St. John v. American Mutual Life Insurance — 9 N.Y. Super. Ct. 419

Majority

p. 419

St. John v. The American Mutual Life Insurance Co.

(Before Duer, Bosworth, and Emmet, J.J.)

October 28 ;

November 19, 1853.

Headnote

A sole cestui que trust, who, as such, will be entitled to the whole, or a definite portion of the amount, for the recovery of which the action is brought, is not a competent witness for the plaintiff.

' The construction and effect of a policy of insurance made by a company incorporated in Connecticut, are governed by the law of that State.

A wager policy is a valid contract at common law, and it must be presumed, until the contrary is shown, that it is so by the law of Connecticut.

An assignment, or other instrument in writing, to which there is no subscribing witness, when it comes from the possession of the person entitled to its custody, may be read in evidence, upon proof of its being genuine, without proof of its actual execution at the time of its date; this, when no circumstances of suspicion are shown, will be presumed.

The assignee of a policy of insurance upon life, in trust for the wife of the assured, upon his death may maintain an action for the recovery of the sum insured in his own name, as trustee of an express trust. Neither the wife nor the personal representatives of the deceased, are necessary parties.

The assignee for value of a policy of insurance effected by the assignor, upon his own life, is entitled, upon the death of the assignor, to recover the whole amount insured, without reference to the consideration paid by him for the assignment.

Every policy of insurance upon life is valued; that is, the interest meant to be covered, is valued at the sum insured. Judgment for plaintiff, with costs.

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Case upon a verdict for the plaintiff, subject to the opinion of the court, at general term.

The action was brought to recover the amount of two policies of insurance upon the life of one Charles Hoyes.

The complaint averred that the defendants are a corporation, created by the laws of Connecticut, and that, on or about the 12th of October, 1850, they effected a policy of insurance with one Charles Hoyes, numbered 2,500, and dated 11th October, 1850; and executed and delivered the same to Hoyes, by which, in consideration of the sum of §4.22, to them paid, and of the premium of $19.20, to be paid annually, on the first day of January in each year, they insured the life of Hoyes in the amount of $2,000, for the term of six years and six months, from the llfch October, 1850; and promised to pay the said sum of $2,000 to the heirs, executors, administrators, or assigns of Hoyes, within ninety days after due notice, and proof of, his death.

The complaint then averred, that, on the 20th October, 1850, Hoyes, for a valuable consideration,'and by an instrument in writing, duly assigned the said policy to the plaintiff, who, on the same day, caused notice of the assignment to be given to the defendants, and an entry thereof to be made in their books.

It then set forth the execution by the defendants, and the delivery to Hoyes, of a second policy upon his life, numbered 2,499, of the same tenor and date, for the same amount and for the same term of years, which, it alleged that Hoyes, on the 14th of February, 1851, for a valuable consideration, by an instrument in writing, duly assigned to the plaintiff, of which due notice was given to the defendants, and an entry thereof made in their books. It then averred the due payment of premiums, and the performance by Hoyes, and the plaintiff as assignee, of all the conditions of the insurance. That Hoyes died at New Haven, in Connecticut, on the 12th March, 1851. That, on the 15th of the same month, the plaintiff gave to the defendants due notice and proof of his death. That the defendants, although admitting their liability, had omitted to pay to the plaintiff the sum insured, and demanded judgment for $4,000, with interest from the 13th June, 1851, besides costs.

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The answer of the defendants denied that due notice and proof had been given of the death of Noyes; and then set up four separate defences, the two last of which only are necessary to be stated, no evidence having been given on the trial in support of the others.

The fourth separate defence, after denying that the plaintiff gave a valuable consideration for the assignments of the policies, averred, upon information and belief, that he had not, at the time of the death of Noyes, any interest in his life, and had not been injured by his death. The fifth averred that, if the plaintiff ever lent, or advanced any sum whatever on the said policies, he lent or advanced no more than the sum of $300, and was, therefore, not entitled to recover more than that sum; and that, if the defendants were liable to pay the sums insured, the personal representatives of Noyes were interested in the claim, and were necessary parties to the action.

