Adler v. Stoffel (In re Breitung's Estate)

• Decision Date: 05 November 1890
• Parties: IN RE BREITUNG'S ESTATE. ADLER v. STOFFEL.
• Court: Wisconsin Supreme Court

78 Wis. 33

46 N.W. 891

IN RE BREITUNG'S ESTATE.ADLER

v.STOFFEL.

Supreme Court of Wisconsin.

Nov. 5, 1890.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action by Dominic Stoffel, administrator of Bernhard P. Breitung deceased, against Frederick T. Adler as executor of Herman W. Breitung. Herman W. Breitung had his life insured for $3,500; $2,000 of which was, by the policies, payable to his wife, and $1,500 was payable equally to his two children, Bernhard P. Breitung and Emeline W. Breitung. By his will, Herman W. Breitung bequeathed $2,000 of this insurance money to his wife, and the whole of the $1,500 to his son Bernhard P., making no mention of his daughter Emeline W. The executor of his will, however, divided the $1,500 equally between the son and the daughter, as provided in the policies. The son's administrator thereupon brought this action in the Milwaukee county court to charge the executor with the sum paid to the daughter Emeline W. The county court held the executor liable to be so charged, but the circuit court on appeal reversed the judgment. The son's administrator, Dominic Stoffel, appeals.

CASSODAY, J., dissenting.E. G. Comstock and Miller, Noyes & Miller, for respondent.

M. C. & A. A. Krause and Rietbrock & Halsey, for appellant.

COLE, C. J.

The question of law presented on this appeal is really not an open one in this court. That question is: Can a person, who has procured a policy of insurance on his own life for the benefit of another, and has paid the premiums thereon as they became due, dispose of the insurance money by will to the exclusion of the beneficiary named in the policy, during the life-time of such beneficiary? This question was, in effect, answered in the affirmative in Clark v. Durand, 12 Wis. 224, decided 30 years ago. That case was followed in Kerman v. Howard, 23 Wis. 108, and Foster v. Gile, 50 Wis. 603, 7 N. W. Rep. 555, and 8 N. W. Rep. 217. In the last case Mr. Justice LYON, after referring to the opposite doctrine held elsewhere, says that, until the legislature enacts otherwise, the rule of Clark v. Durand and Kerman v. Howard must be adhered to by this court. See, also, Archibald v. Insurance Co., 38 Wis. 542;Bursinger v. Bank, 67 Wis. 75, 30 N. W. Rep. 290. In the present case, the deceased effected an insurance upon his life, by three different policies, for the benefit of “his widow and surviving children.” At his death he left surviving him a widow and two children. Shortly before he died he made a will by which he gave one child all the insurance money which would, by the policies, have gone to both. The question is, could he make such a disposition of the fund to the exclusion of the beneficiary named in the policy? If he could, the order of the circuit court must be reversed, and the order of the county court, directing the respondent to pay the sum of $750 of insurance money remaining in his hands to the general guardian of the minor, Bernhard P. Breitung, must be affirmed. We have already stated that, according to the established rule of this court, where one person procures a policy on his own life for the benefit of another, and pays the premiums thereon, he may dispose of the...