Imágenes de páginas
PDF
EPUB

intestate consists of a policy of insurance on her husband's life, in her name, delay in the administration and distribution of her estate untiß after the death of her husband cannot affect his title, or that of his estate, to a one-third interest in the policy and its proceeds when paid

to her estate.
HUSBAND's RigHT IN WIFE's ESTATE-ASSIGNABILITY_DESCENT-ADMIN.

ISTRATION.—The husband, as an heir of his wife, has an interest in her
estate, which he may sell or assign, subject to the claims of adıninis.
tration thereon, or dispose of by will. If not so disposed of it passes
to his heirs subject to administration.
George C. Ross and Henry.W. Walker, for the appellants.
Edward F. Fitzpatrick, for the respondent.

434 GAROUTTE, J. This is an appeal from a decree of final distribution, and is taken by the administrator of the estate of Henry Dobbel, deceased, and by a creditor of his estate. The facts of the case may be briefly stated as follows: Henry Dobbel took out a paid-up policy of insurance upon his life in favor of his wife Margaretha. Margaretha died intestate; six years later her husband, Henry, died. The policy was made payable to "Margaretha L. Dobbel, her executors, administrators, or assigns." Upon the death of Henry, his son was appointed administrator of Margaretha's estate, and the insurance company paid him as such adıninistrator the amount of the policy. The husband and wife left surviving them seven children, and, by the decree of distribution appealed from in this case, the trial court awarded the proceeds of this policy to the children in equal shares. It is now claimed by appellant that the estate of Henry Dobbel is entitled to all of said moneys as community property; and, secondly, if this contention be unsound, that his estate is entitled to one-third of said moneys, the husband being an heir of the wife, and the money being her separate property.

It cannot technically be said that the money here in dispute was either the separate property of the wife, or common property of the spouses, for this money was 435 the property of the insurance company until after the death of both, and until it passed to her administrator. But the insurance policy when issued was property, and valuable property. It could be sold, assigned, or bequeathed by the owner thereof. Its pecuniary value to its owners was as great as though they held a promissory note of the company for that amount, pay. able upon the same conditions. It was a chose in action, and upon its satisfaction by a payment of the amount speci

[ocr errors][ocr errors]

fied the title to the money so paid followed the title to the policy.

This policy was the separate property of tho wife under any aspect of the case. If it was bought with the separate property of the husband, or with money of the community, it was a gift by the husband to the wife. That a policy payable as the present one is payable is the separate property of the wife there is no question, viewed in the light of the authorities: Pence v. Makepeace, 65 Ind. 345; Wilburn v. Wilburn, 83 Ind. 55; Harley v. Heist, S6 Ind. 196; 44 Am. Rep. 285, and cases there cited; Bliss on Life Insurance, sec. 317.

The principle involved and decided in the case cited from 86 Indiana is in all material respects the same as that which is now before us, and the court there used the following language: "The policy in this case, by its terms, was executed for the benefit of the wife, and by a fair construction was pay. able to her and not to the personal representatives of the husband. Upon its execution the title vested in the wife and not in the husband. By the procurement of the husband the wife became the owner of the policy, and entitled to col. lect the amount that might become due on the same upon the death of the husband. Had the wife procured the policy to be issued, and paid the premiums, no one could doubt as to the ownership of the policy and the right to collect the money due thereon. We are unable to see in this case why there should be any difference in the ownership and title of the policy by reason of the application having been made and the premiums paid by the husband. Had the policy been made payable 436 to the husband, he doubtless might have given it to the wife, and by proper indorsements thereon conveyed to her the legal title to the same. In such case it would have become her separate property by gift from her husband; and so, too, he had the legal right in the first instance to make the application, pay the premiums, and have the policy made payable to the wife for her benefit, and thus vest in her the legal title and ownership of the property as her separate property."

The policy of insurance, being her separate property, passed to her heirs at the time of her death, she having died intestate, and her husband took a one-third interest therein by virtue of his heirship. There is no reason why the administration upon Margaretha's estate should have been delayed until her husband's death. Conceding her estate to have consisted alone of the insurance policy, still it was property subject to administration and distribution as any other piece of personal property. If such administration and distribution had taken place prior to the husband's death he would have stood in the same relation to this policy as to any other separate property owned by her, and title to a one-third interest therein would have passed to him as an heir and distributee. If such a course had been followed his interest in the policy would have passed to his estate like any other property which may have belonged to him at the time of his death, and the mere fact that no administration was had upon his wife's estate until after his death in no way affects the title to the policy. The husband's estate occupies exactly the same position with reference to this policy that it does with reference to any other piece of property belonging to the wife at the time of her death. As an heir of his wife he had an interest in her estate which he could at any time have sold, subject to the claims of administration thereon. He could have disposed of it by will, and, if he had the right to sell or devise, and failed to exercise that right, it passed to his heirs, subject to administration.

437 For the foregoing reasons we think one-third of the moneys forming the proceeds of this insurance policy should have been distributed to the administrator of the estate of Henry Dobbel.

It is ordered that the judgment and order be reversed, and the cause remanded, with directions to the trial court to enter a decree in accordance with these views.

HARRISON, J., and Van FLEET, J., concurred.
Hearing in Bank denied.