The reply takes issue upon the allegations in the first four defences, and, in answer to the fifth, avers, that when Noyes assigned the policies, the plaintiff paid to him the sum of $300 in cash, and agreed and undertook to pay all the premiums which might thereafter accrue thereon during the periods for which they were issued; and in case of the death of the said Charles Noyes, to collect the amounts secured to be paid by the said policies of insurance, and, after deducting five hundred dollars to reimburse the said plaintiff for his payments to the said Charles Noyes and otherwise, on account of the said policies of insurance, to pay the balance of the amounts secured to be paid by the said policies of insurance to Elizabeth Gr. Noyes, then the wife, and now the widow of the said Charles Noyes; and that no executor, administrator, or other personal representative, of the said Charles Noyes, or any other person, has any claim upon or interest in the amount secured to be paid by the said policies of insurance, or either of them, or is a necessary party to this action; but that the whole of the amount secured to be paid by the said policies of insurance is due and payable to the said plaintiff, upon his own account, and in trust for the said Elizabeth Gr. Noyes ; and that the said plaintiff is entitled to receive and recover the same and to judgment, therefore, in this action.

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Upon these pleadings, the cause came on to be tried before . Mr. Justice Campbell, and a jury, on the 22nd January, 1853."

Upon the trial, the counsel for the plaintiff put in evidence the two policies, and the assignments thereof, the due execution of all being admitted. The sale and assignment of the policy, 2,499, was stated to be in general terms “ for a valuable consideration that of policy, 2,500, in consideration of the sum of ' $300, paid by the plaintiff to Hoyes. It was also proved that the policies in question were issued from the office of an agency of the company in the city of New York, in exchange for a prior policy for $4,000, which Hoyes had previously effected, and then surrendered. That a book of the defendants, lettered on the back, “ American Mutual Life Insurance Company— New York Eegister,” was kept in that office, in which entries in columns, properly headed, of all particulars deemed material in relation to the policies issued from the office, were made; and that in that book the following entry, bearing date 11th October, 1850, was made in a column, headed, “ For whose benefit,” relative to the policy, 2499 : “ Wife”—the following, relative to policy, 2,500: “ Self assigned to M. St. John.”

A great deal of testimony was given upon the question whether due notice and proof of the death of Hoyes had been given to the defendants, but it is not necessary to be stated, as the defence, upon this ground, was finally abandoned.

JVelson J. Waterbwy, a witness on the part of the plaintiff, produced the papers, of which copies are given below, and proved that they were in the handwriting of the plaintiff, and had been put in the hands of the witness by Mrs. Hoyes, the widow of the deceased, after the commencement of the suit, but before the reply had been served. The counsel for the defendants objected to their being read, on the grounds that they were the evidence of the plaintiff, and that there was no proof of their existence before the commencement of the suit. The. objection was overruled by the court, and the counsel for the defendants excepted.

The papers were then read in evidence in the words and figures following:

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“ New York, October 30th, 1850.

“ In case of the payment to me by the American Mutual Life Insurance Company, of New Haven, Ct., of a policy of insurance, effected by Mr. Charles Noyes, in said company, on his life, for two thousand dollars, and this day assigned to me by said Charles Noyes, I will pay to his wife, Elizabeth G. Noyes, the sum of fifteen hundred dollars.

“ Milton St. John.”

“ In case of the decease of Charles Noyes, during the continuance of policy of insurance, No. 2,499, effected on the life of said Charles Noyes, in the office of the American Mutual Life Insurance Company, New Haven, Ct., for two thousand dollars, for the term of six years and six months, from October 11th, 1850, which I promise to keep alive by the payment of such premiums as the said company have a right to demand, and to account faithfully to Mrs. E. G. Noyes, wife of said Charles Noyes, for such sum as may be received by me from said American Mutual Life Insurance Company. New York, February 14th, 1851.

Elizabeth Q. Noyes, the widow of the deceased, was then offered as a witness on the part of the plaintiff, and was objected to by the counsel for the defendants as incompetent, upon the ground that the action was prosecuted for her immediate benefit. The objection was overruled, and she was examined; but her testimony, as upon the ground of her incompetency it was excluded by the court at general term, is here omitted.

