Schlamp v. Berner's Adm'r

• Decision Date: 31 May 1899
• Citation: 51 S.W. 312
• Parties: SCHLAMP et al. v. BERNER'S ADM'R. [1]
• Court: Kentucky Court of Appeals

51 S.W. 312

SCHLAMP et al. v. BERNER'S ADM'R. ^[1]

Court of Appeals of Kentucky.

May 31, 1899

Appeal from circuit court, Henderson county.

"Not to be officially reported."

Action by the administrator of Mary H. Berner against John Schlamp and others to settle the estate of plaintiff's intestate. Judgment dismissing cross petition, filed by defendants, and they appeal. Affirmed.

Dudley & Fitts, for appellants.

WHITE J.

In 1892, and again in 1894, the Prudential Life Insurance Company issued policies of insurance on the life of Josie Davis, whose real name was Mary Berner. These policies were payable to the administrator, executor, or assignee of the insured. After the issual of these policies, the insured, by a writing, assigned the policies to appellant Barbara Schlamp, who is designated as a cousin of the insured. Josie Davis (otherwise Mary Berner) died in 1896, leaving a will. Administration was had on her estate after the executor failed to qualify, and an action was instituted to settle the estate. Appellants filed a cross petition, claiming the proceeds of the two life policies, less the expenses of burial. It is pleaded in answer to this cross petition that there existed no relation of blood between Mary Berner and appellant Schlamp, nor was there any relation of debtor and creditor, except as to the burial expenses,--not in contest for this expense was paid out of the proceeds of the policies. This is admitted, as is also the fact that no part of the premium was ever paid by appellant Schlamp. The court on trial, adjudged that appellants were not entitled to any part of the proceeds of the two policies, and dismissed the cross petition; and from that judgment this appeal is prosecuted.

It is not contended that appellant ever had any insurable interest in the life of deceased, either as kinswoman or creditor except that appellant was requested to attend to the burial of deceased; and all this expense has been paid without question. The question presented here is, is the assignment of these policies by the insured, who paid all the premiums to one who had no insurable interest,--neither of kin nor creditor,--valid, so as to give the assignee the proceeds? The authorities throughout the several states are not uniform; but in this state the doctrine is well settled that one who had no insurable interest, either as of kin or as creditor, can derive no benefit from life insurance by an...