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THE

INSURANCE

LAW JOURNAL.

VOLUME X.

NEW YORK:
PUBLISHED BY C. C. HINE.

161 BROADWAY.

1881.

PUBLIC LIBRARY

85404

ASTOS, LINOX AND
TILDEN FOUNDATIONS.

1897.

COPYRIGHT 1881.-C. C. HINE.

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IN INSURANCE CASES, RENDERED. IN THE UNITED STATES SUPREME AND CIRCUIT COURTS, AND IN THE STATE

SUPREME COURTS.

AGENT.

§ 1. LIFE.— Recovery back of Money Paid on Bond of.Practice.- Unauthorized Insurance.-Suit was brought to recover back money recovered on an agent's bond by the company, in which the judgment was subsequently reversed on the ground that the company not being authorized to do business in the State could not maintain the action. Held, that as a general principle, money collected or paid upon lawful process of execution cannot be recovered back though not justly or lawfully due by the defendant in the execution to the plaintiff. Where, however, upon appeal the judgment which supported the execution has not only been reversed, but on a re-trial final judgment has been entered in favor of the opposite party, the principle does not apply. Restitation is not always of right; it is frequently a matter of grace, and the refusal of the Supreme Court to grant a writ of restitution, upon the reversal of a judgment on which the money had been made, is not a bar to the recovery of the money where upon a second trial the verdict was for the defendant.

Citing Thorne, et al. vs. Ins. Co., 30 P. F. Smith, 15; Harger vs. Commissioners, etc., 2 Jones, 251 ; Federal Ins. Co. vs. Robinson, 1 Norris, 359; Duncan vs. Kirkpatrick, 13 S. & R., 292.

Travelers' Ins. Co. ds. Heath.
Rep'd Jour'l, p. 26.

Pa. S.C.

ASSIGNMENT.

82. LIFE.—Of Policy in Benevolent Association.— What Constitutes.Distinguished from Will.— Interest of Wife and Children. -S. was a member of a mutual association, according to the provisions of which he was entitled to certain benefits in case of personal injury, and the association was liable to pay $2,500 in case of his death. This latter sum, according to the rules of the association, could be disposed of by will, and if not so disposed of, should belong to and be paid to his widow, or in case he had no widow, then to his legal heirs or representatives. S. made a will devising the proceeds to children by a former marriage, delivering it and his certificate of membership to the executor appointed. Afterwards, he being absent from home and indebted for assessments which he was unable to pay, sent his wife a writing that it was his wish, made in sound mind, revoking all former life insurance policies, this day he made his life policy read for her benefit in case of his death, and for her special benefit and all that might be derived therefrom, and also wrote to her of his inability to pay his dues, and that “this makes the policy yours if you will keep it up," and she paid the assessments accordingly. Held, that the document was not testamentary, but in connection with the wife's acts amounted to an equitable present assignment of the sum payable by the policy on his death, but not of the sum payable for personal injury, and that on his death she was entitled to receive the sum due on the policy in preference to the executor under the will. Held, that neither the wife nor children of the insured had any interest in the insurance previous to the assigoment; the contract was wholly between the insurer and insured, and the latter had a right to assign the same.

Swift vs. Railway Pass., etc., Ass'n.
Rep'd Jour'l, p, 53.

ILL. S. C.

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$3. LIFE.—Of Policy by Insolvent to 'Wife.-Rights of Creditors.- Construction of Wife's Policy Law.- Construction of Illinois Statute as to Transfers Between Husband and Wife.Preferred Lien.—Where an insolvent debtor holds an insurance policy upon his own life, he may assign the same to his wife, who may hold the proceeds of the policy exempt from the claims of creditors of her husband, except as to the amount of premiums paid by the husband within five years, the period of limitation, and interest thereon. Such a transaction is within the spirit of section 54, ch. 73, Rey. Stat. of Illinois, 1874, entitled "Insurance,” which provides that a married woman may, by herself and in her own name, or in the name of any third person, with his assent as her trustee, cause to be insured for her sole use the life of her husband, etc. That statute is remedial in its character, and should be liberally construed in furtherance of the purpose of its enactment.

Deere vs. Chapman, 25 Ill., 610; Good vs. Fogg, 61 III., 451 ; Charter Oak Life Ins. Co. vs. Brant, 47 Mo., 419 ; Burroughs vs. State Mut. Life Ass. Co., 97 Mass., 359.

Section 9, ch. 68, Rev. Stat. of Illinois, 1874, entitled, “Husband and Wife,” providing that where husband and wife shall be living together, no transfer or conveyance of goods and chattels between such husband and wife, shall be valid as against third persons, unless such transfer or conveyance be in writing, and be acknowledged and recorded, is not to be so construed as to require an assignment of a chose in action between husband and wife to be acknowledged and recorded. So, the assignment by the husband to his wife of a policy of insurance upon the life of the former, is not, in that regard, embraced in the statute. Where a creditor files a bill to subject property or a fund in the hands of a third person, to the payment of his debt, he thereby acquires a lien upon such property or fund, and upon recovery will be entitled to a preference in the satisfaction of his claim to the exclusion of other creditors. And where the bill is filed after the death of the debtor, the same rule of preference applies.

Lyons vs. Robins, 46 Ill., 276; Rappley vs. Internat. B’k, 93 Ill., Ballentine vs. Beal, 3 Scam., 204; Alexander vs. Tums, 13 III., 221 ; U. S. B'k vs. Burke, 4 Black, 141.

Cole os. Marple. Rep'd Jour'l, p. 47.

396 ;

ILL. S. C.

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