Norwich Union Fire Insurance v. Prude , 145 Ala. 297 ( 1906 )

ANDERSON, J.

The complaint avers that the policy was “payable to the estate of Lucy A. Prude, deceased.” If that be true, those entitled to the estate would be the beneficiaries. It is true the complaint avers that the plaintiffs are the heirs and next of kin of the deceased and are the real beneficiaries. If the policy was payable to the estate, then the heirs and next of kin would not, as such, be the beneficiaries, except upon the condition that the deceased died intestate and has no personal representative, or else there are. no debts and no need for one, or the property was exempt from administration or the claim of a surviving husband. The personalty does not descend to the heirs, but to the personal representative, and the heirs are never entitled to it, other than as exempt under the statute, until after the payment of the debts of the deceased, and even then it is subject to the interest of a surviving husband or wife.

A complaint which does not aver that the plaintiffs are the beneficial owners, or facts sufficient to show that they are, is demurrable. Section 28 of the Code of 1890 authorizes the action on instruments like the one described to be brought by the beneficial owner, but the complaint does not aver that plaintiffs are the beneficial owners. They may be the heirs at law and next of kin, but would be neither the beneficiaries under the policy nor the beneficial owners of the proceeds, except upon certain conditions. The trial court erred in not sustaining the grounds of demurrer proceeding upon the foregoing proposition. The complaint is in the Code form, and would be sufficient but- for the defect above pointed out. — Insurance Co. v. Insurance Co., 81 Ala. 320, 8 South. 222, 60 Am. Rep. 162 ; Insurance Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31.

The policy is not void because payable to the estate of a deceased person. While the payees or parties insured may be uncertain, it is capable of being made certain by extrinsic evidence. — Joyce on Insurance, Vol. 1, § 310 ; Clinton v. Hope, 51 Barb. (N. Y.) 647 ; Insurance Co. v. Bledsoe, 52 Ala. 538 ; Hendricks v. Thornton, 45 Ala. 299. Since the case must be reversed on account of a defect in the complaint, we need not consider the ruling of the trial court upon the special pleas.

The judgment of the county court is reversed, and the cause remanded. Reversed and remanded.

Haralson, Simpson, and Denson, JJ., concur.