John Hancock Mut. Life Ins. Co. v. Sally ( 1942 )

■ McDONALD, Chief Justice.

■ Sylvia Sally brought this suit to recover, the proceeds of two life insurance policies. Plaintiff claimed that she was the surviving widow of the insured, that the beneficiary named in the policy as the wife of the .insured was not his- lawful wife, and that the payment theretofore made to the named beneficiary was wrongful. . .

There appears to us to be-a fundamental error apparent upon the face of-the record which requires a reversal of the judgment rendered in favor of plaintiff in the court below.

In her petition plaintiff describes herself as the surviving widow of the insured. She does not allege that the insured died intestate, she does not allege that there has been no administration and no necessity for such, nor does she allege that she is the sole heir of the deceased.

If the named beneficiary had no insurable interest in the life of the insured, the proceeds of the policy became payable to the estate Of the deceased. 24 Tex.Jur. 770, and cases there cited. The general rule is that suit on causes of action relating to the estate of a decedent must be prosecuted by the personal representative, not by the heirs, devisees or legatees. 14 Tex.Jur. 298. In 14 Tex.Jur. 299, will be found listed the exceptional cases in which the heir may bring suit. In the case before US’ the plaintiff’s pleadings are insufficient to bring the case within such exceptions. Another discussion of the same subject will be found in 15 Tex.Jur. 184, et seq. See also the cases of American Nat. Ins. Co. v. Wallace, Tex.Civ.App., 210 S.W. 859; Bradley v. American Nat. Ins. Co., Tex.Civ.App., 44 S.W.2d 478; Finn v. Metropolitan Life Ins. Co., Tex.Civ.App., 16 S.W.2d 922, same case styled Wilke v. Finn, Tex.Com.App., 39 S.W.2d 836; Maryland Casualty Co. v. McGill, Tex.Civ.App., 69 S.W.2d 158; John Hancock Mut. Life Ins. Co. v. Warren, Tex.Civ.App., 72 S.W.2d 347.

With the record in this condition, we do not consider it proper to pass upon contentions made by the defendant to the effect that judgment should be rendered in its favor. If the plaintiff is not the proper party to prosecute the suit, a judgment in favor of defendant would not cut off the rights, if any, of the personal representative or of other heirs, as the case might be. See the two cases last above cited.

If the plaintiff is entitled to maintain the suit under the exceptions above referred to, ?he may have opportunity to offer proper pleadings and proof thereof upon another trial.

The judgment of the trial court is reversed, and the cause is remanded for another trial not inconsistent with the holdings herein announced.