When the case was rested on the part of the plaintiff, the counsel for the defendants made the following points:—1. Noyes assigned one policy for $300, and the other for a valuable consideration. The plaintiff does not show further consideration or interest in the life of the assignor, and is, therefore, entitled to judgment only for $300 and interest. 2. The defendant puts in issue the consideration of the assignment, and the plaintiff is bound to prove that Noyes assigned to the plaintiff for $500, and the balance in trust for his wife. 3. The widow

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is the administratrix of the deceased, and the title is in her, and she should he a party to this action. 4. The plaintiff cannot recover interest unless he proves the law of Connecticut regulating interest. 5. Otherwise, the Connecticut rule of interest, which is six per cent., must be applied.

The court overruled the points, and the counsel for the defendants excepted.

Under the direction of the court, by consent, the jury returned a verdict for the plaintiff, for four thousand four hundred and sixty-one dollars and ninety-eight cents, subject to the opinion of the court, on a case to be made, containing the objections of each party, and subject to liquidation, with leave to each party to turn the case into a bill of exceptions ; the case to be heard in the first instance, at the general term, without additional security.

J. Blunt, for the plaintiff,

made and argued the following points.

I. There was no fraud set up or proved, or attempted to be proved, in procuring the execution of the policies.

II. Charles Hoyes, the assured, had an indefinite interest in his own life, and might insure to any amount the company would agree to, and the insurance was valid so long as he held it undisposed of, for the benefit of his representation. It is only when one person insures the life of another, that the question of interest in the life can arise. (Reynolds on Life Ins., pp. 24, 27.) The policies in question were unquestionably good and valid in the hands of the assured, and in case of his death without assignment, would have been so in the hands of his executor or administrator.

III. The policies being good and valid in the hands of the assured, were assignable like any other chose in action. The stipulation in the policy runs to the assigns of the assured, and to restrict its assignability would, therefore, be a violation- of the express terms of the instrument. The equitable interest in a policy is assignable by the common law, and under the Code, the privity of contract and right of action vests in the assignee. (Blaney on Life Ass., p. 75; Reynolds on Life Ins., 151 to 153;

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1 How. 390 ; Godsall v. Webb, 2 Keene Ch. Rep. 99; Code, § 111.) The obligor is protected by the assignment in paying to the assignee, if the assignment be not a forgery. He is not at liberty to set np a want of consideration as between the assignor and assignee. The consideration expressed on the face of the assignment is enough for his purposes. And if it were otherwise, a counter obligation, such as the declaration of trust on the part of the assignee, and the money due to him, would be a sufficient consideration.

IV. The wife has an insurable interest in the life of her husband. This right exists at the common law, independent of the statute of 1840. (Read v. Royal Exchange Assurance Co., Peake’s Additional Cases, p. 70.) The statute of New York, above referred to, is not regarded as extending the right of effecting insurance, but merely as doing away with proof of the pecuniary interest in the assurances authorized by it. (Reynolds on Life Insurance, pp. 52, 53.) And it gives her the additional right of insuring in the name of any other person as her trustee. Had, therefore, riie policies in question been original policies, taken by the plaintiff in his own name, for the use and benefit of the wife, they would have been valid, and it is insisted that the equity of the statute extends to policies effected by the husband, and assigned to another person as her trustee—a fortiori, the insurable interest of the wife in the life of her husband, constitutes a good consideration for an assignment of the policies effected by him. A creditor may insure the life of his debtor, or may take an assignment of the policy effected by the debtor on his own life for security of his debt. In the former case, if the debt be paid, the policy becomes void—but in the latter case it reverts to the representatives of the assured. (Ellis on Life and Fire Insurance, pp. 124, 5, 6; Godsall and others v. Boldero, 9 E. 72; Reynolds on Life Insurance, pp. 54, 155.) In the present case, therefore, if the wife had no insurable interest, and if the assignment did not bring her within the equity of the statute, and the declarations of trust to be utterly null and void, all of which we deny, yet nevertheless, the full amount insured is recoverable by the plaintiff, for the benefit of the representatives of the insured, all beyond the amount intended to be seemed for himself.

