June Term, 1860.

#### Clark, by his guardian, vs. Durand.

A party who procures an insurance upon his own life, at his own expense, for the benefit of his infant child, as an intended gratuity or voluntary provision for such child, and afterwards becomes unwilling or unable to keep up; the *224policy, by paying the required premiums, may, while the policy still remains in his own possession, transfer the same by delivery, with the assent of the insurance company, to a third person, to be kept up by him for his own benefit, he agreeing to pay the premiums thereon.

In an action by such infant against such assignee, to recover the money paid to the latter by the insurance company upon the death of the party whose life was assured, such assignee having kept up the policy until that time at his own expense, it was *held,*that the infant could not recover, although it appeared that the assignee, at the request of the parent, had signed the declaration made prior to such insurance and on which the same was based, as guardian for the infant, (though never legally appointed as such), and was described in the policy as such guardian, and had signed a receipt as such guardian, for the money paid to him by the insurance company.

APPEAL from tbe Circuit Court for *Hacine*County.

This action was brought in November, 1858. The complaint alleges, that the plaintiff is an infant; that sometime in the year 1851, an insurance upon the life of *Margaret Ann*Clark, the mother of the plaintiff’ was effected in the Mutual Life Insurance Company of New York, for the sum of two thousand dollars, for his use and benefit; that by the procurement of the defendant, the policy of insurance was made out and issued to said defendant, as the guardian of the plaintiff, although said defendant was not, and never had been, such guardian; that while said policy was in full force, on or about the 4th day of August, 1854, the said *Margaret Ann Clark*died; that on or about the 12th day of October, said defendant received from said insurance company, as the guardian of the plaintiff, the said sum of $2,000, upon said policy of insurance, and fraudulently applied the whole of the same to his own use ; wherefore, plaintiff demands judgment, &c. The defendant, by his answer, admits that said *Margaret Ann Clark*effected an insurance on her own life for the sum of two thousand dollars, as stated in the complaint, but avers that the policy was made out in his name, as the guardian of the plaintiff, without his knowledge, and was delivered to said *Margaret Ann,*who was alone the owner thereof. He also avers, that he loaned the said *Margaret Ann*the money to make the first payment on the premium, and the expenses of effecting said insurance. He admits that he has never been the guardian of the plaintiff, and alleges that about the 20th November, 1851, the said *Margaret**225*Ann,*then being the owner and in possession of said policy, informed bim that sbe should no longer continue to pay the premium on said insurance, but should abandon the policy, and proposed to him, that inasmuch as he had paid all the premiums that had been paid on said insurance, if he would release her from repaying the same, and would take said policy as his own, and pay all subsequent payments thereon, she would surrender the same to him, as and for his own property; that he accepted said proposition, and thereupon said insurance policy was transferred and delivered to him by said *Margaret;*that he, in consideration thereof, released said *Margaret*from repaying to him the moneys before then paid by him for her, on account of said policy, and from that time until the death of said *Margaret,*continued to pay from his own funds, the premium on said policy, and treated the same as his own individual property, the whole amount paid by him, amounting in all to $214,20; that said insurance company was informed of said sale and transfer of said policy to him by said *Margaret,*and assented to the same; that he was induced to take said policy for the reason that the said *Margaret*was at that time indebted to him, and to him and one *Hill*as partners, to the amount of over $1,000, for which they had no security; and at the time of taking said policy, or soon thereafter, he agreed with said *Hill,*that he would pay the demand due to *Durand & Hill,*at the death of said *Margaret;*that said indebtedness to the defendant, and to *Durand & Hill,*has never been paid in any other manner, and that no claim therefor has been preferred against said *Margarets*estate. He admits that in October, 1854, after the death of said *Margaret,*he received from said insurance company two thousand dollars on said policy, but avers that he received the same as his own money, and not for the plaintiff, nor as his guardian. He admits that the receipt therefor was signed by him as guardian, but avers that it was thus signed as a matter of form, that it might agree with the terms of the policy as originally issued, making no reference to the transfer thereof which had been made to the defendant, because it was more simple and easy so to transact the business, than it would have been to sen *226out tbe transfer, witb a receipt in bis individual capacity.

