Canterbury v. Northwestern Mutual Life Insurance

Cassoday, C. J. The facts in this case are undisputed. The plaintiff’s husband, James B. Canterbury, procured from the defendant three policies of insurance on his own life— one for $2,000, dated December 5, 1874; another for $2,000, dated June 1G, 1876; and another for $3,000, dated September 24, 1878 — and it was stated in each of said policies, in effect, that it was “for the benefit” of “his wife,” the plaintiff in this action, for the amount stated therein, for the term of his natural life, and this defendant therein promised and agreed “to pay the said sum assured, at its office, to the said beneficiary, or her executors, administrators, or assigns, in sixty days after due notice and proof of death of the said person whose life” was thereby assured. As indicated in the foregoing statement, the said James B. and Catherine A. Canterbury, on October 1, 1892, for a valuable consideration, sold, assigned, transferred, and set over unto the State Bank of La Crosse all their right, title, and interest in and to both of said policies dated, respectively, June 16, 1876, and September 24, 1878, and delivered the same to the bank. Such assignment was in writing and in duplicate, and such duplicate was at the time sent to the defendant’s home office, and has remained there ever since, and said bank thereupon and repeatedly thereafter paid the premiums upon said policies, respectively, as they became due, to protect its interest therein. On July 31, 1896, James B. and Catherine A. Can-terbwry, for a yaluable consideration, sold, assigned, transferred, and set over unto the National Bank of La Crosse all their right, title, and interest in and to- said policy of December 5, 1874, and delivered the same to that bank. Such as — 177 — signment was in writing and in duplicate, and suck duplicate was at the time sent to tke defendant’s kome office, and kas remained tkere ever since, and said bank thereupon and repeatedly thereafter paid tke premiums on said last-mentioned policy as they became due, to protect its interest therein. It is conceded that all three policies were in full force at tke time of tke death of James B. Canterbury, February 14, 1901; that February 26, 1901, tke respective banks holding suck policies by suck assignments furnished to tke defendant due notice and proofs of death of James B. Canterbury, and therein and thereby expressly claimed, as suck assignees, tke entire proceeds of tke policy or policies so held by it’; and at tke same time furnished to the defendant due proof of suck banks’ insurable interest in tke life of James B. Canterbury; that March 1C, 1901, this defendant paid to suck banks, respectively, as suck assignees, under tke proofs so furnished, the full amounts called for by tke respective policies, and the defendant then received from each of suck banks its receipt in full therefor, together with tke surrender and delivery of suck policies to this defendant. Tke plaintiff never objected to nor questioned tke validity of either of suck assignments or tke claims of tke respective banks thereunder, or suck payments to tke banks, respectively, until nearly three years after’ suck payments were made. This action was not commenced until January 31, 1904. Tke questions presented concern tke validity of suck assignments and tke effect of tke payments made by tke defendant to tke respective banks on account of tke policies and assignments mentioned. The wording of suck contracts of insurance is certainly very plain and unambiguous. Tke controversy is as to tke construction of tke statutes' under which they were made, or which have ’since been enacted. 1. Tke first question naturally calling for consideration is as to tke meaning and effect of tke statutes under which these insurance contracts were made. Tke difficulty in con — 178 — struing such statutes arises from the fact that there were numerous provisions enacted at different times, and’not always consistent, Raving more or less Rearing upon tRe questions involved. To reach an accurate conclusion, the precise question here presented should be kept in mind. Where, as here, a husband procures a policy of insurance on his own life for the benefit of his wife, payable on his death to her “or her executors, administrators, or assigns,” did such statutes preclude, or attempt to preclude, the husband and wife together from assigning the policy with the consent of the company which issued the same ? One branch of the legislation had for its object the emancipation of the wife and giving her the power and right to receive, hold, convey, and transfer property the same as though she were unmarried. Such statutes have existed in this state in one form or another for more than fifty years. Ch. 44, Laws of 1850; ch. 95, R. S. 1858; ch. 108, R. S. 1878; and ch. 108, Stats. 