Day v. New England Life Insurance

Mr. Justice Green

delivered the opinion of the court, February 15th, 1886.

The wife of the assured having died during his life, the fund attached may be regarded as if it were due upon an ordinary policy payable upon the death of the assured. This policy was not in any circumstances payable to the assured himself, nor to any one during his life. It was only payable after his death, and as it was never assigned it was payable only to his executors or administrators. No title to have the fund ever existed except in the legal representatives of the deceased. No action could by any possibility have been maintained for the recovery of the money bjr the deceased in his lifetime, nor by any other persons except upon the condition that he had first died. His death was simply and absolutely indispensable to the existence of any right of action on the policy. More than this, if the assured had voluntarily surrendered the policy at any moment before his death, or if it had become forfeited by breach of condition, no right of action would ever have existed, even in his legal representatives. Still more, at no time during his life could the proceedings upon the attachment have been brought to final judgment in favor of the attaching creditor, because it could never be known until the death of the assured had actually transpired whether any money would become due upon the policy. The law regarding attachments contemplates, and provides for, actual proceedings resulting in judgment for one party or the other, not for an entire suspension of proceedings for. an indefinite and uncertain period. A policy effected at the age of twenty-one, payable at death, might not become payable in fact for sixty-or more years. Can it be that an attaching creditor upon such a policy could demand the judgment of. a court against the company as garnishee, payable at the death of the assured, or as an alternative claim that the court should suspend-all proceedings until the assured shall die? It is-incredible. No judgment could be given in advance of death because no court could possibly know for what amount the judgment should be rendered, nor whether any amount would ever become due. On the other hand, an order to suspend .proceedings during the life of the assured is-so e-titirelyatwar with the whole theory of legal process to enforce-remedies, so unheard of in the practice, that it has neither precedent to sustain it nor any sound principle to sanction'it.

But.apart from these objections, which seem to be insuperable, at the very-first moment when'the money does become due on such a policy'as this it is due, and belongs to, the legal representatives of the assured, and is óf course assets in their hands for the payment of all his debts. There is not a single instant of intervening time after'his' death,' and before'the rights of his representatives accrue, during which a previously issued attachment can fasten upon the fund upon the theory that it is his. While it is his in the sense that his representatives may have it derivatively from him, tlreir title to . it-is peculiar to themselves, and immediately and necessarily enures to the benefit of all who are interested in the = decedent’s estate, whether as creditors or distributees.

It is argued that a life policy is assignable by the assured, and therefore ought' to be regarded as attachable as his. The argument is not so-und, regarded - even' as a general proposition, because things are not necessarily attachable because they are assignable. -Almost every form of property.or right, whether in esse or in posse, is assignable. But many!things are not attachable though they are in present existence. Thus wages of labor and money in the hands of-an officer of the law are not attachable, the one by force of a statute »aild the other under the decisions of the courts. So a balance of money due to a defendant under the exemption daw, and in the hands of his attorney, is not attachable : Gery v. Ehrgood, 7 Gas., 329; nor an- executor’s commissions : Adams’s Appeal, 11 Wr., 94 ; nor. the -fees due a- public officer : Hutchinson v. Gormley, 12 Id., 270: nor money granted by . the-state for losses during the war: 5 P. F. S., 430. Other cases mightbe mentioned, but it is unnecessary: Deginther’s Appeal, 2 Norr., 337, was cited, but it has no application. It decided nothing more than that the husband, as a -distributee of h-is wife’-s estate,-Was entitled to his share-'of the proceeds- of'a .’policy effected by her on his life, and'she' having died first-his representatives were entitled to receive his share upon his-death. The decision was in -entire conformity with the principles above - stated.

Judgment affirmed.