Diffenbach v. New York Life Ins.

Irving, J.,

delivered the opinion of the Court.

These are independent appeals in different cases; but,, as they involved the same question, by agreement but one record was sent up, and the cases will be treated as one in this opinion.

The appellants filed their bill, in the Circuit Court of' Baltimore City, alleging that in May, 1881, G-. A. Moore, late of Baltimore City, deceased, being indebted to them,, in large sums of money, under his hand and seal assigned certain policies of insurance on his life, for five thousand dollars each, in the New York Life Insurance Company and in the Manhattan Life Insurance Company of New York, to Robert D. Morrison and E. J. D. Cross, to secure them each the sum of one thousand dollars, due them respectively, and then to the complainants to secure their claims against him respectively; that in December following the assignor died leaving the policies in full force. The bill further charges, that these assignments were made “subject to the lien of a certain August Yogeler for moneys advanced by him on said policies, or otherwise on account of said Moore.” It charges that August Yogeler' is not entitled to the whole of the policies, and, that for whatever claim he may have once had, he had accepted, and retained a conveyance of valuable laird in Yirginia. It charged that the complainants had applied to August Yogeler for a full statement of his claim and its origin, but had been unable to obtain a satisfactory statement thereof The bill then calls for a full discovery, under *377 oath, and in detail, of “ tlie nature, origin, consideration,, and extent of the alleged lien, and what other security or satisfaction he has for said claim,” and prays for a decree against the insurance companies for the payment of the money into Court and its distribution among the parties entitled under the order of the Court. The insurance companies replied by way of a cross bill asking to be permitted to pay the money into Court, and that they be discharged with their costs, as they admitted tlie indebtedness, but did not know to whom to pay.

The Court granted the prayer of the insurance companies and the money, less the costs allowed .by the Court, was paid into Court, and the question arises on the decree of the Court distributing the same; whereby, under the finding of the Court, the claims of August Yogeler were found to be so large there was scarcely enough left to pay Morrison and Cross, and none to be paid to the appellants.

The appellants concede the priority of the respondents, Morrison and Cross, but contend, that August Yogeler was-entitled to nothing but the premiums he paid on the policies, with interest thereon; and that the Court has erred in allowing him any more. The appellants deny, that Yogeler had any insurable interest in the life of Dr. Moore when the fife policies were assigned to him by Dr. Moore, but waive any objection on that account, to the extent of the premiums paid and interest thereon, which is expressly provided for by the paper under which they claim.

' The case is presented to us in such a way that we are relieved from considering some of the questions of law suggested, and relied on in argument. Claiming as the appellants do, under an assignment of policies of life insurance, the validity of which the insurance companies have not denied, but have paid the amounts secured by them into Court for payment to whoever may be entitled, the legality of the transaction does not arise, as we think. *378 The proceeds must be disposed of according to the equities of the complainants and defendants respectively.

