Maclean v. Fisher , 60 Fla. 331 ( 1910 )

Taylok, J.

(after stating the facts.)—The question presented for our determination is whether the insured Alexander Suter Maclean could under our statute lawfully bequeath by his last will and testament the proceeds of the two policies of life insurance mentioned in the bill, and whether his legatee Augustus Alston Fisher was under the bequest made to him by the will of said Alexander S. Maclean, entitled to the proceeds of said insurance policies on the.death of said Maclean. Our statute in force at the time of the execution of said will of Alexander S. Maclean and at the time of his death, read as follows:

“Whenever any1 person shall die in this state leaving insurance on his life, the said insurance shall inure exclusively to the benefit of his child or children, husband or wife, in equal portions, and to any person or persons for whose use and benefit said insurance is declared in the policy, and the proceeds thereof shall in no case be liable to attachment, garnishment, or any legal process, by any creditor or creditors of the person whose life was so insured, unless said policy declares that said policy was effected for the benefit of such creditor or creditors; provided, that when the insurance is for the benefit of the estate of the insured, or payable to said estate, the proceeds of the insurance may be bequeathed and devised by the insured to any person or persons, or for any uses, in like manner as he may devise any other property or effects of which he may be possessed, other than his homestead.”

Under this statute we are clearly of the opinion that Alexander S. Maclean had the lawful right by his will to bequeath the proceeds of the two policies mentioned in the bill, as he did do, to Augustus Alston Fisher and that under said will the latter became on the death of said Mac-lean entitled to the proceeds of said life policies. The bill alleges that both of said life policies were made payable to Alexander Suter Maclean, his executors, administrators or assigns. This was tantamount to being made payable to the estate of the said insured, since such policies did not become due and payable until after the death of the insured, and after his death could not be paid to him they became payable to the legal representatives of his estate, and besides this these policies were expressedly made payable to the executors, administrators or assigns of the insured, which more expressedly made them payable to his estate, in which event the quoted statute expressly authorizes the proceeds of such policies to be bequeathed by the will of the insured. Wason v. Colburn, 99 Mass., 342; Schouler’s Executors & Administrators, paragraphs 203, 211; White’s Ex’r v. Smith, 2 Wilson’s Civ. Cas. (Texas), paragraphs 399, 400, 401; Fletcher v. Williams, (Tex. Civ. App.) 66 S. W. Rep., 860; Mitchell v. Allis, 157 Ala., 304, 47 South. Rep., 715; Page on Wills, paragraph 136; Union Mut. Life Ins. Co. v. Stevens, 19 Fed. Rep, 671.

It follows from what has been said that the decree appealed from must be and is hereby affirmed: at the cost of the appellant.

Hocker and Parkhill, J. J., concur. Whitfield, C. J., and Shackleford and Cockrell, J. J., concur in the opinion.