George E. Pace, Administrator of Augustus N. Pace, et al., Appellants, vs. Augustus Raiford Pace, Appellee, 19 Fla. 438

Mr. Justice Westcott delivered the opinion of the court: The bill in this case is by Augustus Raiford Pace, an infant, through his next friend, Herman F. Damon, against George E. Pace, Henry Robinson and George R. Foster. He alleges that upon the death of his mother, leaving surviving her his father, Augustus K. Pace and himself, no administration of her estate was had, but that his father was appointed his guardian ; that afterwards, on the 30th April, A. D. 1874, his father, then a resident of Duval county, obtained a policy of insurance, issued to him upon that day upon his (the father’

s) life, by the Alabama Gold Life Insurance Company, a corporation under the laws of Alabama, in the sum of $5,000, “ for the benefit of the estate of the insuredthat said policy in no wise, in terms or by implication, declared that it was for the benefit of the creditors of the insured, or any of them ; that on the 16th of August, 1878, his father was, upon his own petition, adjudged a bankrupt, and that his father died on the 29th of the same month, while a resident of Duval county, Florida, intestate, leaving him, his only child and heir, surviving ;. that on the 25th of October, A.

D. 1878, defendant, George E. Pace, was appointed by the Probate Court of Duval county administrator of his father’s estate, and that the said Robinson and Poster are the sureties upon his administration bond ; that the sum of $4,935.01 as such insurance was paid to said administrator on the 6th day of Pebruary, A. D. 1879 ; that on the 29th of April, A. D. 1879, the said George E. Pace was appointed guardian of the estate of your orator in the place of his deceased father, his said guardian giving bond in the sum of $500, with S. B. Hubbard and W. ~W. Bostwick as sureties; that the said George E.

Pace claims that he is a creditor of the said decedent and his estate in a large sum; that the assets of the estate consist exclusively of the money realized from the insurance policy, and that from this sum the said George E. claims a right to payment; that the said administrator refuses to pay the said sum of money to your orator, and is wasting and misappropriating the same to the alleged claims of himself and others against Augustus U.

Pace, or to the assignee in bankruptcy of said decedent in trust for said creditors to the said entire exclusion of your orator from any participation therein; that the said defendant, G. E. Pace, thus occupies inconsistent positions; that his appointment as guardian, under the circumstances, should not have been made, and this court should interpose for the protection of the estate and interest of your orator and remove the said George E.

Pace from the office of guardian, and appoint some suitable person in his stead ; that since the death of his father he has been supported and educated exclusively by his maternal grandfather and his maternal relatives. The-prayer is that the said George E.

Pace be removed from the office of guardian, and that he be made to account for all the assets which he has received or with which he is chargeable; that said guardianship be finally-closed ; that the said Pace be required to settle his administration in this court; that the amount due your orator from said administrator be ascertained, and that the said administrator and his said sureties be decreed to pay the same ; that in the event said distribution cannot be made at this time that the amount due your orator growing out of said insurance be ascertained, and that said administrator and said sureties on his official bond be decreed to pay the same, and that the sums so ascertained to be due as guardian and as administrator, be required to be paid into the registry of the court; that a guardian may be appointed for your orator, by or under the direction of this court, to take charge of his estate, after giving bond, aud for general relief.

To this bill the defendants interposed a plea, setting up that the next friend of the infant had not given the bond required of him by the statute. McC.’s Pig., 812. This plea was overruled, and this action of the court is set up as one of the grounds upon which .the action of the court herein should be reversed. The plea being overruled the defendants interposed a demurrer upon the following grounds : First. There is no equity in the bill. Second. That the suit should have been p»osecuted in the name of the Governor of the State. Third. That the sureties upon the guardian bond ai’e necessary parties. Fourth.

That the assignee in bankruptcy is a necessary party. This demurrer was overruled and defendants appealed. The ruling upon the plea is the first ground of reversal sought to be sustained here. The language of this court in the case of Sanderson’s Administrators vs. Sanderson, wherein I for the court delivered the opinion, justifies the point made by the appellant. That being a chancery case, however, it was an error. An examination of the act in the statutes of the Territory, p. 84 acts of 1828, shows clearly that this

section (McC.’sDig., 812, Sec. 7,) relates exclusively to proceedings at common law. Neither the statutes regulating chancery proceedings nor the rules of practice in chancery require such a bond. The Chancellor, however, should adopt such measures as are necessary to fully and completely protect the interest of the infant. We examine next the question whether the assignee is a necessary party here, and that depends upon whether he has any interest in the subject-matter of the suit. Before the death of the assured here, which was on the 29th of August, A. D. 1878, and on the 16th of August, A.

D. 1878, the assured was adjudged a bankrupt upon his own petition. The assured having been adjudged a bankrupt, and this policy being for the benefit of his estate, we do not see how any interest vested in the assignee under the allegations in the bill.

