Gambs v. Covenant Mutual Life Insurance

1. Practice, civil — Evidence — Dispute touching, etc.— Where the facts are all admitted upon the record, the Supreme Court must pass upon their legal effect. It is only when they are disputed, and when there is'evidence tending to sustain, the claim of each party, that the losing- one is concluded by the finding of the trial court. 2. Insurance — Policy of by husband for benefit of wife, may be made payable to second wife. — At common law; and prior to the statute (Wagn. Stat. 936, $ 15), the wife had such an interest in the life of her husband that a policy taken out by him for her benefit would be valid; and where the husband died during the life of his wife it would be enforced. But not so as to her legal representatives where the husband survived her. The only ground upon which the policy could be sustained when issued, was the fact that the wife had a right to look to her husband for support. That object being lost by her death, the husband would not be bound to continue the policy for the benefit of her legal representatives. And he might change 'the policy for the benefit of a subsequent wife.

flppeal from, St. Louis Circuit Court. 1. The contract of insurance was the wife’s, made with her husband’s assent, 'and ratified by him. It is good, independent of any statute, by the common law. (Chit. Oont., 7th Am. ed., 160; Bunyon Life Ins. 199, 200 ; Gates v. Mudley, 6 M. & N. 423 ; Hart v. Stephens, 6 Ad. & Ellis, N. S., 942; Dalton v. Midland Railway, The Jurist, vol. 17, p. 719; Eiske et at. v. Cushman et at., 6 Cush. 20 ; Draper v. Jackson, 16 Mass. 480 ; Stanwood v. Stanwood, 17 Mass. 57.) H. The policy became absolutely the chose in action of the wife, whether purchased with the husband’s money or her own, and her title to it was never divested. (See the authorities cited above; Holmes v. Holmes, 28 Yerm. 765; Cox v. Morrow, 14 Ark. 617; Carter v. Cantrell, 16 Ark. 155 ; Searing v. Searing, 9 Paige, 283 ; Adams v. Brackett, 5 Mete. 280 ; Hayward v. Hayward, 20 Pick. 519.) The voluntary payment of premiums on a policy confers on the payer no interest in the policy. (Bun-ridge v. Roe, 1 Y. & C. C. C. 183, cited in Sharpstein’s Dig. of Life Ins. 201; Tristón v. Hardey, 14 Beav. 232 ; Gould v. Emerson, 99 Mass. 154; Swan v. Snow, 11 Allen, 224, which is identical and conclusive ; Leakey v. Maupin, 10 Mo. 368.) The rule is stated in Bunyon on Life Insurance, p. 199, as follows: <£ There seems to be no reason why a husband may not effect an insurance on his own life in his wife’s name, in order to give her the benefit of the policy. In such a case the policy would be in the nature of a voluntary settlement by the husband upon her, the benefit of which, even upon her death in his lifetime, would pass by her will when made with his assent.” (Sugd. Real Prop. Stat. 307.) After the wife’s death the husband could only acquire title to or dispose of the policy by taking out letters of administration upon the estate of the wife, when the proceeds must be distributed by him according to our statute of descents and distribution. (Chit. PL, 7th Am. ed., 35-6 ; Philliskirk v. Pluckwell, 2 M. & S. 394-5 ; Gillett v. Camp, 19 Mo. 404 ; Pickett v. Everett, 11 Mo. 568 ; Woods v. Simmons, 20 Mo. 363 ; Baldwin v. Carter, 17 Conn. 201; Curry v. Eulkington, 14 Ohio, 100.) While in England the husband, having reduced the wife’s choses in action into possession as her administrator, could hold them absolutely in his own right, he did so by virtue of the twenty-fifth section of statute 29 Charles II, ch. '3. In this country he can only take ex virtute matrimonii in the absence of any special statute disposing of the wife’s effects at her decease. The statutes of Missouri (1 R. C. 1855, p. 659, § 1 ; R. O. 1845, p. 421, §§ 1, 2, 3; Wagn. Stat. ch. 93) regulate this distribution. Before taking out letters he cannot recover the choses in action of the wife at all. (10 Mo; 386 ; 19 Mo. 404; 11 Mo. 568 ; 20 Mo. 363.) ■ HI. The husband’s attempted assignment, i£ valid, would not be a reduction to possession so that he could by the same act pass title. Nothing but actual payment is a reduction to possession of a wife’s chose in action. No change of security could do it* nor could making -it the consideration for a new supplementary agreement accomplish it. (Nash v. Nash, 2 Madd. 411; Croft, v. Bolton, 31 Mo. 355; Charter Oak Life Ins. Co. v. Brant, 47 Mo. 422; Searing v. Searing., 9 Paige, 283.) IV. Nor is the case of Kerwan v. Howard, 23 Wis. 108, adopted in Charter Oak Life Ins. Co. v. Brant, 47 Mo. 420, in point. The court held that the insurance statute there did not operate to-take away the right which the husband possessed under the prior law of that State; that he would have held the title previous to its enactment and held it afterwards, no change having been made by the insurance law. This contract is in the wife’s name and the policy belongs to her, whether the common law or our statute» control the rights of the parties. V. The record in this case presents the foregoing question» of law to be reviewed by this court. There is not a disputed fact in the case, nor was there any disagreement in regard to facts in the court below. The court erred in deciding against appellant on the facts stated, and he comes here to have the error corrected. I. At common law the wife had no insurable interest in the-life of her husband. (3 Kent’s Com., 11th ed., 368 ; Kerwan v. Howard, 23 Wis. 108; Charter Oak Life Ins. Co. v. Brant, 47 Mo. 419, overruling McKee v. Phoenix Ins. Go., 28 Mo. 383.) H. Whe'n this policy was issued in 1853, and when Mrs. Holliday died in 1856, there was no enabling act existing; and so-the policy could not have availed her, even if her husband had died before her. HI. The policy was taken and held by the husband in his exclusive possession, intended by him as a provision for his wife in case she survived him, but in no other contingency to inure toller benefit.