On tbe trial of tbe action, tbe plaintiff introduced in evidence, a copy of tbe ajeplication on wbicb said insurance was granted, wbicb was signed, *“Margaret Ann Clark,*for ber son *Henry W.*Clark,” and gave tbe name of *11 Henry Wilson Clatrk,*son of *Joseph G. Clark, Henry 3 Durand,*bis guardian,” as tbe person for whose benefit ber life was proposed to be assured; also a copy of tbe declaration made prior to sucb insurance, wbicb was signed by tbe defendant and read as follows: “I *Henry 3 Durand,*guardian of *Henry W. Clark,*son of *Joseph G. Clark,*of Racine, &c., being desirous of effecting an assurance witb tbe Mutual Life Insurance Co. of New York in tbe sum of two thousand dollars, upon tbe life of *Margaret Ann Clark,*of Racine, &c., during tbe whole continuance thereof, do hereby declare,” &c., &c.; also a copy of tbe policy of insurance, wbicb was as follows: “This policy of insurance witnessetk, that tbe Mutual Life Insurance Company of New York, in consideration of tbe sum of sixteen dollars and forty cents, to them in band paid by *Henry 8. Durand,*guardian of *Henry Wilson Clark,*son of *Joseph G. Clark,*and of tbe quarterly premium of sixteen dollars and forty cents, to be paid on, &c., in every year, during tbe continuance of this policy, do assure tbe life of *Margaret Ann Clark,*of Racine, &c., in tbe amount of two thousand dollars, for tbe term of ber natural life,” &c.; and also a copy of a receipt for tbe amount of said policy, dated October 12th, 1854, wbicb reads as follows: “Received, New York, 12tk October, 1854, from tbe Mutual Life Insurance Company of New York, two thousand and forty-nine dollars and sixty-eight cents, in fall for this policy and profits thereon, now cancelled by tbe death of *Margaret A. Clark.*HENRY S. DurAND, guardian, for *Henry Nielson Clark.”*

Tbe testimony on tbe part of tbe defendant, was in substance as follows: J. B. Talcott testified: “ I was agent for tbe insurance company. *Mrs. Clark*effected tbe insurance, and took tbe policy in tbe name of *H. 8. Durand,*guardian, for *H. W.*Clark; I think tbe policy was delivered to *Mrs.*Clark; tbe policy was presented to *Mrs. Clark,*and I think she got tbe money from *Durand;*I think she paid one and *227a half years’ premiums at *Durand’s*office. After sbe bad kept tbe policy one and a balf years, and perhaps more, sbe said sbe would abandon it. I then saw *Durand*at ber request, and advised bim to keep it up for himself, and be said be would tbink of it; and be afterward told ber be bad concluded be would do so. I told bim be bad better have an assignment ; be thought it not important to do so; I told bim be could keep it up for bis own benefit. Sbe never called after that, or paid any attention to it; but *Durand*always paid tbe premiums after that time.” On cross-examination, be said: *uDurand*was agent for said insurance company before I was, and has been agent for fire insurance companies. Tbe policy remained as it was, in tbe name of *Id. JS.*Durand, guardian, for *H. W.*Clark, tbe company having no knowledge of tbe change. I called at defendant’s office for every premium, except tbe first, and tbe policy was in bis safe; was instructed to get tbe premiums there, and did ; tbink I was not present at tbe conversation between *Durand*and *Mrs. Clark.*I cannot state to whom I delivered tbe policy; saw it every quarter at *Durand’s*office.”