1898. It is enough to say here on that subject that such rights and powers of married women, during that period, have gradually been enlarged and broadened. There is no controversy here as to such general rights and powers of married women, and hence there is no necessity of citing any specific provisions of such statutes on that subject. We are here particularly concerned about insurance procured by a husband on his own life for the. benefit of his wife. The first enactment in this state on that subject was ch. 158, Laws of 1851, entitled “An act in relation to insurance on lives and for the benefit of married women and other persons.” Sec. 1 of that act declared : “That any policy of insurance made by any insurance company on the life of any person, expressed to be for the benefit of a married woman, whether the same be effected by such married woman or by her husband or by any other person on her behalf, shall inure to her sole and sepárale use and bene;fit and that of her children, if any, independently of her hus — 179 — band and of bis creditors and representatives, and also independently of any other person effecting the same in ber behalf, -bis creditors and representatives.” That is copied almost literally from ch. 82 of the Acts of Massachusetts of 1844, having the same title; the only difference being in the use of the words “such married woman,” instead of the word “herself,” and inserting the words “sole and” between the words “her” and “separate use.” That was followed by a clause not taken from the Massachusetts statute, to the effect that, “in case of the death of the husband” so insured, “such policy and the benefit thereof” should “belong to such married woman,” and should “be for her sole use and behoof and that of her children.” That statute was continued in force by sec. 5, ch. 95, R. S. 1858, and sec. 5, ch. 95, Tay. Stats. 1871. Ch. 182, Laws of 1862, was an independent act without any repealing clause, and was entitled “An act to secure to married women and others the benefit of insurance on lives,” and the first section declared, among other things, that: “It shall be lawful for any married woman to cause to be insured for her sole use, the life of her husband, her son, or any other person, for any definite period or for the time of the natural life of such husband, son or other persons [person] ; and in case of her insuring such husband, son or other person, the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to and for the sole use of such married woman, free and exempt from the claims of the representatives of such husband, son or other person, or of their or any of their creditors, respectively.” The balance of the act has no bearing upon the question here being considered. The object of the act was to authorize a married woman to procure insurance on “the life of her husband, her son, or any other person,” and to exempt the same from the claims of creditors of such husband, son, or other person. That act was patterned after ch. 80, Laws of New — 180 — York of 1840, but which, only authorized a married woman “to cause to be insured, for her sole use, the life of her husband, . . . and in case of her surviving her husband the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her, to and for her own use, free from the claims of the representatives of her husband, or of any of his creditors.” The portions of that act referred to were expressly repealed by sec. 28, ch. 59, Laws of 1870, entitled “An act to regulate the business bf life insurance.” Sec. 1 of that act declared that: “It shall be lawful for any married woman, by herself and in her own name, or in the name of any third person, with, his assent as her trustee, to cause to be insured for her sole use, the life of her husband, son or other person for any definite period or for the term of the natural life of such person.” That is quite similar to the first portion of sec. 1, ch. 182,. Laws of 1862, above quoted, and the statute of New York mentioned. Then follows a clause authorizing “any person” procuring insurance upon the life of another “to assign, transfer or cause the same to be made payable to any married woman, . . . whether the person effecting or procuring such insurance or making such assignment or transfer be the husband of such married woman or not, and such policy of insurance, vdien expressed to be for the benefit of, or assigned, transferred or made payable to, any married woman, shall inure lo her separate use and benefit and that of her children, and in case of her surviving such period or-term, the sum- or net amount of the insurance becoming duo and payable by the terms of the insurance shall be payable to-her, to and for her own use and benefit, free from the claims of her husband, his representatives or creditors, and free from the claims of the person effecting, assigning or transferring-such insurance, his representatives or creditors.” These provisions are quite similar to sec. 5, ch. 95, R. S., 1858, and Tay. Stats. 