Rickenbacker v. Zimmerman , 10 S.C. 110 ( 1878 )

The opinion of the Court was delivered by

McIver, A. J.

On the 24th January, 1870, the intestate insured his life for the sole benefit of his daughter Cornelia, and, having subsequently married a second time, died intestate on the 12th March, 1874, leaving as his heirs-at-law and distributees, his widow and two children of his last marriage, Ida and Ella, together with the appellant Cornelia. Under proceedings for partition and settlement of his estate two questions arose: 1. Whether such insurance was an advancement to the appellant. 2. If so, hoW should such advancement be valued. The Circuit Judge held that the insurance was an advancement, and that the value of. the advancement was the sum named in the policy and received by the guardian of appellant. From this decision the appeal is taken.

In the absence of any direct authority upon these points, these questions must be determined upon the general principles regulating, the law in respect to advancements, aided by such analogies as may be afforded by the decided cases.

In 1 Bouv. Law Die., 76, the term advancement is defined to be “that which is given by a father to his child or presumptive heir by anticipation of what he might inherit.” In McCaw vs. Blewit, (2 McC. Ch., 91,) the'leading case on the subject of advancements in this State, no definition of the term is given in the decision of the Court of Appeals, but in the circuit decree it is defined to be “such a part of a man’s estate as he gives to a child on marriage, or on setting out in life, which may be necessary for its settling in the world.”

In the argument of this case the counsel for the appellant, who afterwards became one of the most eminent Chancellors of this State, questions the correctness of this definition, and says: “ If á definition may be ventured, an advancement is the gift of a parent to a child beyond what by law he is bound to provide, from which a substantial benefit is to be derived by the child.”

But, after long experience on the bench, this distinguished Judge seems to have reached the conclusion that it was not an easy matter to frame an accurate definition of the term. — Murrell vs. Murrell, 2 Strob. Eq., 151. While, however, it is a difficult matter to frame such a definition as will cover every possible case, there are certain essential elements which every advancement must possess, one of which is that it must once have been a part of the ancestor’s estate, which, upon his death, would descend to his heirs but for the fact that it has, by the act of the ancestor in making the gift, been separated from or taken out of his estate, or it must be something which is purchased with the funds of the father in the name and for the benefit of the child.

This is obvious from the very terms of our Act of 1791, (corresponding with the terms of Section 7, Chapter LXXXV, General Stat., p. 440,) as construed by the case of McCaw vs. Blewit, supra; and, as Johnston, Ch., says in Ison vs. Ison, (5 Rich. Eq., 19,) “an advancement always embraces the idea that the parent has parted from his title in the subject advanced.” Even the case of Clark vs. Wilson, (27 Md., 693,) which is much relied on by the respondents, recognizes this idea, for in that case it is said: “An advancement is a giving, by-anticipation the whole or a part of what it is supposed a child will - be entitled to on the death of the party making it and intestate,” evidently implying that it must be a part of the ancestor’s estate of which the child would be entitled to inherit a part in case of intestacy. So, too, in Miller’s appeal, (31 Penn., 338,) an advancement is said to be “a pure and irrevocable gift by a parent, in his lifetime, to his child, on account of such child’s share of the estate after the parent’s decease.” And in Dilman vs. Cox, (23 Ind., 442,) it is said : “The true notion of an advancement is a giving by anticipation the whole or a part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement.”

If, then, one of the distinguishing features of an advancement is that it must once have been a part of the ancestor’s estate, which, but for the gift by way of advancement, would descend to his heirs, the next question to be considered is whether this policy of insurance or the money secured by it ever constituted any portiop of the intestate’s estate. The finding of fact by the Circuit Judge is that “ the intestate in his lifetime * * * * insured his life for the sole benefit of his daughter, Cornelia, * * * * for the sum of four thousand dollars, payable upon his death, and then and thereafter paid regularly up to the time of his déath an annual premium of ninety-nine 12-100 dollars,” &c.

The policy recites that the first premium was paid by the said Cornelia, and upon what evidence, if any, the Circuit Judge based his finding contradictory of this recital does not appear. Assuming, however, ás we must do, the correctness of the finding of the Circuit Judge, inasmuch as in the case agreed upon he says, after stating the facts as found by him, that “ concerning the foregoing facts there was no dispute,” the inquiry is whether this policy or the money secured by it ever constituted any part of the intestate’s estate which, in any event, could have descended to and become distributable amongst his heirs and distributees, or which he could, by his will, have given to one or more of them. The authorities leave us in no doubt upon this point.

In Bliss on Life Insurance, (§ 317,) it is said the,rule is “that a policy and the money to become due under it belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no pow'er in the person procuring the insurance, by any act of his or hers, by deed or by will, to transfer to any other person the interest of the person named.” Again, at Section 328, the writer says: “Payment of the premium without any contract with the person entitled to the benefit of the policy gives no title to it.” And, again, at Section 339, it is said: “ Where the policy desiguates a person to whom the insurance money is to be paid, the person who procures the insurance and who continues to pay the premiums has no authority, by will or deed, to change the designation or title to the money. He is under no obligation to continue to pay the premiums unless he has covenanted so to do; but if he does so, the person originally designated in the policy will derive the benefit.”

