Biggert v. Straub , 193 Mass. 77 ( 1906 )

Knowlton, C. J.

This is a suit in equity in the nature of an equitable trustee process, brought under the R. L. c. 159, § 3, cl. 7, to reach and apply in payment of a debt due, the plaintiff’s property in the hands of the defendant life insurance company, belonging to the debtor, Charles L. Straub. This defendant and his wife, Bertha Gr. Straub, the other defendant, who seems to have an interest in the property, are not residents of this Commonwealth and the only service made upon either of them was by publication. They have filed motions to dismiss the suit for want of jurisdiction. The presiding judge overruled these motions and then reported for consideration by this court the questions arising upon them.

The first question is whether a liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another State is property within this Commonwealth, such as to give jurisdiction to the court here to enter a decree in the nature of a judgment in rem against it. This .question is precisely the same, in its legal aspect, as the question whether such a liability, in a form that can be reached by trustee process in an action at law, gives jurisdiction for an action of the latter kind. This question has long been treated in this Commonwealth as requiring an affirmative answer. Ocean Ins. Co. v. Portsmouth Marine Railway, 3 Met. 420. Whipple v. Robbins, 97 Mass. 107. American Bank v. Rollins, 99 Mass. 313. National Bank of Commerce v. Huntington, 129 Mass. 444. Garity v. Gigie, 130 Mass. 184. In view of conflicting cases in different jurisdictions, it was considered at some length and decided in the affirmative in Rothschild v. Knight, 176 Mass. 48, and it was settled by decisions in the Supreme Court of the United States, which is the final arbiter in all controversies as to the validity • and effect of judgments of one State in the courts of another State. Chicago, Rock Island & Pacific Railway v. Sturm, 174 U. S. 710, 716. King v. Cross, 175 U. S. 396, 399. Rothschild v. Knight, 184 U. S. 334. Blackstone v. Miller, 188 U. S. 189, 205, 206. The defendants’ objection to the jurisdiction on this ground is not sustained.

The only other question is whether the property is of such a nature as to come within the statute. The State Mutual Life Assurance Company issued a policy of insurance on the life of the defendant, Charles L. Straub, in the sum of #10,000, for the term of thirty-two years from May 7, 1895, promising to pay this amount to him or his assigns on May 7,1927, or, in the event of his death before that date, to pay it to his wife, the defendant Bertha Gr. Straub. It appears that this policy now has a cash surrender value of more than $3,000. It further appears that the policy is in the possession of the insurance company, which has a lien upon it for $1,281 advanced to the defendant Charles L. Straub.

The policy is not before us, and the only knowledge we have of its terms or provisions is derived from the averments in the stating part of the bill. Nor do we know whether the proceedings that have been had, or the assignment to the insurance company which we infer has been made as security- for the advance of money, are such as leave the defendant Bertha G. Straub without further interest in the policy. From the averments of the bill the debtor, Charles L. Straub, appears to have, at the least, an interest in the policy whose value depends in great measure upon the contingency of his survival of his wife. If he has no greater interest, this question arises: Whether, in view of this contingency, the value of his interest “ can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.” See R. L. c. 159, § 3, cl. 7. On this question the case of Alexander v. McPeck, 189 Mass. 34, 44, is decisive. It was there held that a right whose value depended on a similar contingency could be reached under this statute, and that, for the purposes of the statute, the value could be ascertained by sale, or some other means within the ordinary procedure of the court.

Motions disallowed.