1871, taken in part as they were from the statutes of Massachusetts. The exemption features of the statutes have not been fully pointed out because there is no — 181 — right or claim of any creditor here involved. Tbe question here to be determined is the assignability of the policies. Such are the provisions of the statutes more or less applicable to the case at bar, and which were in force when the policies in question were issued. These policies were all issued prior to November 1, 1878, when the Revised Statutes of that year went into effect. That revision made no substantial change in the statutes in force during the time such policies were issued. On the contrary such revision “condensed” and simplified sec. 19, ch. 59, Laws of 1870, and secs. 5 and 6, eh. 95, R. S. 1858, and Tay. Stats. 1871. Revisers’ Notes, sec. 2347, R. S. 1878. Leaving out nonessentials — so far as the present case is concerned — and the new section reads as follows: “Any married woman may, in her own name, . . . cause to be insured, for her sole use, the life of her husband, son or other person; . . . and any person, whether her husband or not, effecting any insurance of the life of another, may cause the same to be made payable or assign the policy to a married woman; . . . and every such policy, when expressed to be for the benefit of, or assigned or made payable to any married woman, . . . shall inure to her separate use and benefit and that of her children, and in case of her surviving the period or term of such policy, the amount of the insurance shall be payable to her or her trastee for her own use and benefit, free from the claims of her husband and of the person effecting or assigning such insurance, and from the claims of their respective representatives and creditors. . . . The amount of any such insurance may be made payable, in case of the death of such married woman before the period .at which it becomes due, to her children or to their guardian for their use, if under age, or to any other person, as shall be provided in the policy. . . . The provisions of this section shall apply to all insurance on lives effected before the passage of these statutes.” Sec. 2347, R. S. 1878. It is claimed that under the portion of our statute taken from New York and the prior decisions in that state the policies in question were not assignable. It will be observed that — 182 — the New York statute mentioned was enacted while married women in that state were under the common-law disability. It simply made it “lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured, for her sole use, the life of her husband,” etc. In the case at bar none of the policies were procured by the wife, but all were procured by the husband on his own life for her benefit. The act of 1862 and the act of 1870 made it lawful for such married woman to procure such insurance not only upon the life of her husband, as in the New York act, but also on the life of “her son or any other person;” and so the act of 1870 made it lawful for any person to procure insurance upon the life of any person, and “to assign, transfer or cause the same to be made payable to any married woman.” Sec. 2347, R. S. 1878, is to the same effect. So the New York act only provided that such insurance, so procured by a married woman, should “be payable to her, to and for her own use, free from the claims of” her husband’s representatives and creditors, “in case of her surviving her husband.” The act of 1870 declared that such insurance, assigned or made payable to a married woman, whether effected by her husband or some other person, should “inure to her separate use and benefit and that of her children.” The words quoted.are taken from the Massachusetts act, and are found in ch. 158, Laws of 1851; sec. 5, ch. 95, R. S. 1858, and Tay. Stats. 1871; and sec. 2347, R. S. 1878. It is true that in the New York case relied upon the wife obtained a policy of insurance on the life of her husband under the act mentioned, and she survived her husband; and it was held by a divided court that such policy was not transferable so as to divest the interest of the wife or her children. Eadie v. Slimmon, 26 N. Y. 9, 15, 17. Denio, C. J., concurring, there said that the act mentioned “was an enabling, and not a declaratory, provision ;” in other words, and to the extent therein mentioned, it — 183 — removed the common-law disability of tbe wife. In a subsequent case in tbe same court it was said that: “We are not called upon to vindicate tbe doctrine of Eadie v. Slimmon. Tbe inference of a legislative intent to make a policy procured by a wife on tbe husband’s life unassignable, deduced by the court in that case, has sometimes been thought to rest on a slender foundation; but tbe case has been repeatedly followed. [Citing cases.] Tbe legislature, in conferring by subsequent acts a limited power of assignment,' have recognized tbe policy attributed to tbe legislation of 1840.” Brummer v. Cohn, 86 N. Y. 11, 17. In a later case in that