Kelly v. Mann
| Decision Date | 19 October 1881 |
| Citation | 10 N.W. 211,56 Iowa 625 |
| Parties | KELLEY v. MANN |
| Court | Iowa Supreme Court |
Appeal from Des Moines Circuit Court.
IN the year 1871 J. H. Latty effected an insurance upon his life in the sum of $ 5,000. By the terms of the policy the amount thereof was to be paid to the "legal representatives" of the insured within ninety days after proof of his death. Latty departed this life in 1873 intestate, leaving Mary E. Latty, his widow, and two children, who were then and are now minors. Mary E. Latty was appointed administratrix of her husband's estate and gave bond for the faithful discharge of her duty as such. The whole amount secured by the policy was afterwards paid to her, for which she gave her receipt as administratrix. She died in 1878, never having made any inventory of the property received by her, neither did she at any time make any report of her doings as administratrix.
The defendant Mann was appointed administrator of her estate. The plaintiff was appointed administrator de bonis non of the estate of J. H. Latty, and he instituted these proceedings against Mann and the other defendants, who were sureties on the bond of Mary Latty, to recover the amount which was paid to her upon the life insurance policy.
The Circuit Court determined that the avails of the policy were not assets of the estate of J. H. Latty, and that therefore the defendant sureties in the administratrix's bond were not liable, and also that the plaintiff is not the proper person to maintain the action. The claim was disallowed. The plaintiff appeals.
AFFIRMED.
John C Power, for appellant.
J. & S K. Tracy and S. L. Glasgow, for appellee.
I. The principal question in the case is, was the policy of insurance assets of the estate of James H. Latty, to be administered upon and the proceeds to be by the administratrix distributed to the parties entitled thereto under the law? If so, the administratrix and the sureties upon her bond were liable for a failure to make such distribution.
Section 1182 of the Code provides that a policy of insurance on the life of an individual shall inure to the separate use of the husband or wife and children of said individual independently of creditors. It is urged by counsel for appellees that upon the death of James H. Latty his wife and children at once became the absolute owners of the policy of insurance, and that the collection thereof by the administratrix being without authority of law, there can be no liability for the proceeds as against the sureties in the bond. But by the provisions of section 2370 an administrator is required to inventory all the personal effects of the deceased, of every description, as well the general assets as that which is exempt, including any claim for life insurance. He is also required to cause to be appraised and set apart to the widow the personal property which would be exempt from execution. Section 2371 to section 2372 provide that "the avails of any life insurance * * * are not subject to the debts of the deceased * * * but shall in other respects be...
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