To the same effect, see May on Insurance, p. 447, § 392.

The cases which were principally relied upon by the respondents, do not, in our opinion, conflict with these views. The case of Edwards vs. Freeman, (2 P. Wms., 435,) was this: Richard Freeman, in contemplation of marriage with his first wife, Elizabeth, by articles, covenanted with the father of Elizabeth, in consideration of the marriage and of a marriage portion of £5,000, to settle certain lands to the use of himself for life, remainder to said Elizabeth, remainder to his first and other sons in tail male successively, remainder to trustees for five hundred years to raise portions for the daughters of the marriage, payable at eighteen or marriage, and to raise maintenance for such daughters, until their portions became payable, of £80 per annum. The marriage having been consummated and the only issue being one daughter, and Elizabeth dying, Richard Freeman married again and died intestate, leaving a widow and two children of the last marriage and the daughter of the first marriage. The question was whether the provision for the daughter of the first marriage could be regarded as an advancement: Held, That the £5,000 portion was an advancement, but not the annual provision for maintenance. The difference between that case and the one now before the Court is, that there the gift was of a portion of the intestate’s estate, while here the sum of money secured by the policy never did constitute any part of the intestate’s estate. For, as the Master of the Rolls says in that case, “ the present case comes nearer to land than if it had been a charge out of land; for the trust of the five hundred years’ term being .only to raise this £5,000 portion, and the plaintiff, Mary Edwards, being the person who is alone entitled to it, she, as to this purpose, is, in effect, the owner of the five, hundred years’ term.”

It was, therefore, practically a gift to the daughter of a lease for five hundred years of the lands specified; that is, it was a gift of a portion of the intestate’s estate. Kircudbright vs. Kircudbright (8 Ves., 51,) was a case in which a father gave a bond to his son to secure the payment of a certain annuity until his son should be in possession of a living of a certain annual value, and by an agreement of the same date the son covenanted that he would forthwith enter into holy orders and accept such living. The father paid the annuity regularly for nine years, but the son failed to take orders and qualify himself for a living, and upon the death of the father intestate the question arose whether this annuity could be regarded as an advancement, and, if so, at what value it should be charged.

Lord Eldon, after expressing some doubt as to the legality of the transaction as being contrary to public policy, decided that, the son having failed to comply with the condition for nine years, the annuity was determinable by the father or his representatives, and that, while it should be regarded as an advancement, it was a very doubtful question as to how it should be valued, and, finally, gave the son the option to have it valued at the date of the grant or to estimate its value by the amount of the payments made under it. Besides, the fact that the very doubtful terms in which this decision was made deprives this case of much of the weight which it would otherwise possess; it may be remarked that here, too, the advancement was, practically, of a portion of the intestate’s estate — the annuity bemg a charge upon that estate. It was also held in this case that a commission in the army, which the father had purchased for another son, was an advancement, to be valued at the sum paid for it, of which we will speak hereafter.

If, then, this policy of insurance never constituted any part of the estate of the-intestate, the next inquiry is, was it something purchased for the child with the funds of the father, and, if so, how and when is its value to be estimated. Assuming that the finding of fact by the Circuit Judge is correct, then it follows that this policy of insurance does possess this distinguishing feature of an advancement, viz., that it was a thing purchased with the funds of the father in • the name and for the benefit of the child. The thing purchased being the policy of insurance, and the purchase having been made and the gift completed the moment it was issued, as we have seen above, that is as soon as the first premium was paid, the only remaining inquiry is how and when is its value to be ascertained. Our Act of 1791, differing in this respect from the statute of 22 and 23 Charles II, fixes this beyond dispute by declaring that such value shall be “ estimated at the death of the ancestor, but so as that neither the improvement of the real estate by such child or children nor the increase of the personal property shall be taken into the computation,” or, as it is stated in the leading case of McCaw vs. Blewit, supra, in order to ascertain the amount at which an advancement is to be charged, it “is to be estimated at what it is worth at the time of the death, relation being had to its situation at the time of the gift.” The advancement or thing given being the policy of insurance, and the time of the gift being the moment it was issued, to ascertain its value, according to the rule established by our statute as construed by our Courts, the inquiry is, not what it cost, as was held in Kircudbright vs. Kircud-bright, under the English statute, in reference to the commission in the army, because that is not in accordance with the rule as established by our statute, for, as is said by Johnston, Ch., in Cooner vs. May, (3 Strob. Eq., 189,) “it is not the sum expended, but the thing which is bought with it — the thing received by the child— which constitutes the advancement; nor is the cost of the purchase the measure of the value of the thing advanced;” but the inquiry is, what a policy for a like amount, upon which the first premium had been paid, on the life of a person, with like expectation of life and of the same age as the father of appellant was when this policy was issued, be worth on the 12th March, 1874, the date of intestate’s death ?