state, speaking of Eadie v. Slimmon, it was said that: “In that case and in all tbe cases following it tbe policy was either procured by tbe husband upon bis life, and payable to tbe wife, or taken out by tbe wife and payable to herself. [Citing cases.] Since tbe inference of a legislative intent to make nonassignable a policy of insurance upon tbe life of a husband for tbe use or benefit of a wife, issuéd prior to tbe passage of tbe act of 1819, rests wholly upon judicial construction, and not upon tbe express terms of the statute of 1840, it should not, at this late day, be further extended by construction.” Dannhauser v. Wallenstein, 169 N. Y. 199, 211, 212, 62 N. E. 160. In a still later ease in tbe same court it was held that: “Money due upon a matured insurance policy, written by an ordinary life insurance company upon tbe life of a bus-band, payable to bis wife, is subject to levy under a warrant of attachment issued against tbe property of tbe wife in an action brought to recover a debt owing by her.” Amberg v. Manhattan L. Ins. Co. 171 N. Y. 314, 316, 317, 63 N. E. 1111. It was there said that: “While we have held that such a policy cannot be seized by tbe creditors either of tbe husband or the wife before it has become due and payable, we have not held that it is exempt from tbe claims of her creditors after tbe contingent promise has ripened into an actual promise and tbe right of tbe bene — 184 — ficiary bas become absolute. . . . Tbe reason for bolding that tbe policy is practically exempt until it becomes due is that tbe wife could not assign it until it matured, because fit would be against tbe spirit and policy of tbe statute to allow sucb a policy to be assigned by a wife during tbe lifetime of ber bus-band/ or before tbe maturity of tbe policy.” In view of tbe differences pointed out between tbe New York act of 1840 and our own. statute, and in view of tbe more recent utterances of tbe highest court of that state on tbe subject, tbe decision in Eadie v. Slimmon, 26 N. Y. 9, cannot be regarded as persuasive authority for bolding that under our statutes tbe policies in question were not assignable. There is no claim here that any court bas ever decided that the statute of Massachusetts made sucb policies nonassignable. On tbe contrary, tbe courts of Massachusetts have declared them to be assignable. Thus, a husband procured two policies of insurance on bis own life “for tbe use of bis wife, Mary D., and bis children alive at bis decease,” and subsequently be and his wife assigned to one S. “all their title and interest in the policies, and all advantages to be derived therefrom,” and thereafter S., at their request, assigned and delivered tbe same to tbe plaintiff, who thereafter paid tbe annual premiums and assessments thereon; each of sucb assignments was made to secure tbe repayment of money borrowed by tbe husband; tbe wife died before tbe husband, and then be died, leaving their child surviving; and it was held that tbe plaintiff, as sucb assignee, could maintain an action at law against tbe company on the policies, which, in tbe language of the act, were “expressed to be for tbe benefit of a married woman.” Burroughs v. State M. L. A. Co. 97 Mass. 359. See, also, Norris v. Mass. M. L. Ins. Co. 131 Mass. 294; Troy v. Sargent, 132 Mass. 408; Boyden v. Mass. M. L. Ins. Co. 153 Mass. 544, 546, 27 N. E. 669. In this last case tbe assignment by tbe wife and children to tbe husband was held valid. In Newcomb v. Mut. L. Ins. Co. 18 Fed. Cas. — 185 — No. 10,147 (p. 47), a husband procured insurance on bis own life for bis own benefit, and tben assigned it to bis wife, and sbe assigned it to tbe plaintiff as security for a loan to tbe husband, and tbe federal court of Massachusetts held that tbe assignment was valid; and it was there said, in effect, that under tbe statute of that state tbe husband and wife together could transfer tbe wife’s separate property therein as security for bis debts or for any other lawful consideration. So where, in that state, a husband, in tbe name of bis wife, procured insurance upon bis own life for tbe benefit of bis wife “for her sole use, if living, and, if not living, to her children,” and tbe wife died first, leaving children, who died before tbe husband, it was held, in effect, that such insurance passed to tbe estate of tbe children. Millard v. Brayton, 177 Mass. 533, 59 N. E. 436. To tbe same effect, Swan v. Snow, 11 Allen, 224. In the case at bar it is conceded that tbe plaintiff never bad any children nor child. Such is tbe import and effect of tbe statute of Massachusetts of 1844 which was adopted in this state almost literally in 1851, and, as indicated, was continued in substantially tbe same form at least down to tbe revision of 1878. Certainly, tbe words “expressed to be for tbe benefit of a married woman,” and tbe words “shall inure to her separate use and benefit and that of her children,” found in tbe Massachusetts act, are