*Durand,*tbe defendant, testified: *“ Mrs. Clark*first spoke to me about tbe insurance of ber life.; I told ber it was not best for ber, because sbe bad no means; the' next I beard about it, Talcott came to me with tbe application; not long after that *Mrs. Clark*came to me for money to pay tbe premium, and I loaned it to ber; I tbink sbe came to me tbe second and third time, and I always let ber have it. Afterwards Talcott came and asked me if *Mrs. Clark*owed me. I said sbe did. He said, why don’t you take tbe policy for your own benefit ? I said, such women never die. A day or two after sbe came to me and said sbe bad abandoned tbe policy, and if it was of any use to me, I might have it. Afterwards Talcott asked me wbat I bad determined upon. I asked Mm if I could have tbe policy for my own benefit, by my paying tbe premiums ? He said I could. I said I would see. I then bad never seen tbe policy; sbe bad always kept it. I did take tbe policy from *Mrs. Clark,*and paid tbe premiums, and kept it up till ber death. Sbe owed me between $300 and $400, and afterwards I loaned ber $100 more. *228She owed *Durand & Hill*between $600 and $700. *Hill-was*uneasy as to the account, and I arranged with him that I would take the policy, and pay *the Durand & Hill*account at her death. After I assumed the policy, I never charged any premiums paid by myself; but the first premium paid by Bowley (our clerk) was charged to *Mrs. Clark*on *Durand & Hill's*books. I told Mm I was to pay all. Nothing was realized out of *Mrs. Clarlc's*estate, until 1856 or 1857. She had no property of any amount, except what was in controversy. I was the administrator of her estate; have rendered my account as such; it is not settled. I never presented my account above, or *Durand & Hill’s*account against the estate, or made any claim of it. After paying all indebtedness, there is $4,000 or $5,000 left for the estate; there are no heirs except *Henry W. Clark. Durand*& *Hill*had a due bill against *Mrs. Clark*for about $100. I have not settled with *D.*& *H,*but have taken up that due bill. I considered my account paid, at the death of *Mrs.*Clark, by the insurance money.”

*J. M. Hill*testified: *“*The firm, of *Durand*& *Hill,*had an account against *Mrs. Clark*in 1851 and 1852, between $500 and $600 ; *Durand*said he had a life insurance, and when *Mrs. Clark*died he would pay the account; this was in 1852. Some of the premiums were entered on our books, charged to *Mrs. Clark ;*I can’t tell the footing of her account to-day. I did not know when the note was paid, and did not know that it was paid until to-day. I considered the account settled at the time of *Mrs. Clark's*death; do not know of any particular transactions whereby tMs account was paid to *Du-rand fy-Hill."*

J. B. Rowley testified: “I entered into the employment of *Durand*& *Hill*about six years ago, and had charge of the books; two or three months after I went there, Talcott came in for the premium. I objected to paying; I had *Durand's*business to transact; but finally paid the premium. Some two months afterwards I called *Mrs. Clark's*atttention to her account. I read the items, and among the rest, the money paid for the premium. She said that was not right; she had got out the policy, but it was costing her so much she had *229given it iip, and told defendant be could bave it and make wbat be could out of it, and that be bad taken it, and was to pay tbe premiums. Sbe said, I bave not any money now to pay, don’t know as I can ever pay; in case I die, it is to go to pay tbe account, and tbe balance goes to *Durand.*Some of tbe premiums were charged in tbe account; I paid tbe premiums, and sucb as were paid from *Durand*& *Mill's*funds, were charged in tbe account of *Durand*& *Mill;*tbe account was a continuation of *Mrs: Clark's;*could not tell tbe amount of it. I bad charge of *Durand’s*books. I am not certain that there was any account upon them until after her death, and that was against tbe estate; don’t recollect seeing any account or vouchers against *Mrs. Ciarle*for *Durand*alone.”

Tbe plaintiff thereupon introduced as a witness, tbe county judge of Kacine county, who testified: That tbe petition for tbe appointment of an administrator of tbe estate of *Margaret Ann*Ciarle, was made by *Menry 8.*Durand, and sworn to by him on tbe 8tk day of August, 1854; that tbe petition stated that tbe petitioner bad for many years acted as tbe friend, agent and guardian of said *Margaret,*and was at that time tbe principal creditor of tbe estate; that tbe petition for tbe sale of real estate, filed by tbe attorney of said *Durand,*on tbe 5th of May, 1856', stated that said • *Durand*bad an unsettled account against said estate, which would bave to be settled by tbe court; and1 that by tbe final account rendered by said *Durand,*fts administrator, there appeared to be in bis bands, as sucb, over four thousand dollars, which bad been invested by him in bank stock, and in notes and mortgages.

