Cozine v. Grimes , 76 Miss. 294 ( 1898 )

Whitfield, J.,

delivered the opinion of the court.

This case has given us great trouble in view of the language of § 1964 and § 1965, code of 1892, and the fact of there being two heirs. One is provided for otherwise to the extent of $3,000 and one is not provided for otherwise at all. In a case like this one, where the decedent has left insurance policies payable to his executor or administrator to the amount of five thousand dollars, and also insurance otherwise, payable to some but not to all his heirs, the two sections, 1964 and 1965, must be construed together. Section 1965 operates as a check upon § 1964 and so as to work out the manifest purpose in the legislative mind. And the policies of insurance are then to be construed in the light of both sections thus taken and considered together. That manifest purpose seems to be this: that when there is no insurance otherwise, the sum of $5,000, if payable to the executor or administrator, shall constitute the maximum amount set apart as exempt to the heirs or legatees. That was deemed a sufficient sum. in such contingency to provide against destitution. But if the heirs or legatees were, either all or some only of them, otherwise provided for by insurance than as marked out in § 1965, and the decedent left $5,000 insurance as marked out in § 1965 also, then § 1965 was not to provide cumulative exemptions, but should be so construed as to give each heir or legatee, together with what he otherwise might get, an additional amount, sufficient only to make the whole insurance received by him equal to what his ratable share of the $5,000 would be. To illustrate by the case in hand, the child who was not otherwise provided for by insurance is entitled to his pro rata share, one-half of $5,000, to wit, $2,500, undiminished by any consideration of what insurance otherwise was provided for his mother. The mother having $3,000 of insurance otherwise, has received $500 more than her pro rata share of the $5',000, to wit, $2,500, and is entitled to no part of the $5,000 till creditors are satisfied. The heirs and legatees are to be dealt with distributively, according to the facts of their respective conditions, as otherwise insured for or not, and if so, for how much each. The excess here over $2,500 is to be used in the payment of the creditors of the decedent, and the balance will then be divided, under the statutes of descent and distribution, equally between the two heirs. If, as a result of this division of the residue and of the part that the mother was otherwise provided with, the $3,000 of insurance, she should get more than the child, the answer is, so the policy for $3,000 is written and so are the statutes written, and the decedent made his contracts charged with a knowledge of the law. He could have secured equality, if he had desired, by making the insurance otherwise payable to wife and child in equal shares.

We adopt the above construction as the best harmonizing the various provisions of the two sections, and as working out thereunder, as applied to the contracts here, the three insurance policies, the clear purpose of the legislature.' The purpose of the legislature was to limit an amount as exempt—$5,000 out of a policy payable to the executor or administrator. Whether' this sum reaches the heirs by descent, as a,part of the estate, having been first paid under the contract:—the policy—to the administrator or executor, or, as seems the better view, goes to-them by purchase, through the channel of the statute (§ 1965),. as a statutory disposition or conveyance of it, the result is the> same. The original of § 1965—the act of April 1, 1892, in section 2—used the language “ so as.to leave $5,000 only exempt as aforesaid,” and the last clause of § 1965 means the same-thing, though the verbiage is slightly different. If it be said that this construction makes trouble as to the provisions in § 1964, that “ten thousand dollars insurance should be exempt, from the debts of a person whose life was insured otherwise ” than in §1965, the answer is, that that statute declares in that view what the law was without it, since the beneficiary in such a policy takes by and under the contract, anyway, to any amount,, saving the creditors the right to recover in case of his insolvency when making the contract and paying the premiums the amount invested by the insolvent as premiums, as pointed out in Jones v. Patty, 73 Miss., 179. Policies otherwise than as marked out in § 1965, there being none under that section, to the amount of $12,000 ($2,000 in excess of $10,000) were decreed therein to Mrs. Patty. If there had been insurance there, as here, payable to the executor or administrator, she would have no part of it. This is not saying that one to whom a policy is. payable under § 1964 may not take the whole, if the insured were solvent, when making the contract and paying the premiums, no matter how large the amount, since it is no part of the estate of the insured; but that it is competent for the legislature, in such case, to say that § 1965 shall not apply in favor of such persons, so otherwise abundantly provided for. Suppose the case of any one heir, insured under §1964 for $100,-000, and a policy of $5,000 payable to the executor of the insured, who owed $10,000. It is plain the legislature never meant to enrich the already rich and take from the creditors of the decedent the $5,000 and give it to the heirs with $100,000 otherwise.

The view, too, that the proviso to § 1965 never comes into play unless literally the policy therein is payable to all the ■heirs or all the legatees, and that, for that reason, the whole $5,000 should be exempt here to the mother and child, will not bear analysis. Suppose the case of ten heirs, nine otherwise insured, each in a different sum, from $100,000 down to $50,000, and the tenth not at all. Shall the proviso not apply to all, and the $5,000 be divided equally between the ten? Or all go to the tenth ? Suppose the case of one heir, who would be all the heirs also in such a case, insured otherwise for $100,000. Should the proviso apply in such case, and he get $105,000, leaving creditors naught? Suppose the case of one heir and one legatee,, and the legatee otherwise provided for to the amount of $100,000, and the heir not at all. Is the $5,000 to be exempt and divided equally between the heir and-the stranger—legatee? Such a construction would be monstrous.

Nor can the view that here the $3,000 should be deducted from $5,000, and the excess. ($2,000) be paid to the widow, be supported; for the insurance otherwise, thus deducted, is the property of but one heir, and, besides, the “excess” is treated by the statute as a sum divided, share and share alike, among all the heirs. Nor can the view be supported that the $3,000 should be deducted from the $5,000 and the $2,000 excess divided equally between the two; for that would diminish the wholly unprovided heir’s share, because of the insurance otherwise of another, and give that other $1,500 more than her pro rata share of the $5,000. Suppose the policy otherwise to the widow had'been $5,000. Then neither would get anything out of the $5,000 taken out under § 1965; the widow would have $5,000 otherwise, and the child nothing. It is impossible to attribute such folly to the legislature.

We have given the case the most critical study, and announce the view adopted herein as the only rational construction—"just alike to heirs, legatees, and creditors.

The decree is reversed and the cause remanded, with directions to pay the child’s guardian one-half the net sum realized from the $5,000 policy; to then pay all legal debts and charges out of the balance thereof, and the residue to divide equally between the mother for herself and as the guardian of the child.