Cooper v. Wright

• Decision Date: 30 June 1903
• Citation: 75 S.W. 1049
• Parties: COOPER v. WRIGHT.
• Court: Tennessee Supreme Court

75 S.W. 1049

COOPER v. WRIGHT.

Supreme Court of Tennessee.

June 30, 1903.

Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor.

Action by T. Cooper against M. C. Wright. From a judgment in favor of defendant, complainant appeals. Affirmed.

Tim E. Cooper, for appellant. Turley & Turley, Thos. M. Scruggs, and Caruthers Ewing, for appellee.

McALISTER, J.

The question presented for our determination upon this record is whether, under a proper construction of the will of T. W. White, deceased, the proceeds of a certain policy of life insurance, amounting to $5,374.17, are subject to the claims of creditors of the decedent, or whether they belong to the widow and children, free from his debts. The will of the decedent is as follows:

"Memphis, Tenn., Jan'y 25, 1900. Knowing the uncertainty of life, and being anxious that all my debts shall be paid promptly, I make this my last will and testament, revoking all others. After all my debts are paid, I will all that I have left to my wife, Marion C. White, as she has been all that a wife could be, and I know she will provide for the children. I appoint Dr. B. G. Henning executor of my estate without bond. This will is wholly written by myself. T. W. White."

The policy of insurance in question was issued on the life of the decedent, and is made payable on his death to his executors, administrators, or assigns. It is insisted on behalf of the executor that under the will of T. W. White said policy is a part of his estate, subject to administration and the claims of creditors. It is further insisted that the title to said fund vests in B. G. Henning, as executor of the will of T. W. White, regardless of the ultimate ownership and distribution thereof. Shannon's Code, § 4030, provides, viz.: "A life insurance effected by a husband on his own life shall enures to the benefit of the widow and next of kin, to be distributed as personal property free from the claims of his creditors." Section 4231: "Any life insurance effected by a husband on his own life, in case of his death, enures to the benefit of his widow and children; and the money thence arising shall be divided between them according to the law of distributions, without being in any manner subject to the debts of the husband, whether by attachment, execution or otherwise." It is conceded that, notwithstanding this statute, a husband, after taking out a policy of insurance on his own life, payable to his executors, administrators, or assigns, may dispose of the same by will, though, if it is made payable to his legal heirs, or any other person than the assured's executors, administrators, or assigns, it would not be subject to such disposition; citing Williams v. Corson, 2 Tenn. Ch. 269; Id., 9 Baxt. 516; Gosling v. Caldwell, 1 Lea, 455, 27 Am. Rep. 774; Life Asso. v. Winn, 96 Tenn. 226, 33 S. W. 1045; Handwerker v. Diermeyer, 96 Tenn. 624, 36 S. W. 869; Weil v. Trafford, 3 Tenn. Ch. 108. It is claimed that this policy passed under the provisions of the testator's will, which has already been set out. In support of this contention counsel cite Weil v. Trafford, 3 Tenn. Ch. 108, in which the benefit certificate provided that "the sum of $2,000 shall be paid as a benefit, upon due notice of death, to such person or persons as the assured may by will or entry on the record book of the lodge, or upon the face of the certificate, direct." It was held by Chancellor Cooper that such sum passed under the residuary clause of the testator's will disposing of the balance of "all of my property of every kind," without mentioning the certificate. The chancellor said: "It is clear, moreover, that Barker did not die intestate as to this fund, if it is constituted a part of his estate; for the words, "all of my property of every kind," are as broad as could possibly be used to pass the residuum of an estate. The only question, therefore, is, was this fund a part of the testator's estate when the will speaks of personalty? and of this there can be not a particle of doubt." This case, while supporting more or less distinctly the proposition to which it is cited, was not passed upon by this court, nor the principle stated affirmed in any reported decision of which we...