Tbe circuit court instructed tbe jury substantially as follows: Tbe plaintiff claims to recover for a policy of insurance, taken out by *Mrs. Clark,*for bis benefit, and claims that be is entitled to recover tbe whole amount finally realized upon tbe policy, without any regard to tbe payment of tbe premiums, or who paid them. In answer to this, tbe defendant insists that tbe policy was in tbe first place, taken out at bis expense, and that tbe entire expense of tbe policy was paid by him. If those who alone *230were interested in tbe policy, voluntarily abandoned it, and consented that the defendant might take the policy, and keep it up, and have the benefit of the same, the claim of the party thus abandoning the policy is at an end. If the party whose duty it was to make the payment and keep up the policy, surrendered it to the defendant, consenting to a delivery of the same to the defendant, for his benefit, but has failed to make the proper transfer, to enable the party who has the equitable right to the avails of the policy, to collect the same, a court of equity would afford the relief necessary to do equity. (To which the plaintiff, by his counsel, excepted, as irrelevant, and calculated to mislead the jury.) And in this case, if the jury believe from the evidence, that the policy was procured by the mother of the plaintiff, at her own expense, and of her own volition, and she for a time caused the premiums to be paid, and finally-changed her mind, and concluded to, and did abandon the policy, and did surrender the policy to the defendant, to be kept up by him or allowed to forfeit, as he pleased, and if you find that the defendant did, at the request of the mother, *Mrs. Olark,*abandon all claims he then had against her, either for money advanced to procure said policy, or to keep the same up, or for any other purpose, and did take upon himself the risk of paying the premiums and keeping the policy alive, until the life of the insured was extinguished, he is equitably entitled to the avails of such policy. And whether his claim was in law sufficient to enable him to recover his equitable rights, as against the insurance company, is a question between the defendant and the insurance company. And if the company paid the money to the defendant, he may lawfully hold the same, until the plaintiff satisfies you that he, or some one for him, has so far fulfilled, or complied with the rules and regulations of the insurance company, as to secure the benefits to arise therefrom to the plaintiff., (To all of which the plaintiff’s counsel excepted as irrelevant, immaterial and illegal.) Notwithstanding the zeal'manifested in insisting that a written assignment is necessary, and that in this case there was no legal party to assign, I must instruct you that a written assignment of a policy of insurance is not absolutely *231necessary, to pass the benefits thereof to a creditor, but that this may be done by a delivery and deposit of tbe policy for tbe purpose of an assignment [which] will operate as an assignment, without a formal written assignment, and this, too, when the insured is to continue to pay and keep up the premiums. (To which the plaintiff’s counsel excepted, as irrelevant, immaterial and illegal) Any transaction which gives to a creditor of the insured a right to payment out of the insurance, will be a sufficient assignment, unless the bylaws, rules and regulations of the insurance company require something more.” The plaintiff’s counsel requested the corn! to charge, “ That *Henry W. Olarh*was the real owner of the policy of insurance, and that *Margaret Ann Olarh*could not make any valid assignment of it,!’ which instruction the court refused to give, and the plaintiff’s counsel excepted to the refusal.

Yerdict and judgment for the defendant.

*Strong &*Fuller, for appellant:

1. There was no contract for an assignment sufficiently definite for a court to recognize.

2. If there ever was any such contract, it is an entirely different one from that set up in the answer.

3. If there was such a contract, it was never executed. There was no written assignment; no notice to the company of any assignment; no change of possession of the policy. The premiums, in each instance, were paid in the same manner, at the same place, and charged in the same account. There was no release of *Durand’s*account, and1 therefore, no consideration for the assignment.

4. *Mrs. Olarh*had not the legal power to assign the policy.

5. The defendant, acting as guardian, could not purchase the property of his ward.

*dairy*Pratt, for respondent:

The verdict of the jury in this action, has determined that the insurance was effected by *Mrs. Olarh*on her own life; that she took and controlled the policy; that after making several payments, she refused to pay any more, and abandoned it; that she then requested the defendant to take it, *232and keep it up for bis own benefit; tbat defendant did take and assume it as Ms own, witb tbe knowledge of tbe insurance company, and from tbat time paid all premiums astbey fell due; and tbat in consideration of so taking said insurance, be assumed tbe payment of tbe account of *Durand*& *Hill,*due from ber, and tbat neither tbat account, nor tbe account of tbe defendant, was presented against tbe estate of *Mrs. Ciarle;*so tbat tbe only legal question to be bere determined is, as to ber right and power so to control and transfer tbe policy. Tbe party procuring such a policy of insurance, may sell or dispose of it, or abandon it at pleasure. Angelí on Eire and Life Ins., § 332, p. 411; *Godsal vs. Webb,*2 Keen Cb. R, 99.