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V. But the husband may insure his own life in his own name, and assign the policy for the benefit of his wife. (Ubi supra.) There is nothing in such an insurance or assignment in the nature of a gambling transaction "or against public policy. On the contrary, it was the original and legitimate purpose of life insurance to provide for the widows and orphans on the death of those on whose exertions while living they depended for support. (Reynolds on Life Insurance, chap. 1; Ellis on Life and Fire Insurance, p. 99, part 2d, chap. 1, sec. 2.) Independent of the Stat. 14, Geo. 3, ch. 8, a wagering policy is void as against public policy (Lord v. Dall, 12 Mass. Rep. 115 ); but no policy for the benefit of the widow or orphan of the life insured has ever been held invalid. That the equitable interest of any valid chose in action may be assigned ad Mbiintm, when the rights of creditors are not interfered with, is a principle of so universal application, as not to need support by reference to authorities.

VI. The assignment in the present case was for the benefit of the widow personally, not for the personal estate of the assured. As administratrix, therefore, she had no title or interest, and was not a proper party to the suit. Whether the widow or the creditors are entitled to the fund when collected, is a question between themselves, with which the defendants have nothing to do. It is believed to be easy to maintain, at the proper time, that the creditors have no right in law or equity to moneys which were never the property of the debtor. A creditor cannot compel his debtor to devote his current earnings, necessary for the comfortable support of himself and family, to the payment of his debt.- And if, by partial sacrifices of comfort and convenience in his lifetime, the debtor devotes a small portion of his current earnings to secure to his widow a support after his death, by way of insurance on his life, the creditor is not defrauded, and has no right to complain. It is on the debtor’s property, not on his anticipated future earnings, that the credit is supposed in law to be given.

VII. Interest is recoverable on default of payment of the insurance money at the time stipulated. (Van Rensselaer v. Jewett, 2 Comst. 135; Reynolds on Life Insurance, pp. 165, 6, 7, 8.)

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VIII. The rate of interest is regulated by Lex loci conbracbus, which in the present case was clearly within the State of New York.

C. O'Conor, for the defendant, contra.

I. Elizabeth G. Noyes, the widow of the assured, was the party solely interested in the suit on the policy No. 2,499; and the suit on the other policy was, in part, prosecuted for her immediate benefit. She was, therefore, an incompetent witness. (Code, §§ 398, 399—Voorhies’ Ed., 1853.)

II. Even if the facts testified to by Mrs. Noyes were supplied in the testimony of Mr. Waterbury, the verdict should be set aside. But inasmuch as the papers are written by the plaintiff himself, and were first brought to light after answer filed, Mr. Waterbury’s testimony was insufficient to make them evidence in the cause. ( Walter v. Cronly, 14 Wend. 67 ; Farmers’ and Manuf. Bank v. Whitfield, 24 Wend. 429 .)

III. In the absence of any sufficient evidence of a trust for Mrs. Noyes, the whole interest in policy 2,499, and the chief interest in the other policy, were in the personal representative of Charles Noyes. She should have sued alone on the former, and should have been a co-plaintiff in the suit of the latter. (Code, §§ 111, 113—Voorhies’ Ed., 1853.)

IV. The contracts were made in Connecticut^ by a corporation created under the laws of, and locally situated in Connecticut ; and, consequently, the law of Connecticut must govern the case.

V. Interest is not recoverable at the common law. It is a subject of statute regulation; and no statute of Connecticut having been proved, the plaintiff was not entitled to recover interest.

At the close of the argument it was admitted that the legal rate of interest in Connecticut was 6 per cent, per annum.

We are entirely satisfied that the testimony of Mrs. Noyes ought not to have been admitted. Although not a party on the record, she was a party in interest,

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and under the construction which we have heretofore given to § 399 of the Code, was incompetent, as a person “ for whose immediate benefit the suit was prosecuted.” (Catlin v. Hansen, 1 Duer Sup. C. R., p. 310.) She was a sole cestm que trust, having an immediate right, if not to the whole, yet to a definite portion ($3,500) of the sum that was sought to be recovered.