also, with tbe words “sole and” inserted before tbe word “separate,” found in tbe Revised Statutes of 1858 and Taylor’s Statutes of 1871. Tbe phraseology is slightly changed in tbe act of 1870, but tbe substance is preserved, as follows: “Such policy of insurance, when expressed to be for tbe benefit of, or assigned, transferred or made payable to any married woman, shall inure to her separate use and benefit, and that of her children.” • . . Tbe same provision with tbe word “transferred” dropped out and tbe words “or any such trustee” inserted was con — 186 — tinued in tbe revision of 1878 and also in tbe revision of 1898 (see. 2347). Tbe first case in tbis court having any bearing upon tbe question bere presented is Kerman v. Howard, 23 Wis. 108. In tbat ease tbe busband procured an insurance on bis own life, payable to bis wife, “Ellen ITill, or ber legal representatives.” Tbe busband bad no child by Ellen, but bad two daughters by a former wife, and tbe plaintiff was tbe daughter of Ellen by a former busband. Tbe busband and wife were both injured by an explosion, from which they both died; the wife a few hours prior to the husband. After the death of the wife, the busband, without knowing tbat she was dead, made bis will, giving tbe insurance to tbe three children “in equal parts,” provided that bis wife did not live, but that, if she did live, then it was to go to ber. Tbis court affirmed tbe judgment of tbe trial court disposing of the'insurance according to tbe will, and held tbat: “Where a busband survives bis wife, having previously procured a policy of insurance on bis own life for her benefit, and himself paid tbe premiums thereon, be may dispose of it by will or otherwise.” In that case tbis court commented at some length upon the case of Eadie v. Slimmon, 26 N. Y. 9, and concluded by saying that it could not “be regarded as controlling authority.” In Archibald v. Mut. L. Ins. Co. 38 Wis. 542, 545, 546, the husband procured from the defendant an insurance on his life of $3,000, payable to his wife. Tbe busband died, and thereupon tbe wife commenced tbe action against tbe company. Tbe company defended on tbe ground tbat the plaintiff was not the owner of the policy; that a short time before the husband’s death he and his wife had, by an instrument in writing, assigned the policy to the persons therein named, to save them harmless from any indorsement and liabilities incurred by them for the assured; and it was said in the opinion, and this court held, that the husband and wife owned the — 187 — whole interest in the policy, and, having joined in making the assignment, the same was valid; that “there is nothing in our law which prohibits a married woman from making such an assignment;” and that “a life policy is on the same footing in these respects as other choses in action which are assignable in equity.” That case has never been questioned by this court. ' On the contrary, it has frequently been cited with approval. Ballou v. Gile, 50 Wis. 614, 619, 7 N. W. 561; Bursinger v. Bank of Watertown, 67 Wis. 75, 81, 82, 30 N. W. 290; Estate of Breitung, 78 Wis. 33, 35, 46 N. W. 891, 47 N. W. 17. The case of Archibald v. Mut. L. Ins. Co. 38 Wis. 542, has also been repeatedly recognized as a sound adjudication in other jurisdictions. Metropolitan L. Ins. Co. v. O’Brien, 92 Mich. 584, 589, 52 N. W. 1012; Amick v. Butler, 111 Ind. 578, 582, 583, 12 N. E. 518, 520; Davis v. Brown, 159 Ind. 644, 647, 65 N. E. 908; Binkley v. Jarvis, 102 Ill. App. 59, 64; Newcomb v. Mut. L. Ins. Co. 18 Fed. Cas. No. 10,147 (p. 47). In this last case, United States Circuit Judge Lowell cited the Archibald Gase, among others, to the proposition that: “The courts of all the states which have passed upon this question, under statutes more or less like ours, excepting the court of appeals of New York, have held that the married woman has the full domain over the policy,1 and may sell,, assign, or pledge it like her other separate property.” It is there further said that “the decisions in Eadie v. Slimmon, 26 N. Y. 9, and Barry v. Equitable L. A. Soc. 59 N. Y. 587, are placed upon reasoning which does not apply to our statute.” So, in an opinion by Mr. Justice Eield, speaking for the supreme court of the United States, the Archibald Gase is cited to the general proposition that: “A policy of life insurance without restrictive words is assignable by the assured for a valuable consideration, equally with any other chose in action, where the assignment is not made to cover a mei’e speculative risk and thus evade the law — 188 — .against wager policies; and payment thereof may be enforced for the benefit of the assignee, and, under tbe system of procedure in many states, in his name.” New York M. L. Ins. Co. v. Armstrong, 117 U. S. 591, 597, 598, 6 Sup. Ct. 877. Such was the law at the time the policies in question were issued, as declared by this court in the Archibald Case. True, one of those policies had