AN INSURANCE POLICY, ISSUED UPON THE LIFE OJ A HUSBAND FOR THB Benefit of his Wife, is her property, and she alone can assign it, even during the lifetime of the husband: See monographic note to Hooker v. Sugg, 11 Am. St. Rep. 723, discussing the results of the death of a benefici. ary before the death of a person whose life is insured. If the wife dies before the husband he cannot simply by bis will, executed after the wife's death, dispose of the insurance money, of such a policy, so as to divert it from the heirs of his wife, the beneficiary: See note to Newman v. Cove. nant Mutual Ins. Assn., 14 Am. St. Rep. 204.

NEITHER HUSBAND NOR WIFE IS HEIR TO THE OTHER. -The interest which one has in the estate of the deceased spouse exists by virtue of the marital rela:ion rather than as heir to the decedent: See monographic note to In re Ingram, 12 Am. St. Rep. 83, discussing succession to estates of intestates.

AN HEIR MAY ASSION HIS EXPECTED SHARE in his ancestor's ostato: See In re Estate of Barcelon, 104 Cal. 570; post, p. 134.

EX PARTE COHEN.

[104 CALIFORNIA, 624.) CONSTITUTIONAL LAW_CRIMINATING EVIDENCE_WITNESSES. –The consti.

tutional provision that "no person shall be compelled, in a criminal case, to be a witness against himself,” confers immunity from testify. ing only where his evidence would tend to subject him to prosecution and punishment for a criminal offense. Under all other circumstances he cannot avoid an answer on the ground that it may tend to criminate him. Hence, he may be compelled to answer, if the act charged does not constitute an offense, or is no longer punishable, or if the statute creating it has been repealed, or if the statute of limitations applies, or

if he has been tried and acquitted, or if he is shielded by the statute. CONSTITUTIONAL LAW-IMMUNITY OF WITNESS-CRIMINATING EVIDENCE. —

The PURITY OF ELECTION Law exempts a person giving evidence against other persons under that law from indictment, information, prosecution, or punishment for the offense as to which his testimony is given. He is, therefore, not protected as a witness from answering apon the ground that this evidence may tend to criminate himself. This immunity includes not only the offense with which the defendant then under examination is charged, and in which the witness was a participant with such defendant, but also any other offense with which the witness may be charged, and to which such testimony may have

reference, or which it may tend to establish, STATUTES—PERSONAL PRIVILEGE-CONSTRUCTION.-A statute is to be con

strued with reference to its manifest object, and so as to give effect to such object consistently with the constitution. A statute involving a personal privilege or right conferred upon an individual by the constitu.

tion is to be liberally construed in favor of the individual. ELECTIONS-STATUTORY CONSTRUCTION.—The proper construction of section

32 of the Purity of Election Law is that it was intended to secure evidence for the conviction of offenders against the provisions of the other sections of the statute, enumerated therein, requiring the co-operation of two or more persons, but that it is only upon a trial, hearing, prosecu. tion, lawful investigation, or judicial proceeding against another person for offending against those provisions that a witness who has

himself offended against them can be compelled to testify. CONTEMPT-REFUSAL TO ANSWER QUESTIONS-HABEAS CORPUS.—A witness

who refuses to answer questions propounded to him concerning violations of the Purity of Election Law by other persons with whom he has co-operated may be lawfully committed for contempt until he shall answer, and is not entitled to discharge upon habeas corpus, if so com. mitted

HEARING in the supreme court upon a writ of habeas corpus.

Carroll Cook and H. I. Kowalsky, for the petitioner.
J. N. Nougues, contra.

625 HARRISON, J. While Louis Steinberger was under ex. amination before the Hon. W. T. Wallace, one of the judges of the superior court of San Francisco, sitting as a committing magistrate, in which said Steinberger was charged with a felony in "having willfully caused, procured, and allowed one Louis Cohen to be registered 526 upon the precinct register of the first precinct of the forty-third assembly district of the state of California in the city and county of San Francisco, state of California, knowing said Louis Cohen not to be entitled to such registration,” the petitioner was called as a witness on the part of the people, and, having been sworn as such witness, was asked the following questions, viz:

“Q. Mr. Cohen, where do you reside?

“Q. On the third day of October, 1894, where did you reside?

"Q. Do you know the defendant, Louis Steinberger ?

"Q. Did you have any conversation with Mr. Steinberger on the third day of last October respecting your going and procuring yourself to be placed upon the great register of this county?

"Q. Or the precinct register of this city and county?

“Q. Did you register or procure your name to be placed upon the precinct register of the first precinct of the fortythird assembly district on the 3d of last October ?

"Q. Were you present at the Baldwin Hotel with Mr. Steinberger on the third day of October ?

"Q. At Mr. Steinberger's direction did the clerk of the Baldwin Hotel furnish you with a key to a certain room in the hotel” ?

The witness refused to answer each of these questions as they were propounded to him, on the ground that his answer might incriminate him, whereupon the judge stated to him: “It is a legal impossibility in this case to expose yourself by your testimony here. I instruct you that you are bound to answer. You must answer." But, notwithstanding such direction, the witness still refused to answer, and was thereupon adjudged guilty of contempt, and crdered to be im

« AnteriorContinuar »