Stine's Estate

Opinion by

Beaver, J.,

The adjudication in this case was made with the utmost care and circumspection. The facts are fully set forth in the opinion of the court below. It is not necessary to restate them here. The appellant assigns as error the action of the court below in referring the first report of the auditor back for the finding of additional facts.- Abundant justification for this reference is found in the opinion of the court below directing it, in which the court says: “ The court is of the belief that a just decision requires a regarding of facts.not now appearing. The argument before the court above referred to indicates that counsel are of the same opinion. The facts found are meager.” Then follow at least twelve distinct questions as to which the court desired definite information, in order to a proper under-, standing and disposition of the case. All this shows a desire on the part of the court to be properly furnished with all the pertinent facts necessary to reach a just conclusion in a question of such importance. A court undoubtedly has such a right. The reference back was eminently proper and is fully justified by the result. This must have been apparent to the appellant’s counsel, as these specifications are practically abandoned, or at least not referred to in the argument.

As the appellant pertinently remarks in the opening sentence of his argument, “ There is no dispute about the facts of this case and none about the principles of law involved in it. ” ' The assignment of the life insurance policy, which is the bone of contention, made by the testator to Lenhart, was absolute on its face. Four years after the assignment, as is admitted by Len-hart, he received |2,565. Out of this, he had paid for John’s education $1,442.20, which, with interest on the payments as made, $126.58, constituted the amount, $1,568.78, which the auditor found to be an ademption pro tanto of John’s legacy of $3,000, bequeathed by the last codicil of the testator’s will. He, therefore, awarded him the balance of the legacy, $1,431.22, out of the balance for distribution. From this finding, confirmed by the court, spring all the various assignments of error other than those hereinbefore referred to.

It is clear that John received no benefit from the policy assigned to Lenhart other than that with which he is charged. The difference between that amount and the amount of the policy, as paid to Lenhart, is in his possession, claimed by him as rightfully his. John apparently has no right of action against him, for he was not in any way a party to the transaction by which the policy was assigned to Lenhart and, if the latter’s testimony be taken as verity, he had no interest whatever in the policy, except that which he received. The right to recover the balance from Lenhart, if it exists, would, therefore, seem to be in the legal representative of the testator, which right could neither be considered nor enforced in this proceeding, as the court below very pertinently remarks. Whether Lenhart took the policy at its value at the time of the assignment or took it merely as security for advancements which he was to make to John for his education, are questions which need not now be considered, as they will be passed upon in another tribunal, at another time.

The questions involved are so fully passed upon in the opinion of the court below, that we do not deem it necessary to discuss them at greater length. All the points involved are fully considered and clearly disposed of. No error is apparent in the disposition made of the case and the decree is, therefore, affirmed.