But although she was improperly admitted as a witness, it by no means follows that, for this reason, there must be a new trials The verdict was taken by consent, subject to the opinion of the court upon the whole case; and if, rejecting her testimony, there is sufficient evidence to sustain it, the plaintiff must still be entitled to our judgment. If we strike out her testimony entirely, as we must do, if this case shall be turned into a bill of exceptions, we are clearly of the opinion, that, upon the proofs that remain, the plaintiff was entitled to a verdict, and that it was the duty of the judge, who tried the cause, so to have charged the jury.

We exceedingly doubt whether any evidence of the right of the plaintiff -to maintain the action in his own name was necessary to be given, other than the assignments endorsed upon the policies. The argument on the part of the defendants was, that the interest on which the insurances were originally founded, that of Charles Hoyes, the assured, in his own life, was certainly extinguished by his assignment of the policies, which, consequently, from that time, became void, as merely wager policies, unless the plaintiff had himself an insurable interest, which was sufficient in law to sustain them. It was conceded, that if the plaintiff had such an interest in the life of Hoyes as would have enabled him to make the insurance in his own name, and for his own benefit, he might, for the protection of his interest, well become the owner of the subsisting policies by virtue of an assignment, and as such assignee be entitled to maintain an action in his own name for the recovery of the loss. It was the existence of such an interest that was alone denied.

It is manifest that the objection rests wholly on the assumption that a wager policy is illegal and void. Such, undoubtedly, is now the law in this State, by force of certain new provisions in

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the Revised Statutes (1 R. S., p. 662, §§ 8,10), and such is also the law in England, by force of a special act “ for regulating insurance upon lives,” which by express words prohibits such insurances, “ except when the persons insuring have an interest in the life or death of the person insured ” (14 Geo. III., c. 48). There is, however, no evidence before us that such is, or ever has been, the law in Connecticut; and in this State, as well as in England, it has been frequently decided, that at common law a wager policy, as a contract, is just as binding upon the insurer, as a policy upon interest. As the case now stands, we do not know that we have any right to say, that in this respect the rules of the common law have been altered in Connecticut ; and it is by the law of Connecticut that the legal construction and effect of the policies in suit are exclusively governed.

This was admitted, and indeed insisted on, by the counsel for the defendants upon the argument, and is not at all doubted by ourselves.

It is not necessary, however, nor do we deem it expedient, to place our decision upon this ground. In delivering our judgment, we shall assume that when the insurance is upon the life of a third person, an insurable interest in the person for whose benefit the policy was effected, or is held, is just as necessary to be proved by the law of Connecticut, in order to warrant the recovery of a loss, as by the law of this State.

The plaintiff claims to recover, partly on his own account, but chiefly as the trustee of the widow of the deceased, and the question of his right to maintain the action, as such trustee, will be first considered.

That a wife has an insurable interest in the life of her husband is quite certain. It is not denied, and it is needless to cite authorities to prove, that a policy effected by him upon his own life, for her benefit, is a valid contract, nor that a subsisting policy upon his own life, held by him, may be assigned to a trustee for her benefit. In both these cases, if the husband die during the term covered by the policy, the sum insured, in law, or in equity, belongs to the wife, and may be recovered by a suit, either in her own name, or where the trust is express, in that of her trustee. None of these positions are disputed.

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The only questions that have been raised on this branch of the case relate to the sufficiency of the evidence to prove the interest of Mrs. Noyes, and the right of the plaintiff to maintain the action as her trustee, and if the declarations of trust executed by him were properly admitted in evidence, it is not denied, that these questions are determined, and his right to a judgment for the whole amount, which the trust as declared embraces, fully established.

