THOMAS JAMISON, Respondent, v. JOAQUIN KING, Appellant, 1 Cal. Unrep. 833

RHODES, J. — The administrator is the proper person to sue for the recovery of the policy or its proceeds, for the benefit of the creditors of the estate. There was no error in permitting the plaintiff to amend the complaint in the manner shown by the record. The indorsement on the policy was sufficient to constitute a valid assignment of it to the defendant King. The accounts filed by creditors of the estate, and allowed by the administrator and the probate judge were admissible in evidence.

While they might not be competent proof of the fact or the amount of the indebtedness of the estate, they were proof of the fact that such claims were filed against the estate. The court found that the indorsement and delivery of the policy “were made in immediate expectation of death, and not solely in consideration of a pre-existing debt, but chiefly as a gift.” 'No fraudulent intent is found.

The evidence clearly, and without conflict, establishes the existence of the debt, at the time of the assignment of the policy, and proves that such indebtedness was a part, at least, of the consideration of the assignment. In view of the insolvency of the estate, the defendant King may not be entitled to the benefit of the assignment of the policy as a gift, but he is entitled to the judgment of his debt out of the policy. The judgment, therefore, taking the policy out of his hands, without making provision for the payment of his debt out of the proceeds of the policy or otherwise, cannot be sustained.

Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith. We concur: Crockett, J.; Niles, J.; McKinstry, J.; Wallace, C. J.