PLEADING-LIFE INSURANCE.

[Franklin Circuit Court,

January Term, 1890.]

Shauck, Shearer and Stewart, JJ.

#### *JACOB ROTHWEILER, ADM’R v. CHAS. T. RYAN ET AL., ADM’R.

Í. General Demurrer does not Reach Facts Available Only on Special Demurrer.

A general demurrer to an insufficient answer will be sustained, although the petition ' shows a cause of action in favor of but one of several plaintiffs who are joined therein.

fc. Testamentary Bequest of Proceeds of Life Policy.

When the beneficiaries appointed in a policy of life insurance effected by the assured, all die before him, the proceeds of the policy are the subject of a testamentary bequest by him.

Error to the Court of Common Pleas of Franklin county.

*583Jacob Rothweiler, as administrator of Charles C. Helwig, deceased, Caroline Salome Ketter and Maria Rosina Scherman filed their petition in the court of common pleas against the Home Life Insurance Company and Charles T. Ryan, alleging that on March 19, 1864, the insurance company executed its policy for $2,000.00 on the life of Charles C. Helwig, payable to his wife Anna Helwig, for her sole use; that there was therein written the condition that if said Anna should die before said Charles, the amount of the policy should be paid to her children by said Charles, for their use, or to their guardians, if they should be under age; that on November 24, 1872, Anna died, leaving Anna C. Helwig, her only child surviving her; that on October 5, 1877, Anna being then over eighteen years of age, united with Charles, her father, "in a written application and order to said insurance company, requesting it to pay the amount of said insurance” to the plaintiffs, Mrs. Ketter and Mrs. Scherman (who were daughters of Charles by a former marriage), and said Anna C., in equal proportions, or to their heirs. On December 29, 1881, Anna C. died, leaving an only child, about one year of age, and this infant child died September 21, 1883. June 4, 1885, Charles C. Helwig published his last will and testament, bequeathing the proceeds of said policy to his two daughters then surviving, Mrs. Ketter and Mrs. Scherman. All premiums were paid by said Charles, and the insurance was effected by him.

September 24, 1885, Charles C. Helwig died, and his said will was admitted to probate, and letters of administration with said will annexed were issued to said Rothweiler. The petition further alleged that the defendant Ryan claims an interest in the proceeds of the policy, and prays for judgment.

The company, admitting its liability, brought the amount of the policy into court, and filed an affidavit showing that Ryan, without collusion with it, made claim to the subject of the action.

Charles T. Ryan, by answer and cross-petition, alleges his marriage with Anna C. Helwig; his appointment and qualification as administrator of her estate; that he is the father of her said infant child that survived her; denies the assignment of said policy by Anna C.; repeats the other averments of the petition; alleges that Charles Helwig, Anna Helwig, Anna C. Ryan and her infant child all resided in Ohio when they died, and that Helwig resided in Ohio when the policy was issued. He also alleges his appointment and qualification as administrator of the said deceased child.

The plaintiffs demurred to this answer and cross-petition. Their demurrer was overruled in the court of common pleas, and it was adjudged that Ryan was entitled to the proceeds of the policy. The reversal of that judgment is the object of this petition in error.

*

 This judgment was affirmed by the supreme court. See opinion 50 O. S., 595.

Shauck, J.

It is said by counsel for the defendant in error, that the demurrer to his answer was properly overruled, because it searched the record, and there is a misjoinder of parties plaintiff in the petition. Although sec. 5062, Rev. Stat, prescribes eight grounds of demurrer, the subsequent section provides that, unless the ground of demurrer be specified, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action, or that the court has not jurisdiction of the matter. And under the provisions of sec. 5064. there being no objection by special demurrer or by answer on the ground that there is a misjoinder of parties plaintiff, the supposed right to object to the petition on that ground is waived.

As to the main question arising upon these pleadings and discussed by counsel, there is admitted confusion among the reported cases and authors upon the subject. The assurance was effected by Charles C. Helwig, the assured, and all premiums on the policy were paid by him. He appointed the beneficiaries of the policy by the terms in which the company agreed “to pay' to her (Anna Helwig) the said sum assured for her sole use, or in case she shall die before the said Charles C. Helwig, to pay the said sum assured to her children by the said Charles C. Helwig.” All of the beneficiaries thus- appointed died in the life-time of the assured, and before the policy became payable. In support of the judgment below, it is argued that this policy was the creation of a trust or gift in favor of the beneficiaries named, and was completely executed; and an executed gift or settlement cannot be revoked by the donor by an attempted testamentary disposition of the subject, or in any other way. And upon the authority of the Manhattan Life Insurance Co. v. Smith, 44 O. S., 156, it is said that the rights of the beneficiaries were vested upon the execution of the policy. There seems to be no ground or occasion for questioning these principles or this authority. The serious question is whether they reach the conclusion desired. The intention of the assured in procuring this policy was lawful, whether it was that upon the failure in his life-time of appointed beneficiaries the proceeds of the policy should he. a part of his estate; or that upon the death of his wife, he being yet alive, the provision in favor of her children by him should be absolute. We are concerned only, therefore, in ascertaining what that intention was.' It is probably true that in seeking that intention, we are not permitted to_ look at his subsequent conduct in paying premiums on this policy after the death of his wife and all her descendants, or in treating the proceeds of *584the policy as subject to testamentary disposition by him, however strongly such subsequent conduct may reflect upon the question. But from the terms of the policy arid the circumstances under which it was obtained, it seems clear that he contemplated no provision in favor of any one except his wife and her children by him. He named those whom he desired to appoint as beneficiaries under the policy, and the assumption that he omitted some who were in his mind is wholly gratuitous. The presumption that he named all that he intended to share in the fund, and that he did not intend a provision in favor of one occupying the position of Ryan is so strong, that the effort here seems to be not so much .to ascertain his intention, as to defeat it by the introduction of technical rules.

J. M. Tibbets and Nash & Lentz, for plaintiff in error.

Watson, Burr & Livesay, *contra.*

Certainly, rights vested’in the appointed beneficiaries upon the execution of the policy. But an important, and as we think, a controlling condition -was expressed as to his wife, and implied as to her children, by him, viz.: that they should live until after his death — until the policy should become payable. There being a failure of appointed beneficiaries, it was competent for the assured to bequeath the proceeds of the policy to his surviving children, and they are entitled to it, but subject to administration.

Although there may be cases not in harmony with this conclusion, we are satisfied that it gives effect to the intention with which the insurance -was effected. It is in harmony with the general objects of life insurance, which look to the support and comfort of those, who by nature, are dependent upon the assured. It is fully supported by the case of Kerman v. Howard, administrator, *23*Wis., 108. While the authority of that case has been questioned by writers upon the subject, and numerous cases are cited as being in conflict with it, there is much less foundation for adverse criticism than seems to be supposed. Most of the cases cited as establishing the contrary doctrine, are broadly distinguishable upon one or both of the following grounds, viz.: either the insurance was effected and the premium paid by the payee of the policy; or the beneficiaries named in the policy survived the assured. The Manhattan Company v. Smith, *supra*is distinguishable upon both grounds.

What we regard as the determining consideration in this case is that when Charles C. Helwig died, there survived him no beneficiary named in this policy. Its proceeds were therefore the subject of_ a testamentary bequest by him. If any of the decided cases are opposed to this conclusion, we think, they regard too lightly the manifest intention of the person by whom the insurance was effected.

Judgment reversed.