been issued before that decision was announced. But that decision was no new announcement or departure from any established rule of law. On the contrary, the opinion declares the decision to be in accordance with “the settled law of this state.” As already indicated, prior to that decision, and prior to any of the policies in question being issued, this court had expressly repudiated the decision of Eadie v. Slimmon, 26 N. Y. 9, holding “that a policy of insurance on the life of. the husband for the benefit of the wife and children” was not transferable, “so as to divest the interest of the wife,” and held that the husband had power to transfer such policy by will, even after the death of his wife, who had left a daughter her surviving. Kerman v. Howard, 23 Wis. 108. That decision carried the doctrine of assign-ability of such policies much beyond the decision in the Archibald Case, which, as indicated, merely held that the husband and wife together “owned the whole interest in the policy,” and hence could transfer the same by joining in an assignment thereof. So the decision in Kerman v. Howard went beyond the decisions in the Massachusetts cases cited, for the same reason. But the decision in Kerman v. Howard has never been overruled by this court, and has frequently been followed or cited with approval, with an occasional dissent from the writer. Foster v. Gile, 50 Wis. 603, 7 N. W. 555, 8 N. W. 217; Ballou v. Gile, 50 Wis. 614, 7 N. W. 561; Bursinger v. Bank of Watertown, 67 Wis. 75, 81, 30 N. W. 290; Given v. Wis. O. F. M. L. Ins. Co. 71 Wis. 547, 552, 37 N. W. 817; Estate of Breilung, 78 Wis. 33, 35, 46 N. W. 891, 47 N. W. 17; Strike v. This. O. F. M. L. Ins. Co. 95 — 189 — Wis. 583, 587, 70 N. W. 819; Berg v. Damkoehler, 112 Wis. 587, 590, 88 N. W. 606. Tbe general purpose of tbe court bas been to steadily adhere to tbe decision in Kerman v. Howard until tbe same should be changed by statute. It follows from what bas been said that tbe policies in question were assignable at tbe times they were respectively issued. '2. Tbe question recurs whether such assignability was destroyed or impaired by subsequent legislation. It bas already been shown that tbe statutes on tbe subject in force at tbe times of issuing such policies were substantially tbe same as are found in tbe Revised Statutes of 1878 (sec. 2347). That section was amended in 1889 by striking tbe word “of” out from tbe words “effecting any insurance of tbe life of another,” and inserting in lieu thereof the words “on bis own life or on.” Sec. 1, ch. 271, Laws of 1889. This broadened tbe scope of tbe language, but did not impair, nor attempt to impair, tbe assignability of tbe policy. That section was again amended in 1891 by inserting tbe words included in parentheses contained in tbe following portion of tbe section: “Every such policy when expressed to be for tbe benefit of' or assigned or made 'payable to any married woman or any such trustee, (shall be the sole and separate property of such married woman, and) shall inure to her separate use and benefit and that of her children, and in case of her surviving tbe period or term of such policy, tbe amount of tbe insurance shall be payable to her or her trustee for her own use and benefit, free from tbe (control, disposition or) claims of her husband and of tbe person effecting or assigning such insurance, and from tbe claims of their respective representatives and creditors.” Sec. 1, ch. 376, Laws of 1891. Undoubtedly, as indicated in tbe opinion of my brother Marshall, in Ellison v. Straw, 116 Wis. 207, 92 N. W. 1094, tbe purpose of that amendment was to radically change tbe judicial rule announced by this court in Clark v. Durand, 12 Wis. 223, and Kerman v. Howard, 23 Wis. 108, and other cases following those decisions, to tbe effect “that tbe mere — 190 — beneficiary named in a policy of insurance bad no rights whatever which the assured was bound to respect.” That amendment expressly enlarged the rights of the wife by declaring that every such policy “shall be the sole and separate property of such married woman,” free from the “control, disposition or” claims of her husband or any other person. It thereby expressly took from the husband or other person procuring such insurance for her benefit all right of control over and disposition of such policy, as previously held by this court. But that amendment, properly construed, did not impair nor attempt to impair, much less destroy, the assigna-bility of such insurance contract. The fact that it declares that such policy “shall be the sole and separate property of such married woman” does not imply that she has no power to assign the same with the consent of the company from which it issued. Nor can it be properly claimed that such insurance contract is made nonassignable by reason of the words thus injected into the section by the amendment being followed by the words, “shall inure to her separate use and benefit and that of her children,” since, as already shown, those words were taken from the statute of Massachusetts and have been in force in this state as a part of the statute in question ever since the act of 1851 mentioned. They were therefore in force when this court held such policies to be assignable in Kerman v. Howard and the Archibald Case and the other cases following those decisions. By a well-established rule of law, which in this state has long been statutory, the effect of an amendment to a section of the statutes otherwise continued is merely to leave the section so amended as it was before, with the added feature. Sec. 4985, Stats. 