The rule is that the assignee takes the interest of the bankrupt subject to all legal and equitable claims of others, and “ in general the assignee does not stand in a better predicament than the bankrupt himself and can claim only what the latter might claim.” The bankrupt himself here could not during his lifetime claim anything, and at his death a right of action against the insurer enured to the benefit of the beneficiaries by virtue of the rights conferred by the original contract of insurance. The assignee in bankruptcy was not, during the lifetime of the decedent, entitled to the money.

A life policy is a contract in which the insured “ agrees to pay a given sum upon the happening of a particular event contingent upon the duration of human life in consideration of the immediate payment of a smaller sum or certain equivalent periodical payments by another.

The beneficiary under it has a valuable interest, and while the authorities upon the subject are not to be reconciled, still the doctrine that with the execution and delivery of the contract the beneficiary’s interest becomes vested and passes beyond the control of the assured, must be considered as supported by the great weight of authority.” The beneficiary here certainly was not the assured. Again, under the bankrupt law such property as was the bankrupt’s at the time of the filing of the petition in bankruptcy and no other vests in the assignee.

The bankrupt is civiliter mortuus only as to his old property and contracts. His assignee stands like an administrator in respect to these. It is thus apparent that the assignee, under the allegations of this bill, had no title to this property, either at the date of the filing of the petition in bankruptcy or at the date of the death of the assured. The proceeds of this policy were therefore not subject to the jurisdiction of the Federal courts so far as the operation of the bankrupt act was concerned.

Who paid the premiums, or when they were paid, does not appear, and therefore nothing dependent upon such facts is determined here. The assignee having no interest he was therefore not a necessary party, if, indeed, any assignee was appointed, a matter as to which the bill is silent. The ease made by the bill as to the matter of bankruptcy is that of a person civiliter mortuus as to the property owned at the filing of the petition with no one to represent him as to it, like the property which belonged to a dead man with no administrator or other legal representative appointed.

The matter, however, has been argued in the light in which we have treated it, and for that reason, and on account of the character of the conclusion we reach, we decide it in that aspect. It is thus apparent that if the creditors of the decedent here are entitled to this money, it is not the result of any operation of the bankrupt act. The next question we examine is what is the nature of the liability of Pace to the plaintiff for the funds alleged to be in his hands at the filing of the bill in this case ?

It is evident that he cannot be liable in two distinct and different capacities for the same fund to the same party in two distinct and different relations. He cannot be liable as administrator to the plaintiff as distributee and at the same time liable as guardian to the plaintiff as ward. This proposition we think self-evident.

If he is liable as administrator, then it is because he does not hold these funds as guardian, but as administrator; and if he is liable as guardian, then it is because the relation of administrator and distributee, if it ever existed as to this fund, has ceased to exist, and the new and different relation of guardian and ward has come into existence. The subject out of which this suit arises is the contract of insurance made by the Alabama Gold Life Insurance Company. The facts alleged in the bill, we think, show that such contract was finally executed and delivered in this State.

The allegation is that on the 30th of April, 1874, the said Augustus H. Pace, then a resident of Duval county, obtained the policy issued to him on that day by the Alabama Gold Life Insurance Company, a corporation organized under the laws of Alabama. This being so, the law of this State is to govern its construction and

interpretation without any reference to the law of the domicil of the corporation liable upon it. Kennebec Co. vs. Augusta Insurance and Banking Co., 6 Gray, 208; Heebner vs. Eagle Insurance Co. of Cincinnati, 10 Gray, 143; Thwing vs. Great Western Insurance Company, 111 Mass., 109. There is no judicial decision in this State defining the law in reference to a policy of this character. There is and was, however, a statute in reference to the subject in force at the time this contract was entered into.

It provided “ that whenever any person shall die in this State having insurance upon his or her life, the said insurance shall enure exclusively to the benefit of his or her child or children, husband or wife, in equal portions, or to any other person or persons for whose use and benefit said insurance is declared in the policy, and the proceeds thereof shall in no case be liable to attachment, garnishment or any legal process, by any creditor or creditors of the person whose life was so insured, unless said policy declares that said insurance was effected for the benefit of such creditor or creditors.” To allow participation in the proceeds of the policy, by any person other than the children, husband or wife of the assured, the policy must in terms states that it was for some other person, creditor or creditors.

The language of the policy may not, perhaps, be required to name individuals, but it must at least describe the person or persons, class or classes, to take in such terms as show affirmatively that the beneficiaries of a general policy are not the children, husband or wife of the assured. There can be no exclusion of these parties unless the purpose to exclude them is manifest and without doubt, and the purpose must appear as we have stated. Under this statute and under this policy unquestionably upon the death of the assured no creditor had a right to participate in the proceeds of this policy.

