, Mr. Magee executed his last will and testament, under the provisions of which he devised and bequeathed to his wife and children all of his personal and real property; that at the time of his death his life' was insured in the total sum of ten thousand seven hundred sixty-eight dollars and fifteen cents; that of this amount one policy in the sum of two thousand five hundred five dollars and sixteen cents was payable to the widow, Mrs. W. H. Magee, and she collected this sum; that another policy amounting to the sum of one thousand four hundred twenty six dollars and fifteen cents was payable to Mrs. J. L. Thomas and Mrs. James G-. Daly, Jr., two of the daughters of the deceased, and this sum was collected by them; that two other policies, amounting to the sum of six thousand eight hundred thirty-six dollars and eighty-four cents, were payable to the executors, administrators, or assigns of the -said W. H. Magee, deceased, and that this sum has been collected by the said administrator. It further appears that the third daughter, Willie Bell Mágee, was not a beneficiary in any policy of insurance, and that she has received nothing from insurance; and that the estate is insolvent. The appellants contend that the will of .the testator operated as a change of beneficiaries in the policies from the executors, administrators, or assigns to his heirs or legatees, and that they were therefore entitled to col [130] lect all of this insurance from the administrator. The administrator contends that, under the provisions of chapter 186, Laws of 1922, the appellants were only entitled to receive the difference between the total amount of insurance already collected by them and the sum of five thousand dollars, and the chancellor so held. We are of the opinion that both of these contentions are wrong. The fact that appellants are the legatees or distributees under the will does not substitute them as beneficiaries in the policies of insurance which are payable to the executors, administrators, or ássigns of the deceased, and, at the death of the insured, the proceeds of these policies became a part of the estate of deceased, payable to Ms executor or administrator, and were liable for the debts of the decedent, subject only to the statutory exemptions in favor of the heirs or legatees. The statutory exemption in favor of heirs and legatees in the proceeds of insurance policies, which are payable to the executor, or administrator, of the insured, is found in section 1814, Hemingway’s Code, as amended by chapter 186, Laws of 1922, the material part of this chapter reading as follows: “The proceeds of a life insurance policy not exceeding five thousand dollars payable to the executor, or admin-' istrator, of the insured, shall inure to the heirs or legatees, freed from all liability for the debts of the decedent, except premiums paid on the policy by any one other than the insured for debts due for expenses of last illness and for burial; but if the life of the deceased be insured for the benefit of his heirs or legatees at the time of his death otherwise, and they shall collect the same, the sum collected shall be deducted from the five thousand dollars and the excess of the latter only shall be exempt.” This section was construed by this court in the case of Cozine v. Grimes, 76 Miss. 294, 24 So. 197, and the [131] principles there announced were applied to facts almost identical with those now before us. In the Cozine Case the court was considering section 1965, Code of 1892, which in all material respects is the same as the present statute, and the court there said: £ £ That manifest purpose seems to be this: That when there is no insurance-otherwise, the sum of five thousand dollars, if payable to the executor or administrator, shall constitute the maximum amount set apart as exempt, to the heirs or legatees. That was deemed a sufficient sum in such contingency to provide against destitution. But if the heirs or legatees were, either all or some only of them, otherwise provided for ■ by insurance than as marked out in section 1965, and the decedent left five thousand dollars insurance as marked out in section 1965 also, then section 1965 was not to provide cumulative exemptions, but should be so construed as to giye each heir or legatee, together with what he otherwise might get, an additional amount, sufficient only to make the whole insurance received by him equal to what his ratable share of the five thousand dollars would be.” Applying this construction to the facts in the' present case, it is clear that the pro rata share of each .of the four heirs or legatees in the five thousand dollars insurance money which is exempt by this section, is $1,250. The mother, having two thousand five hundred five dollars and fifteen cents of insurance otherwise, has received more than her pro rata share of the five thousand dollars, and is entitled to no part thereof until creditors are satisfied. Two of the daughters of deceased have received seven hundred thirteen dollars and seven cents of insurance otherwise, and consequently they are each entitled to receive out of the insurance money in the hands of the administrator a sum sufficient to make up their pro rata share of one thousand two hundred fifty dollars, that is to say, the sum of five hundred thirty-six [132] dollars and ninety-three cents each. ' The third daughter, Willie Bell Magee, was not otherwise provided for by insurance, and has received nothing, and she is entitled to have her full pro rata share of one thousand two hundred fifty dollars. After paying these sums the excess is to be used in the payment of the creditors of decedent, and the balance, if any, will be distributed under the provisions of the will, which in this case are the same as the laws of descent and distribution. The decree of the court below will therefore be reversed, and a decree will be entered here directing the administrator to pay to Mrs. J. L. Thomas, Mrs. James Daly, Jr., and Willie Bell Magee, the amounts herein indicated. Reversed, and decree here-