1898; Madden v. Kinney, 116 Wis. 561, 568, 93 N. W. 535; Danforth v. Oshkosh, 119 Wis. 262, 309, 97 N. W. 258. Ever since the act of 1870 the section of the statutes in question contained a clause which expressly declares that “the amount of any such insurance may be made payable, in case of the death — 191 — of such married woman, before the period at which it becomes due, to her children or to their guardian for their use, if under age, or to any other person as shall be provided in the policy.” See. 2347, Stats. 1898. The language of the act of 1870 was slightly different, but it was substantially the same as indicated above. That clause expressly authorized the assured, in case he survived such married woman, to provide in the policy to whom the same should be payable; and, in case he failed to do so, then it was to be payable to her children or their guardian. Ellison v. Straw, 116 Wis. 207, 214, 92 N. W. 1094. That clause expressly gave to such married woman at least a contingent interest in the policy during the life of the assured and while the same was not otherwise disposed of by him. In the case at bar the plaintiff survived her husband and never had any children nor child, so that clause of the section is not here applicable. But, as already indicated, there was a clause in the act of 1870 to the effect that, in case such married woman named as beneficiary in such policy should survive the “period or term” therein expressed, “the sum or net amount of the insurance becoming due and payable by the terms of the insurance” should “be payable to her, to and for her own use and benefit, free from the claims of her husband, his representatives or creditors, and free from the claims of the person effecting, assigning or transferring such insurance, his representatives or creditors.” Such was the language of the clause when the policies in question were issued. As indicated, the same was condensed and continued in sec. 2347, R. S. 1878, and, as amended, in the Statutes of 1898, wherein it is declared, in effect, that in case such married woman survived “the period or term of such policy, the amount of the insurance” should “be payable to her or her trustee for her own use and benefit,” etc. The fact that such insurance was to be so paid to her or for her use and benefit,' in case she so survived, but, in case she did not so survive, then to be paid “to her children, or to — 192 — tbeir guardian, ... or to any other person” who might be “provided” for “in the policy,” is a pretty clear indication that the legislature only intended to prescribe where the insurance money should otherwise go in case the married woman did not so survive. In other words, in case she so survived, then the insurance money was to be paid “to her or her trustee for her own use and benefit,” regardless of the question whether she had children or not. As held in Massachusetts, “if a policy of insurance is expressed to be for the benefit of the wife of the assured, her children have no interest in it during her lifetime.” Norris v. Mass. M. L. Ins. Co. 131 Mass. 294; Troy v. Sargent, 132 Mass. 408. Such were the provisions of the statutes applicable when this court held that, as the assured and his wife owned the whole interest in such policy, they could together transfer the same by assignment with the consent of the company. Archibald v. Mut. L. Ins. Co. 38 Wis. 542, 546. The assignments of the policies in question by the plaintiff and her husband were not made until after the amendment of 1891. That amendment in terms applied “to all insurance on lives effected before” its enactment. Assuming it to be applicable to the policies in question, yet it nowhere attempted to take away from such married woman any interest she had in any such policy. On the contrary, it purported to enlarge her right, title, and interest therein by expressly declaring that such policy should be her “sole and separate property,” free from the “control” or “disposition” of her husband or other person procuring the same. The language employed indicates absolute ownership. That amendment placed a married woman, named as beneficiary in such life insui'ance policy, upon an equal footing with a single female or a man, as previously held in other jurisdictions. Thus, in an English case, where a man procured