In Re Rose's Estate.

• Decision Date: 06 July 1948
• Citation: 60 A.2d 116
• Parties: In re ROSE'S ESTATE.
• Court: New Hampshire Supreme Court

60 A.2d 116

In re ROSE'S ESTATE.

Supreme Court of New Hampshire.

July 6, 1948.

Transferred from Probate Court, Grafton County; Dodge, Judge.

Proceeding in the matter of the estate of Frank T. Rose between Alice M. Thompson and Earl T. Rose to determine rights to the benefits of certain life policies. On certification of questions of law to the Supreme Court from the probate court upon an agreed statement of facts pursuant to R.L. c. 346, § 29, as added by Laws 1947, c. 90.

Questions certified answered in accordance with opinion, and case discharged.

Certification, of questions of law to the Supreme Court from the probate court of Grafton County upon an agreed statement of facts pursuant to R.L. c. 346, § 29, as inserted by Laws 1947, c. 90. See 1 N.H. Judicial Council Rep. 19 (1946).

The testator's brief will contained three clauses, the first and third of which directed the payment of debts and funeral expenses and appointed his wife executrix. The second provided: ‘I give, bequeath and devise to my wife, Lizzie E. Rose, all the rest, residue and remainder of my estate, both real and personal, of which I shall die seized and possessed and to which I shall be in any way entitled at the time of my decease.’ The testator died childless and his wife predeceased him and her sole heir is her daughter, Alice M. Thompson. Earl T. Rose is a nephew and sole next of kin of the testator.

The testator purchased three endowment policies issued by Union Central Life Insurance Company of Cincinnati, Ohio, having a face value of $3,500. Each policy was payable to the insured if living on a specified date; or, if he died before payment to him, they were to be paid ‘to Lizzie E. Rose, his wife if living at the death of the insured, otherwise to the administrators, executors or assigns of the insured.’ The proceeds were paid to the administratrix c. t. a. They are claimed by Alice M. Thompson (hereinafter called the plaintiff) and by Earl T. Rose (hereinafter called the defendant).

The questions transferred by Dodge, J. are:

(1) Should the proceeds from said insurance policies be distributed under Clause Two (2) of said Will, to Alice M. Thompson?

(2) If not so distributed, to whom shall the proceeds from said policies, be distributed?

Carr & Gifford and S. E. Gifford, all of Lebanon, for plaintiff.

Bove, Billado & Dick, of Rutland, Vt., and Robert P. Bingham, of Manchester, for defendant.

KENISON, Justice.

The plaintiff's claim to the proceeds of the insurance policies is first predicated on the applicability of R.L. c. 327, § 1: ‘Every policy of life or endowment insurance made payable to or for the benefit of a married woman, or after its issue assigned, transferred, or in any way made payable to a married woman or to any person in trust for her or her benefit, whether procured by herself, her husband, or by any other person and whether the assignment or transfer is made by her husband or by any other person, shall enure to her separate use and benefit, and to that of her children, subject to the provisions of law, relative to premiums paid in fraud of creditors.’ Under our decisions this statute has been construed to be an exemption statute and not a distribution statute. In Barton v. Provident Mut. Relief Association, 63 N.H. 535, 538, 3 A. 627, the purpose and effect of the statute was described in the following terms: ‘Chapter 175, Gen.Laws, which gives the benefits of life insurance to the beneficiaries named in the contract to the exclusion of the creditors and personal representatives of the assured, does not attempt to control or interpret contracts of insurance, but protects beneficiaries, whoever they may be found to be, and has no application here.’ While some of the earlier cases contain language indicating a different result, the confusion was eliminated in Barbin v. Moore, 85 N.H. 362, 365, 159 A. 409, 411, 83 A.L.R. 62: ‘It has been suggested that the statute * * * providing certain safeguards as to policies wherein a married woman is the designated beneficiary forbids any alteration in derogation of her rights. The language of the case last cited [Stokell v. Kimball, 59 N.H. 13, 14] tends to support such a conclusion; but in a later...