It is true that it is stated that by one of the regulations of the company issuing this policy a policy drawn in favor of a minor child, as this was, is “neither purchasable nor assignable.” But without stopping to inquire whether such a regulation, not incorporated in or forming a part of the policy, which is the contract between the parties, could abridge the rights of the holder of the policy, it is sufficient to say that the inquiry should be what would such a policy be worth at the date of the death of the intestate in the condition in which this one was at the time when it was issued, that being the time when the gift was made. If, however, from any Cause, it should appear to be of no value, then the result would be that it was no advancement.

The question as to the payment by the father of the premiums subsequent to the first presents more difficulty; but we are inclined to regard them as advancements of so much money: like the case of a father who, after having given his child a piece of property— a residence, for example, — expends considerable sums of money from year to year in making improvements or additions to the buildings. In such a case, the thing given is the money expended; and while it is true that ordinarily the sum expended does not furnish the rule for estimating the value of an advancement, yet where, as in this case, the thing given is money, there is no other mode of estimating its value except by the amount given.

The suggestion in the argument of respondents that the premiums paid might exceed the amount received on the policy, or that the whole might be lost by the failure of the insurance company, loses all its force in. view of the decisions holding that the child is chargeable with the value of the advancement even though the thing constituting the advancement had ceased to be property before the settlement is made, as in cases of advancements in slaves.—Manning, 12 Rich. Eq., 410; McLure vs. Steele, 14 Rich. Eq., 115.

So that we think the advancement in this case was, first, the policy of insurance, the value of which is to be ascertained in the manner above indicated, that being the thing which was purchased with the first premium, and that all subsequent premiums were advancements of so much money, which, of course, will bear no interest except from the time of the death of the intestate.

The authorities relied upon to show that the true value of the advancement in this case was the amount of money received by the child do not, in our opinion, sustain such a position, inasmuch as these cases are from States where the Statutes of Distributions are not like ours, and the decisions were made to turn upon the phraseology of the respective statutes.

In Clark vs. Wilson, (27 Md., 693,) a father made a deed of trust of certain lands for the benefit of his children of the first marriage, reserving a life estate to himself. The questions were, first, whether the property conveyed by-the deed of trust was an advancement, and, second, if so, whether it should be valued at the date of the deed or at the date of the father’s death. It was held that the property was an advancement and that it should be valued at the date of the father’s death, when the life estate fell in and the remainder took effect, or when the children received possession of the property.

The case turned upon the language of the Maryland statutes: “The value thereof at the time such advancement was received” — - the Court construing those words to mean when the property actually goes into the possession of the child.

The case of Wilkes vs. Green (14 Ala., 443,) was this: A father made a deed of slaves to his children, reserving a life estate to himself, and the same questions arose. The Court, basing its decision upon the language of the Alabama statute, which provides that the value of the property constituting the advancement shall be fixed “ at the time it was delivered,” held that the children were chargeable with the value of the property at the time they came to the actual possession of it.

In Hook vs. Hook, (13 B. Monroe, 528,) a father conveyed to certain of his children certain lands and slaves, reserving a life estate to himself. The Kentucky statute provided that “ all advancements should be estimated at their value when made,” and the Court held that the advancement should be deemed to have been made at the time the advancement is “made complete by the actual possession and enjoyment of it.” These cases, besides resting upon the particular phraseology of the several statutes of the several States in which they were decided, differ materially from the one now before the Court. In each of them the property constituting the advancement was a part of the father’s estate and continued in Ms use and enjoyment and under Ms control up to the time of Ms death, while in the case now under consideration the policy of insurance was never a part of the father’s estate and was never in his own use or under his control. The case of Meadors vs. Meadors (11 Iredell, 148,) is likewise relied upon. That case, however, turned upon the special provisions of the North Carolina statute and throws no light upon the questions we are considering. Many of the cases from other States cited in the argument hold that the question of advancement is one of intention, but such does not seem to be the rule in this State.

In Rees vs. Rees, (11 Rich. Eq., 86,) it was held that whether property given by a parent to a child shall be considered as an advancement is not a question of intention. It is very true that what is or is not an advancement may depend upon the circumstances or condition of the parties, as in McCaw vs. Blewit, 2 McC. Ch., 91; Murrell vs. Murrell, 2 Strob. Eq., 148, and Ison vs. Ison, 5 Rich. Eq., 15; “but the mere declarations of the donor cannot alter the operation of the law either as to the character of the gift or even the mode of valuation.”

The judgment of the Circuit Court, is so far as it conflicts with the principles herein announced, is set aside and the cause remanded for further proceedings in accordance with the principles herein established.

Willard, C. J., and Haskell, A. J., concurred.