insurance on his own life in the name of his daughter, and retained the policy in his own possession, and paid all the premiums thereon, it was held.to be a complete — 193 — gift to the daughter, and that upon the death of her father she was entitled to the insurance money. Weston v. Richardson, 47 L. T. Rep. 514. So it has been held by the supreme court of the United States to be a general rule that a life insurance policy, and the' money to become due under it, belong, the moment it is issued, to the person named therein as beneficiary. Central Bank v. Hume, 128 U. S. 195, 9 Sup. Ct. 41. To the same effect: Glanz v. Gloeckler, 104 Ill. 573; Wilburn v. Wilburn, 83 Ind. 55; Laudenschlager v. N. W. E. & L. Asso. 36 Minn. 131, 30 N. W. 447; Robinson v. Duvall, 79 Ky. 83; City Sav. Bank v. Whittle, 63 N. H. 587, 3 Atl. 645. Such absolute ownership, with no disability, carried with it by necessary implication the constitutional right to assign and dispose of such policy. See New York M. L. Ins. Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. 877, and other cases cited above; Planters’ Bank v. Sharp, 6 How. 301; Pearsall v. G. N. R. Co. 161 U. S. 646, 663, 664, 16 Sup. Ct. 705; People v. Otis, 90 N. Y. 48. Thus it has been held by this court that stock in a private corporation is personal property, and that the owner thereof has the right tu transfer the same in the manner prescribed by statute, notwithstanding a by-law of the corporation to the contrary. Such by-law was therein held to be void, as against public-policy. In re Klaus, 67 Wis. 401, 404, 405, 29 N. W. 582; Edgerton T. M. Co. v. Croft, 69 Wis. 256, 259, 34 N. W. 143. The bringing of this action was doubtless induced by what; was recently said by this court in Ellison v. Straw, 116 Wis. 207, 92 N. W. 1094; and if we adhere to all that was said in that case, as distinguished from what was presented and necessarily decided, then it was justified. That case did not involve the voluntary assignment of any policy of insurance, Several of the statutes and decisions bearing upon that question were not there brought to our attention nor considered. The question there presented and decided was whether the interest of a married woman in an insurance policy on her — 194 — husband’s life was, during Ms life, exempt from ber debts. That question was new in Wisconsin, for, prior to 1891, ber interest, being subject to transfer or destruction at the will of ber busband, was of so uncertain value as not to attract attempts by creditor’s to reach it. With no opposing adjudications- in this state on that question, we reached the conclusion, and decided that the various provisions in our statutes indicated' a purpose to provide for the widow and ber children; and that such liability to ber creditors was so inconsistent with such purpose that we were forced to believe that the legislature intended that ber interest in such insurance policy, even though her sole and separate property, was nevertheless -exempt from the reach of creditors. That question is not here involved, but we have no disposition or purpose to indicate that if it were we should hesitate to adhere to that decision. The case of Ellison v. Straw, however, went further, and declared that the same provisions of our statute indicated a purpose to prohibit the assignability of such a policy by a married woman. That view was largely based upon the assumed identity of our statute with that of New York, and upon Eadie v. Slimmon and like cases. If the question, here presented were an original one, like that of the exemption, we might feel bound by the decision in Ellison v. Straw. But our attention is now called to the fact that our statute was mostly taken from Massachusetts, and that the doctrine of Eadie v. Slimmon had long before been repudiated by this court, and that the assignability of such policies had been repeatedly decided under statutes containing the same provisions as at present, except only the new words incorporated by the act of 1891. We cannot doubt that these decisions of our own court are of such age and character as to entitle them to full recognition under the rule stare decisis. They manifestly had become a rule of properly on which the defendant relied in paying these policies. A stronger case to justify such reliance could not well be presented. After full co-nsid195 eration, we do not feel justified in departing from the decisions referred to, and so we are constrained to withdraw the declaration in Ellison v. Straw, supra, to the effect that a married woman has no right to assign, her interest in a policy of insurance on the life of another. We must hold that all right, title, and interest in the policies in question were transferred hy the assignments mentioned to the respective banks, and that the same were paid and satisfied by this defendant long prior to the commencement of this actipn. By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the action.