Taking by. the assignment the complainants can only take that which the assignment gives them; and that assignment recognizes the lien of Yogeler on account of advances for premiums “ and otherwise.” Whatever that interest of Vogeler appears to be, in any legitimate way, it must take the precedence in payment over all the other assignees. The complainants concede this substantially in their bill, and alleging ignorance of the niature and amount of Vogeler’s claim over and beyond the premiums paid, which latter are admitted to be properly allowable, they call on Vogeler to discover, under oath, the exact amount and character of his claims. He replies with minuteness in his answer. This demand for answer, on ■oath, was made, that the complainants might use it, if it suited their purposes, as evidence; and in order that they might controvert -the claims set up, if they could do so. The record does not show, whether the answer was relied on by the appellants at the hearing below; and there is no opinion sent up with the record to inform us upon what ground the- Circuit Court rested its decision ; but the appellants did offer evidence intended to disprove the claims ■of which the answer gave them their v;hole information. Assuming that the answer, unless read in evidence by the complainants, would not, as such, be admissible in ■evidence for Vogeler, he has voluntarily testified as a witness in the cause. His testimony was excepted to, and the decision of the cause depends upon the question thus raised as to his competency. There is no formal mention in the decree of the overruling of this exception by the Court below, but as his testimony fully supports the decree, as passed, we conclude the Court regarded the objection untenable, and Vogeler to be competent. In that view we entirely concur. He is not within the letter of the statute, and we do not think he is, in this suit, within *379 tlie reason of it. Yogeler is not suing the representatives of Dr. Moore on a claim against him. Mo executor or administrator is a party to the suit. Yogeler holds an absolute assignment of certain life insurance policies, which he claims. The insurance companies do not deny their liability, and by permission of the Court pay the fund into Court, that the interpleading parties may take the same under order of Court adjudging their respective rights. The complainants assert that Yogeler’s absolute assignment was really a mortgage of the policies only, and that after the payment of his claims, they, as assignees of Dr. Moore’s interest in the surplus after paying Yogeler, are entitled to the residue. Their assignment recognizes the claim of Yogeler for premiums paid “and otherwise,” as having priority, and their assignment is made expressly subject to it; but they insist, that as Dr. Moore is dead, Yogeler cannot he allowed to speak. Erom the very nature of the suit this cannot be so. It is a controversy wholly between appellants and Yogeler, and the original transactions between Vogeler and Dr. Moore are only'incidentally involved. As assignees they can only take what Yogeler would have a right, as against Moore at the time of the assignment, to claim. Equity forbids them to rely on the statement of Dr. Moore, now dead, that he was entitled to something after paying Yogeler, and disallow Yogeler’s exhibit of the transactions existing only between him and Moore, by way of showing what his claim is. The rule intended to be established by the statute is one of mutuality, and when Moore parted with his interest, he parted with it recognizing and reserving Yogeler’s superior claim, and the complainants did not represent him as executors or administrators would do, under the statute. The case falls within the reason and ruling of Cooke vs. Cooke, 29 Md., 538 . In that case the appellant filed his petition in the Orphans’ Court against the executor oí a testator, alleging that certain property *380 of the decedent had come to the executor's hands, describing it. The petition admitted that it was held and claimed under a hill of sale from the testator to the executor, hut the allegation was, that it was, in fact, only a mortgage, and that hut a certain amount stated in the petition was due. The petition prayed for an inventory and that the hill of sale might be declared void. The executor replied asserting his absolute title to the property, and alleging various advances to the testator. Issues were framed and sent to a Court of law for trial. At the trial the executor was permitted to show, by his own testimony, the various advances he had made to the testator in support of his title by the hill of sale. Exception was taken, and on appeal this Court affirmed the ruling of the lower Court in that respect, and said that the executor in such case did not fall within the prohibition of the statute. The entire analogy, between the facts of that case and this, is striking. In fact, being an executor, there was stronger reason for holding him within the prohibition than there is for holding Yogeler excluded. But his title being collaterally attacked, as here, he was not excluded. Looking at the question from an equitable standpoint, there is no ground for stretching the statute in this case beyond its natural and reasonable intendment. Yogeler’s testimony being receivable, the decree was clearly justified by the proof. The hand-writing of Dr. Moore to the vouchers offered is fully proved, and entirely corroborate Yogeler. It is useless to enter.into details respecting the allowances made. The appellants could only take what the natural import of their assignment gave them, which gave expressly the priority to all claims of Yogeler. The appellants relied on the failure of Yogeler to disclose his full claims at the interview testified to by Messrs. Morrison .and Cross, as an estoppel from setting up the claim he afterwards produced. We do not think this a case for the a|>plication of that doctrine. He had an absolute assign *381 ment; he was advised to so claim it by his counsel, and for sundry reasons we do not think the contention well-grounded. Messrs. Morrison and Cross get their claim and do not appeal. The appellants were not present at the interview, and were not represented. Besides, nothing was said to Dr. Moore or by Dr. Moore about securing them by assignment until after Vogeler had gone from the place of interview. In the light of succeeding events, it would have been better if Yogeler had made a full disclosure of his claims; but we are not prepared to say he was so far bound to disclose the nature of bis claims supporting the absolute assignment, as to estop him from afterwards supporting that assignment by showing full consideration. The decree will be affirmed.

(Decided 21st February, 1884.)

Decree affirmed.