Foster v. Gile

• Decision Date: 17 December 1880
• Citation: 50 Wis. 603,7 N.W. 555
• Parties: FOSTER, ADM'R, ETC., v. GILE, ADM'R, ETC., IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

50 Wis. 603

7 N.W. 555

FOSTER, ADM'R, ETC.,

v.GILE, ADM'R, ETC., IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed December 17, 1880.

Appeal from circuit court, Winnebago county.

The action was originally upon a life-insurance policy, brought by the plaintiff against the corporation which issued it--the Penn Mutual Life Insurance Company of Pennsylvania. That company admitted its liability on the policy, and paid the amount of the insurance into court. By a proceeding under Rev. St. 715, § 2610, the defendants above named (each of whom claimed the proceeds of the policy) were substituted for the insurance company as defendants in the action, and the contest thenceforth was for the money thus paid into court. The facts, as they appear from the pleadings and findings of the court, are as follows:

The policy was issued December 13, 1878, on the life of Walter H. Ballou, who paid all premiums thereon accruing before his death. By the terms of the policy the insurance money was payable to John A. and Walter A. Ballou, his children, in equal shares, “their guardians, executors, administrators, or assigns.” These children were very young, and both of them died in the month of March, 1879. Walter H. Ballou died in April of the same year, intestate, leaving surviving him his widow, the defendant Ellen F. Ballou.

Walter H. Ballou made no further or other disposition of the policy or the proceeds, except that after his death there was found amongst his papers, and with the policy, a paper in his handwriting, and bearing the signatures of himself and wife, purporting to assign the policy to the defendant Paige, “in trust for parties named.” Another document was found in like manner, also in his handwriting, signed by him alone, and addressed “To my administrator,” which contains a list of his creditors, and states how he desires the insurance money to be applied. Both these papers are dated March 28, 1879, which was after the death of both children. It does not appear that either paper was ever out of the possession of Walter H. Ballou, or was ever seen by any other person until after his death. The signature of Mrs. Ballou was written in blank, at the request of her husband, and she was ignorant of what had been written over it until after the death of her husband. On these facts the circuit court found that the money in controversy belongs to the estate of the children, and accordingly awarded it to the plaintiff, then administrator. The administrator of the estate of Walter H. Ballou alone appeals.Finch & Barber and C. D. Cleveland, for respondents.

Geo. W. Burnell, for appellant.

LYON, J.

It was held in Clark v. Durand, 12 Wis. 223, and again in Kerman v. Howard, 23 Wis. 108, that a person who procures a policy of insurance on his own life for the benefit of another, and pays the premiums thereon, may dispose of it, by will or otherwise, to the exclusion of the beneficiary named in the policy. The opposite doctrine was held in a very late case in Minnesota, (Ricker v. Charter Oak Life Ins. Co. 6 N. W. REP. 771, 2 Minn. 101,) and the opinion of the court seems to be fortified with authorities. However, until the legislature enacts otherwise, the rule of Clark v. Durand and Kerman v. Howard must be adhered to by this court.

Did Walter H. Ballou dispose of the policy, or the proceeds thereof, after the policy was issued? If he did so, it was effected by the drawing up and signing of the two papers found with the policy, and with his other papers, after his death. Neither of these papers was delivered to Paige, the assignee named in one of them, nor to any other person to be delivered to Paige, or to the person who might thereafter be appointed administrator of the estate of the insured. Neither of them was executed with the legal formalities essential to their validity as bequests. They never saw the light until the author of them was dead. The most that can be said of them is, they tend to show that Walter H. Ballou at one time contemplated making the disposition of the proceeds of the policy indicated in the writings; but that he never executed his purpose in that behalf. We think it very clear that no claim by the administrator of his estate to such proceeds can be predicated upon those writings. The only remaining question to be determined is: Did the death of the beneficiaries, their father surviving them, of itself abrogate the stipulation making the insurance money payable as therein prescribed? If such was the legal effect of the death of the beneficiaries, undoubtedly the proceeds of the policy is a part of the estate of Walter H. Ballou, and should be awarded to his administrator, the appellant. The solution of this question requires a consideration of the relations of the beneficiaries to the policy, and their interest (if they have any) in it.

In the Minnesota case, above cited, it was held that the taking of the policy...