Lewenstein v. Forman
| Decision Date | 06 March 1916 |
| Citation | 111 N.E. 962,223 Mass. 325 |
| Parties | LEWENSTEIN v. FORMAN et al. SAME v. FORMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; W. C. Wait, Judge.
Bills by Nathan Lewenstein against Fanny Forman and another and against Hyman Forman, to which demurrers were sustained, whereupon plaintiff moved to strike out those paragraphs relating to Hyman Forman and change the suit against him into an action at law. These motions were allowed over defendant's objections, and they excepted and appealed. To the amended bill in equity against Fanny Forman she demurred, and the demurrer being overruled, and her requests for rulings denied, she excepted and appealed. In the action at law against Hyman Forman he pleaded in abatement and made requests for rulings, and his plea being denied, and his rulings refused, he excepted. In the action at law, exceptions overruled. In the suit in equity, interlocutory decrees affirmed, and exceptions overruled.
Samuel Sigilman, of Boston, for plaintiff.
Nathan Barnett, of Boston, for defendants.
The plaintiff brought a bill in equity against Fanny Forman, Hyman Forman, and the Germania Fire Insurance Company. To this the defendants demurred, which demurrer was sustained; thereupon the plaintiff moved to strike out the paragraphs in the bill relating to Hyman Forman, and also moved to change the suit in equity against him into an action at law. These motions were allowed. To this the defendants objected, claiming the note in suit was a joint note, that the makers thereof could not be severally sued, that the amendments could not be allowed except upon the payment of terms. The defendants filed a bill of exceptions and also appealed. To the amended bill in equity against Fanny Forman, she demurred, and also filed a plea in abatement, and at the hearing on the appeal and demurrer, she filed requests for rulings. The demurrer and plea were overruled and the requests were refused, to all of which rulings of the court the defendant excepted. She also, appealed. In the action at law against Hyman Forman, he filed a plea in abatement and made certain requests for rulings when the plea was heard. These requests were refused, the plea in abatement was overruled, to which the defendant excepted. The judge being of opinion that the interlocutory decree so affected the merits of the controversy that the matters ought to be finally determined, reported the case to the Supreme Judicial Court.
1. The suit in equity is one to reach and apply the interest of Fanny Forman in a policy of fire insurance on buildings owned by her, one of which was destroyed by fire. R. L. 159, § 3, cl. 7. The principal question in dispute is whether the defendant's interest in the policy can be held under the above statute, she contending that as the insurance company can either pay the loss or rebuild, and not having exercised this election, ‘she has no property, right, title or interest’ which can be reached and applied in payment of the debt.
The statute gives a creditor the right to reach and apply any property of the debtor ‘which cannot be reached so as to be attached or taken on execution in an action at law,’ ‘although it cannot be reached and applied until a future time.’
The right and title which Mrs. Forman has in the policy of insurance, is property within the meaning of the statute. In Alexander v. McPeck, 189 Mass. 34, 75 N. E. 88, the share of the debtor in a fund which was payable to him on the death of his mother, provided he survived her, and if he did not, to his issue living at the time of her death, and in default of issue then living, to his legal representatives, and his interest in another fund, the income of which was payable to him for life, and at his death, in default of issue, payable to his legal representatives, it was held, notwithstanding the various contingencies, that his right in the first fund, if he survived his mother, and if he did not so survive her, his right to have the fund administered as a part of his estate, in default of issue, and the interest which he had in the second fund, entirely apart from his right to the income while he lived, to have it paid over to his executors and administrators as a part of his estate, if he left no issue living, was property, and could be reached under the statute, in payment of his debts. Hammond, J., in delivering the opinion of the court, reviewing the history of the...
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Butler v. Candlewood Rd. Partners, LLC (In re Raymond)
...has held that included within the definition of interests subject to this remedy are certain insurance contracts. Lewenstein v. Forman, 223 Mass. 325, 111 N.E. 962 (1916). There must be, however, an underlying “debt” as defined in the statute running from the defendant to the plaintiff befo......
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Butler v. Candlewood Rd. Partners, LLC (In re Raymond), Case No. 13-16214-JNF.
...has held that included within the definition of interests subject to this remedy are certain insurance contracts. Lewenstein v. Forman, 223 Mass. 325, 111 N.E. 962 (1916). There must be, however, an underlying “debt” as defined in the statute running from the defendant to the plaintiff befo......
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Rosenthal v. Maletz
...the manner prescribed in the statute. Lord v. Harte, 118 Mass. 271;Alexander v. McPeck, 189 Mass. 34, 44, 75 N.E. 88;Lewenstein v. Forman, 223 Mass. 325, 327, 111 N.E. 962;Digney v. Blanchard, 229 Mass. 235, 239, 118 N.E. 250;Whiteside v. Merchants' National Bank, 284 Mass. 165, 175, 187 N.......
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