Ellison v. Straw

• Decision Date: 16 December 1902
• Citation: 116 Wis. 207,92 N.W. 1094
• Parties: ELLISON ET AL. v. STRAW ET AL.
• Court: Wisconsin Supreme Court

116 Wis. 207

92 N.W. 1094

ELLISON ET AL.

v.STRAW ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1902.

Syllabus by the Judge.

1. By section 2347, Rev. St. 1898, insurance on the life of any person for the benefit of a married woman cannot be reached by her creditors or those of any other person.

2. Chapter 376, Laws 1891, now a part of section 2347, Rev. St. 1898, as regards married women, and, contingently, their chidren, changes the rule that a mere beneficiary in a policy of life insurance has no interest therein during the life of the assured which he cannot take away by naming some other person as beneficiary or disposing of the policy fund by will. Strike v. Insurance Co., 70 N. W. 819, 95 Wis. 583, so far as to the contrary, is overruled.

3. A policy of life insurance upon the life of any person payable to a married woman, with no provision therein as to a beneficiary in case she shall not survive to take, belongs to her children if she has any surviving her, with the same freedom from interference by creditors or others as in case of the first beneficiary.

4. By section 2347, Rev. St. 1898, as it now stands:

(a) A married woman may, without her husband's consent, take out a policy of insurance on his life for her own benefit, or for such benefit and that of her children.

(b) A policy of insurance taken out upon any life for the benefit of a married woman, nothing being said as to who shall be the beneficiary in case she shall not survive to take at the maturity of the policy, vests a contingent right in the insurance fund in her, which is her sole and separate property, free from control or disposition by her husband or the person taking out the insurance, and beyond the reach of the creditors of any one.

(c) Such a policy vests in the children of the married woman a contingent right to the insurance, safe from disturbance by her or any other person, or by such children, prior to the maturity of the policy and the fund reaching their hands.

(d) The right in the children does not contemplate a joint enjoyment of the insurance fund by them and their mother. It is a mere right to the fund in case the mother does not survive to receive the same, there being no other disposition thereof provided for in the policy.

(e) A policy of insurance of the character mentioned, with the added element providing for a disposition of the insurance fund upon the contingency of the wife not surviving to receive the same, vests in the wife the same right in all respects as if such secondary disposition were not made.

(f) A married woman is under an absolute disability to part with her beneficiary interest by assignment. Her husband or person paying the premium is under a like disability to disturb her rights by assigning the policy or changing the beneficiary therein, or disposing of the policy by will, and creditors generally are as completely debarred from resorting to the policy for the payment of their claims.

(g) The policy and its proceeds are free from all interferences save lapses and forfeitures mentioned, militating against the proceeds thereof, upon the time arriving and circumstances occurring named as conditions precedent to the maturity of the contract in her favor, vesting in her with the right to personal possession of the fund as her separate property, leaving the same then subject to her obligations the same as any other portion of her estate.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Rodman B. Ellison and others against Alonzo W. Straw and others. Complaint dismissed, and plaintiffs appeal. Affirmed.

Creditors' action to reach two insurance policies owned by defendants Alonzo W. Straw and Amelia E. Straw. The findings of fact sufficiently show the issues made by the pleadings. Here is a brief statement thereof:

Plaintiffs are and were, during all the time material to this case, copartners doing business as John B. Ellison & Sons. The defendant Northwestern Mutual Life Insurance Company is a duly organized Wisconsin life insurance corporation. Defendant Amelia E. Straw is the wife of defendant Alonzo W. Straw. Carrie A. McCoy is the daughter and only child of Alonzo W. Straw and wife, and William A. McCoy is her husband. December 19, 1900, plaintiffs recovered and caused to be duly docketed in the superior court of Milwaukee county, Wis., a judgment against defendants Straw for $11,951.55. Before the commencement of this action execution was duly issued for the enforcement of such judgment, and was returned in due form wholly unsatisfied. Thereafter, and before the commencement of this action, in proceedings against the defendant insurance company as garnishee of the Straws, plaintiffs recovered, to be applied on such judgment, $3,802.47. The amount unpaid on the judgment is $8,663.24. The Straws do not own any property in this state subject to execution. August 7, 1877, defendant insurance company issued to defendant Alonzo W. Straw its policy of insurance No. 93,659, agreeing, in consideration of $102.52 then paid, and payment of a like sum August 7th each year thereafter during the assured's life, to insure him for the benefit of his wife for $6,000 for two years, and $4,000 thereafter, payment to be made to her after his death, within 60 days of due notice and proof thereof, or to her executors, administrators or assigns in case she survived her husband, otherwise to his administrators or assigns. The policy contained a provision to the effect that, in case of default in any annual premium after the payment of three premiums, there would be issued to the assured a paid-up, nonparticipating policy for an equitable sum equal to the full amount of payments made in excess of the first two premiums, conditioned upon the policy being then free from any claims by the company or indebtedness of the assured to it, and upon a written application being made therefor and the policy and all claims under it being surrendered to the company within six months after the default. September 19, 1885, said company issued to Alonzo W. Straw its policy of life insurance No. 137,000 for the benefit of his wife, conditioned upon her surviving him, otherwise for the benefit of his administrators or assigns. On account of and in lieu of the first policy Alonzo W. Straw holds a full-paid, nonparticipating life policy for $2,153, and one in lieu of the second policy mentioned of $6,660. No obligation rests upon defendant insurance company to pay any sum upon either of said policies during the life of the assured, but in accordance with the uniform custom of the corporation, it will pay as a surrender value for the first policy, $1,145.96, and for the second policy $3,530.30. Such surrender value, as to each policy, will increase as the expectancy of life of the assured decreases. The policies are now held by the assured free from any assignment or incumbrance or claim, otherwise than in this action.

Upon such facts the court decided as a matter of law that the policies of insurance could not be subjected to the payment of plaintiffs' judgment, and ordered the complaint dismissed with costs. Judgment was entered accordingly.William Kaumheimer, for appellants.

Turner, Pease & Turner, for respondents.

MARSHALL, J. (after stating the facts).

This appeal turns on the construction of section 2347, Rev. St. 1898. As it is necessary to view the statute as a whole in order to reach a correct conclusion, especially leaving out of view authorities elsewhere, we will embody the same as an entirety in this opinion:

“Any married woman may, in her own name or in the name of a third person as her trustee, with his assent, cause to be insured for her sole use the life of her husband, son or other person for any definite period or for the natural life of such person; and any person, whether her husband or not, effecting any insurance on his own life or on the life of another may cause the same to be made payable or assign the policy to a married woman or to any person in trust for her or her benefit; and every such policy, when expressed to be for the 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 the period or term of such policy the amount of the insurance shall be payable to her or her trustee for her own use and benefit, free from the control, disposition or claims of her husband and of the person effecting or assigning such insurance and from the claims of their respective representatives and creditors. But if the annual premium on any such policy shall exceed the sum of one hundred and fifty dollars and is paid by any person with intent to defraud his creditors an amount equal to the premiums so paid in excess of said sum, with interest thereon, shall inure to the benefit of such creditors, subject, however, to the statute of limitations. 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. In such case the receipt of such married woman or of such children, or of their guardian if minors, shall discharge the insurance corporation from all further liability therefor. The provisions of this section shall apply to all insurance on lives effected before the passage of these statutes.”

Does that language disclose a legislative purpose to guard the insurance upon the life of a person, designed, in the manner indicated in the statute, for a married woman, absolutely against the claims of her creditors as well as his, and to so entrench the same, that, if kept alive till the policy matures, in the contingency that she then survive, the insurance fund will reach her hands without interference...