No formal assignment was necessary to pass tbe benefit of tbe policy. A mere deposit as security was sufficient. An-gelí on Eire and Life Ins. § 327, p. 405; Phillips on Ins., § 80, p. 60; 11 Mees. andWelby, 10; *Wells vs. Archer,*10 Serg. & R, 412.

July 10.

*By the Court,*

Dixorr, C. J.

TMs action was commenced, and if maintainable at all, can only be maintained upon tbe theory, tbat tbe plaintiff, as tbe *cestui que trust,*or party beneficially interested, acquired, during tbe lifetime of *Mrs. Ciarle,*an actual equitable interest in the policy, and tbe moneys thereby secured and agreed to be paid on ber death. She effected tbe insurance on ber own life. Tbe policy sprang from an agreement, to which she and tbe insurance company were tbe real parties; and although tbe defendant, as tbe guardian of tbe plaintiff, was nominally tbe assured, yet during ber life, and until she transferred it, she was tbe only person having any direct pecuniary interest in it. She received, and until tbe transfer and delivery to tbe defendant, beld it in ber possession, and witb ber own funds, or those procured by ber from tbe defendant, paid tbe quarterly premiums, as they became due upon it. Tbe true criterion by which to determine whether the plaintiff bad any interest in tbe moneys received upon tbe pohey, would seem to be, whether, during ber bfe, be bad such an interest in it as would have enabled him to compel *Mrs. Ciarle,*or tbe *233defendant as nominal trustee, to keep up tbe premiums, upon tbe prompt payment of wbicb its validity and value depended, or as would bave enabled bim to restrain or prevent ber and tbe defendant from entering into and consummating tbe bargain wbicb tbey did in relation to it. It is very evident tbat be was no party to tbe policy, or tbe agreement by wbicb it was procured. Tbe .only parties, real and nominal, were tbe defendant, *Mrs. Olark*and tbe company. He furnished no part of tbe consideration upon wbicb tbe policy was issued. If it was ber intention, at tbe time sbe procured it, as it undoubtedly was, to bave tbe money due upon it at ber decease, paid over to bim, or applied to bis benefit, yet sbe was under no obligation, legal or equitable, to obtain it, or to keep it up after it was obtained. Neither sbe nor tbe defendant bad made any contract or agreement with bim, upon a valuable consideration or otherwise, to procure or to keep up such insurance. So far as he was concerned, it was a mere proposed gratuity or gift, a voluntary thing, wbicb tbey were in no way bound to do, and wbicb tbey might do or cease to do, as best suited their convenience or pleasure. He was a mere volunteer, not having any present beneficial interest, but who, it was intended at one time, should, on tbe happening of many contingencies, be so interested on some future occasion. He bad no vested right in tbe pobcy or tbe moneys secured by it, and could bave none until after tbe death of *Mrs. Olarlc,*be surviving ber; and then only in tbe event of tbe contract, and tbe intention of tbe parties,. remaining tbe same, and of ber, or some other person in bis behalf, having kept up tbe premiums. If it was a trust in bis behalf, or by wbicb it was intended tbat be should be benefited, it was executory and not executed; and it is well settled tbat courts will not interfere to enforce an executory trust at tbe instance of a volunteer. It seems quite clear, therefore, tbat during tbe lifetime of *Mrs. Olarlc*tbe plaintiff could neither bave compelled tbe payment of tbe premiums, nor bave prevented ber from passing tbe policy over absolutely to tbe defendant. Considering the policy, as it was in fact, an executory contract between tbe company and *Mrs. Olarlc,*and tbe defendant consenting to *234act as trustee, no reason can be perceived why it was not, like every other executory agreement, subject to such disposition, changes and modifications, as the several parties to it might see fit or consent to make, and *-why Mrs. Clark,*haying changed her mind in regard to bestowing upon the plaintiff the benefits expected from it, or feeling herself unable to meet the premiums, might not, with the assent of the company, transfer it to the defendant, to be held by him for his sole use and benefit, he agreeing to pay the premiums. This the jury has found she did do, and as evidence of the assent of the company, it not only appears that they, for a long period of time, received from him the premiums, but also, on her death, actually paid over to him the money thereby secured.

The record discloses no errors for which, in our opinion, the judgment of the circuit court ought to be reversed, and it is therefore affirmed, with costs.