In re How
| Decision Date | 14 December 1894 |
| Docket Number | No. 9035.,9035. |
| Parties | <I>In re</I> MARY M. HOW, Insolvent. |
| Court | Minnesota Supreme Court |
On February 17, 1894, Mary M. How being insolvent made an assignment under Laws 1881, ch. 148, as amended, of all her nonexempt property to Orrin Kipp in trust for the equal benefit of all her creditors. He accepted the trust. She held and owned a policy of life insurance for $2,000 issued by the Bankers' Life Insurance Company of Minnesota on the life of David L. How, her husband; and another policy for $2,000 insurance on his life issued by the Masonic Mutual Aid Association of Minneapolis; and another policy for $2,000 insurance on his life issued by the Ancient Order of United Workmen; and policies in five other co-operative or assessment life insurance associations or societies to the amount of $9,800 more. David L. How died December 22, 1893. The insolvent widow included the eight policies in her schedule of assets, but claimed them as exempt under Laws 1885, ch. 184, § 17 and asked that it be so adjudged.
On April 6, 1894, the assignee presented his petition to the court stating the foregoing facts and asking the advice and direction of the court in the premises. The court made an order that the creditors of the insolvent and the insurance companies show cause, if any there may be, on April 16, 1894, why the insurance is not exempt as claimed by the insolvent, and directed that a copy of the order be served by mail on each creditor named in the schedule of liabilities and on each of the insurance companies. On the day appointed after hearing the parties the court held that each of the eight policies was issued by a co-operative or assessment insurance company within the purview of Laws 1885, ch. 184, and that the money due thereon is exempt from levy and sale on execution, that the policies did not pass to the assignee by the deed of assignment and directing him to make no claim to the money. From this order three of the creditors of Mary M. How appeal.
Southworth & Coller and O. E. Holman, for appellants.
J. L. Macdonald and H. J. Peck, for respondents.
On February 24, 1894, Mary M. How, being insolvent, made an assignment for the benefit of her creditors under the insolvency laws of this state.
A short time prior to this, her husband, David L. How, died. His life was insured in eight different mutual benefit associations or insurance companies for the total aggregate amount of $15,800, she being the beneficiary entitled to all of said insurance. She listed all of these insurance claims in her inventory, but claims all of them as exempt, and so claimed them in said inventory. The assignee, on notice to her and her creditors, petitioned the court in the insolvency proceedings to determine and adjudge whether the amounts due on said policies were exempt. She appeared in support of such application, and a number of her creditors appeared in opposition thereto. The court below held the amounts so due on such insurance policies exempt, and directed the assignee not to claim the same, and from this order three of said creditors appeal to this court.
No objection is here made to the mode of proceeding in the District Court, and we do not wish to be understood as approving that practice where the fund in controversy is not in court, and the application is opposed by the creditors, or most of the creditors, appearing.
It is urged by respondent that the order appealed from is not an appealable order. We are of the opinion that it is appealable, under either subdivision 5 or 6 of 1878 G. S. ch. 86, § 8.
Laws 1877, ch. 128, § 2, (1878 G. S. ch. 34, § 369,) provides: "When any benevolent association or society, similar to those enumerated in section one of this act, set apart or appropriate a beneficiary fund to be paid over to the families of deceased, or to any member of said families, any such...
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