Of the interest of Mrs. Noyes in one of the policies, No. 2,499, there is conclusive proof, independent of the declaration of trust in relation to it. It appears by an entry in the registry of the company, made at the time this policy was issued, that the insurance was effected by her husband for her benefit. She was, therefore, the equitable owner of this policy as soon as it was issued, and it was delivered to the husband, and held by him, merely, as her trustee. It is manifest, however, that upon this proof alone the plaintiff would not be entitled to recover. On the contrary, as showing Mrs. Noyes to be the real party in interest, she would be a necessary party to the action. Her interest in the other policy is shown only by the declaration of trust which relates to it, and both the declarations were necessary to be proved to show the title of the plaintiff to prosecute the suit alone, as trustee of an express trust.

In our opinion, all the proof of the due execution of these important papers, which the law requires, was given, and this proof, which uncontradicted, was conclusive.

• The testimony of Mr. Waterbury is positive, that both the papers are in the handwriting of the plaintiff, and that they came into his possession from the hands of Mrs. Noyes, although not delivered to him until after the commencement of the suit. As there was no subscribing witness to either of the papers, this evidence was sufficient to prove them to be genuine, and proof that they were so, was all that, in the first instance, could be justly demanded. It was enough to authorize them to be read in evidence.

Upon the trial the counsel for the defendants objected to their reception as evidence, upon the grounds, first, that théy were the evidence of the plaintiff, and second, that there was no evidence of their existence previous to the commencement of the

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suit. We are persuaded that neither of the objections is tenable. The first, which we find it difficult to understand, was, in effect, abandoned upon the argument before us. If the meaning is, that these declarations of trust were made by the plaintiff with a view to his own benefit, and therefore to be rejected on the same ground as the oral declarations of a party in his own favor, the truth is directly the reverse. His title to both the policies, upon the face of the assignments made to him, was unqualified and absolute, while the effect of the declaration of trust was to show, that nearly the whole beneficial interest was vested in another. The papers were not his evidence, in the sense of the objection, but the evidence of the cestui qm trust. Mrs. Noyes, who, as the person for whose immediate benefit the suit was prosecuted, had the right to insist upon their production. Another short answer to the objection is, that in all cases, where the suit is brought by the trustee of an express trust, his declaration of the trust, whether oral or written, is necessary to be proved in order to maintain the action, and hence to reject the evidence is, in effect, to hold that such an action cannot be maintained at all. Such a decision would be a virtual repeal of the provision in the Code by which the action is given.

To the second objection, that there was no evidence that the declarations of trust were in existence previous to the commencement of the suit, the reply is, that no such evidence was necessary to be given; nor, judging from our own experience, and the uniform practice in this court, can we believe that, in similar cases, such evidence has ever been required. • The rule, we apprehend, to be well established that, when an instrument in writing, to which there is no subscribing witness, is shown to have come from the possession of the party who, according to its terms, has a right to the custody, nothing more is required to be proved, to entitle it to be read in evidence, than the handwriting of the person by whom it purports to have been executed. It is then presumed, that the execution and delivery of the instrument corresponded in time with its actual date, and although this presumption may be repelled by opposite evidence, unless so repelled, it is conclusive.

The declarations of trust, in this case, were the proper evi

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dence of the title of Mrs. Noyes, as the cestui que trust. She was therefore entitled to their possession, and the circumstance that they were not delivered by her to Mr. Waterbury, until after the commencement of this suit, was too unimportant to justify-a suspicion of an execution and delivery subsequent to their date. We have found nothing in the cases to which we were referred in the argument, at all inconsistent with the views that we have expressed. In the first of these cases, Walton v. Crowley (14 Wendell, 67), it is expressly stated, that the paper which was excluded, was executed during the trial. The bearing df the second case, Farmers' and Mechanics' Bank v. Whinfield ( 24 Wend. 420 ), upon the question we are considering, has escaped our discovery.

The declarations of trust being properly in evidence, the necessary consequences are, that the plaintiff, as trustee of an express trust, was entitled to bring the action in his own name, and is entitled to recover for Mrs. Hoyes, as the cestui que trust, the whole sum which, by the terms of the declarations, he agreed to pay her when received from the defendants—that is, the full sum insured by policy 2,499, and $1,500 of the $2,000 covered by the other policy. The only question, therefore, that remains is, whether he is not also entitled to recover, for his own benefit, the balance of $500, claimed to be due on the last mentioned policy ; and, that he is so entitled, we have no difficulty in holding.

