McLean v. Martin , 155 Ala. 208 ( 1907 )

SIMPSON, J.

This is an appeal from a decree of the probate court setting apart as exempt for the use of the widow and minor children $1,000, being a part of the proceeds of a policy of life insurance on the life of the decedent. The petition of the widow, Lorena B. Martin, alleges (and the facts are not controverted) that the decedent, Robert S. Martin, at the time of his death owned “a life insurance policy * * payable to his executor or administrator; that the amount due on said policy, towit, $2,136,69, has been paid over to G. Preston Martin as the administrator of decedent’s estate.” The appellants filed exceptions to the setting apart of the exemptions, and they here insist, first, that no appraisers of the estate of Robert S. Martin Avere appointed, and, second, that the widow and minor children have not “selected” the property set apart. To which it is sufficient to state that the right of the widow to apply for the setting apart the property exempt is not made by statute dependent upon the appointment of appraisers, and it is difficult to see how any injury could occur from the failure to appoint them, when the only property belonging to the estate was a certain sum of money in the hands of the administrator. The filing of the petition was a sufficient selection.

It is next insisted that the court erred in allowing the petition of the widow to be amended on the application of her attorneys in her behalf. It seems that it was ascertained that one of the minors had been omitted from the petition, and the amendment was made simply for the purpose of inserting his name. The statute (section 2082, Code 1896) does not require the application to be verified, and there is no reason why it could not be amended in the manner pointed out in the record, especially for so manifest a purpose, and when it could not in any manner affect the issues involved. The inserting or not inserting of the name of one of the minors affected only their rights as among themselves; and, if one of them should be left out, he could come in at any time and insist that he be made partaker of the money which the law requires to be set apart for all of them.

But the real question, Avhich seems to be strenuously insisted upon, is that the policy of insurance and the proceeds thereof did not constitute a part of the personal property belonging to the decedent at the time of his death, and that therefore no part of it could be set apart as exempt for the use of the widow and minor children. Section 2 of the Code of 1896 declares “things in action” to be “personal property,” and there is ab unci ant authority for the proposition that a life insurance policy is a chose in action, and that when a man makes a policy payable to his representatives, or to his estate, the policy is his property and passes to his personal representative like any other personal property, and the proceeds thereof is a part of his estate. — 1 Cooley’s Briefs on Insurance, 84; McLean v. Williams, 116 Ga. 257, 42 S. E. 485, 59 L. B. A. 129; St. John v. Am. Mut. Life Ins. Co., 13 N. Y. 31, 64 Am. Dec. 529; Hutson v. Merrifield, 51 Ind. 24, 19 Am. Rep. 722, 725; Ionia County Bar. Bank v. McLean, 84 Mich. 625, 48 N. W. 159, 160. This court has specifically declared that choses in action due the decedent are assignable as personal property under the exemption law.- Darden, Adm’r, v. Reese, 62 Ala. 311, 313; Williamson v. Harris, 57 Ala. 40, 42, 29 Am. Rep. 707; Chandler v. Chandler, 87 Ala. 300, 303, 6 South. 153; Kennedy v. Smith, 99 Ala. 83, 87, 11 South. 665.

The act oí February 18, 1897 (Acts 1896-97, p. 1377), ■embodied in part in section 2607 of the Code of 1896, relates to a different subject, and we are not called upon to decide whether a party could claim under that act in addition to the regular exemption which applies to all personal property, nor whether that act is subject to the objections urged against it, as no claim under that act is before this court.

The decree of the court is affirmed.

Tyson, C. J., and Denson and McClellan, JJ., concur.