Clark v. Durand , 12 Wis. 223 ( 1860 )

By the Court,

Dixorr, C. J.

TMs action was commenced, and if maintainable at all, can only be maintained upon tbe theory, tbat tbe plaintiff, as tbe cestui que trust, or party beneficially interested, acquired, during tbe lifetime of Mrs. Ciarle, an actual equitable interest in the policy, and tbe moneys thereby secured and agreed to be paid on ber death. She effected tbe insurance on ber own life. Tbe policy sprang from an agreement, to which she and tbe insurance company were tbe real parties; and although tbe defendant, as tbe guardian of tbe plaintiff, was nominally tbe assured, yet during ber life, and until she transferred it, she was tbe only person having any direct pecuniary interest in it. She received, and until tbe transfer and delivery to tbe defendant, beld it in ber possession, and witb ber own funds, or those procured by ber from tbe defendant, paid tbe quarterly premiums, as they became due upon it. Tbe true criterion by which to determine whether the plaintiff bad any interest in tbe moneys received upon tbe pohey, would seem to be, whether, during ber bfe, be bad such an interest in it as would have enabled him to compel Mrs. Ciarle, or tbe defendant as nominal trustee, to keep up tbe premiums, upon tbe prompt payment of wbicb its validity and value depended, or as would bave enabled bim to restrain or prevent ber and tbe defendant from entering into and consummating tbe bargain wbicb tbey did in relation to it. It is very evident tbat be was no party to tbe policy, or tbe agreement by wbicb it was procured. Tbe .only parties, real and nominal, were tbe defendant, Mrs. Olark and tbe company. He furnished no part of tbe consideration upon wbicb tbe policy was issued. If it was ber intention, at tbe time sbe procured it, as it undoubtedly was, to bave tbe money due upon it at ber decease, paid over to bim, or applied to bis benefit, yet sbe was under no obligation, legal or equitable, to obtain it, or to keep it up after it was obtained. Neither sbe nor tbe defendant bad made any contract or agreement with bim, upon a valuable consideration or otherwise, to procure or to keep up such insurance. So far as he was concerned, it was a mere proposed gratuity or gift, a voluntary thing, wbicb tbey were in no way bound to do, and wbicb tbey might do or cease to do, as best suited their convenience or pleasure. He was a mere volunteer, not having any present beneficial interest, but who, it was intended at one time, should, on tbe happening of many contingencies, be so interested on some future occasion. He bad no vested right in tbe pobcy or tbe moneys secured by it, and could bave none until after tbe death of Mrs. Olarlc, be surviving ber; and then only in tbe event of tbe contract, and tbe intention of tbe parties,. remaining tbe same, and of ber, or some other person in bis behalf, having kept up tbe premiums. If it was a trust in bis behalf, or by wbicb it was intended tbat be should be benefited, it was executory and not executed; and it is well settled tbat courts will not interfere to enforce an executory trust at tbe instance of a volunteer. It seems quite clear, therefore, tbat during tbe lifetime of Mrs. Olarlc tbe plaintiff could neither bave compelled tbe payment of tbe premiums, nor bave prevented ber from passing tbe policy over absolutely to tbe defendant. Considering the policy, as it was in fact, an executory contract between tbe company and Mrs. Olarlc, and tbe defendant consenting to act as trustee, no reason can be perceived why it was not, like every other executory agreement, subject to such disposition, changes and modifications, as the several parties to it might see fit or consent to make, and -why Mrs. Clark, haying changed her mind in regard to bestowing upon the plaintiff the benefits expected from it, or feeling herself unable to meet the premiums, might not, with the assent of the company, transfer it to the defendant, to be held by him for his sole use and benefit, he agreeing to pay the premiums. This the jury has found she did do, and as evidence of the assent of the company, it not only appears that they, for a long period of time, received from him the premiums, but also, on her death, actually paid over to him the money thereby secured.

The record discloses no errors for which, in our opinion, the judgment of the circuit court ought to be reversed, and it is therefore affirmed, with costs.