Lilley v. Mutual Ben. Life Ins. Co.

• Court: Michigan Supreme Court
• Writing for the Court: MORSE, C.J.
• Citation: Lilley v. Mutual Ben. Life Ins. Co., 52 N.W. 631, 92 Mich. 153 (Mich. 1892)
• Decision Date: 10 June 1892
• Parties: LILLEY v. MUTUAL BEN. LIFE INS. CO. OF NEWARK et al.

52 N.W. 631

92 Mich. 153

LILLEY v. MUTUAL BEN. LIFE INS. CO. OF NEWARK et al.

Supreme Court of Michigan

June 10, 1892

Appeal from circuit court, Kent county, in chancery; WILLIAM E GROVE, Judge.

Suit by Francis Lilley, administrator of the estate of Fred A Holcomb, deceased, against the Mutual Benefit Life Insurance Company of Newark, N. J., and Walter H. McBrien, to obtain from McBrien a reassignment of a life insurance policy assigned by intestate to him as collateral security for moneys advanced. Judgment for complainant. McBrien appeals. Affirmed.

Uhl & Crane, for appellant.

Wm. Aldrich Tateum and M. J Smiley, for appellee Lilley. Charles B. Blair, for appellee Mutual Ben. Ins. Co.

MORSE C.J.

At his death Fred A. Holcomb had a life insurance policy in the defendant company for $10,000, which had been assigned to the defendant Walter H. McBrien absolutely in form. The administrator of his estate filed the bill of complaint in this case, claiming that this assignment, while absolute in its terms, was really assigned as collateral security for moneys advanced by McBrien to Holcomb, and that the estate of Holcomb was entitled to a reassignment of it upon payment to McBrien of the amount of his indebtedness. McBrien filed proofs of death, and claims that he is entitled to the full amount of the policy. The defendant insurance company, in its answer, expressed its willingness to pay the money to the person shown to be entitled to it; and, upon petition to the court below, was permitted to pay into court the amount due upon the policy, $9,870.32, without interest, and the bill was dismissed, without costs, as against such company. Before the filing of the bill McBrien was summoned by the administrator into the probate court and examined orally, against the objections of his counsel, as to money and effects in his hands belonging to Fred A. Holcomb, deceased. At the close of such examination, the administrator tendered McBrien, and on the 1st day of July, 1890, the sum of $1,123.44 as the full amount of his advances, with interest to Holcomb up to that date, and demanded the delivery and reassignment of the policy of insurance, which McBrien refused to make. The circuit judge found that the assignment of this policy to McBrien, although absolute in form, "was made by way of mortgage or security only to secure said McBrien for certain sums of money, which the said Walter H. McBrien had theretofore advanced to the said Holcomb, as well as the premium money which the said McBrien should thereafter pay upon the said policy of insurance." He also found that the amount so advanced, with interest up to July 1, 1890, was $1,123.44, the same sum tendered by the complainant, as administrator, to said McBrien. It was therefore decreed that complainant pay to said McBrien, out of the moneys deposited in court by the defendant insurance company, the sum of $1,123.44, less the costs of the suit to be taxed, and that thereupon such complainant should be entitled to receive the balance of the money so deposited. The defendant McBrien appeals to this court.

It is claimed by the appellant that the court erred in permitting the insurance company to pay the amount of the policy into court, and to discharge such company from any further payment of interest. The court did not err in this respect. The insurance company plainly evidenced, by all its acts before suit, that it was willing to pay the whole sum due upon the policy to the proper person, when such person should be designated and determined by the court. It was proper and lawful to pursue the course here adopted, and to release such company from all further liability on the payment of the money due upon the policy into court. There would have been no equity in continuing this company as a party to a litigation in which it had no personal concern, or to have forced it to pay interest while the administrator and McBrien were fighting to see who should have the fund.

It is further contended that it was incompetent to admit in evidence in this case, as the declaration of McBrien, his testimony taken against his objection in the probate court. It is true that the testimony of McBrien was illegally taken in the probate court. The statute under which it was taken plainly provides that it shall be upon written interrogatories. There is no authority in law, by statute or otherwise, for an examination of McBrien orally in the probate court. Palmer v. Circuit Judge, (Mich.) ...