It enured exclusively to the benefit of his child surviving him, the plaintiff in this cause, and even if the contract was with the assured, his executors, administrators and assigns, (as to which the bill is silent,) the administrator would not hold it as general assets in his hands, liable to the payment of debts or to distribution according to the law of the domicil of the intestate. He would hold it as trustee, coupled with the single duty of payment. Knickerbocker Life Insurance Company vs. Weitz et al., 99 Mass., 157. But did the defendant, Pace, here ever have any title as administrator.

The contract does not appear to have been made with him as such. It was made with the assured, and the terms designating the beneficiary or beneficiaries by the parties to the contract are “ for the benefit of the estate of the insured.” This language must be given such meaning as conforms to the intention of the parties, and this intention must be determined by the acts of the parties and the surrounding circumstances. In the case of Clinton vs.

The Hope Insurance Company, 45 New York, 461, the designation of the beneficiaries was “ the estate of Daniel Ross.” The Court of Appeals, in giving the rule to determine the effect of these terms, says: “ If the name of the person for whose benefit the insurance is obtained does not appear upon the face of the policy, or if the designations used are applicable to several persons, or if the description of the assured is imperfect or ambiguous so that it cannot be understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract; and when thus ascertained it will be held to apply to the interests intended to be' covered by it, and they will be deemed to be comprehended within it who were in the mind of the parties when the contract was made.” May on Ins., 2d Ed., §91, 445, and cases there cited.

There is nothing in this bill to show the existence of a creditor of Pace at the date of the contract. It does appear that he had an only child, the plaintiff, then not five years of age. The term estate here in its strict legal signification embraces neither the administrator, the heir or the creditor of the assured. It means the effects, personal and real, left by. the decedent, when given a signification with reference to a period subsequent to his death, and that is the date when the benefit was to accrue. Such literal legal signification would be absurd.

The word benefit in a policy of insurance must be interpreted with reference to persons, not things. An insurance may be for the benefit of the person owning a house, not for the house. To benefit stocks and stores was not the intention of the parties. Without entering into any elaborate discussion of the subject we will simply state that the cases having a bearing upon the subject (Myers vs. John Hancock Ins. Co., 41 Mo., 538 ; Clinton vs. Hope Insurance Co., 45 N. Y., 454; Globe Insurance Company vs.

Boyle, 21 Ohio State, 119,) shows that these and similar terms, under the circumstances of this case, are so interpreted as to benefit the surviving members of the family rather than for the benefit of the creditor or administrator, and that in this instance the beneficiary intended was the infant child. In the

interpretation of contracts of this character the courts go a great way in this direction. This, we think, would have been the construction of this policy independent of the policy of the statute, which, as a matter of course, should have some effect in controlling our action in the matter. With this construction of the policy the necessary result is that upon the death of the assured the child became entitled to its proceeds, had title thereto, and that the administrator, the legal representative, had no title, and was in no way entitled to possession or control thereof.

The infant, therefore, does not here claim as heir or distributee. His claim is like that which a stranger would make if he were the beneficiary. The necessary result of this, is that the sureties of the administrator are not responsible for the management of this fund by Pace. The fact that he did, as administrator, receipt for the property of the child cannot bind his sureties.

The sureties upon the bond of an administrator who has collected moneys, neither assets of the estate nor subject to distribution by him, and to which, as the legal representative of the decedent, he was not entitled, are not liable for any appropriation or use of the same by the administrator for his personal benefit. Hodges’ Appeal, 9 Ins. Law Journal, 769; Miller’s Appeal, 48 Penn. State, 391; Reeves vs. Steele, 2 Head, 649; Gregg vs. Currier, 36 N. H., 200.

But the plaintiff alleges that the defendant, who is now in posession of these funds, was appointed his guardian, and unquestionably he is liable in equity to account to him therefor. In this aspect of the case are the guardian’s sureties necessary parties to this proceeding ? This court, in the case of Henry et ux. vs.

Clardy, 8 Fla., 82, which was a case of a bill by ward against guardian and sureties, remark: “ That in cases of this character the surety ought always to be made a party to the taking of the account.” If the court meant by this language that the surety not only ought to be made a party, but that he must be made a party, then such doctrine is not sustained by the authorities.

We think with the court in that case that he ought to be made a party, because he is bound by the account by virtue of the general nature of his contract, and of the privity of contract between him and his principal, but the rule from the cases is that he is a proper but not a necessary party. Hailey vs. Boyd’s Administrator, 64 Ala., 400 ; Payne vs. Hook, 7 Wall., 425 ; Pfeiffer and Sullivan vs. Knapp, 17 Fla., 146 ; Pratt vs. Wright, 13 Gratt., 181.

As to the objection that the suit should be instituted in the name of the Governor, we simply say that the right of the infant is not limited to an action upon the bond of the guardian in the name of the Governor. Chancery has jurisdiction to have an account to restrain any improper disposition of the fund, by its process to preserve it, and for final decree, and in proper cases to remove the guardian. The necessary result of these views is that the judgment overruling the demurrer is affirmed.