Friedman v. Fennell

• Decision Date: 25 February 1892
• Citation: 10 So. 649,94 Ala. 570
• Parties: FRIEDMAN ET AL. v. FENNELL ET AL.
• Court: Alabama Supreme Court

10 So. 649

94 Ala. 570

FRIEDMAN ET AL. v. FENNELL ET AL.

Supreme Court of Alabama

February 25, 1892

Appeal from chancery court, Madison county; THOMAS COBBS Chancellor.

This was a bill by Friedman Bros. against Charles H. Fennell, Jr. and the Mutual Benefit Life Insurance Company, to subject the proceeds from a policy of insurance upon the life of Charles M. Fennell, Sr., to the payment of a judgment recovered against the said Fennell in his lifetime. From an order sustaining a demurrer to the bill, complainants appeal. Affirmed.

Humes & Sheffey, for appellants.

William Richardson, for appellees.

STONE C.J.

Our statutes permitting insurance of the life of a husband or father for the benefit of the wife or child or children is not declarative of any common-law principle, but is enabling,-creative of a new right. Insurance Co. v Webb, 54 Ala. 688. These statutes confer a special privilege. In their nature they are an exemption of property from the payment of debts; and, to be successful in securing the exemption, the statute must be conformed to. When, however, the case exists for which the statute makes provision, the statute will be liberally interpreted in furtherance of the relief intended. Fearn v. Ward, 65 Ala. 33, 38, 80 Ala. 555, 2 South. Rep. 114; 3 Brick. Dig. 490, § 8; Felrath v. Schonfield, 76 Ala. 199; Tompkins v. Levy, 87 Ala. 263, 6 South. Rep. 346; Elliott's Appeal, 50 Pa. St. 75, 88 Amer. Dec. 525, and note. The debt against which the claim of Charles Fennell, the younger, is asserted was in existence, and the policy was taken out and the premium money paid by the father, while he was so indebted and was insolvent. It is charged in the bill, and not denied, that the said debt was in existence at and before the time when the Code of 1886 went into operation. Section 2350 of the Code of 1886 changes, somewhat, the statute on the subject theretofore existing. Code 1876, §§ 2733, 2734. The contention is urged before us that, inasmuch as the exemption secured under the later Code is an enlargement of that secured by the Code of 1876, the new or enlarged provision cannot be made to apply against creditors whose claim antedated the amended statute. 3 Brick. Dig. p. 490, § 8. For reasons to be presently stated we consider it unnecessary to decide this question. The language of the statute (Code 1886, § 2356) is that "the husband or father many insure his life for the benefit of his wife, or for the benefit of his wife and children, or for the benefit of his minor child or children." It will be seen by comparing the two statutes that the clause, "for the benefit of his minor child or children," has no counterpart in the statute theretofore existing. That clause is new. Before that time the only statutory authority for making provision for child or children by means of life insurance was to append it to the policy taken out for the benefit of the wife. The insurance there provided for inured to the wife only in the event she survived her husband; but the statute (Code 1876, § 2734) declared that, "in case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable after death to her children for their use." To come within the present statute, and to secure to the child or children the benefit it tenders, the later statute, as we have said, must be conformed to. The policy being in the name of the father, his attempt to transfer it to his child stands on no higher plane than any other attempt he might make to give away his property at the expense of his...