It is a mistake to suppose, that the assignment of a policy A upon life, varies in any respect the nature of the original contract, or can operate to discharge the insurer from any part of the obligation, which the terms of the contract impose. By the terms of this policy, the defendant agreed to pay the sum insured to the executors, administrators, or assigns of the assured, within a certain time, after due notice and proof of his death ; and we apprehend, that where such notice and proof have been given, and the assignment is valid as between the parties, the \ right of an assignee to demand and enforce the stipulated payrnent, is no more liable to doubt or dispute, than that of an executor or administrator.

The objection to the recovery in this case, assumes, and such Í was the argument, that there can be no absolute sale of a sub

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sisting policy, and that its assignment is only valid, when made as a collateral security for an antecedent debt; but as we understand the law,'a written promise tb -pay a sum of money is just as properly a subject of transfer for value, where it depends upon a condition, as where it is absolute, and we can, therefore, make no distinction between the rights of a bond fide assignee of a policy, and those of an assignee of a mortgage. This seemed to us, upon the argument, very clear upon principle, and we have since found that it is equally so- upon authority. The case of Ashley v. Ashley (3 Simons, 140) which was not referred to upon the argument, and whie Chancellor Kent cites and approves (3 Kent’s Com. 370, note), is a positive decision, upon the exact question, in correspondence with the views we have expressed.

In this case, the sum insured upon the life of the person effecting the policy, was £1,000 sterling. He assigned the policy for a small, but valuable consideration, to one Heath, whose executors sold the policy to General Ashley, for £320. Ashley also died; and, in a suit in equity, between his widow and his executors, an order was made that the policy should be sold by a master, for the benefit of the estate. It was sold accordingly ; but the purchaser refusing to accept the title offered, the case was before the court upon a petition to compel him. The objections to the title urged by his counsel were, that the assignment to the first assignee being for a consideration so trifling as to be merely nominal, was wholly void ; or, if valid, that the purchaser, instead of the full sum insured, would only be entitled to recover the amount paid by the assignee. The Vice-Chancellor overruled the objections, holding that the provision in the Act of Parliament, prohibiting insurances by persons having no interest in the life insured, had no application to the assignment of a subsisting policy, but that the assignee in good faith, of a policy upon life, which was good when effected, is entitled, in all cases, to demand payment of the whole sum insured.

This case, therefore, proves not only that the absolute sale of a life policy does not affect the validity of the contract, but that the assignee, for value, in the event of the death of the assured, is entitled to the same remedies as his personal repre

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sentatives, when the title to the policy is unchanged. It thus furnishes a full answer to the argument, that the recovery of the plaintiff upon his own account, if he is permitted to recover at all, ought to be limited to the sum which he advanced. Had there been no trust, he would have been entitled to recover for his own benefit, without any deduction, the sum insured. It is further to be observed, that an insurance upon life, in the language of Hr. Justice Park, from its nature, admits no distinction between total and partial losses; but, when a loss happens, binds the insurer to pay, according to the terms of his agreement, the full sum insured (2 Park on Insurance, Hildyard ed. p. 493). In other words, the interest of the assured, in every such policy, is valued at the sum insured, and by this valuation, as in a marine policy, both the parties are bound. Hence, it has never been doubted, that a person may insure his own life in as many policies, and for any amount he may deem proper, so as to entitle his representatives to recover the full sum insured in each policy, without any other proof of their loss than that of his death. The contract is still a contract of indemnity, but the only measure of the indemnity promised, is that which thé policy furnishes.

It is true that in England, a creditor, who insures the life of his debtor, can recover no more than the amount of his debt, whatever may be the sum insured ; but this exception to the general rule is created by a special provision in the Act of Parliament, to which we have before referred, and is, as we have seen, not construed to extend to the assignment of a policy effected by the debtor (14 Geo. III. cap. 48, Ashley v. Ashley). There must be judgment for the- plaintiff upon the verdict; but the rate of interest being governed by the law of Connecticut, must be reduced to six per cent.

Judgment accordingly.